Western Waterproofing Co., Inc. (Commission decision, November 29, 1978)

Plain-English summary

This is a penalty reassessment on remand from the Eighth Circuit, and it is a short document about how much a partial appellate loss is actually worth.

How the case got here. The Commission had found that Western Waterproofing willfully failed to comply with three scaffolding standards, 29 C.F.R.
§§ 1926.451(i)(8), 1926.451(i)(9), and 1926.451(i)(11), and assessed a $9,000 penalty. The third of those was not the standard the Secretary charged. The citation alleged § 1926.451(a)(4), and on review the Commission decided
§ 1926.451(i)(11) was more specifically applicable and amended the citation to that standard.

The Eighth Circuit affirmed the willful findings under (i)(8) and (i)(9). It held that the Commission erred in amending to (i)(11) instead of leaving the charge at (a)(4). It then concluded that a willful failure to comply with (a)(4) as originally alleged had been established anyway, and remanded for an appropriate penalty.

Why the penalty barely moved. The substantive difference is narrow. The Commission's (i)(11) finding rested on the absence of both toeboards and midrails. The court's (a)(4) finding rests on the absence of toeboards only. So the midrail violation is gone.

The Commission reasoned that the missing midrails were never carrying much of the hazard. They were absent from the back sides of the scaffolds, and those sides had toprails, so some fall protection existed there regardless. Midrails would have reduced the fall hazard, but the bulk of it would have survived their installation.

What was actually driving the danger sits elsewhere. Employees worked seventeen to forty-seven feet above ground on noncomplying two-point suspension scaffolds. They were not wearing safety belts tied off to lifelines, which under (i)(8) would have protected them even if a scaffold collapsed, and the scaffolds were not lashed to the building. Combined with the lack of front guardrails, this produced a high probability of a fall from the front side and a high probability of a fall if a scaffold gave way. The Commission called the gravity very high.

It noted one thing carefully. The members had split on whether missing front guardrails violated (a)(4), and neither the Commission nor the court based a violation on that condition, but their absence can still be weighed in determining the gravity of the violation that was found.

Applying the section 17(j) criteria as before, with emphasis on the judge's bad faith finding and on gravity, the Commission concluded the penalty should come down only by a small percentage. It assessed $8,000 for the willful failure to comply with §§ 1926.451(i)(8), 1926.451(i)(9), and 1926.451(a)(4).

A note on the released text. The extraction opens with a retrieval system header reading "1 of 138 DOCUMENTS" followed by a list of unrelated company names, including Bristol-Myers, Boonville Division of Ethan Allen, Owens-Illinois, Continental Grain, Walling Crate, Material Fabrication, Burkart-Randall, Kaiser Aluminum, and Bethlehem Steel. That list is an artifact of the retrieval system, not part of this case. The decision itself begins at the caption "WESTERN WATERPROOFING CO., INC." and "OSHRC Docket No. 9225." The header is transcribed as released.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.451(a)(4), guardrails and toeboards on
  scaffolds, as charged and as reinstated by the court; 29 C.F.R.
  § 1926.451(i)(8) and (i)(9), safety belts and lifelines and lashing on two-point suspension scaffolds; 29 C.F.R. § 1926.451(i)(11), the standard the Commission had amended to and the court rejected
• Outcome: Modified. The $9,000 penalty is reduced to $8,000 on remand; the
  willful violations stand.
• Key point: Gravity is measured by the hazard that remained, not by the
  number of subsections surviving appeal. Losing the midrail finding cost the Secretary almost nothing here, because midrails sat behind existing toprails while the real exposure came from untied safety belts and unlashed scaffolds seventeen to forty-seven feet up.

Full text (OSHRC public release)

Docket No. 9225

1 of 138 DOCUMENTS

BRISTOL-MYERS COMPANY

BOONVILLE DIVISION OF ETHAN ALLEN, INC.
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OWENS-ILLINOIS, INC.
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CONTINENTAL GRAIN COMPANY

WALLING CRATE COMPANY

MATERIAL FABRICATION CORPORATION

BURKART-RANDALL COMPANY

KAISER ALUMINUM & CHEMICAL CORP.
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BETHLEHEM STEEL CORPORATION, (BUFFALO TANK DIVISION)

WESTERN WATERPROOFING CO., INC.
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OSHRC Docket No. 9225

Occupational Safety and Health Review Commission

November 29, 1978

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

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Thomas M. Moore, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

This case is before the Commission upon remand from the Court of Appeals for the Eighth Circuit.
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Western Waterproofing Co., Inc. v. Marshall, No. 77-1324 (8th Cir. May 9, 1978).
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In our previous opinion, n1 we found that respondent willfully violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 n2 by failing to comply with the scaffolding standards at 29 CFR � �
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1926.451(i)(8), 1926.451(i)(9) and 1926.451(i)(11), n3 and assessed a $9,000 penalty.

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n1 77 OSAHRC 25/A2, 5 BNA OSHC 1064, 1977-78 CCH OSHD para. 21,572 (No. 9225, 1977).

n2 29 U.S.C. �
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651 et seq., hereinafter "the Act."

n3 The citation alleged a failure to comply with 29 CFR �
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1926.451(a)(4).
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On review, the Commission found that �
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1926.451(i)(11) was more specifically applicable and amended the citation to allege noncompliance with �
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1926.451(i)(11).

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• • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

On appeal, the court affirmed the Commission's decision insofar as it found that respondent willfully failed to comply with � �
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1926.451(i)(8) and 1926.451(i)(9).
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The court held, however, that the Commission erred in amending the citation to allege a failure to comply with �
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1926.451(i)(11) rather than �
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1926.451(a)(4).
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Nevertheless, the court concluded that a willful failure to comply with �
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1926.451(a)(4), as originally alleged, had been established.
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The court remanded the case to the Commission for the assessment of an appropriate penalty.

In our previous opinion, we considered the penalty assessment criteria specified in section 17(j) of the Act n4 giving particular emphasis to the judge's finding that respondent acted in bad faith and to the high gravity of the violation.
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We originally assessed a penalty of $9,000.
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We note, however, that the court's finding that respondent failed to comply with �
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1926.451(a)(4) is based on the absence of toeboards only, whereas the Commission's finding of noncompliance with �
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1926.451(i)(11) was based on the absence of toeboards and midrails. Nevertheless, we conclude [*3]
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that the gravity of the violation affirmed by the court is only slightly lower than that of the violation previously found by the Commission.

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n4 Section 17(j) of the Act reads:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

Several of respondent's employees were working 17 to 47 feet above ground level on the noncomplying scaffolds. Considering the failure to use safety belts tied-off to lifelines and the failure to lash the scaffolds to the building in conjunction with the lack of front guardrails, n5 there existed a high probability that an employee could fall from the front side of the scaffold. Moreover, these violations also produced a high probability that the employees on the scaffolds would fall in the event of a scaffold collapse.
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n6 For these reasons, the gravity of the violation is very high.

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n5 Although the Commission members were divided on the question of whether the absence of guardrails on the front sides violated �
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1926.451(a)(4), and neither the Commission nor the court based their finding of a violation on this condition, the absence of such guardrails appropriately can be considered in determining the gravity of the violation found.

n6 Pursuant to �
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1926.451(i)(8), employees working on two-point suspension scaffolds must wear safety belts attached to lifelines that, in turn, are attached to substantial members of the structure or to independently rigged lines.
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In this manner, in the event of a scaffold collapse, employees still receive protection against falling.

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

The midrail violation that the court vacated involved the absence of midrails on the back sides of the scaffolds. These sides were equipped with toprails, however, so some fall protection did exist in spite of the failure to use safety belts. Thus, while midrails would [*5]
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have reduced the fall hazard, as explained above the most significant part of the hazard would have remained even if the back sides had been equipped with midrails.

For these reasons, we conclude that the penalty previously assessed should be reduced, but only by a small percentage.
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We find that a penalty of $8,000 is appropriate.

Accordingly, it is Ordered that an $8,000 penalty is assessed for respondent's willful failure to comply with 29 CFR � �
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1926.451(i)(8), 1926.451(i)(9) and 1926.451(a)(4).
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