SLETTEN CONSTRUCTION CO.

OSHRC Docket No. 11028

Occupational Safety and Health Review Commission

November 14, 1977

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Before: CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Henry Mahlman Reg. Sol., USDOL

Alexander Blewett, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge John J. Morris, dated October 30, 1975, is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision affirmed a repeated violation of 29 C.F.R. 1926.500(d)(1) and assessed a $340 penalty for that violation. It also affirmed nonserious violations of 29 C.F.R. 1926.28(a) and 1926.500(b)(1) and assessed penalties of $100 and $25, respectively, for those violations. n1 The Judge's disposition of these violations is affirmed.

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n1 The Judge also affirmed four other violations and vacated three alleged violations. The Judge's disposition of those violations will not be reviewed in this decision as no party has taken exception thereto. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD para. 20,780 (No. 4136, 1976); Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976).

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At the time of the inspection in October, 1974, the respondent was engaged in constructing a bridge over the Yellowstone River in Fallon, Montana. The respondent was in the process of constructing piers and erecting a cofferdam. The erection of the cofferdam required the respondent to construct a work platform which was 16 feet wide. The platform was 12 feet above the water level. The respondent was cited for noncompliance with 29 C.F.R. 1926.500(d)(1) n2 for the failure to have guardrails on the north side of the platform and for noncompliance with 29 C.F.R. 1926.500(b)(1) n3 for failing to guard an opening on its south side, which was located between the platform and the cofferdam.

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n2 This standard provides that:

Every opensided floor or platform 6 feet or more above adjacent . . . ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

n3 This standard provides that:

Floor openings shall be guarded by a standard railing and toeboards or cover, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways.

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Four employees were working on the platform at the time of the inspection. The inspecting officer observed one of the respondent's employees working less than two feet from the opening on the south side. Access to the platform included a one-foot passage between a crane located on the platform and the unguarded north edge of the platform.

The respondent's superintendent testified that use of guardrails would be impossible because of the operation of the crane on the platform. He indicated that guardrails would interfere with the crane's counterweight, the stacking of sheet pilings, and the use of a hose leading from a nearby compressor to the boom of the crane. The witness admitted, however, that all sheet pilings had been removed from the platform one day prior to the inspection. It was not established precisely how the counterweight or hose would preclude using guardrails along the entire north side.

The respondent was also cited for noncompliance with 29 C.F.R. 1926.28(a) n4 for the failure of one of its employees to wear a safety belt while exposed to a fall of 18 feet from the top of a [*4] form which was to support a bridge. The respondent's superintendent testified that a safety belt was provided the employee, that he had instructed him to use it, and that it was the employee's own decision not to use it. He further testified that he expected that a safety belt would be used under the conditions described.

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n4 This standard provides that:

The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

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THE GUARDRAIL VIOLATION

The respondent contends that the citation should be vacated because 29 C.F.R. 1926.500(d)(1) does not apply to cofferdams, n5 the evidence fails to establish employee exposure, and the evidence shows that it was impossible to comply with the standard and perform the required work. It also contends that the violation should not be characterized as repeated because the respondent's [*5] prior violations of the standard were not over water. The Commission rejects these contentions.

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n5 Standards specifically applicable to cofferdams are contained in 29 C.F.R. 1926.802.

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The respondent's contentions that it was cited under the wrong standard and that employee exposure was not established have no merit. The violative condition was present on the work platform, not the cofferdam. The testimony of the inspector and photographic evidence clearly establish that respondent's employees had access to the falling hazard created by the respondent's failure to install guardrails on the north side of the platform. n6 See Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,448 (No. 504, 1976).

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n6 Although certain portions of the north side of the platform may have had a fall distance insufficient to require guardrails under 1926.500(d)(1) due to the presence of a large, conical dirt pile on that side, there is not doubt that a fall of at least 12 feet existed at both ends of the platform.

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The Commission finds that the respondent has failed to establish an impossibility defense. n7 The record fails to reveal that guardrails would have interfered with the crane's counterweight or the compressor hose along the entire length of the platform. The Commission concludes that the evidence does not establish that respondent could not have performed the required work with guardrails positioned at each end of the north side of the platform, particularly at the northeast corner where no pilings or other machinery was located. To the contrary, the evidence shows that neither the crane's counterweight nor the hose from the compressor would have come in contact with guardrails at these locations. Since no sheet pilings had been on the platform for about a day before the inspection, they could not have prevented the use of guardrails at the time of the violation.

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n7 While Chairman Cleary and Commissioner Barnako agree that respondent has not shown that compliance is impossible here, they are divided on the full attributes of the defense. See Taylor Building Associates, 77 OSAHRC 27/A10, 5 BNA OSHC 1083, 1977-78 CCH OSHD para. 21,592, (No. 3735, 1977).

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Although a maximum penalty of $10,000 is authorized for a repeated violation, n8 the Judge assessed only a $340 penalty for the repeated violation of 29 C.F.R. 1926.500(d)(1), an amount considerably less than the $1,000 penalty authorized for a serious or nonserious violation. n9 No party has objected to the Judge's penalty assessment and the Commission adopts it. In view of the relatively low penalty assessment, whether the violation should be classified as a repeated one need not be addressed by the Commission. Penn Central Transportation Co., 77 OSAHRC 15/F4, 4 BNA OSHC 2033, 1976-77 CCH OSHD para. 21,540 (No. 13084, 1977).

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n8 29 U.S.C. 666(a).

n9 29 U.S.C. 666(b) and (c).

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THE FLOOR OPENING

The respondent asserts on review that the $25 penalty assessment for this violation is duplicative of the $340 penalty assessed for the guardrail violation. The Commission disagrees.

Section 1926.500(b)(1) provides for abatement [*8] of a floor opening by using either standard guardrails or a cover. The inspector testified that guardrails were not the appropriate means of abatement on the south side because they would have interfered with the respondent's work. He therefore concluded that the opening should have been covered. Consequently, each violation required a different means of abatement. Under these circumstances, separate penalties are appropriate. See Koppers Company, 77 OSAHRC 44/A4, 2 BNA OSHC 1354, 1974-75 CCH OSHD para. 19,063 (No. 3449, 1974). Furthermore, after considering the entire record in conjunction with the criteria specified in 29 U.S.C. 666(i) the Commission finds that the Judge's penalty assessment for this violation is appropriate.

THE SAFETY BELT VIOLATION

The respondent asserts that it should not be held liable for this violation because it resulted from the willful misconduct of its employee in removing his safety belt. In effect, the respondent is contending that this violation was unpreventable. This is not a defense unless the employer establishes that he conducted an adequate safety program. The essential foundations of such a program are specific [*9] safety instructions and workrules addressing hazards peculiar to the job being performed. These instructions and workrules must also be effectively communicated to employees and uniformly and effectively enforced. Enfield's Tree Service, Inc., 77 OSAHRC 32/B3, 5 BNA OSHC 1142, 1977-78 CCH OSHD para. 21,607 (No. 9118, 1977). Utilities Line Construction Co., 76 OSAHRC 121/A2, 4 BNA OSHC 1681, 1976-77 CCH OSHD para. 21,098 (No. 4105, 1976).

In this case, there is no evidence that the respondent conducted an adequate safety program. In particular there is no showing that the respondent uniformly and effectively enforced the wearing of safety belts when fall hazards were present. Therefore, the respondent has not established a valid defense.

Although the Secretary of Labor proposed a $25 penalty for this violation, the Judge assessed a $100 penalty. The respondent contends that a $25 penalty is adequate and that the Judge erred in increasing it.

It is well established that the Commission may increase the penalty proposed by the Secretary. See, e.g., Long Manufacturing Company, N.C. Inc. v. OSHRC, 554 F.2d 903 (8th Cir. 1977); Clarkson Construction Co. [*10] v. OSHRC, 531 F.2d 451 (10th Cir. 1976). Moreover, considering the entire record in conjunction with the criteria specified in 29 U.S.C. 666(i), the Commission considers a $100 penalty to be appropriate, particularly in view of the gravity of the hazard which involved a possible fall of 18 feet.

Accordingly, the Judge's decision is affirmed.