HOPKINS ERECTION COMPANY

OSHRC Docket No. 12213

Occupational Safety and Health Review Commission

January 14, 1977

  [*1]  

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Associate Regional Solicitor, USDOL

Leonard Z. Finger, for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review.   The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review.   Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest.   Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance of an unreviewed [*2]   Judge's decision.   Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.  

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A.   For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.

APPENDIX A

DECISION AND ORDER

Bruce S. Heslop, U.S. Department of Labor, Office of the Solicitor, for the Complainant

Leonard Z. Finger, for the Respondent

Donegan, Judge: This is a proceeding pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act).

The Respondent, Hopkins Erection Company, was engaged in the installation and erection of a storage and rack system in the Higbee Company warehouse in Brooklyn, Ohio when a compliance officer of the Occupational Safety and Health Administration, U.S. Department of Labor inspected this   [*3]   place of employment on January 15, 1975.

As a result of this inspection, a citation number one for an alleged serious violation and a citation number two for alleged nonserious violations (2 items) were issued to the Respondent on January 17, 1975.   A "Notification of proposed penalty" of $550 for the serious violation and no penalties for the nonserious violations was also issued to the Respondent on the same date.

The Respondent timely contested citation number one and the proposed penalty of $550 for the alleged serious violation.

The Respondent did not contest citation number two or the proposed "no penalty" for the nonserious violations (2 items).

The Respondent is charged in citation number one with a serious violation of section 5(a) (1) of the Act as follows:

"The employer failed to furnish his employees working in the warehouse a place of employment which was free from recognized hazards that were causing or were likely to cause death or serious physical harm to his employees in that shelving was not secured against displacement when employees were working on the shelving surface.   In some areas shelving supports were observed to have been displaced or damaged to the   [*4]   point where only 1/2" 1" was supporting work surface.   Work level varied up to approximately 15' from floor and shelving covered a large portion of the warehouse. This condition was said to have existed for over three months, causing numerous injuries."

The section of the Act which is alleged to have been violated is as follows:

"Sec. 5(a) Each employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;"

It is stated in the citation that the alleged violation shall be abated immediately upon receipt of the citation.   Abatement is not an issue in this case.   The erection of the storage racks in the Higbee warehouse was 90% completed at the time of the inspection on January 15, 1975.   It was arranged at this time to abate the alleged violation by placing a 2 X 12 board across the shelves where the employees were completing the erection of the storage racks (T. 8-10, 291-93).

The answers of the Complainant and Respondent to the requests for admissions are entered as evidence of record in this proceeding in accordance with [*5]   the specific requests of the attorneys representing the parties (T. 306).

Jurisdictional issues are resolved by the pleadings and the admission of the Respondent at the hearing that the Commission has jurisdiction in this case (T. 13-14).

No affected employees or representatives of affected employees have elected to participate as parties in this proceeding.

The attorneys for the parties have submitted post-hearing briefs.

FINDINGS

The racks and shelving, which were being assembled and erected by the Hopkins Erection Company at the Higbee warehouse, had been designed, manufactured and delivered to the warehouse work site by the Republic Steel Company.   The Respondent had a contract with the Republic Steel Company to install the racks, and had done similar erection work for this company for the past 20 years (T. 186-90, 260-62).

The Hopkins Erection Company has been engaged in the business of erecting storage racks throughout the United States for more than 20 years.   The principal office is located in Houston, Texas, and the sole stockholder is Lawrence E. Hopkins, president, who has been with the corporation for approximately 21 years.   The Respondent is of mdedium size [*6]   in comparison with other companies engaged in the same business, and in a normal year the volume of business, as measured by the worth of installations, is between $250,000 and $350,000.   Three superintendents are employed on a regular basis, and other employees are hired through local unions at the job sites (T. 255-61).

Mr. Hopkins and a superintendent, David Hazelton, arrived at the Higbee warehouse on September 23, 1974.   Shortly thereafter, Robert Rodgers replaced David Hazelton as the Respondent's superintendent. Mr. Hopkins remained at the work site for a week during which time the storage rack parts were unloaded and assembled for erection in the Higbee warehouse. He inspected the 15 foot vertical uprights of the storage racks as they were assembled on the ground and gave instructions as to how they were to be erected. After the first week, Mr. Hopkins visited the work site every week or 10 days until the job was completed shortly after the inspection. (T. 238, 265-67, 292).

The storage racks were of a cantilever design consisting of vertical uprights from which horizontal arms extended.   After the horizontal arms had been attached, the vertical uprights were erected [*7]   in rows, spaced at regular intervals so that the bed frames could be supported by the horizontal arms. The assembly of a shelf was completed by inserting a particle board in each bed frame. Clips at the ends of the horizontal arms increased the stability of the bed frames when screws were inserted in the screw holes of the clips. Approximately 60 shelving sections had been erected in the warehouse at the time of the inspection. These sections consisted of 4 or 5 levels of shelving installed in cantilever fashion from both sides of the 15 foot uprights (T. 71-72, 214).   (Exhibits: C1-C-4, R1-R7, R9-R14).

Although each section of the storage rack structure is laterally and vertically stable when completely assembled, it is necessary that there be some movement in the parts while the structure is being erected. During the erection process, no screws were inserted through the clip holes because it was necessary to have some lateral flexibility in the horizontal arms so that the horizontal braces between the vertical uprights could be fastened to the uprights by employees standing on shelving approximately 12 feet above the floor.   Although only 3 or 4 employees worked at one time [*8]   on the upper shelves fastening these braces, most of the employees in the erection crew worked on the braces at some time or other.   The number of employees in the erection crew varied and the maximum was 21 workmen.   (T. 47, 49, 53, 124, 126, 132, 139, 140-41, 155-57, 175-84, 186-204, 271-77, 301-04).

Late in December 1974, an employee of the Respondent named Biggers, while working on the top shelf, stepped on a bed frame at the end of a section of the storage rack structure and the bed frame dropped from the horizontal supporting arms. Mr. Biggers fell to the next lower shelf, a distance of about 4 feet, landing on his back.   There is no evidence of Mr. Biggers having suffered injuries from this fall.

Dennis Grealis, a millwright steward representing the local union, was employed by the Respondent and was engaged primarily in the erection of the storage racks. He witnessed the fall of Mr. Biggers and attributed it to movement of the horizontal arms which supported the bed frame on which Mr. Biggers stepped.   Mr. Grealis did not report this accident to any representatives of the company, explaining that it was none of his business since iron workers are not in the same trade   [*9]   as millwrights. There is no evidence that representatives of the Respondent were informed of Mr. Biggers' fall.

On January 6, 1974, Joseph Valaitis, a member of the millwright union, fell while standing on the upper shelves. He was fastening horizontal braces in the vertical uprights in the middle of one of the sections.   Mr. Valaitis fell to the next lower shelf and was taken to the hospital by Mr. Grealis.   He returned to work the next day and there is no evidence in the record as to the injuries, if any, suffered by Mr. Valaitis as a result of this fall.

Mr. Grealis was on the ground below when Mr. Valaitis fell and does not know how it happened.   He said that they were surprised that a bed frame would fall from the horizontal support arms in the middle of a section because the middle portion of the storage rack sections were more stable than the ends of a section where there was more play in the horizontal support arms.

After Mr. Grealis reported the fall of Mr. Valaitis, the Respondent discontinued having the employees work on the shelves and did not resume this part of the erection work until the inspection on January 15, 1975, when after a discussion with the OSHA compliance [*10]   officer, it was decided to place planks across the upper shelves on which the employees would stand while fastening the upper horizontal braces. (T. 46, 58-60, 66, 68, 84-86, 99-108, 111, 128, 131-32, 142-43).

The extent of the lateral movement of the horizontal arms during the erection process was checked and corrected from time to time, and this was one of Mr. Grealis' assignments.   Mr. Grealis complained to Mr. Rodgers, the Respondent's superintendent, concerning movement in the horizontal supports at the end of the sections, and the employees had been cautioned to be careful when working near the end of a section.   (T. 147-64, 158-71, 222, 224, 240, 283, 294).

The storage racks which were being erected in the Higbee warehouse were of the same design and construction as those erected by the Respondent during the past 20 years except for the bed frames. Prior to this installation, the bed frames of the shelves consisted of two by fours.   The Respondent experienced no slippage problems of the bed frames on these installations. Republic Steel designed a new welded metal frame system to hold the shelf for the purpose of giving added strength and support to the storage rack structure.   [*11]   This was the first installation by the Respondent of a Republic Steel rack system using the newly designed welded metal bed frame. (T. 206, 236, 252, 262-65).

It is clear from a preponderance of the credible evidence that the erection of the storage racks required that the horizontal support arms not be secured until the installation of the upper horizontal support braces. Although the Respondent was aware of the lateral flexibility of the horizontal arms during the erection process, there is not a preponderance of credible evidence to support a finding that there was industry recognition or employer knowledge of the hazard of employees falling from the shelves because of slippage of the bed frames during the erection process. n1 The Respondent cannot be charged with knowledge of the existence of this hazard until the fall of Joseph Valaitis on January 6, 1974, when the hazard was immediately abated.

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n1 National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, (D.C.Cir. 1973) and Brennan v. O.S.H.R.C. & Vy Lactos Laboratories, Inc., 494 F.2d 460 (8th Cir. 1974).

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CONCLUSIONS OF LAW

1.   The Respondent, Hopkins Erection Company, was at all times material to this proceeding an employer engaged in business affecting interstate commerce within the meaning of section 3 of the Act.

2.   The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter of this proceeding as provided in section 10 of the Act.

3.   The place of employment of the Respondent at the Brooklyn, Ohio work site was inspected by an authorized employee of the Secretary of Labor on January 15, 1975 in accordance with section 8 of the Act.

4.   The Respondent was not in violation of section 5(a)(1) of the Act as charged in citation number one issued to the Respondent on January 17, 1975.

ORDER

Based on the foregoing findings of fact and conclusions of law, it is ORDERED:

1.   That citation number one issued to the Respondent on January 17, 1975 and the complaint filed by the Secretary of Labor thereon be, and are hereby vacated and dismissed.

2.   That the penalty of $550 proposed for the violation alleged in citation number one be, and is hereby vacated.   [*13]  

THOMAS J. DONEGAN, Judge

Dated: November 20, 1975

Seattle, Washington