National Cleaning Contractors, Inc.
Window-washing scaffold fall-protection citation affirmed, $1,875 penalty
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This order from 1993 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
National Cleaning Contractors, Inc. is a window cleaning company. During an August 1991 inspection at the BP Building in Cleveland, Ohio, prompted by an imminent-danger complaint, OSHA compliance officers watched a three-person crew washing windows from a two-point suspension scaffold at heights up to about the thirty-first floor of the thirty-eight story building. OSHA cited National for a serious fall-protection violation under the scaffolding standard, which requires each worker to be protected by a safety lifebelt attached to a lifeline that is secured to the structure rather than to the scaffold. Administrative Law Judge Edwin G. Salyers affirmed. He credited the compliance officers' testimony that the employees worked without being tied off for much of the observed time, over the contrary testimony of two employees who still worked for the company. He also found that one crew member was tied off to the scaffold itself rather than to an independent lifeline, a practice National admitted was its policy. National's greater-hazard and unpreventable-employee-misconduct defenses both failed: the company sought no variance, the risk of tangled lines did not outweigh the fall hazard, and the record showed that tying off to the scaffold was routine company practice that its own written safety rule did not effectively prevent. The penalty was $1,875.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1910.28(g)(9) (each worker protected by a safety lifebelt attached to a lifeline secured to the structure, not the scaffold)
- Outcome: Affirmed. The serious scaffold fall-protection violation was affirmed and a penalty of $1,875 assessed.
- Key point: Tying off to the scaffold instead of an independent lifeline violates the standard, and a written safety rule that employees routinely ignore, with supervisors permitting the practice, cannot support an unpreventable-employee-misconduct defense.
Full text (OSHRC public release)
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SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 9 1-3279
NATIONAL CLEANING CONTRACTORS, INC.
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on January 14, 1993. The decision of the Judge
will become a final order of the Commission on Februarv 16, 1993 unless a
Commission member directs review of the decision on or before that date’. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received b the Executive Secretary on or before
February 9 1993 in order to ermit su I!ficient time for its review. See
Commission Rule 91, 29 C.F. ii . 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1825 K St. N.W., Room 401
Washington, DC. 20006-1246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOf
Room S4OO4
200 Constitution Avenue, N.W.
Washington, D.C. 202 10
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any paw
having questions about review rights may contact the Commission’s Executicc
Secretary or call (202) 634-7950.
FOR THE COMMISSION
/f$@.~(fifJqJ
Date: January 14, 1993 Ray H. Darling, Jr.
Executive Secretary
DOCECET NO. 91-3279
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
300 Constitution Ave., X.W.
Washington, D.C. 20210
William S. Kloepfer
Assoc. Re ional Solicitor
Office of ttl e Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199
Harrv Danik
David Arndt
National Cleaning Contractors, Inc.
2332 Prospect Avenue
Cleveland, OH 44115
Edwin G. Salyers
Administrative Law Jud e
Occupational Safety an f Health
Review Commissron
Room 240
1365 Peachtree Street, NE.
Atlanta, GA 30309 3119
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SECRETARY OF LABOR,
Complainant,
v. .. OSHRC Docket No. 91-3279
..
NATIONAL CLEANING ..
CONTRACTORS, INC., ..
Respondent.
Afipeartices:
Elizabeth Ashley, Esquire David Amdt
Office of the Solicitor Harry Danik
U. S. Department of Labor National Cleaning Contractors, Inc.
Cleveland, Ohio Cleveland, Ohio
For Complainant For Respondent
Before: Administrative Law Judge Edwin G. Myers
DECISION AND ORDER
National Cleaning Contractors, Inc. (National), is a window cleaning company.
National contests a citation issued to it by the Secretary on August 21, 1991. The citation
alleged that National committed a serious violation of 5 1910.28(g)(8) of the Occupational
Safety and Health Act of 1970 (Act), for failure to provide adequate fall protection to its
employees. The citation resulted from an inspection of one of National’s worksites
conducted on August 1% 1991, by the Occupational safety and Health Administration
(OS&Q National denies that it violated the cited standard.
OSHA compliance officers Gus Georgiades and Andris Pratins inspected respondent’s
operations at the BP Building in Cleveland, Ohio, on August 12 in response to an employee
complaint of an imminent danger (Tr. 17). Three National employees were in the process
of washing windows on the east face of the BP Building (Tr. 20) They were on a two-point
suspension scaffold that was suspended from the building’s roof by wire ropes attached to
two davits (Tr. 30-31). When the compliance officers first arrived, the scaffold was at
approximately the thirty-first floor of the thirty-eight story building (Tr. 20, 91).
Upon arrival at the worksite, Georgiades and Pratins went to the roof of the BP
Building’s parking garage, which was attached to the main building. From this location, they
observed respondent’s employees on the scaffold for approximately fifteen minutes and
noted that National had two independent safety lines provided for the three employees. All
three employees were wearing safety belts (Tr. 20-21).
When the scaffold had descended to approximately the seventh floor, the compliance
officers caught the employees’ attention and had them lower the scaffold to the garage roof
level. Georgiades then held an opening conference with the crew foreman, Gerald
Hochschild (Tr. 28).
Subsequently, the Secretary charged National with a serious violation of a provision
of the : !scaffolding standard, 0 1910.28(g)(9). The cited standard provides in pertinent part:
Each workman shall be protected by a safety lifebelt attached to a lifeline.
The lifeline shall be securely attached to substantial members of the structure
(not scaffold), or to securely rigged lines, which will safely suspend the
workman in case of a fall.
The Secretary contends that National’s violation of this standard is twofold: First, for
the better part of the fifteen minutes that the compliance officers observed them, National’s
employees were not tied off at all; and, second, when the employees finally did tie off, one
of them tied off to the scaffold. These contentions will be dealt with in order.
Georgiades testified that, as the scaffold descended the east side of the building, he
observed that none of the three employees was tied off. Georgiades suspected that they
were not tied off when he first saw them, but he became certain of it when the scaffold
2
reached about the tenth floor (Tr. 26). When the scaffold was at about the tenth floor, ~0
of the employees attached their lanyards to the two independent safety lines, while the third
employee attached his lanyard to the scaffold (Exh. C-l; Tr. 27). Georgiades speculated that
the employees tied off at this point because they noticed that they were being observed by
the compliance officers (Tr. 77). The employees worked for about five more minutes before
the compliance officers had them come down (Tr. 68).
Pratins corroborated Georgiades’ testimony. He, too, stated that the employees were
not tied off until they noticed Georgiades and Pratins watching them: “I noted they
observed us standing down below, I think, because all of a sudden there was scurrying
around. I watched the one employee on the right hand side turn around and attach his life
line” (Tr. 92).
Georgiades interviewed the employees when they arrived at the garage roof level.
He testified they acknowledged to him they had not been tied off (Tr. 30). All of the
employees stated they were familiar tith the OSHA regulations and knew they were
supposed to be tied off (Tr. 29).
Two of the three employees who were on the scaffold testified at the h&ring. Gerald
Hochschild, the crew leader and foreman, testified he and his crew were tied off the entire
time they were working (Tr. 231). Richard &archer, the other employee who testified,
agreed with Hochschild that the crew had been tied off (Tr. 277). Beth Hochschild and
Starcher testified that as they descended, the wind began blowing harder. At about the
eighth floor, Starcher, who weighed less than Russ Empene, the third crew member,
unhooked from the independent safety line and attached himself to the scaffold. Empene,
who had been tied off to the scaffold, switched over to the independent safety line.
Hochschild remained tied off to the second independent safety line (Tr. 230,235, 264-265,
277). The switch was made because the crew decided that it was safer for the lighter man
to be anchored to the scaffold (Tr. 278).
The testimony of the two compliance officers is directly contradicted by the testimony
of the two National employees. National points out that the compliance officers made their
observations at a considerable distance from the scaffold. [National claims they were 60 feet
from the scaffold; Georgiades estimated the distance to be between 40 to 50 feet (Tr. 74)].
3
Unfortunately, the only photograph made of the employees on the scaffoldwas taken after
the compliance officers thought the employees had tied off @XII.C-l).
Georgiades and Pratins were adamant that they clearly observed the three employees
working while not tied off (Tr. 75,102~103). But even if the compliance officers could have
been mistaken about what they thought they saw, Georgiades testified that the employees
admitted to him that they had not been tied off until the scaffold was at about the tenth
floor. Ho&child and Starcher each denied making such a statement (Tr. 228, 268).
The conflicting testimony on this point requires a credibility determination by the
court. In making such a determination a court may consider not only the demeanor of the
witnesses, as observed during the course of their testimony, but also any motives they may
harbor which might tend to shape this testimony. This court detected no “tell-tale” signs in
the demeanor of any of the witnesses (nervousness, evasiveness, etc.) which would clearly
signal an intent to deceive. On the motive question, however, the scales tip in favor of the
Secretary. Georgiades and Pratins as compliance officers for the Secretary are obligated to
conduct an objective investigation of the facts in each case and are under no compulsion to
take extraordinary measures to manufacture evidence. The court realizes that instances may
occur when an overzealous investigator may exceed the limits of propriety but, in the
experience of this particular judge, these occurrences are extremely rare and easily
detectable when the culprit is exposed to the scrutiny of the court. The court is convinced
in this case that the Secretary’s compliance officers had no ulterior motives and conducted
0
an objective investigation. On the other hand, the respondent’s witnesses, both of whom
were still employed by respondent at the time of the hearing (Tr. 214, 260), may well have
felt pressure (real or imagined) not to render testimony adverse to their employer. This
circumstance has special significance in the case of Hochschild, respondent’s foreman, who
would be in violation of a company rule by permitting employees to work on the scaffold
without being tied off, and quite naturally reluctant to admit this circumstance in open court.
While recognizing that credl’bility determinations are more “art than science,” this court
believes the testimony of the Secretary’s witnesses should prevail over that of respondent’s.
The Secretary makes a less controversial case regarding its second contention that
independent safety lines were not provided for each of the employees and that one of
4
National’s employees was impermissibly tied offto the scaffold. She was greatly aided on
this issue by National’s own witnesses.
National admitted in its answer that one of the employees was tied off to the scaffold.
Starcher testified that he had tied off to the scaffold when he switched places with Empene,
who initially had been tied off to the scaffold (Tr. 262). Foreman Hochschild testified that
he had permitted the employees to tie off to the scaffold and that he would allow it again
given the same circumstances (Tr. 250,253). Furthermore, National’s director of personnel,
David Amdt, and its division manager, Hany Dan&, actingpm se for National, repeatedly
elicited testimony from their own witnesses that it was National’s policy to have the third
man on the scaffold tie off to the scaffold (Tr. 179, 188, 190, 244, 256, 290,312).
National attempted to present a greater hazard defense. “To establish a defense of
greater hazard, an -employer must prove that (1) the hazards created by compliance with a
standard are greater than those of noncompliance, (2) other means of protecting employees
from the hazards are not available, and (3) a variance is not available or application for a
variance is inappropriate.” Seibel Modem Mfg. & WeldingCo., 15 BNA OSHC 1218, 1991
CCH OS’HD II 29,442 at 39,681 (No. 88-821, 1991).
National presented no evidence, nor did it claim that it had sought a variance or that
one was inappropriate. Therefore, this defense must fail. In addition, National failed to
Drove that Droviding each of the three employees with his own independent safety line was
a 8
a greater hazard than tying off to the scaffold. The hazard created by an employee tying off
to the scaffold is that, if one of the wire ropes suspending the scaffold breaks, the employee
could be bashed against the building as the scaffold swung on the remaining wire rope. If
both wire ropes break, the employee would be attached to the scaffold as it fell to the
ground (Tr. 28). National claims that the hazard created by using three independent safety
lines is that the lines could become tangled, causing a delay while someone went up and cut
off the bottoms of the lines (Tr. 196,228-229). The hazard created by noncompliance with
the standard is the possibility that one or both of the wire ropes could break, resulting in
death or serious physical injury. The hazard created by compliance with the standard is the
possibility that the lines could become tangled, resulting in an inconvenient delay. The
gravity of the hazard created by noncompliance greatly outweighs the kard of compliance.
National has f&d to prove a greater hazard defense.
In its posthearing beef, National asserted that any violation of the Act committed by
the company m the result of unpreventable employee misconduct. This defense was not
developed during the hearing. Furthermore, it is abundantly clear from the record that the
employees were following company policy in violating the standard and not engaging in
isolated, unforeseeable behavior.
To prove the affirmative defense of unpreventable employee misconduct, the
employer must show that it had established a work rule designed to prevent the violation,
adequately communicated those work rules to its employees (including supervisors), taken
reasonable steps to discover violations of those work rules, and effectively enforced those
work rules when they were violated. pride Oil WeUService, 15 BNA OSHC 1809 at 1816,
1992 CCH OSHD 729,807 at 40,585 (No. 87-692, 1992). National does have a written
safety rule in its Safety Procedures Manual that addresses the standard in issue (Exh. C-7, p.
19, #2): “Each person must wear an approved safety belt or body harness and be attached
to an aptiroved safety rope grab system onto an independent safety line system at all times
while working on a scaffold.” The testimony of all four of National’s witnesses established,
however, that this safety rule was ignored with impunity by everyone employed by National.
Edward Beard, 6ne of National’s window cleaners and its shop steward, testified that
having an employee tie off to the scaffold is “usually how it is done” (Tr. 179). When Beard
was asked about National’s own safety rule, this dialogue ensued (Tr. 188):
BEARD: Two drop lines are coming down. As long as two men are tied to
those. If you have a third party on the scaffold he can be tied to a lanyard
line. That means a cable running off the back line of it or direct to the
scaffold.
Q.: Is that the manner in which you have been trained to perform your job
for Natiorml Cleaning?
BEARD: Yes.
Q.: That is you are the third individual on a scaffold-
BEARD: That’s the way we have always done it.
Clearly, the requirements of National’s own safety rule had not been communicated
to Beard. This misunderstanding is even more striking given the fact that Beard is one of
three employees responsible for safety at National and that Beard actually conducts
National’s monthly safety meetings (Tr. W-169). Beard also failed to understand the
employer’s responsrbility for ensuring safety on the job, instead placing the burden on the
employee (Tr. 195): “If I wanted to be a fool and say, ‘Yes, I will go out there and work
this and not be hooked up,’ that would be on me.” Beard’s testimony leaves no doubt that
tying off to the scaffold is not unpreventable employee misconduct (Tr. 190): “That’s the
way we have been doing it. It &policy. It is the way it has always been.”
Hochschild and Starcher both testified they believed they were permitted to tie off
to the scaffold (Tr. 244,279). Hochschild not only admitted that he had permitted his crew
to tie off to the scaffold on the day of the inspection but also declared that he would permit
it again, adding only that, “If you are going to get fined for it, I sure wouldn’t do it” (Tr.
255)l
Clearly, National’s employees were not familiar with National’s work rule regarding
independent safety lines. In its brief, National attempts to blame the three employees for
the violation, claiming that Hochschild was not actually a foreman for the purposes of
imputing his knowledge to the employer. This argument is without merit. First, Hochschild
was called as a witness by National, who did nothing to dispute his testimony that he was the
crew foreman (Tr. 214). Hochschild was repeatedly referred to as the foreman throughout
the hearing, and these references were never challenged by National. Second, the record
makes it abundantly clear that it was National’s policy to allow the third employee on a
scaffold to tie off to the scaffold. Jeff Anderson, another National window cleaner called
by National, was questioned about National’s work practice (Tr. 312-313):
Q.: Have you ever tied off directly to a scaffold for National Cleaning?
ANDERSON: Yes.
Q.: Is National Cleaning aware that you have tied off directly to a scaffold,
specifically direct@ to a two-point suspension scaffold?
ANDERSON: Yes.
Q.: Is your foreman aware of that?
ANDERSON: Yes.
Q.: Are upper management officials aware that you tie off directly to a
scaffold?
ANDERSON: Yes.
Q.: Have you ever been reprimanded for tying off directly to a scaffold?
ANDERSON: No.
The violation of 0 1910.28(g)(9) cannot be attributed to unpreventable employee
misconduct. The employees were merely following company policy in having the third crew
member tie off to the scaffold. National was in serious violation of the cited standard
Penaltv Determination
The Commission is the final arbiter of penalties in all contested cases. Secretay v.
OSAHYRCand InterstateGlass Co., 487 F.2d 438 (8th Cir. 1973). Under section 17(j)
. of the
Act, in determining the appropriate penalty, the Commission is required to find and give
“due consideration” to (1) the size of the employer’s business, (2) the gravity of the
violation, (3) the good faith of the employer, and (4) the history of previous violations. The
gravity of the violation is the principal factor to be considered.
Upon due consideration of the relevant factors, it is determined that a penalty of
$1,875.00 is appropriate.
FINDINGS OF FACT
AND CONCLUSIONS OF MW
The foregoing decision constitutes the findings of fact and conclusions of law b
accordance with Federal Rule of Civil Procedure 52(a).
Based upon the foregoing decision, it is ORDERED:
That the citation alleging a serious violation of 0 1910.28(g)(g) is affirmed and a
penalty of $1,875.00 is assessed.
Is/ Edwin G. Salvers
EDWIN G. SALYERS
Judge
Date: January 7, 1993
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