UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76–4627
FRANK SWIDZINSKI COMPANY,
Respondent.

January 23, 1981

DECISION

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

BY THE COMMISSION:

A decision of Administrative Law Judge David H. Harris is before the Commission for review under section 12(j)[1] of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). In that decision, Judge Harris concluded, among other things, that Respondent, Frank Swidzinski Company (‘Swidzinski’), violated the Act by failing to comply with the guardrail standard at 29 C.F.R. § 1926.500(d)(1).[2] The judge found the violation to be serious under section 17(k) of the Act, 29 U.S.C. § 666(j). For the serious violation, the Secretary proposed a penalty of $650, and the judge assessed a penalty of $250. In its petition for discretionary review, Swidzinski raised the following issue:

Whether the Administrative Law Judge erred in finding Respondent in violation of 29 C.F.R. § 1926.500(d)(1)?

Commissioner Barnako granted Swidzinski’s petition. We affirm the judge’s decision.

The facts pertaining to the alleged serious violation of the guardrail standard at 29 C.F.R. § 1926.500(d)(1) are not in dispute. The Siegfried Company, the prime contractor, built wooden platforms extending out from the three upper levels of a five story building under construction. The purpose of the platforms was to facilitate the delivery of building materials by all building trades, including Swidzinski, a subcontractor. The platforms were constructed of wooden planks eight feet long; they projected outward six feet. Each platform was provided originally with standard railings and toeboards on the extended sides. While a compliance officer of the Occupational Safety and Health Administration was conducting a post-inspection closing conference on Swidzinski’s worksite, he observed one of Swidzinski’s employees on the extended platform for the fourth floor. The employee, Robert Smith, was directing the crane operator, 41 feet below, in the delivery of pallets of concrete blocks. Smith stood inches from the front end of the platform while directing the crane operator. There was no guardrail across the front end of the platform, and Smith was not wearing a safety belt. After the two pallets of blocks were lowered onto the platform by the crane, Smith would unhook the load from the crane, remove the pallets with a forklift and move the load into the building floor area. According to the compliance officer’s testimony, Smith was exposed to a falling hazard from the time he signaled the crane operator until the load of blocks was set down between him and the edge of the extended platform. The compliance officer testified that Smith was exposed to the falling hazard for about 20 to 30 minutes. The compliance officer further testified that he brought this hazardous condition to the attention of Swidzinski’s foreman. The foreman immediately ordered Smith away from the unguarded edge and ordered him to wear a safety belt tied off with a lifeline. Smith then tied off.

Judge Harris found a serious violation and affirmed the citation for a violation of 29 C.F.R. § 1926.500(d)(1). He found, however, that after the employee used the forklift to remove the load from the edge of the platform, he ‘remained on the end of the extension, inches from the unprotected end of the platform.’

Judge Harris also rejected Swidzinski’s defense that it would be impossible to deliver the concrete blocks without removing the railings. The judge relied upon the compliance officer’s testimony (borne out by a photograph) that there was no need to remove the guardrails from the platform because loads could be, and were, lowered vertically through the fifth floor platform after the removal of the floor planks in the fifth floor platform.

On review, Swidzinski first challenges the judge’s factual finding that Smith ‘remained on the end of the extension, inches from the unprotected end of the platform.’ Swidzinski maintains that the employee, Smith, was only at the edge of the platform while he directed the crane operator. Swidzinski further argues that Smith’s presence on the edge of the platform to direct the crane operator was unnecessary, not within the scope of his job, and caused by Smith’s carelessness.

Swidzinski also contends that it was impossible to load the pallets over the guardrails because the pallets were too large to fit between the opening created by the railing and the floor above. Swidzinski also appears to argue that once the pallets were lowered onto the platform, it was in compliance with 29 C.F.R. § 1926.500(d)(1) because the pallets then served as the ‘equivalent’ of a guardrail within the meaning of the standard.

The Secretary states in his letter on review that a violation was established because Smith was uncontrovertibly exposed to a fall while he stood at the edge of the platform directing the crane operator, regardless of whether the judge erred in finding that Smith was exposed after the blocks were unhooked from the crane. The Secretary claims that Swidzinski failed to meet the elements of an ‘isolated’ or ‘unpreventable’ occurrence defense. He also contends that Swidzinski’s claim that it was impossible to deliver the blocks without removing the guardrail is unfounded because the blocks could have been delivered by lowering the pallets to the fourth floor after removing the floor planks of the extended platform on the fifth floor.

III

Swidzinski argues that the judge erred in finding that Smith was exposed to the fall hazard even after the pallets had been delivered to the platform. Nevertheless, it is still clear that Smith was exposed to the 41 foot fall hazard each time he went to the edge of the unguarded platform to signal to the crane operator, and that a violation has been established based on that evidence alone. However, the brevity of Smith’s exposure is relevant for the purpose of penalty assessment though it does not negate the finding of a violation. See Stahr & Gregory Roofing Co., 79 OSAHRC 2/B12, 7 BNA OSHC 1010, 1979 CCH OSHD ¶23,261 (No. 76–88, 1979).

We interpret Swidzinski’s second argument—that Smith’s presence on the edge of the platform was unnecessary, not within the scope of his job, and caused by Smith’s carelessness—as raising the defense of unpreventable employee misconduct. In H.B. Zachry, Co., 80 OSAHRC 9/D8, 7 BNA OSHC 2202, 1980 CCH OSHD ¶ 24,196 (No. 76–1393, 1980), appeal filed, No. 80–1357 (5th Cir. March 28, 1980), and cases cited therein, we set out the elements of the affirmative defense of unpreventable employee misconduct. To establish such a defense, an employer must show that the employee’s action constituting noncompliance with a standard was a departure from a workrule that the employer had uniformly and effectively communicated and enforced. Swidzinski has failed to establish the first element of this defense—the existence of a workrule governing the cited condition. There is no evidence in the record of a workrule forbidding employees from going out to the unguarded edge of the platform. Accordingly, the defense is not established.

We also conclude that Swidzinski has failed to establish the defense of impossibility. To establish that defense, the employer must prove that (1) compliance with the requirements of the cited standard either would be functionally impossible or would preclude performance of required work, and (2) alternative means of employee protection are unavailable. M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD ¶ 23, 330 (No. 15094, 1979), and cases cited therein. Swidzinski argues that it was necessary to remove the guardrails on the extended platform because there was no other way to facilitate the delivery of masonry blocks. The compliance officer testified, however, that he observed an alternative method of delivery where the blocks were lowered to the fourth floor after removal of the floor planks on the fifth floor extended platform. Judge Harris relied upon the compliance officer’s testimony and found that there was no need to remove the protective rails from the front of the fourth floor extended platform. Swidzinski has offered no convincing reason why Judge Harris’ finding concerning the first element of the impossibility defense is erroneous. Moreover, inasmuch as Smith could have, but had not, tied off, the second element of the defense also is not established.

We also find that the violation was serious within the meaning of section 17(k) of the Act, 29 U.S.C. § 666(j).[3] The Commission has held that in order to prove a serious violation it need not be likely that an incident occur. It is only necessary to prove that if such an incident occurs, the probable result will be serious injury or death. See, e.g., Andy Anderson, 78 OSAHRC 34/A2, 6 BNA OSHC 1595 (No. 76–4082, 1978). The evidence in this case establishes that a fall from the 41 foot high extended platform is likely to cause death or serious harm. Swidzinski also could have known of the violation had it exercised reasonable diligence. An employer has an obligation to inspect the work area, to anticipate hazards to which employees may be exposed, and to take measures to prevent the occurrence. Automatic Sprinkler Corp. of America, —— OSAHRC ——, 8 BNA OSHC 1385, 1980 CCH OSHD ¶ 24,495 (No. 76–5089, 1980). Swidzinski knew that the guardrails would be removed, that Smith would be on the platform to handle the pallets, and should have anticipated that Smith would have gone to the unguarded edge to direct the crane operator in the loading of the pallets.

Accordingly, the decision of the Administrative Law Judge is affirmed.

SO ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.,

EXECUTIVE SECRETARY

DATED: JAN 23 1981

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76–4627
FRANK SWIDZINSKI COMPANY,

November 7, 1977

DECISION

APPEARANCES:

David E. Street, Esq. Marshall H. Harris, Regional Solicitor United States Department of Labor

3535 Market Street

Philadelphia, Pennsylvania 19104

Attorneys for Complainant

Leonard E. Price, Esq.

1821 Grant Building

Pittsburgh, Pennsylvania 15219

Attorney for Respondent

Harris, Judge OSHRC

Frank Swidzinski Co. (respondent) is a relatively small Pennsylvania corporation engaged in the business of masonry contractor.[4] On September 24, 1976 respondent was performing masonry work as a subcontractor on a 5 story building under construction in Oil City, Pennsylvania for the prime contractor, the Siegfried Company (Siegfried), a Buffalo, New York concern.

Siegfried had erected extended platforms on the three upper levels for the purpose of facilitating the delivery of building materials to each level by all building trades involved. These platforms were constructed of planks, were 51 inches wide and projected outward 9 feet 4 inches. Each of these platforms was provided with standard railings and toe boards on the two extended sides (Tr. 21; 42).

While conducting a closing conference attended by employee representatives, including respondent’s foreman, complainant’s compliance officer (CO) observed that the floor planking of the platform on the 5th level had been removed and a load consisting of 2 pallets of cement blocks was being lowered to the 4th level. One, Robert Smith, admittedly, an employee of respondent, stood inches from the open end of the platform at the 4th level giving directions to the crane operator. There was no rail across the open end of the platform which was 41 feet above ground level and Smith did not wear a safety belt nor was he tied off. When the pallets had been lowered to the platform, the man unhooked the load after which a forklift removed the load to the interior of the building while he remained on the extension, inches from the unprotected end of the platform (Tr. 21 23).[5]

The CO complained of this condition to the respondent’s foreman and the man on the platform was secured with a line tied off to a column in the building (Tr. 39).

An amended citation was issued to the respondent on October 7, 1976 alleging a violation of the standard at 29 CFR 1926.500(d)(1) in that:

(a) The unguarded north end of six feet by eight feet extended platform, on the north side of Building fourth floor, level.[6]

That standard provides:

(1) Every opensided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery or there is equipment with which falling materials could create a hazard.

Complaint has proposed a penalty of $650. Respondent filed a timely Notice of Contest and the issues raised thereby have come on for hearing pursuant to Sections 659(a) and (c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (the Act).

Complainant seeks to amend the citation to allege that:

Open sided platforms, more that 6 feet above the sub-adjacent floor or ground level, were not guarded by a standard railing or the equivalent on all open sides. In the alternative the employer failed to insure that an employee or employees working on one or more of the above platforms was/were protected by safety belts, used in conjunction with lifelines and/or lanyards, from the hazard of falling. Further, in the alternative, the employer failed to protect its employees working on one or more of said platforms by installing safety nets.

and to also charge a violation of the standards at 29 CFR 1926.28(a) and 1926.105(a), in the alternative.

29 CFR 1926.28(a) provides:

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards.

29 CFR 1926.105(a) provides:

(a) Safety nets shall be provided when work-places are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.

Respondent resists this application. I have determined to and do hereby grant complainant’s motion to amend. The application has been pending since January 1977 and in view of that fact it seems to me that the respondent has had ample notice thereof and will not be prejudiced in his defense. See, Secretary of Labor v. Marguette Cement Manufacturing Company, et al, (2 Cir.) August 29, 1977, Docket No. 76 4083.

Respondent’s president, who was not present on the job at the time of the inspection, testified that the open end of each platform (the north side) was equipped with 2 rails which were removable to allow loads of material to be swung in and that such rails were replaced after the load had been deposited on the platform (Tr. 54A 55). He stated that safety belts were not supplied to any of respondent’s employees on this job (Tr. 76). He maintained that it was impossible to load 2 pallets of building blocks on these platforms without removing the protective rails on the open or north end of the platform (Tr. 76 78).

The CO testified that the load in question was actually lowered to the 4th level after the floor planking on the 5th level had been removed to allow a vertical descent of the load and there was no need to remove the rails on the open end of the platform. That this is so is borne out by the photograph taken by the CO immediately following the happening and just after the rail had been placed across the north end of the 4th level platform (Exhibit C 1A).

I find therefore that there was no need to remove the protective rails across the north end of the 4th level platform to permit loading the pallets of block thereon and that respondent was in violation of the standard at 29 CFR 19.26.500(d)(1) as alleged in the amended citation.

In view of the foregoing there is no need to determine the allegations lodged in the alternative.

Complainant’s motion to strike respondent’s ‘post-trial’ affidavit is denied.

I also find that the Occupational Safety and Health Review Commission has jurisdiction over the subject matter and of the parties herein.

Having duly considered the size, good faith and previous history of the respondent and under the circumstances of this case, I find that a civil penalty of $250 is reasonable.

Good cause therefore appearing, it is

ORDERED that the citation herein, as amended, insofar as it charges a violation by the respondent of the standard at 29 CFR 1926.500(d)(1) be and the same is hereby affirmed and that said respondent be and it is hereby assessed and required to pay a civil penalty in the sum of $250 as and for the said violation.

DAVID H. HARRIS

Judge, OSHRC

Dated: November 7, 1977

[2] 29 C.F.R. § 1926.500(d)(1) provides:

Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

[3] That section provides:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not, with the exercise of reasonable diligence, know of the presence of the violation.

[4] It employs about 15 persons on an average and in 1975 its total sales were under $350,000.

[5] The CO testified that the rail across the open end of the 4th floor platform was placed there before he took the photograph Exhibit C 1A.

[6] The original citation issued on October 5, 1976 did not specify the fourth floor level.