Regional Scaffolding & Hoisting Co. (ALJ decision, September 13, 1995)

Plain-English summary

Regional Scaffolding & Hoisting Co. erected a tubular welded-frame scaffold about 15 feet high for two employees welding at a White Plains, New York worksite. The employees climbed down scaffold rungs spaced 18 to 24 inches apart instead of using a nearby ladder. Chief Judge Irving Sommer found that this technically violated the safe-access rule but classified it as de minimis because the rung-spacing difference did not appreciably reduce employee safety. The scaffold also lacked midrails and toeboards on its open sides and ends, exposing the workers to a fall and people below to falling tools or welding rods. Although a steel beam provided some protection at the front, it did not correct the remaining open sides or the missing toeboards. The judge affirmed that item and assessed a $700 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.451(a)(13) and 1926.451(d)(10).
• Outcome: Modified. The scaffold-access item was affirmed as de minimis without a penalty, while the guardrail and toeboard item was affirmed with a $700 penalty.
• Key point: Scaffold rungs with nonstandard ladder spacing may support only a de minimis access violation, but missing midrails and toeboards on a 15-foot scaffold create separate fall and falling-object hazards.

Full text (OSHRC public release)

United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-34 19

Phone:(202)606-5400
Fax:(202)606-5050
SECRETARY
OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 94-0765
REGIONAL
SCAFFOLDING & HOISTING CO.
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRATIVE UW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was docketed with the Commission on September 13, 1995. The decision of the Judge will become a final order of the Commission on October 13, 1995 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 petition should be received b the Executive Secretary on or before October 3, 1995 in order to ermit sufi!‘cient time for its review. See Commission Rule 91,29 C.8 .R. 2200.91.
All further pleadings or communications
regarding this case shah be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shah also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for Regional Trial Litigation will represent the Department of Labor. Any party having questions about review nghts may contact the Commission’s Executive Secretary or call (202) 606-5400.
FOR THE COMMISSION

Date: September 13, 1995 Ray H Darling, Jr.
Executive Secretary
DOCKET NO. 94-0765
NOTICE IS GIVEN TO THE FOLLOWING:

Patricia Rodenhausen, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U.S. DOL
201 Varick, Room 707
New York, NY 10014

Michael Mazzucca, Vice President
Regional Scaffolding & Hoisting
co., Inc.
3900 Webster Avenue
Bronx, NY 10470

Irvin Sommer
Chie f Administrative Law Jud e
Occupational Safety and Healt %
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00108803347:02
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-34 19

Phone: (202) 6064405
Fax (202) 606-5409

.
SECRETARY OF LABOR,
..
..
Complainant,
..
..
v. : OSHRC Docket No. 94-765
.
REGIONAL SCAFFOLDING & HOISTING CO., I
.
Respondent.

APPEARANCES:

Patricia M. Rodenhausen, Esq.
Regional Solicitor
Alan L. Kammerman, Esq.
Office of the Solicitor
U.S. Department of Labor
201 Varick Street
New York, New York 10014
For Complainant

Michael Mazzucca
Regional Scaffolding & Hoisting Co., Inc.
3900 Webster Avenue
Bronx, New York 10470
For Respondent, pro se

Before: Chief Judge Irving Sommer

DECISIONAND ORDER
This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 19’70, 29 U.S.C. 5s 651-678 (“the Act”), to review a citation issued by the Secretary of Labor pursuant to section 9(a) of the Act, and the proposed assessment of penalties therein issued, pursuant to section 10(a) of the Act. Regional Scaffolding and Hoisting Company (“Regional”) filed a timely notice of contest placing all the citation items and penalties in issue. Accordingly, the Commission has 2

jurisdiction of this proceeding. Regional admits that it is engaged in a business affecting commerce. Therefore, Regional is an employer under section 3(5) of the Act, and the Act applies to its work activities. A hearing was held, at which Regional was represented by Michael Mazzucca, who is one of its owners and its Vice-President of Operations.
BACKGROUND
The Secretary alleged that Regional committed two violations of safety standards for scaffolding based on an inspection of a worksite in White Plains, New York. It is undisputed that two employees of Regional stood on a tubular welded frame scaffold about 15 feet in height while welding plates onto a steel beam that ran in front of the scaffold. The record further shows that Regional had erected the scaffolding and knew that its employees were working there. (Tr. 7,9, 10, 12, 17, 20, 30, 32, 43,49-50; exhs. C-l through C-3). The Secretary alleged one violation of 29 C.F.R. 6 1926.451(a)(13), which applies to scaffolds generally, and one violation of 29 C.F.R. 5 1926.45 1(d)( lo), a provision applying specifically to tubular welded frame scaffolds.
ALLEGED VIOLATION OF 29 C.F.R. 5 1926.451(a)(13) This standard requires:
5 1926.451 Scaffolding.
(a) General requirements.

(13)An access ladder or equivalent safe access shall be provided.
There was a ladder secured to the steel deck above the scaffold positioned about 5 feet to the right of the scaffold. Exhibit C-l shows this to be a portable, extension-type ladder. The employees, however, did not use this ladder when they descended from the scaffold. Rather, the Secretary’s compliance officer, William Donovan, observed the employees climbing down the rungs of the scaffold, which were-spaced between 18 and 24 inches apart. (Tr. 9-10, 16, 19).
In its answer Regional raised an affirmative defense that the violation is de minimis in nature.
A de minimis violation is one having no tangible relationship with safety and health. Concrete Constr. Co., 15 BNA OSHC 1614, 1621, 1991-93 CCH OSHD 7 29,681, p. 40,245 (No. 89-2019, 1992). The Commission has previously held that a violation of section 1926.45 1(a)( 13) exists where an employee climbs down the rungs of a scaffold if the rungs, as in this case, are not spaced at the 3

same interval required for ladder rungs. However, those decisions also hold that such violations are de minimis because employee safety is not “appreciably diminished” by the difference in spacing between scaffold rungs and the rungs of a ladder. Charles H Tompkins, 6 BNA OSHC 1045, 1047, 1977-78 CCH OSHD 7 22,337, pp. 26,91819 (No. 15428, 1977) and cases cited therein.’ In accordance with this precedent, I find the violation here de minimis.
ALLEGED VIOLATION OF 29 C.F.R. § 1926.451(d)(lO) This standard requires in pertinent part:
5 1926.451 Scaffolding.

(d, ‘Tubular weldedfiame scaffolds.

(lb) Guardrails made of lumber, not less than 2x4 inches (or other material providing equivalent protection) and approximately 42 inches high, with a midrail of 1x6 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 minimum of 4 inches in height.
There was a top rail on the sides and rear of the scaffold but no midrails or toeboards. The employees on the scaffold were using hand tools and working with welding rods. Employees of other contractors were in the area around the base of the scaffold. Donovan testified that the employees were exposed to the hazard of a fall due to the absence of proper guardrails and that toeboards were needed to prevent tools or other objects which might be dislodged from falling onto individuals on the ground below. (Tr. 9, 12, 1%20,22,37,41,53; exh. C-l). Regional’s foreman, Darren Good, testified that the beam on which the employees were doing welding provided sufficient fall protection at the front of the scaffold. (Tr. 51). I find that Good’s testimony is corroborated by exhibit C-l. However, the lack of a proper guardrail around the remainder of the scaffold and the

The scaffold rungs in Tompkins were spaced 18 to 20 inches apart. The Commission noted that the ladder standards in effect at that time, 29 C.F.R. 6 1926.450(a)(3)-(5), require a uniform distance between rungs of 12 inches. The ladder standards have since been amended and now specify that the spacing on rungs of portable ladders may vary from 10 to 14 inches or from 8 to 18 and 6 to 12 inches, depending on the type of portable ladder. 29 C.F.R. 6 1926.1053(a)(3)(i) & (a)(3)(iii). There is less divergence between the spacing of the rungs ,ofRegional’s scaffold and the permissible range of spacing for ladder rungs under the current ladder standards than there was between the scaffold rungs and the required ladder spacing in Tompkins and similar cases.
4

complete absence of a toeboard is clear and unrefuted. I find that the Secretary has made a prima facie showing of a violation by a preponderance of the evidence.
The determination of what constitutes an appropriate penalty is within the discretion of the Commission. Long Mfg. CO.,N.C. v. OSHRC, 554 F.2d 903,908-09 (8th Cir. 1977). In assessing penalties, the Commission takes into account the employer’s size, its good faith, its history of previous violations, and most important, the gravity of the violation. JA. Jones Cons@. Co., 15 BNA OSHC 2201, 2214, 1991-93 CCH OSHD 7 29,964, p. 41,033 (No. 87-2059, 1993). Here, two employees were exposed to a fall, but there is no direct evidence of how long they were exposed. The employee shown in exhibit C-l appears to be working fairly close to the edge of the scaffold, and a fall from a height of 15 feet could easily result in serious injury. On balance, I consider the gravity to be moderate. Donovan testified that Regional had previously committed serious violations of the Act, but he also stated that Regional demonstrated good faith by having a written safety program. On balance, - I conclude that a penalty of $700 is appropriate.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
All findings of fact relevant and necessary to a determination of the contested issues have been found specifically and appear herein. See Rule 52(a) of the Federal Rules of Civil Procedure.

Based on the Findings of Facts, Conclusions of Law, and the entire record, it is hereby ordered:
1) Citation no. 1, item 1 is afkmed as a de minimis violation.
2) Citation no. 1, item 2 is tied, and a penalty of $700 is assessed.

Chief Judge

DATED:
,sP 12m5
Washington, D.C.