UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 14516
TRUAX & HOVEY DRYWALL CORP.,
Respondent.

June 6, 1978

DECISION

Before CLEARY, Chairman: BARNAKO, Commissioner.

BARNAKO, Commissioner:

The Secretary of Labor cited Respondent (Truax) for allegedly violating three OSHA construction safety standards dealing with scaffolds. The citation alleged as one item violations of 29 C.F.R. 1926.451(a)(13) (improper access), 1926.451(a)(14) (planks extending too far over end supports), and 1926.451(d)(10) (inadequate perimeter protection).[1] Administrative Law Judge Seymour Fier found that Truax violated the standards as alleged, and assessed a penalty of $1000. We reduce the penalty to $650, but otherwise affirm his decision.

Truax was a subcontractor on a construction site, responsible for the installation of drywall. This case arose following the accidental electrocution of one of Truax’s employees.[2] At the time of the accident, the employee was installing drywall from a tubular welded frame scaffold. The platform of the scaffold on which the employees were working[3] was thirteen feet high and was located on a mezzanine approximately seven feet above the building’s first floor.

The scaffold stood in a corner of the mezzanine. The south side abutted a concrete block wall, and the east side was several inches from the wall on which the employees were erecting drywall. The framework of the scaffolding served as guardrails for the east and west sides. At the time of the accident, however, there was no guardrail on the north side, which was adjacent to the edge of the mezzanine. When the scaffold was erected, it had been equipped with a guardrail on the north side, but the employees working on the scaffold had removed this guardrail in order to ‘lean out the side’ while installing the drywall. The scaffold was not equipped with any toeboards.

There was no stairway leading from the floor to the mezzanine; the employees reached the mezzanine by climbing a stepladder. They then obtained access to the platform by climbing the framework of the scaffolding.

On the day following the accident an OSHA compliance officer measured the planks on the scaffold and found that they extended over their end supports by 14 to 24 inches. One of the employees who had been working on the scaffold, William Truax, Jr., testified that the planks were approximately 1 ½ to 2 feet longer than the scaffold supports, and that the configuration of the scaffold planks when the compliance officer measured them was approximately the same as when the scaffolding was being used the day before. There was also testimony by Truax employees and by a witness who helped give emergency assistance after the accident that the planks were rearranged to facilitate removal of the electrocuted worker.

Judge Fier found that Truax violated all three of the cited scaffolding standards. Truax takes exception to his findings. It contends that it did provide an access ladder to the scaffold platform because the employees, after ascending the step ladder to the mezzanine, could then pull the stepladder up to that level and use it to climb to the platform. As to the planks, Truax challenges the relevance of the measurements made by the compliance officer because at least some of the planks had been moved between the time the scaffold was used and the time the measurements were made. Truax also contends that, for a variety of reasons, the testimony of Truax, Jr. concerning the planks is unreliable and should be discounted. Regarding the guardrails and toeboards, Truax concedes it failed to comply with the standard but argues that, because of the short time the scaffold was in use, and particularly because the scaffold was used for only a few minutes without a guardrail on the side adjacent to the edge of the mezzanine, the violations were ‘so relatively insignificant that they could be classified as excusable.’

We reject these arguments. It is true, as Truax points out, that 1926.451(a)(13) requires only that a ladder be provided. That standard, however, must be read in conjunction with 1926.450(a)(1), which states that ‘ladders described in this shall be used to give safe access to all elevations.’ (emphasis added). Thus, a requirement that ladders be used is implicit in1926.451(a)(13).[4] Ray Boyd Plaster & Tile, Inc., No. 76-814 ($03R 1978). Since the employees did not use a ladder, and climbing the framework of the scaffold was not equivalent safe access,[5] we conclude that Truax violated 1926.451(a)(13).

With respect to the question of how far the scaffold planks extended over the framework, the compliance officer’s measurements alone are not conclusive because some of the planks were moved between the time the scaffold was used and the time the measurements were made. Truax, Jr., however, testified that the planks were in approximately the same position when the compliance officer conducted the inspection as when the scaffold was in use, the Judge specifically credited his testimony, and Truax offers no persuasive reason why we should, in this case, depart from our general policy of accepting a trial judge’s credibility determination. See, e.g. CTM, Inc., 77 OSAHRC 136/C12, 5 BNA OSHC 1578, 1977-78 CCH OSHD para. 21,957 (No. 13008, 1976). Moreover, we note that the Judge’s finding is supported by photographs taken during the inspection which show that two planks running east-west had a considerable overhang on the east side and could not have been in a significantly different position when the scaffold was in use because they almost abutted the wall on the west side of the scaffold. Considering all the evidence of record, we conclude that Truax violated 1926.451(a)(14).

Regarding the alleged lack of adequate perimeter protection, it is undisputed that for at least a short period of time, the scaffold was not equipped with any guardrail on the north side, and the scaffold was not equipped with toeboards during its entire period of use. Accordingly, the scaffold did not comply with the standard, and Truax does not argue otherwise.[6] Instead, Truax asserts that the violation should be excused because of its minor nature.

The Commission has found some violations of standards to be so trifling that a penalty should not be assessed and abatement not be required. See, e.g. National Rolling Mills, Inc., 76 OSAHRC 121/D7, 4 BNA OSHC 1719, 1976-77 CCH OSHD para. 21,114 (No. 7987, 1976); Rust Engineering Co., supra n. 4. In such a case, the violation is said to be de minimis. In this case, however, we do not regard the hazard resulting from the lack of guardrails and toeboards on the scaffold as trifling. It was possible for an employee to fall 20 feet to a concrete floor as a result of the complete absence of perimeter guarding on the north side of the scaffold. Furthermore, even though that side was completely unguarded for only a short time, at least one employee leaned over the unguarded side and could well have fallen. The lack of toeboards existed during the entire time the scaffold was in use and exposed the employees to the possibility of being struck by falling material while climbing the framework of the scaffold. Accordingly, we reject Truax’s argument that the violation was insignificant or should be excused because of its brevity.

We also conclude that the violation is properly classified as serious. Again, in arguing to the contrary, Truax stresses the relatively brief duration of the guardrail violation. It is, however, well-settled that a violation is serious if the result of an accident would likely be death or serious harm, and that the probability an accident will occur is irrelevant.[7] Here, any of the three violations could have led to an employee falling up to 20 feet to a concrete floor. Such a fall would probably have caused death or serious harm, and the violation is therefore serious regardless of the duration of the violative conditions. See Texaco, Inc., 77 OSAHRC 182/D8, 5 BNA OSHC 1962, 1977-78 CCH OSHD para. 22,246 (No. 13137, 1977).

Truax also contends that the Secretary acted unconstitutionally by selectively and arbitrarily inspecting its worksite while failing to cite other contractors and subcontractors who had employees on the same job. This contention is based on the fact that the Secretary chose to investigate the circumstances of the fatal accident rather than conduct a general inspection of the entire worksite. We need only note that such a choice is well within the Secretary’s enforcement discretion, and we therefore reject Truax’s argument that it was improper. See Fleming Foods of Nebraska, Inc., 77 OSAHRC 196/C12, 6 BNA OSHC 1233, 1977-78 CCH OSHD para. $03R (No. 14484, 1977). Similarly, we conclude that the Judge did not err in refusing to reopen the record to pursue the question of whether the Secretary had cited similar scaffolding violations as nonserious in the past. Fleming Foods of Nebraska, supra.

We agree with Truax’s argument, however, that the Judge improperly based his penalty assessment in part on the fact that a fatality had occurred. The accident resulted from causes unconnected with the violations here at issue. See note, 2, supra. Having considered the gravity of the violations together with Truax’s size, good faith, and absence of any prior history of violations, we conclude that a penalty of $650 is appropriate.

Accordingly, the Judge’s decision is modified to assess a penalty of $650 and as so modified is affirmed.

FOR THE COMMISSION:

Ray H. Darling, Jr.

Executive Secretary

BY: Gloria W. White

Acting Executive Secretary

DATED: JUN 6, 1978

Commissioner COTTINE took no part in the consideration or decision of this case for the reasons set forth in his separate opinion.

SEPARATE OPINION

As a new member of the Commission, I must resolve the issue of my participation in pending cases. It is also necessary for me to set out the principles guiding my decision on this important issue.

In this case, Chairman Cleary and Commissioner Barnako reached a unanimous decision on the merits before I received my commission on May 1, 1978. A decision was already in preparation when I assumed office. I have concluded that the wisest exercise of discretion is to decline to participate in this case even though a new Commission member has authority to participate in pending cases. It should be emphasized that by declining to participate I express no opinion on the procedural or substantive issues in this case or on the appropriateness of the accompanying order.

Discretion of Commission Members

As a matter of law, it is not necessary for all Commission members to participate for an agency to take official action. In Drath v. FTC, 239 F.2d 452 (D.C. Cir. 1956), cert. denied 353 U.S. 917 (1957), the Federal Trade Commission issued a cease-and-desist order with only three of its five members participating. The Court of Appeals rejected petitioner’s contention that the FTC can act in its adjudicatory capacity only when all members participate, except when there is a vacancy. The court ruled that official action can be taken by the majority of the requisite quorum. Also Frisher & Co. v. Bakelite Corp., 39 F.2d 247 (C.C.P.A. 1930) cited approvingly in FTC v. Flotill Prod. Inc., 389 U.S. 179, 182-183 (1967). Similarly, section 12(f) of the Occupational Safety and Health Act, 29 U.S.C. § 661(e), provides:

For the purposes of carrying out its functions under this chapter, two members of the Commission shall constitute a quorum and official action can be taken only on the affirmative vote of at least two members.

Thus, the unanimous decision already reached in this case satisfies the quorum and official action requirements of the Act and my participation is not necessary for the Commission to carry out its adjudicatory functions in this particular case.

However, it is also settled that a new member of an administrative agency may participate in pending cases. For example, a new member of the Civil Aeronautics Board who had not participated in previous proceedings was entitled to vote and break an existing tie where he had familiarized himself with the record. Western Airlines v. CAB, 351 F.2d 778 (D.C. Cir. 1965), citing United Air Lines v. CAB, 281 F.2d 53 (D.C. Cir. 1960)[8]. In United the court indicated that, where a member voting with the majority without hearing oral argument ‘had the record before him and the benefit of briefs’, there was no abuse of discretion in his participation, 281 F.2d at 56. There are numerous other cases supporting this holding. The clearest statement of law is set forth in Gearhart & Otis, Inc. v. SEC, 348 F.2d 798 (D.C. Cir. 1965):

The decisions of numerous courts and administrative agencies establish that, even without agreement of the parties, a member of an administrative agency who did not hear oral argument may nevertheless participate in the decision where he has the benefit of the record before him. [footnotes omitted]

348 F.2d at 802.[9] See Au Yi Lau v. U.S. Immigration and Naturalization Service, 555 F.2d 1036, 1042 (D.C. Cir. 1977); Arthur Lipper Corp. v. SEC, 547 F.2d 171, 182 & n.8 (2d Cir. 1976). Thus, a new member possesses the necessary authority to participate in all cases pending before the Commission on assuming office.

Though a new member may participate in all pending cases, particularly those involving an impasse, the decision remains a matter of discretion since adjudicatory decision may be upheld on a majority of a quorum. In FTC v. Flotill prod., 389 U.S. 179 (1967) rev’g 358 F.2d 224 (9th Cir. 1966), an FTC member appointed to fill one of two vacancies, declined to participate because he had not heard the oral argument. Thus, three of the possible four Commissioners actually participated in the decision. As a result, the FTC issued a cease-and-desist order based on the affirmative vote of only two members. Despite its obvious impact on the number of members constituting a majority, the Court did not review the exercise of discretion by the new member. Instead, the Court accepted the abstention at face value and upheld the action of the two members of the FTC. See also La Preyre v. FTC, 366 F.2d 117 (5th Cir. 1966); Atlantic Refining Co. v. FTC, 344 F.2d 599 (6th Cir. 1965). In addition, administrative decisions involving two or more abstentions have been upheld by reviewing courts without question or comment on the grounds for these abstentions. All that was necessary to sustain the agency decision was a majority of the required quorum. E.G., Greater Boston Television Corp. v. FCC, 444 F.2d 841, 848, 861 (D.C. Cir. 1970), cert. denied 403 U.S. 923 (1971).

Decision Not to Participate

I decline to participate in this case because a majority of the Commission has reached agreement on the merits and my vote would have no effect on the outcome. Moreover, in cases where Chairman Cleary and Commissioner Barnako have reached a unanimous decision, my participation would delay the issuance of decisions and conflict with the goal of a prompt and efficient decision-making process. See generally Atlas Roofing Co. Inc. v. OSHRC, 430 U.S. 442, 97 S.Ct. 1261, 1272 (1977); Keystone Roofing Co., Inc. v. OSHRC, 539 F.2d 960, 964 (3d Cir. 1976); Nader v. FCC, 520 F.2d 182, 205-207 (D.C. Cir. 1975), citing 5 U.S.C. § 555(b). Since abatement is stayed until the Commission enters a final order, 29 U.S.C. § 659(b), additional deliberations would delay the control of hazardous working conditions in any case where the Commission has determined that a violation of the Act exists. That result would be inconsistent with the statutory purpose to assure so far as possible safe and healthful working conditions for every working man and woman. 29 U.S.C. § 651(b).

I will, however, participate fully in all cases in which previous Commission deliberations have resulted in a one-to-one deadlock. Decisions by an equally divided Commission are without precedential value, e.g., Life Sciences Products Co., 77 OSAHRC 200/A2 (microfiche), 6 BNA OSHC 1053, 1977-78 CCH OSHD ¶22,313 (No. 14910, Nov. 11, 1977), appeal filed, No. 77-1014 (4th Cir. Jan. 6, 1978), and, therefore, do not serve as guidance to the Commission’s administrative law judges. Moreover, these decisions also promote needless litigation in the U.S. Courts of Appeals to decide issues which should initially be determined by the Commission, because its members have specialized training, education, and experience in occupational safety and health. 29 U.S.C. § 661(a). See generally Atlas Roofing Co. v. OSHRC, supra at 1264, 1272; Keystone Roofing Co. Inc. v. OSHRC, supra at 963-964. Administrative resolution of pending issues also promotes a more uniform application and development of occupational safety and health law. After reading the record, I will participate in the consideration and decision of these cases.

Conclusion

My decision not to participate in pending cases which have reached a unanimous decision by my colleagues, but to participate in those cases with unresolved issues, promotes the prompt adjudication of cases. It also assures the parties and the public of the full benefit of Commission review. Both of these results are essential in deciding cases affecting the lives, health and safety of American workers, the operation of American business, and the effective adjudication of cases by the administrative law judges.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS. 14516& 14721 (CONSOLIDATED)
TRUAX & HOVEY DRYWALL CORP.,
Respondent.

FINAL ORDER DATE: April 21, 1976

Appearances:

Francis V. LaRuffa, Regional Solicitor

United States Department of Labor

1515 Broadway, Room 3555

New York, New York 10036

Attorney for complainant by Barnett Silverstein, Esq.

Grasso, Rivizzigno & Woronov, Esps.

647 South Warren Street

Syracuse, New York 13202

Attorney for respondent by Howard J. Waronov, Esq.

Welch, Welch & Carr, Esqs.

Camillus Professional Building

5100 West Genesee Street, Box 175

Syracuse, New York 13209

Attorney for respondent by Anthony Adorante, Esq.

DECISION AND ORDER

Fier, Judge:

PRELIMINARY STATEMENT

This is a proceeding pursuant to section 659 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., hereinafter called the Act), wherein the respondents contest the citations and penalties for one serious violation against respondent Pearson Electric Company, Inc. (hereafter referred to as Pearson), and two serious violations against Truax & Hovey Drywall Corp. (hereafter referred to as Truax). The citation against Pearson dated August 5, 1975, was based on an inspection conducted from July 18th through August 4, 1975. The citations against Truax, dated August 6, 1975, were based on an inspection conducted from July 18, 1975 through August 1, 1975. The citations and proposed penalties were issued pursuant to sections 9(a) and 10(a) of the Act.

Pursuant to section 10(c) of the Act, 29 U.S.C. § 659(c) respondent Pearson through a letter dated August 27, 1975, noted its timely contest to the citation and proposed penalty. Truax through its attorney, on August 14, 1975, noted its timely contest to the citations and penalties.

On November 11, 1975 the Secretary made a motion to have the above cases consolidated for trial on the grounds that both cases have common questions of law and facts and the witnesses are the same for both cases. Accordingly, on November 18, 1975 an order was issued consolidating both cases for trial.

The citation for alleged serious violation against Pearson sets forth the following:

Citations No. 1

Item No.	Standard	Description
1	NEC-NFPA 70–1971 Article 320–5(a) p. 70–124 as adopted by 29 CFR 1926.400(a) p. 22831, FR# 122, dated June 24, 1974	(A) Temporary 277 and 115 Volt A.C. conductors originating in electrical power distribution panel (located approximately 21 feet from north east corner of welding area) which ran along mezzanine and along west wall of welding area were not supported on noncombustible, nonabsorptive insulating material. The temporary conductors are being supported by pieces of electrical wire throughout their entire length.
	NEC-NFPA 70–1971 Article 320–9 p. 70–125 as adopted by 29 CFR 1926.400(a) p. 22831 FR# 122, dated June 24, 1974	(b) Temporary 277 and 115 Volt A.C. open conductors are not separated from contact with walls or partitions through which they pass by tubes or bushings of noncombustible, nonabsorptive insulating material. Conductors pass through wall on east side of power distribution room, along floor of mezzanine, and through concrete block wall, west of weld area.
	NEC-NFPA 70–1971 Article 320–10 p. 70–125 as adopted by 29 CFR 1926.400(a) p. 22831 FR# 122, dated June 24, 1974	(c) Temporary 277 and 115 Volt A.C. open conductors, running along floor of mezzanine and west wall of weld area, are not separated at least 2 inches from metallic conduit, or other conducting material (metal ceiling grid supports, metal scaffold frame, metal conduit) or from each other.

The above combined alleged violations constitute one serious violation, in that they exposed employees to accidental electric shock which could result in death or serious physical harm.

A penalty of $600.00 was proposed.

Standard as promulgated:

29 CFR § 1926.400 General requirements.

(a) All electrical work, installation. and wire capacities shall be in accordance with the pertinent provisions of the National Electrical Code, NFPA 70–1971; ANSI CI–1971 (Rev. of C1–1968), unless otherwise provided by regulations of this part.

NEC-NFPA 70–1971:

Article—320–5. Supports.

(a) Conductors shall not be in contact with any object other than their insulating supports. They shall be rigidly supported on noncombustible, nonabsorptive insulating material as follows:

(1) Under ordinary circumstances, supports for wiring over flat surfaces shall be not more than 4–1/2 feet apart. Where the conductors are likely to be disturbed, the distance between supports shall be shortened sufficiently to provide adequate support for conductors;

(2) Conductors shall be supported within 6 inches of a tap;

(3) Conductors shall not be dead ended at a rosette, lampholder, or receptacle unless the last support is within 12 inches of the device.

Article—320–9. Passing Through Walls and Floors. Open conductors shall be separated from contact with walls, floors, timbers or partitions through which they pass by tubes or bushings of noncombustible, nonabsorbative insulating material. Where the bushing is shorter than the hole, a waterproof sleeve of noninductive material shall be inserted in the hole and an insulating bushing slipped into the sleeve at either end in such a manner as to keep the conductors absolutely out of contact with the sleeve. Each conductor must be carried through a separate tube or sleeve.

Article—320–10. Separation from Metal Work. Open conductors shall be separated at least 2 inches from metallic conduit, piping, or other conducting material, and from any exposed lighting, power or signal conductor, or shall be separated therefrom by a continuous and firmly fixed nonconductor additional to the insulation of the conductor. Where any insulating tube is used, it shall be secured at the ends. Deviation from this requirement may, when necessary, be allowed by the authority enforcing this Code.

Citation No. 1 against respondent Truax is identical with the above citation against Pearson. The penalty proposed against Truax for the above is $650.00.

Citation No. 2 against Truax for alleged serious violation sets forth the following:

Item No.	Standard	Alleged violation
1	29 CFR 1926.451(a)(13), (14), (d)(10)	(A) Access ladder or equivalent safe access was not provided to the platforms of the scaffold located on the mezzanine approximately 10 feet from northeast corner of weld area. (B) Planks of the scaffold (located on the mezzanine approximately 10 feet from Northeast corner of weld area) extend over their end supports more than 12 inches. (C) Guardrails and toe boards (or equivalent) are not installed at all open sides and ends of scaffold more than 10 feet above the floor. Scaffold located on the mezzanine approximately 10 feet from the northeast corner of weld area.

The above combined alleged violations constitute one serious violation, in that they exposed employees to falls and falling objects that could result in death or serious physical harm.

A penalty of $650.00 was proposed.

Standard as promulgated:

29 CFR § 1926.451(a) Scaffolding.

(13) An access ladder or equivalent safe access shall be provided.

(14) Scaffold planks shall extend over their end supports not less than 6 inches nor more than 12 inches.

(d)(10) Tubular welded frame scaffold guardrails made of lumber, not less than 2 x 4 inches (or other material providing equivalent protection), and approximately 42 inches high, with a midrail of 1 x 6 inch lumber (or other material providing equivalent protection), and toeboards, shall be installed at all open sides and ends on all scaffolds more than 10 feet above the ground or floor. Toeboards shall be a minimum of 4 inches in height. Wire mesh shall be installed in accordance with paragraph (a)(6) of this section.

29 CFR § 1926.451(a)(6)

Where persons are required to work or pass under the scaffold, scaffolds shall be provided with a screen between the toeboard and the guardrail, extending along the entire opening, consisting of No. 18 gauge U.S. Standard wire 1/2 inch mesh, or the equivalent.

ISSUES

The following issues are pertinent to a disposition of this case.

1. Did either or both respondents violate section 5(a)(2) of the Act by failing to comply with the standards published at 29 CFR § 1926.400(a); NEC-NFPA 70–1971 Article 320–5(a), 320–9, 320–10?

2. Did the respondent Truax violate section 5(a)(2) of the Act by failing to comply with the standards published at 29 CFR § 1926.451(a)(13), 29 CFR § 1926.451(a)(14) and 29 CFR § 1926.451(d)(10)?

3. What penalty, if any, should be assessed for any violations of the Act?

STATEMENT OF THE EVIDENCE

The respondent Pearson, is a New York corporation with approximately 15 employees. Last year it had a net profit of $17,000 (Tr. 223)[†††]. It is considered to be a medium sized business for its kind. The respondent Truax is also a New York corporation of medium size. It employs approximately 75 to 100 employees.

The inspection by the OSHA compliance officers (hereafter referred to as C.O.) was occasioned as a result of a fatal accident of an employee. The deceased employee of Truax was Grover Sweeting who was electrocuted while installing plaster board on July 17, 1975. At the time of the accident he was working on a platform 18 to 20 feet above the floor (stipulation paragraph 8). William Truax, Jr. testified that he and Sweeting were installing dry walls when Sweeting, on descending from a platform, stepped on some wires and shorted out the power (Tr.39). The witness then stated that the electricians were told of the short circuited wires (Tr. 40). Upon informing the job superintendent, Truax and Sweeting took their afternoon coffee break (Tr. 40). Upon returning from the break, the job superintendent and a Pearson employee advised the workers that the broken wires were fixed and cautioned them to be careful because the wires were of a high voltage (Tr. 40). Shortly thereafter, while using a Black & Decker drywall screwdriver, Truax employee, Grover Sweeting was electrocuted as he was working on the elevated scaffold platform.

As a result of this, the United States Department of Labor was duly notified and an investigation and inspection of the accident scene followed. The above citations were subsequently issued to the respondents. The testimony concerning the electrical violations, issued to both respondents revealed that loose wires carrying electricity were in close proximity of the subject scaffold (Tr. 60). The wires were lying loose on the floor and were observed being ‘hung there by nails’ (Tr. 77, 82, 144). Testimony also indicated that the shorted wire was observed by the Truax foreman who stated, ‘I remember seeing the wire that had shorted hanging on a nail’ (Tr. 136). The wire in fact was wrapped around a nail. The C.O. testified that on his inspection he saw that the light fixture in exhibit C–21 was not adequately suspended (Tr. 156). The C.O. also observed that the 277 volt line and the 115 volt line were hung together, not adequately separated, and connected to the electrical conductors and not the support (Exh. C–21; Tr. 156). In addition, the wires were observed in contact with grillwork and temporary grille structures, steel supports on the ceiling and in contact with conduit (Tr. 152, Exhs. C–20, 21, 34, 42). The wires were also noted to be crossing over conduit (Exh. C–37). No tubing or other insulating material was provided for the wires to pass through walls or partitions (T. 111, Exh. C–31, 43). The evidence also shows the two wires were tied together with a piece of wire to a conduit and dropping down in contact with the grillwork (Exh. C–34, Tr. 158–159).

The evidence concerning the access to the platform by means of a ladder has disputed testimony. The C.O. at the time of his inspection, the day after the accident, recommended that a citation be issued to Truax because the respondent did not provide an access ladder or equivalent safe access to the platform. The respondent’s employee, who was working on the platform, testified that he at first had a ladder to get up to the platform but did not use it. He testified that,

A. There was two sections of scaffolding, I think and there was a half section on top that we climbed up. We went up by the stepladder, crossed over the wall and got onto the scaffold and went up.

Q. And how did you go up the scaffold?

A. Up the sides.

Q. Did you use a ladder?

A. No, sir.

Q. No ladder. Okay. Then what happened? You had a break and went back to work’ (Tr. 42).

On cross examination the same witness testified:

Q. ‘You used a ladder to get up to the scaffold after your lunch break—your coffee break, I mean?

A. We used a ladder to get up to the cement block wall. (Tr. 85)

The Pearson foreman testified that when he went to make the electrical repairs during the coffee break, he obtained access to the mezzanine by use of a ladder ‘On the floor below the scaffold.’ (Tr. 110). The evidence shows a ladder located at the side of the platform in exhibit photographs (Exhs. C–19, C–21) taken the day after the accident. The respondent Truax’ employee further testified that a ladder device capable of reaching the top platform of the scaffold was not at the scaffold when the platform was first used. The crank ladder was brought over only five or ten minutes before the accident (Tr. 62).

The matter of the planks of the scaffold is also in dispute. The C.O. measured the planks and found that there was an overhang of the platform of 14 to 24 inches (Tr. 155). Respondent’s employee testified that the planks used on the scaffold are usually ‘approximately a foot and a half to two feet, usually longer, maybe a foot longer than the scaffold itself so that they hang out a little on each end’ (Tr. 45). The respondent asserts that at the time medical assistance was being administered to the employee on the scaffold, planks were rearranged and exchanged to facilitate removal of the worker (Tr. 204, 219).

The C.O. at the time of inspection, also cited the respondent for failure to have guardrails and toeboards on all open sides of the scaffold. He testified,

Q. ‘Did you observe such toeboards and guardrails or midrails on the top platform of the scaffold?

A. There were none there and I was informed by Mr. Truax that there were none there at the time of the accident.

Q. How about the mid or lower platform of the scaffold?

A. Same thing.’ (Tr. 156)

The respondent Truax’ employee testified in substantial agreement that there was no toeboard (Tr. 49). He also stated that the guardrail on one side was removed to permit him to work (Tr. 52). There was also testimony from the First Aid witness that when he was on the platform assisting the injured employee, there was nothing directly behind him that he recalls (Tr. 127, 130).

OPINION

The Secretary has cited the above respondents, Pearson and Truax, for identical violations of the standard 29 CFR § 1926.400(a) specifically based on the National Electrical Code of 1971. The respondent Truax employee upon discovering the break in the electrical wires notified the respondent Pearson and the Superintendent on the job of the defect. At this point it is apparent that Truax relied upon Pearson to provide a safe work area for its employees. Although Pearson states that the Truax employees were later told to be careful and report any other electrical problems, this could not serve to relieve Pearson from complying with the standards. The evidence clearly shows that the respondent Pearson failed to comply with the standard NEC-NFPA 70–1971 Article 320–5(a) as adapted by 29 CFR § 1926.400(a). The photographs and testimony as previously mentioned support the observation of the C.O who recommended the issuance of the citation. The electrical lines were shown to be supported by pieces of electrical wire in violation of the standard.

The temporary 277 and 115 Volt open conductors were similarly in violation of the standard by failure to have them separated from contact with the walls through which they passed. This was not only apparent from the testimony but also from the photographs in evidence.

The open conductors are also observed in the photographs to be in contact with metallic conduit, metal frames, and were not separated from each other. The testimony of the C.O. as to his observations at the time of inspection shows that the practice of the wiring violations was not restricted to a singular contact of the wires. It is significant that after the first incident of the wires shorting the lights, the respondent Pearson’s employees failed to, at that time, provide the respondent Truax employees with a safe place for the workers to perform their trades. The respondent Pearson asserts that its foreman together with the general superintendent, warned the Truax employees of the dangers of electricity. The warning was ‘I told them that when they were working in and around wires, if they found any that didn’t look safe, to notify myself or one of the Pearson electric people on the site and we would have it repaired’ (Tr. 199). It is obvious from the foregoing that an open high voltage line in contact with another metallic surface gives little or no warning to the person who touches it until it often is too late. It is reasonable to assume that a worker who enters a construction area should be able to ply his trade in a safe environment free from hidden dangers.

The evidence is overwhelming that the respondent Pearson failed to comply with each of the above standards for which it was cited. The respondent Truax on the other hand, did notify the Superintendent of the incident and permitted its employees to return to work after the coffee break on the assumption that it was now safe to do so. The talk given by the Superintendent and the Pearson foreman can easily be construed as an assurance by them that it was safe for the Truax employees to return to the work area (Tr. 146). In addition, the statement of Pearson that it would correct any obvious hazards if notified cannot relieve Pearson and shift responsibility for compliance over to Truax. Under the circumstances and particular facts of this case, the citation against Truax for violation of the National Electrical Code must be vacated.

The respondent Pearson raises the argument that the Secretary has applied the wrong standard of the National Electric Code. It states that the proper standard should be Article 305 instead of Article 320 of the National Electric Code. The Review Commission adapted the findings of Judge Goldstein in a similar situation where the same defense was raised. The decision held;

‘It was undisputed that open wiring was in contact with equipment and with duct-work at the employer’s worksite, contrary to Article 320.5 of the National Electric Code. The employer argued, however, that Article 320.5 of the Code was inapplicable because the wiring was installed in a building under construction and that the applicable provision was Article 305 entitled ‘Temporary Wiring’.

Nothing in Article 305 specifically modified the requirements of Article 320.5 for permanent wiring to permit the type of wiring utilized by the employer, and unless specifically modified, all the requirements of the Code for permanent wiring apply to temporary installations.’ Secretary of Labor v. Amelco Electric. 4 OSAHRC 827 (1973) Docket #2462.

See also Secretary of Labor v. Bertke Electric Co., Inc., 18 OSAHRC 840 (1975) Docket No. 3409. In this case the Review Commission not only rejected the respondent’s theory as to temporary wiring but saw fit to raise the proposed penalty because of the hazard.

Another argument raised by the respondent Pearson is that the 1975 National Electric Code has a revised interpretation as against the 1971 National Electric Code. This argument also must be rejected. See Secretary of Labor v. Bethlehem Steel Corp. —— OSAHRC —— (July 9, 1975), Docket No. 9968 (CCH 9968) in this decision, Judge Chodes resolved a similar allegation where; ‘The employer produced an interpretation of the standard from the ANSI committee which drafted it. * * *. While entitled to careful consideration, Judge Chodes ruled the ANSI interpretation is not controlling because it is contrary to the plain language of the standard.

The citation against Truax for violations of 29 CFR §§ 1926.451(a)(13), 1926.451(a)(14) and 1926.451(d)(10) are concerned with the scaffold used by the Truax employees. The testimony of William Truax, Jr., is worthy of greater weight since he not only helped construct the scaffold but also used it. The testimony supported by that of the other evidence clearly indicates that the above standard was violated. The access ladder or other safe means of getting up to the top platform was not by the scaffold. The testimony of the witnesses and other evidence was sufficient to establish the absence of a safe means of access to the scaffold platform. The testimony and evidence also demonstrated that the planks used on the platform violated the standard by exceeding the amount of overhang permitted and created a hazard not only to the employees but also to the rescue workers in their effort to reach the top platform. The absence of toeboards is clearly established. However, the presence of guardrails has been disputed. Testimony of several of the witnesses lends sufficient credibility to show that the guardrails were not installed at all open sides and ends of the scaffold as required by the standard. Accordingly, the evidence and testimony are sufficient to establish the violations of 29 CFR §§ 1926.451(a)(13), 1926.451(a)(14) and 1926.451(d)(10) by the respondent Truax.

We are next concerned with the imposition of penalties. The Secretary proposed an unadjusted penalty of $1,000.00 against respondent Pearson. The unadjusted penalty was then reduced to a proposed penalty of $600.00. After considering all of the evidence and testimony, and the fact that a worker was electrocuted, together with the criteria set forth in section 17 of the Act, I am persuaded to conclude that a penalty of $1,000.00 would be appropriate under the circumstances.

The imposition of a penalty against respondent Truax for violation of the standards 29 CFR §§ 1926.451(a)(13), 1926.451(a)(14) and 1926.451(d)(10) has also been weighed against the evidence, testimony and criteria of section 17 of the Act. After giving due consideration to all of the above, I find that an unadjusted penalty of $1,000.00 should be assessed. The fact that an employee was killed while at work, requires that an appropriate aura of awareness be established for compliance with the standards of the Act by the respondents. The gravity of the violations by Pearson and Truax justify the assessment of an unadjusted penalty under the circumstances of this case.

Any motions and objections not previously disposed of are denied.

FINDINGS OF FACT

The credible evidence and the record as a whole establishes preponderant proof of the following specific findings of fact:

1. Respondent Pearson Electric Company, Inc., is a New York Corporation doing electrical contract work in the construction business and employs approximately 15 employees. Many of the materials used are manufactured outside the State of New York.

2. Respondent Truax and Hovey Drywall Corporation is a New York Corporation in the drywall construction business and employs approximately 75 to 100 employees. Many of the materials used by it are manufactured outside the State of New York.

3. The evidence shows that respondent Pearson permitted temporary 277 and 115 volt open conductors on the jobsite that were supported by pieces of electrical wire and hung on bent nails throughout in a loose manner.

4. The evidence shows that respondent Pearson permitted temporary 277 and 115 volt open conductors which were not separated from contact with walls and passed through said walls without tubes of non-combustible, non-absorptive insulating material.

5. The evidence shows that respondent Pearson permitted temporary 277 and 115 volt open conductors to run along the floors, walls, and ceiling in a loose manner, coming in contact with conduit, grillwork, steel supports on ceilings, and with each other.

6. The evidence shows that respondent Truax notified the Superintendent and Pearson’s foreman of the break in the wires prior to the afternoon coffee break on July 17, 1975.

7. The evidence shows that respondent Truax relied upon the Superintendent and Pearson’s foreman that the worksite was safe as far as any electrical hazards for its employees to return to work after the coffee break on July 17, 1975.

8. Respondent Truax did not know of the hidden hazard presented by the faulty electrical wiring.

9. Respondent Truax did not provide safe access to the top platform of the scaffold on which its employees were working.

10. Respondent Truax used planks on its scaffold which extended more than 12 inches over the end supports.

11. Respondent Truax permitted its employees to use a scaffold that did not have toeboards and guardrails at all open ends of the scaffold.

CONCLUSIONS OF LAW

1. The respondents Pearson Electric Company, Inc., and Truax and Hovey Drywall Corporation, were at all times herein engaged in a business affecting commerce within the meaning of section 3 (5) of the Occupational Safety and Health Act of 1970.

2. The Occupational Safety and Health Review Commission has jurisdiction over the subject matter and parties to this action.

3. Respondent Pearson violated 29 U.S.C. 654(a)(2) by failing to comply with 29 CFR § 1926.400(a) in that all electrical work was not in accordance with the National Electrical Codes, N.F.P.A. 70–1971, A.N.S.I. C1–1971 to wit: N.F.P.A. 70–1971 Article 320–5; Article 320–9; Article 320–10.

4. Respondent Truax did not violate 29 CFR § 1926.400(a) and in particular the pertinent provisions of the National Electrical Code, N.F.P.A. 70–1971, A.N.S.I. C1–1971 to wit: N.F.P.A. 70–1971 Article 320–5; Article 320–9 and Article 320–10.

5. Respondent Truax violated 29 U.S.C. 654(a)(2) by failing to comply with 29 CFR §§ 1926.451(a)(13), 1926.451(a)(14) and 1926.451(d)(10).

6. All of the above violations are serious violations within the meaning of 29 U.S.C. 666.

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is hereby ORDERED that;

Pearson citation number one, item one, is affirmed. A penalty of $1,000.00 is assessed.

Truax citation number one, item one, is vacated. Citation number two, item one, is affirmed. A penalty of $1,000.00 is assessed.

SEYMOUR FIER

JUDGE, OSAHRC

Dated: March 22, 1976

New York, New York

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[1] The standards provide:

1926.451(a)(13) An access ladder or equivalent safe access shall be provided.

(a)(14) Scaffold planks shall extend over their end supports not less than 6 inches nor more than 12 inches.

(d)(10) Guardrails made of lumber, not less than 2 x 4 inches (or other material providing equivalent protection), and approximately 42 inches high, with a midrail of 1 x 6 inch lumber (or other material providing equivalent protection), and toeboards, shall be installed at all open sides and ends on all scaffolds more than 10 feet above the ground or floor. Toeboards shall be a minimum of 4 inches in height. Wire mesh shall be installed in accordance with paragraph (a)(6) of this section.

[2] In addition to the scaffolding violations here at issue, Truax was cited for several electrical violations relating to the circumstances of the fatal accident. The Judge found that Truax did not commit these violations. No party has taken exception to this aspect of the Judge’s decision, and the alleged electrical violations are therefore not before us for review.

[3] The scaffold was built in two levels: the level on which the employees were working at the time of the accident, and a lower level approximately six feet above the mezzanine. The Secretary argues in his brief that Truax violated the standard on both levels. The pleadings, however, did not refer to two levels, and the parties stipulated to facts concerning only the upper level. Moreover, although the lower level was mentioned during the testimony, the vast bulk of the evidence concerned the upper level, and the Judge did not make specific findings with respect to the lower level. Considering the entire record, we conclude that the parties, at the hearing, did not understand that the question of a violation on the lower level was in issue, and we therefore do not address whether a violation occurred on that level.

[4] But see Kennecott Copper Company, 76 OSAHRC 81/A2, 4 BNA OSHC 1400, 1976-77 CCH OSHD para. 20,860 (No. 5958, 1976), aff’d, No. 76-1735 (10th Cir., Dec. 23, 1977). In Kennecott, a divided Commission held that 29 C.F.R. 1910.28(a)(12), a general industry standard worded identically to 1926.451(a)(13), did not impose a use requirement. The general industry standards, however, contain no counterpart to 1926.450(a)(1), and Kennecott is therefore distinguishable from this case.

Chairman Cleary would not rely on the ‘use’ language in another standard. He would hold that a standard that requires an employer to ‘provide’ a safety device implicitly requires that the device be used. Kennecott Copper Co., supra, (Cleary dissenting); Hillsdale Lumber & Manufacturing, Inc., 77 OSAHRC 54/D2, 5 BNA OSHC 1281, 1977-78 CCH OSHD para. 21,766 (No. 5815, 1977) (Cleary, dissenting).

[5] In Rust Engineering Co., 77 OSAHRC 37/C8, 5 BNA OSHC 1183, 1977-78 CCH para. 21,693 (No. 12200, 1977), employees climbed ladder-like rungs in the framework of a scaffold to gain access to the scaffold platform. Because the rungs deviated from the requirements for ladder rungs established by the applicable standards, the Commission concluded that using them as a means of access violated the standard. In Rust, however, the violation was found to be de minimis because the configuration of the rungs made the hazard trifling. In this case, the scaffold framework does not contain rungs similar to those in Rust, and the violation is therefore not de minimis.

[6] In particular, Truax does not contend that it was necessary for the employees to remove the guardrail to perform their work.

[7] See, e.g. California Stevedore & Ballast Co., 73 OSAHRC 39/B5, 1 BNA OSHC 1305, 1973-74 CCH OSHD para. 16,520 (No. 14, 1973), aff’d, 517 F.2d 986 (9th Cir. 1975).

[8] A Commissioner may vote simply to avoid an impasse. Public Service Commission of State of N.Y. v. FPC, 543 F.2d 757, 777 (D.C. Cir. 1974). See generally Screws v. United States, 325 U.S. 91, 134 (1945) (Rutledge, J., concurring in result).

[9] The Court distinguished WIBC, Inc. v. FCC, 259 F.2d 941 (D.C. Cir.) cert. denied, sub nom. Crosley Broadcasting Corp. v. WIBC, Inc., 358 U.S. 920 (1958), because oral argument was statutorily required if a party requested it. 348 F.2d 798, n. 14.

[†††] Transcript references.