Novinger's Inc.

Plain-English summary

Novinger's was an interior-finishes subcontractor working inside an air shaft at a building project in Hershey, Pennsylvania. Employees reached a tube-and-coupler scaffold by stepping over a two-inch lip and across a 9.5-inch gap from the third-floor slab. The judge held that the safe-access standard applied even though the movement was horizontal rather than up or down, but classified the violation as other-than-serious because the likely injury from tripping at that gap was not shown to be serious; he assessed $100. The scaffold also left gaps of 16.5 to 19.5 inches between its edges and the shaft walls, with a fall of more than 10 feet and no guardrails. The judge rejected the infeasibility defense because safety belts could have provided protection and affirmed that item as serious with a $1,125 penalty. Total penalties were $1,225.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.451(a)(13) and 1926.451(c)(13).
• Outcome: Modified. The access item was reduced to other-than-serious with a $100 penalty, while the serious guardrail item was affirmed at $1,125.
• Key point: Safe scaffold access includes horizontal entry, and an infeasibility defense fails when a workable alternative such as personal fall protection is available.

Full text (OSHRC public release)

                        lJNlTEOSTATES OF AMERICA

OCCUPATIONAL SAFETV AND HEALTH REVIEW COMMtSSION
One Lafayette Cents
1120 20th Stmet, N.W - 9th Floor
Washington, DC 200363419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-0788
NOVINGERS, INC.
Respondent.

                 NOTICE OF DOCKETING
           OF ADMINISTRATllVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on December 15, 1993. The decision of the Judge
will become a final order of the Commission on January 14, 1994 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
January 4, 1994in order to ermit suff!cient time for its review. See
Comrmssron Rule 91, 29 C.P .R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, DC. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the So%‘citor, U.S. DO5
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
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION

Date: December 15, 1993
DOCKET NO. 93-0788
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, I%+
Counsel for Re 'OII%I Trial Liti ation
Office of the S&itor, U.S. D&
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Marshall H. Harris, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U.S. DOL
14480 Gatewa Building
3535 Market Htreet
Philadelphia, PA 19104

James F. Sassaman, Director of
Safety
GBCA
P.O. Box 15959
36 South 18th Street
Philadelphia, PA 19103

John H. Frye, III
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

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11202ott1 Street, Now.-9th floor
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SECRETARY OF LABOR, l
s

   Complainant

           v.
                                               OSHR C    Docket No. 93-0788

NOVINGER’S INC.,

   Respondent.

Appearances:
Pedro Forment, Esq. James F. Sasaman
Office of the Solicitor General Building cOntracta%
U.S. Department of Labor Association
For Complainant Philadelphia, Pezuybnia
For Respondent

Before: Administrative Law Judge Michael H. Schoenfeld

                              DECISION AND ORDER
                                                               .

Background and Procedural Historv

   This case arises under the Occupational Safety and Health Act of 1970,29 U.S.C. Q Q

651 - 678 (19X@ f”the Act”).
Novinger’s Inc. (“Respondent”) was engaged as a subcontractor specializing in walls,
ceilings and interior finishes at a workplace located at Route 322, Hershey, Pennsylvania
(‘tiorksite”). Respondent had approximately 2 employees at the worksite (Complaint and
answer 1 3). As a result of an inspection conducted on December 4, 1992, a two item
serious citation was issued together with a Notice of Proposed Penalty totalling $4,250.00
pursuant the Act. Respondent timely contested. Following the filing of a complaint and
answer and vt to a notice of hearing, the case came on to be heard on August 26,
1993. No a%kWd employees sought to assert party status. Both parties have filed post-
hearing briefs, .

Jurisdiction
Complainant alleges and Respondent does not deny that it is an employer engaged
in construction. Respondent does not deny that it uses tools, equipment and supplies which
have moved in interstate commerce. I find that Respondent is engaged in a business
affecting interstate commerce.
Based on the above finding, I conclude that Respondent is an empluyer within the
meaning of 0 3(5) of the Act.’ Accordingly, the Commission has jurisdiction over the
subject matter and the parties.

Discussion

       Both items of the citation relate to Respondent’s use of a tube and coupler scaffold

erected within the confines of an air shaft of a building under construction. The operative
facts are not in dispute.
Respondent’s employees were working inside the shaft at the third floor of the
building (Tr.20-22). The employees gained access to the scaffold located inside the third
floor air shaft by stepping over a two-inch lip (Tr. 21-22) and across a nine and a half inch
separation between the edge of the scaffold and the edge of the poured concrete floor (“I’r.
24-30). There ww a vertical two-inch lip and a horizontal nine and a half (9 l/2) inch
separation between the third floor level and the scaffold (Tr. 24-30). The tube and coupler
scaffold located inside the third floor air shaft was more than 10 feet above the ground or
floor on December 4, 1992 (Tr. 40) Employees were standing on the scaffold inside the

’ Title 29 U.S.C. 0 652(5).

                                            2

shaft and reaching over to work on the exposed walls in the interior of the shaft (Tr. 37).
ne spact betmen the scaffold and the walls was between nineteen and one-half (19%“) and
sixteen am3 0116half inches (164s”).
Respondent was cited for alleged serious violations of 29 C.F.R. Q 9 1926.451(a)(13)
(Item l), and 1926.45l(c)( 13) (Item 2). The former item for failing to have safe access onto
the scaffold and the latter item for failure to provide standard guardrails or equivalent
protection on the “open”sides of the scaffold. Penalties of $2,125.00were proposed for each
alleged violation.
As to item 1, Respondent first argues (as an “affirmative defense”) that the cited
standard is not applicable. * Respondent reads the opinion of Commissioner Cleary in H.E.
Weise,Inc. and IndtrrnialElectrical ConstructionCo., 10 BNA OSHC 1499,1502 (Nos. 78-204
and 7&205,192) as interpreting the term “access”in the cited standard as being applicable
only to hazards which might exist ‘Mile ascending or descending from a Mold.”
Respondent maintains that inasmuch as the scaffoldwas at the same horizontal level as the
nearby floor level fkom which employees stepped on to the scaffoldthere was no movement
up or down thus there. the employees were not “ascending or descending.” Respondent’s
literalness is pure sophistry. The standard simply seeks to assure that empluyees do not face
hazardous conditions in the process of getting on or off scaffolds. The same is true whether
they have to travel up, down, sideways or in any other direction. Respondent’s argument
is rejected. The standard is applicable.
Respondent does not challenge and I find that the above testimony establishes that
the violative condition existed, that employees were exposed thereto and that Respondent
knew or should have known of the condition. The Secretary has thus made a @ina facie
case.

• The cited standard, 29 C.F.R. 0 1926.45l(a)(13), provides;
  9 1926.451 So$dding.
  (a) Gened Requimnents. ,
  (13) An access ladder or equivalent safe access
  shall be provided.

                                        3
  

  Respondent maintains bat the condition should be “down-graded”and a & mininrrj
  notice issued iQ ha of finding a violation. A de mi&zis violation is one having no direct
  or Mediate rcWio~~hip to employee safety or health, where “the hazard is SO trifling that
  an abatement or&r would not signifi~tly promote the objectives of the Act.” Dovet
  Elevator Co., 15 BNA OSHC 1378,1382 (No. 88-26451991). Respondent argues that if the
  Secretary has announced that a 12”gap between a scaffold and a wall is not an open side
  to a platform, then the 9Y2”gap between the building floor and the scaffold should not be
  a violation. The analogy is inapposite. When working on a scaffold near& abutting a wall
  an employee would find it hard indeed to step into the pp. Even if he did, reaching an arm
  out to contact the waU would prevent or at least, cushion such a fall. The logic of the
  situations are not analogous.
  Respondent further argues that if it is in violation, the violation must be other than
  serious. Complainant, who has the burden of proving that an alleged violation is serious has
  simply reiterated such a claim in its post-hearing brief (Pp. 12-13). The cornplhx offiocr
  envisioned an employee tripping in such a manner as to end up with his leg cxkndiq dawn
  through the 9%” gap or with a knee striking the scaffold or an ankle breaking rr. 31). If
  the Commission can conclude that evidence of a f&llof ten to fifteen feet was sufkient to
  find a hazard serious as it did in Brown-McKee, Inc., 8 BNA OSHC 1247(No. 76-982,1!BO)
  and RRG. Industries, Inc., 6 BNA OSHC 1050 (No. 15426, 1977), then it can find that
  tripping over a 2” lip in an area where there is a 9*%”
  gap is other than serious. The scenario
  created by the Compliance Officer is so unlikely to result in serious injury or death as to
  require the finding that the hazard was not serious. See, Bmwn & Rcwh Inc., Pow lGnt
  Div., 8 BNA OSHC 1055, 1060 (No. 763942, 1980) (it is sufficient for a violation to be -
  found serious if an accident is only possible but its probable result would be serious injury
  or death)(“ti & Root”). The item is affirmed as an other than serious violation of the
  Act. A penalty of $100 is appropriate therefor.
  The second of the items under which Respondent has been cited deals with the fact
  that the scaffold erected in the air shaft did not extend the full width or length of the shaft
  thus leaving a space between the ends or sides of the scaffold and the walls on .all four sides,

                             I            4
  

  It is ~~&~putcdthat the gap between the edge of the scaffold and the wall varied ia S&
  &om 16%”twl@K Respndent agrees that a person could fti through an opening 19W
  wide as existtdi~ the air shaft Tr. 69).
  Respondent does not claim or argue that the condition did not exist or that its
  employees were not exposed to it or that it did not know of the conditions. Respondent
  claims, however, that there was no violation “on the basis that a temporary remwal of a
  guardrail to receive materials does not constitute a violation.” In view of the facts that there
  was no guardrail there to begin with and that the sides or edges were not being used to
  receive materials, such an argument is rejected as specious. Respondent comes closer to the
  mark by arguing that “no guardrails were installed because it makes the work difWuIt”(Tr.
  63) l

          The Commission, in Seibel Mo&m Manufacturing & Wekibzg COW, 15 BNA 06HC
  

  1219 (No 8&821, 1991) (“Seibel”) reviewed the history of the infeasibility defense including
  Dun-Par Engineered FO~WZ
  CO., 12 BNA OSHC 1949 (No. 794553, 1986), MM in Parl; JIUI)
  nom, Secretary VeDun-Par Engineered FO~VPZ
  Co.9 843 F.2d 1135(8th Cir, 198Q ~‘-&0’)
  and Dun-Par Engineered FO?TPI CO.9 12 BNA OSHC 1962 (Noe m-0928,1986) (“Dun-~IQ.
  In order to prevail on this defense, a Respondent must demonstrate that 1) compliancewith
  the standard’s requirements would “not be practical or reasonable in the circumstances.”
  Dun-Pm II, sup~t 12 BNA OSHC atpe 1966, and 2) “that an alternative protective measure
  was used or that there was no feasl%le alternative measure.” Seibel, supra, 15 BNA OSHC
  at 1228. See also, &UK C~snuction CO.9 15 BNA OSHC 1331,1333 (NO. 90436SS, 1991)
  (ALJ)e Infeasibility,said the Commission, in Dun-Par II, 12 BNA OSHC at pe 1996, includes
  “considerations of reasonableness, common sense, and practicality.”IrL Moreover, where an
  employer can&t Mly comply with the literal requirements of a standard, it must
  nevertheless comply to the extent that compliance is fe&Me. Button Funrinue Manufacftu-
  ing CO.9 11 BNA OSHC 1433,1434 (Noe 81-799-S, 1983). Respondent attempted affirmative
  defense fails if for no other reason than Respondent’s president conceded that safety belts
  could have provided fall protection where, as here, the scaffold faced a wall (Tr. 67-8).
  R~pondcnt’s f&lureto assurethe use of safetyb&s which could have been used negates
  the Eisstrtcd deihuc. The violation has been estWished.
  Respodant’s argument that the Secretary has exempted from the guardrail
  requirement scaffolds 12’away from the w8u (khiiit R-l) misses the mark (by about 4YY
  to 7%“) since the gaps here were greater . than that, In addition, Respondent’s President
  specifically agreed with the Compliance Officer that an employee could fti through the 191%”
  gap to the floor below (over 10’). A 10’fall on a cmstruction site is reasonably likely to
  produce broken bones or other serious injuries. Brown & Root, Id.. Accordingly,I find that
  the alleged violation is serious within the meaning of 8 17(k) of the Act. In the absence of
  any argument that the proposed penalty is unreasonable and upon consideration of the
  statutory factors under 0 17)j) of the Act, I find that the proposed penalty of SllW.00 is
  reasonable. /
  FINDINGS OF FACT

  All findings of fact necessary for a determination of all relevant issuc~ havrEbeen
  made above. Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law
  inconsistent with this decision are hereby denied.

                            CONCLUSIONS OF LA7N
  
    1. Respondent was, at all times pertinent hereto, an employer within the meaning
  

  of 0 3(S) of the Occupational Safety and Health Act of 1970;29 U. S. C. Q 9 651 - 678
  (1970).

  2. The Occupatiopational
     Safety and Health Review Commission has jurisdiction over the
     parties and the subject matter.

  3 l Respondent was in violation of 5 S(a)(2) of the Act in that it failed to comply
  with the standard at 29 C.F.R. 0 1926.4Sl(a)(13) as alleged in Citation 1, Item 1. The
  violation was other than serious. A civil penalty of $100 is appropriate therefor.

                                         6
  

  40 Respondent was in violation of 8 5(a)2) of the Act in that it failed to comply
  with the stanaElyd.at 29 C.F.R. 1926.451(~)(13) as alleged in Citation 1, Item 2. me
  A civil penalty of $1125 is appropriate therefor.
  violatioll w819COiOUS,

   IT IS ORDERED THAT the citation issued to Respondent         on or about January 19,
  

  1993 is affirmed, modified or vacated as indicated above.

           DEC 14 893                 Judge, OSHRC
  

  Dated:
  Washington, D.C.