MANGONE SHIPBUILDING COMPANY

OSHRC Docket No. 1281

Occupational Safety and Health Review Commission

July 29, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge John C. Castelli, dated February 1, 1973, is before this Commission for review pursuant to 29 U.S.C. 661(i).

Having examined the record in its entirety, the Commission finds no prejudicial error therein. Consideration at this level of whether the citation was issued with reasonable promptness as required by 29 U.S.C. 658(a) was waived by the respondent's failure to raise that defense in the proceedings below. Secretary v. Chicago Bridge and Iron Company, Accordingly, the Judge's decision is hereby affirmed in all respects.

Chairman Moran would reverse for the reasons set forth in his dissenting opinions in Secretary v. Plastering, Incorporated,

[The Judge's decision referred to herein follows]

CASTELLI, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 [29 USC 651 et seq., hereafter called the Act], contesting [*2] the citation issued by the Complainant against the Respondent under the authority vested in the Complainant by Section 9(a)(2) of that Act. The citation alleges that as the result of the inspection of a workplace under the ownership, operation or control of the Respondent located at 819 South 80th Street in Houston, Texas, and described as the Mangone Shipbuilding Company, the Respondent had violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The citation which was issued on July 26, 1972, alleged that five nonserious violations resulted from a failure to comply with standards promulgated by the Secretary and codified in 29 CFR Part 1916.14. The Respondent filed with the Secretary a notice of contest on August 8, 1972, contesting violations as alleged in items 1 and 2 of the citation. It did not contest the remaining three alleged violations averring that the violations had been corrected immediately and in accordance with the abatement date established in the citation. It was agreed upon by the parties herein that since there were no penalties [*3] assessed for the uncontested violations, that they thus be eliminated as issues in the hearing and such was approved by the undersigned Judge. Items 3, 4 and 5 of the citation herein noted, not being contested within the statutory time prescribed by the Act, are considered admitted by the Respondent and are deemed final orders of this Commission.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated July 26, 1972, from Thomas T. Curry, Area Director of the Houston, Texas Area Office of the Occupational Safety and Health Administration, United States Department of Labor, proposing to assess penalties for the violations as alleged in the citation in the amount of $75.00. This amount reflects the amount of the proposed penalties for the above-mentioned contested violations. After Respondent contested this enforcement action and a complaint and an answer had been filed by the parties, the case came on for hearing at Houston, Texas on Nevember 9, 1972.

The Secretary of Labor was represented by Mrs. Joan T. Winn, Regional Solicitor's Office, Dallas, Texas. The Respondent was represented by Mr. Alan S. Dale, [*4] Attorney at Law of the firm Eastham, Watson, Dale and Forney. No affected employee or representative thereof sought to participate in the hearing although given an opportunity to do so. Proposed findings, conclsions of law and orders, as well as briefs, have been submitted by counsel.

At the hearing counsel for the Respondent moved for the dismissal of the Secretary's complaint pursuant to Section 10(b) of the Occupational Safety and Health Act of 1970. The motion was denied by the undersigned Judge as inappropriate to issues relating to the instant proceeding. Reference to this section of the law shows that the provisions therein are addressed to the Secretary of Labor and to a period ". . . which period shall not begin to run until the entry of a final order by the Commission." It has no application to the procedures of the Secretary of Labor as concerned matters subject to the complaint herein involved or to service of the citation concerning this cause initially.

At the hearing it was stipulated orally by the parties that the Respondent was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health [*5] Act of 1970; jurisdiction of this proceeding is conferred upon the Occupational Safety and Health Review Commission by Section 10(c) of the Occupational Safety and Health Act; and, Respondent's workplace was a workplace within the meaning of Section 4(a) of the Act.

ISSUES PRESENTED

The description of the alleged violations contained in the citation issued July 26, 1972, which were contested and in issue reads:

Item 1. 29 CFR Section 1916.2(a). Four (4) portable ladders being used in following locations were not secured to prevent their being displaced:

1. Forward of longitudinal half of metal hull #108.

2. Exhaust stack units for hull #106 [two (2) ladders].

3. Forward, starboard side hull #106.

Proposed penalty $45.00.

Item 2. 29 CFR Section 1916.35(a)(7). Forward hull #106 -- Two (2) oxygen cylinder bottles were standing and not secured to prevent their being knocked over. Proposed penalty $30.00.

The standards as promulgated by the Secretary cited for the above alleged violations provide in part:

Item 1. 29 CFR 1916.42(a)(3): Portable ladders shall be lashed, blocked or otherwise secured to prevent their being displced.

Item 2. 29 CFR 1916.35(a)(7): A suitable [*6] cylinder truck, chain or other steadying device shall be used to keep cylinders from being knocked over while in use.

The issues presented for decision in this matter are: (1) Whether it was established that Respondent violated 29 CFR 1916.42(a)(3) and 29 CFR Section 1916.35(a) (7), as described by items 1 and 2 of the citation issued July 26, 1972, and (2)? If there were violations of said standards, whether the proposed penalties relating thereto were reasonable and appropriate considering the gravity of the violations, the size of the employer's business, his past history and good faith?

The Evidence

Mr. Barry Buuck, in his capacity as a compliance officer for the Occupational Safety and Health Administration, testified that on June 20, 1972, he inspected the workplace of the Mangone Shipbuilding Company, located at 819 South 80th Street, Houston, Texas. Mr. Buuck stated that during his inspection he was accompanied by the Respondent's safety director and they covered the whole facility including the shops, the warehouse and the fabrication areas. As the compliance officer walked around the workplace of the Respondent he observed four ladders that were not secured, [*7] lashed or blocked to prevent them from being displaced. He stated that two of these ladders were standing against prefabricated exhaust stack units for hull #106, one ladder was leaning against hull #108, the longitudinal section of the vessel under construction, and the fourth ladder was on the forward end of hull #106.

As the compliance officer was making the inspection, he observed from a distance of 75 or 80 feet away, one employee working from a ladder doing some grinding on one of the exhaust stacks for hull #106. He also observed, from approximately ten feet away, an employee climbing a ladder to get to the top of the section on hull #108. Photographs were taken by the compliance officer during his inspection of the workplace and these photographs were marked as the Complainant's exhibits 1 and 2 and made part of the record. Exhibit 1 reflects the workman who had climbed the ladder to the top of the section for hull #108. Exhibit 2 reflects the ladders placed against the exhaust stack and used by the workman to do some grinding. He stated that he saw this workman using an unsecured ladder working approximately halfway up the ladder grinding on some welds projecting [*8] from the exhaust stack. At this time the safety director called out to the employee and ordered him to climb down, instructing him to remove the ladder or to secure it.

On cross-examination, the compliance officer stated during the approximately five minutes when observing the men working on the stack units for hull #106, that he did not see anyone go to that ladder to hold it, anchor it, or steady it. He stated that the workman, however, after being ordered off the ladder by the safety director, did not use it again during this time. He explained that the fourth ladder was a wooden ladder, approximately 20 feet in length like the others, but it was not used during the time of the inspection. It was leaning up against a scaffolding for hull #106. It was, however, not secured, and positioned so that it was accessible for any employee who might have been walking by to climb. No photographs of this ladder were made, and the compliance officer at the hearing was unable to give any reason for none being made. He testified that in his judgment the four unsecured portable ladders as observed by him, presented hazards which were in violation of the occupational safety and health standards [*9] in view of the fact that these unsecured portable ladders were placed against metal which was slippery and had no holding power, together with the fact that because the exhaust stacks were rounded, an employee if shifting his weight, could easily cause the ladder and himself to slide and fall. Moreover, he stated that there were no signs or safety devices at the positions where the unsecured ladders were observed that would have prevented or warned an employee from climbing the ladders.

The compliance officer stated that as he continued his inspection of the workplace on June 20, 1972, he observed two oxygen cylinders located approximately ten or fifteen feet from the access stairway to hull #106, and approximately four of five feet from a roadway, which were standing without caps, unchained, and not secured which would have prevented them from being knocked over and possibly having the nut broken off them. He also determined by cracking the valves that both these cylinders had pressure on them, and that there was a great amount of pressure on one of the cylinders in particular. As a result of this test, he determined that one cylinder war full and the other empty, or [*10] partially empty. He further stated that, generally, these cylinders are never completely empty, and that they usually have 20 or 30 psi remaining in them. The hazards presented by a vertically standing, unsecured cylinder, 46 inches in height, approximately nine inches in diameter, and weighing 100 pounds, was described by Mr. Buuck as very unstable which could easily fall over and strike an employee, causing injury. With reference to these oxygen cylinders, Mr. Buuck noted that compressed oxygen has in excess of 2200 psi, and if a cylinder were knocked over and the valve knocked loose, the cylinder would become a projectile, and also would have a tendency to spin in a forceful manner. He further explained that if accidents as above described occurred, they could have resulted in injuries to workmen as these cylinders were located ten of fifteen feet from the stairway loading to the forward hull of #106 where approximately 35 men were working, and located off to the side of the roadway, four or five feet from where there was vehicular traffic and workmen walking.

On cross-examination, the compliance officer admitted that the oxygen cylinders in question were not coupled [*11] with any acetylene bottles, nor were they connected to any gauges and lines for any burning purposes. In the 200 minutes that he was in the area of the oxygen cylinders, they were not used for any actual cutting or welding purposes. He observed that during the period of his inspection there were no types of barriers, barricades or signs in the area where the cylinders were located which would have prevented an employee from using the cylinders or would have apprised that these cylinders were empty. In the immediate area he also observed a cylinder rack with an oxygen cylinder and an acetylene chamber which were chained to it and had gauges and burners hooked to them. The oxygen cylinder, which he had previously determined to be full, was standing next to the cylinder rack with the empty cylinder in question perhaps four or five feet away. Because of the positions of the cylinders in relation to the loaded rack containing gas cylinders hooked with gauges and burners, he concluded that the cylinder which he had previously determined to be full was to be used as a replacement for the oxygen cylinder on the rack when it ran out. A photograph made during the inspection [*12] and marked exhibit 3 and made part of the record, reflects that the bottle cylinder which he determined to be full was located adjacent to the rack containing the chained oxygen cylinder and the acetylene chamber with burning equipment attached to them.

Mr. Buuck, the compliance officer, further testified concerning the computation of and explained how the amount of proposed penalties were determined. On the basis of established policy which is reproduced in the Compliance Operation Manual, he explained that abatement of violations, Respondent's size, its good faith and history, as well as the probability of an accident occurring, and the severity of an injury that might occur, were taken into account in assessing the proposed penalties. He further described penalty adjustment factors given for good faith, size of the company and history. Good faith adjustments range from zero to twenty percent, based upon the employer's on-going safety program and in the instant case, the Respondent was allowed the full twenty percent credit for this factor. Size is an adjustment factor also, ranging from zero to ten percent reduction to an employer with employees of one to twenty; five percent [*13] reduction to employer's with more than 20 but less than 100 employees; and, zero percent for over 100 employees. In the instant case, the Respondent was not given any adjustment credit for size for the reason that he was am employer with more than 100 employees. History of the employer was considered, and an adjustment allowance of twenty percent was allowed for this factor. Finally, a fifty percent abatement credit was given in the instant case in order to arrive at the final proposed adjusted penalty of $45.00 concerning item 1 of the citation. The same criteria were followed in arriving at the proposed adjusted penalty assessed the Respondent for violation described by item 2 of the citation in the amount of $30.00.

Mr. Thomas T. Curry, the Area Director of the Houston, Texas Area Office, Occupational Safety and Health Administration, testiied that he reviewed with Mr. Buuck, the compliance officer, all matters concerning the alleged violations contained in the citation and also reviewed with Mr. Buuck the proposed penalties which were recommended, and that he then approved the issuance of the citation and the notice of proposed penalties indicating that the matters [*14] contained in the citation and the recommended and proposed penalties were in conformity with established policy as set forth by the Occupational Safety and Health Administration.

The testimony of Mr. Buuck was substantiated in all particulars by Mr. Douglas Harrison, Jr., another compliance officer for the U.S. Department of Labor, Occupational Safety and Health Administration, who accompanied Mr. Buuck on the inspection tour of the Respondent's workplace on June 20, 1972.

The Respondent presented as a witness, Mr. Domingo A. Alanis, Shipfitter Foreman, who was responsible for supervising the men working on hull #108. He testified that the ladders which were photographed on hull #108 had been in a different position and secured about 20 minutes before the photograph was taken. They had been moved in order to put in place a plate at the exact location where the ladder was previously located. It was necessary to move the ladders in order to give the workers working room to secure the plates in place. He stated that the ladders prior to their being moved 20 minutes before were secured with a rope on top of the hull. Moreover, after the plate had been placed and welded, [*15] the ladder was again secured. The witness denied any knowledge with regard to ladders shown on the stack units as reflected in exhibit 2 and with regard to any matters concerning the oxygen cylinders appearing in exhibit 3. He did testify, bowever, that the Respondent's safety instructions required that immediately upon completing the work of welding the plate, the ladders were to be moved back to the location and resecured. During this short period of time when the ladders were not secured and when they were working on the plate, he averred that the instructions are that no employees should use the ladders until such time as they are returned to the original place and resecured. During the time the ladders had been removed to allow for the installation of the plates, he did not observe anyone climbing the ladders although he opined that someone could have climbed the ladders without his knowledge. He stated, however, that other ladders were positioned around the hull that were secured and were available for other employees to use.

Also testifying on behalf of the Respondent was the labor foreman for the grinders and painters, Mr. T. J. Upchurch. He stated that there is an [*16] established procedure for grinding work on stacks because the only way that the grinding operation can be accomplished on the finished product is to go up on a ladder while someone is steadying it. In the grinding operation on the stack, ladders used cannot be secured at the top of the stacks and the alternative procedure is to have a pair of workmen working with the ladder whereas the grinder climbs up the ladder to do the grinding while the second worker steadies the ladder on the ground. He stated that this established procedure is fully explained to the grinders and stressed at staff meetings every Friday at noon.

A Mr. Jack S. Corb, Jr., the Safety Inspector and First-Aid Director, who accompanied the compliance officers on the inspection tour on June 20, 1972, testified that safety regulations had been prepared and drawn up under his direction, and that these safety regulations were posted in the yard on the bulletin board. He averred that these regulations were reviewed weekly by the employees at safety meetings which lasted approximately 15 minutes. These regulations contain provisions regarding ladders and oxygen cylinders used at the Respondent's workplace. [*17]

Regarding the two ladders which were observed by the compliance officers leaning against hull #108, and against a scaffolding for hull #106, the safety director reiterated prior testimony to the effect that the particular locations of these two ladders which were seen by the compliance officers were strictly temporary; that the ladders in question had previously been located and secured elsewhere; and, that they had been moved to the location in which they were seen only for a few minutes until other work being carried on at the places where the ladders nad previously been located was completed. He stressed that there were numerous other ladders which were properly secured and positioned in and about the workplace which afforded safe access to the hulls in question for all of the Respondent's employees. He also explained that it was safer in his judgment to move the ladders as they had been done rather than to put them on the ground because the terrain on the backside of the hull was sloped down approximately three feet to level ground. Laying a ladder on the ground at that location would have caused a tripping hazard which in his judgment was more hazardous.

With respect [*18] to the ladders leaning against the stack units for hull #106, he confirmed prior testimony to the effect that upon noticing the employee on the ladder, which was unsecured, he gave instructions for the employee to climb down the ladder. When inquiring of the employee as to why he was on the ladder alone, the safety director was informed that the other workman had left temporarily and was returning in a very short time.

The safety director testified that the oxygen bottle cylinders herein involved were not connected to torch hoses or to gauges and were not being used in connection with an acetylene bottle. He explained that the cylinders were not secured or tied to a stationary object and were not capped because they were in the process of being removed and they were awaiting transportation to the oxygen cylinder empty storage rack. He explained that this is done by loading the cylinder on a portable bottle rack, usually referred to as a "truck," and is then removed by a hister which picks them up and then transports them to the cylinder empty storage rack. He stated that the reason that these particular cylinders were not capped was that they were in an "in-between" stage of [*19] being transported and stored. He explained that when a cylinder is full, the cap on the cylinder itself is removed so that the cylinder regulators can be connected. These caps when removed are taken back to the storage rack until such time as the cylinder is empty. When the cylinder is ready to be transported to the empty storage rack, the cap is returned to that location, put on the cylinder and transported to the empty storage rack. He avers that at the particular moment when observed, the men were waiting for the hister with the caps to come to the location so that they could be placed on the cylinders and then loaded on the portable bottle rack which in turn would be hooked to the hister to be transported to the empty storage rack. He stated that the cylinders when transported are always capped and strapped in an upright position. The safety director indicated that most of the cylinders because of the nature of the work done in their shipyard are usually replaced still containing approximately 500 pounds of pressure therein. He stated that a cylinder, either full or empty, where it is subject to being knocked over and not having a steadying device, would be dangerous. [*20] At the conclusion of the inspection, he testified that he and the compliance officers discussed the alleged violations and discussed the abatement dates. He stated, however, there was no mention of possible proposed penalties for the violations.

Law and Opinions

The Complainant, in its brief, argues that unsecured portable ladders present a hazardous condition during all periods that portable ladders are positioned around a workplace so as to permit an employee to ascend it, and that in the instant case, the Respondent, in failing to secure the four portable ladders that are subject of the Secretary's complaint herein, was in violation of the standard cited as 29 CFR Section 1916.42(a)(3) in the citation issued the Respondent on July 26, 1972.

29 CFR Section 1916.42(a)(3) provides for the general requirement that portable ladders shall be lashed, blocked or otherwise secured to prevent their being displaced.

The Complainant raises the question of whether the language of the standard requires that an employee be working on or in the process of climbing a portable ladder before the employer is charged with a duty to secure such ladders or does this duty extend during [*21] the entire period such ladders are positioned so as to permit ascension by an employee. Responsive to this question, they asserted that the term "in use" is absent from language used in this standard and it is submitted that when portable ladders are positioned by an employer so as to permit an employee to ascend it it is immediately charged with the duty to properly secure the ladders. The Complainant argues that when a ladder provides easy access to a point an employee desires to reach, the employee will use the ladder which is most handy. It was pointed out that even though Respondent insists that the ladder was not intended for ascension and was only going to remain leaning against hull #108 unsecured for the time it took a crew to move a plate in place, a workman, as actually observed by the compliance officers and safety director, did indeed use the unsecured ladder to get to the top platform of hull #108. Moreover, the evidence of record is undisputed that at or around the locations where the four ladders herein in question were positioned there were no attendants, barriers or signs present to prevent or warn an employee from using or climbing the ladders.

Respondent [*22] contends that the ladders herein in question were all examples of the transitory state of certain portable ladders which is necessary and indigenous to the conduct of this employer's business. He argues that because of the nature of work conducted by this employer, necessarily certain of the 40 or 50 portable ladders in use at this employer's workplace are in a transitory state at all times, being moved from one place to another or temporarily moved in order that other work can be carried out in the location where the ladders were secured. It is contended that it would not be feasible to secure these ladders during this short period of time and that it would be a strained construction of the standard to hold otherwise. It would not carry out the legislative intent to require that a portable ladder which has to be moved for periods of several minutes in order for other work to be performed in the location where it was secured, be placed in storage and then removed from storage when the temporary interruption had terminated.

Regarding the two ladders which were observed by the compliance officers to be leaning against hull #108, and against a scaffolding for hull #106, the Respondent [*23] stresses that the particular locations in which these two ladders were seen by the compliance officers were strictly temporary; that the ladders in question had previously been located and secured elsewhere; and, that they had been moved to the location in which they were seen for a very few minutes until other work being carried on at the places where the ladders had previously been located was completed at which time the ladders were to be returned and resecured in their proper position. In each instance he argues, the evidence reflects that there were numerous other ladders which were properly secured, and which afforded safe access to the hulls in question to all of the Respondent's employees.

The two ladders seen resting against the exhaust stack units were so placed to allow access for a workman with a cutting torch or grinder to remove and smooth off all projections on the stacks. Since there was nothing by which the ladders could be secured to the top of the stacks, it was Respondent's practice to require that ladders, used in such work, be held or steadied by a man standing on the ground at the base of the ladder. The Respondent contended that this practice [*24] was being followed, but at the time the compliance officers observed the ladders on the stacks, the man assigned to hold the ladder was away from his assigned position, having repaired to the men's restroom. It is argued that although the workman using the grinder elected, in the brief interval when his coworker was away, to continue working, if there was a violation of the standard, it was committed by the employee who was continuing the work on the stack which was also a violation of the Respondent's published safety regulations. The Respondent avers that an employer should not be held liable for penalties involving employee failure to comply with the regulations where the employer has shown that he has not failed to do something that he should have done.

The undersigned Judge agrees with this position, but disagrees that this employer in this instance has shown that he has not failed to do something that he should have done. The Act mandates an employer to furnish its employees a place of employment with safe and healthful working conditions and ancillary thereto it is a broad scale effort to prevent personal injuries and illnesses arising out of work situations. [*25] In the instant case, the cited standard calls for portable ladders to be properly secured to prevent their being displaced. This standard was developed because through research or experience resulting from many work situations it was found that unsecured portable ladders presented a workplace hazard and such standard was later promulgated to apprise employers what they must do in order to avoid such workplace hazards. The Judge is of the opinion that unsecured portable ladders present a hazardous condition, even if in a transitory state or in a temporary location, if such ladders are positioned around a workplace so as to give an employee easy access to climb or use it and that pursuant to the cited standard, an employer, under these circumstances, is charged with a duty to lash, block or otherwise secure the ladders. This duty is dischargeable by the employer, but only if he takes every reasonable precaution to assure the safe condition of the portable ladders used by his employees.

In the instant case, the Judge is not persuaded that the employer had taken every reasonable precaution to assure a safe condition of the portable ladders used by his employees, thus relieving him [*26] of a standard violation by alleging voluntary acts or omissions of employees contrary to the Respondent's safety rule. An employee violation of the company rules is not a defense when the undisputed facts show that unsecured portable ladders were positioned at accessible locations frequently for periods anywhere from ten minutes to twenty minutes, and during these periods were used in violation of company rule frequently enough that the Respondent should have discovered that its rule was being violated. The facts show that although certain of the 40 or 50 ladders in use by the employer in the conduct of its business are always in a transitory state, no procedure was established by Respondent to prevent or warn employees not to use portable ladders that were in a transitory state or temporarily unsecured. No attendants, barriers, barricades, or signs were provided for those ladders, temporarily unlashed, unblocked, or unsecured when in a transitory state [a period lasting ten minutes to as long as twenty minutes], to assure that the ladders would not be used. Fault cannot be relegated to an employee if an employer has not first provided basic precautions to assure safe [*27] and healthful working conditions.

Although the employer provided for a good safety program, in the instant circumstance, earnest effort was not made by Respondent to assure that unsecured portable ladders were so positioned that they were not easily accessible for climbing or that warning signs or barricade devices were available for use to prevent or warn against climbing of unsecured portable ladders. Apparently, the employees in the instant case were not sufficiently impressed with Respondent's safety regulation enforcement to comply therewith as witnessed by actual use of these ladders by employees when unsecured or not anchored. Thus, under the facts of this case, the Respondent was in violation of 29 CFR Section 1916.42(a)(3) in failing to secure the four portable ladders that are the subject of the Secretary's complaint herein.

29 CFR Section 1916.35(a)(7) states: "A suitable cylinder truck chain or other steadying device shall be used to keep cylinders from being knocked over while in use." The Respondent argues, in their well-prepared brief, that the evidence of record in this cause was to the effect that the cylinders in question were not in use. He stresses [*28] that no welding or cutting was going on; the cylinders were exhausted except for residual oxygen; and, that they were standing in the yard away from other work awaiting pick up by the Respondent's portable truck and hister for return to the storage rack. Moreover, the oxygen cylinder bottles herein in question were not connected to acetylene sources and without such connections they could not be used in the workplace of this Respondent. Since under these facts the cylinders were not in use, a violation of the standard cited is proscribed. It is argued that the words, "while in use," are an integral part of the regulation, and that proof that they were in fact "in use" is a condition precedent to any violation.

The Complainant submits that the Respondent's position that in order for a cylinder bottle to be "in use" within the meaning of the standard, an employee must have hoses connected to the cylinder, and must be at that particular moment drawing oxygen from the bottles in a burning operation, is too narrow a construction of standards. They contend that although at the moment the cylinders were not operable it does not mean within the meaning of the standards that they were [*29] not in use. The Complainant submits that the cylinder bottles in question were in use by the employer as demonstrated by their location and the pressure existing within the bottles. The uncontroverted testimony shows that both cylinders had pressure, and that at least one of them was full. The undisputed testimony also shows that the unsecured cylinder bottles were located in close proximity to the access stairway of a hull, a roadway, and in close proximity to a cylinder rack containing bottles that were chained and hooked up to a burning torch. It was argued that the compliance officers' determination that as soon as the cylinder being burned from ran out that the full cylinder which was unsecured and placed near the rack was to be put in its place was reasonable under the circumstances. The Complainant contends that in the absence of any signs placed around the location of the cylinders indicating that they were empty, together with the amount of residual pressures still on the cylinders and their proximity to other cylinders in actual use and connected with gauges, hoses and to acetylene bottles, that the cylinders in question were "in use" within the meaning of [*30] the standard cited.

There is a strong presumption that regardless of whether oxygen is being drawn from the cylinder in a burning operation or in process of being replaced by a full cylinder, or in process of being transported and stored, that once cylinders are transported and positioned at the job site, they are "in use." It appears that in all three stages, that unless secured by a suitable truck, chain or other steadying device, the cylinders are subject to being knocked over and definitely present a workplace hazard which the standard was designed to avoid. The evidence is undisputed that unstable and unmarked cylinders weighing approximately 100 pounds, subject to being knocked over, could strike an employee and result in injuries. Moreover, since the exhausted cylinders were never completely empty, there was a possibility that a cylinder containing residual oxygen pressure could become a projectile if knocked over and the valve broken. An overall review of standard 29 CFR Section 1916.35 requires that gas cylinders be secured in an upright position when not being hoisted or carried, and when "in use," must be secured to a suitable cylinder truck or by chain, or [*31] by steadying device. The overall application of the standard relating generally to gas welding and cutting supports the conclusion that the Respondent was specifically in violation of 29 CFR 1916.35(a)(7). An employee violation of the company rules is not a defense, and fault cannot be relegated to an employee if an employer has not first met his primary obligation for providing safe and healthful working conditions.

FINDINGS OF FACT

1. On June 20, 1972, the Respondent, Mangone Shipbuilding Company, with a place of business located at 819 South 80th Street, in Houston, Texas, was an employer engaged in the construction of offshore service vessels, and employed approximately 130 employees [Respondent's brief, p. 1].

2. On June 20, 1972, compliance safety and health officers for the Occupational Safety and Health Administration, inspected the entire facilities located at the Respondent's workplace [Trans., p. 18].

3. On July 26, 1972, the Complainant issued to the Respondent a citation alleging five violations of the standards promulgated under the Occupational Safety and Health Act of 1970, and a notification of proposed penalty, proposing a total of $75.00 in proposed [*32] penalties [Complaint, par. VI, VII, VIII, IX and X].

4. On June 20, 1972, the Respondent employed workmen at its business establishment who were affected by the five items set forth in the citation issued July 26, 1972, as violations of standards promulgated pursuant to the Occupational Safety and Health Act of 1970, for which penalties were proposed.

5. All items of the citation issued July 26, 1972, relating to violations of standards promulgated pursuant to the Occupational Safety and Health Act of 1970, except items listed as 1 and 2, have been admitted by the Respondent and were not at issue at this proceedings [Notice of Contest, Trans., p. 5].

6. On the date of the inspection, the compliance officers observed four portable ladders that were not secured, lashed or blocked to prevent their being misplaced, two of these ladders were standing against a prefabricated exhaust stack unit for hull #106, one ladder was leaning against hull #108, and one ladder was on the forward end of hull #106 [Trans., pp. 20, 60 and 61].

7. During the period of the inspection by the compliance officers, an employee of the Respondent was observed working from one of the ladders leaning against [*33] the exhaust stack unit grinding on one of the exhaust stacks [Trans., pp. 20, 61].

8. During the period of the inspection by the compliance officers, an employee of the Respondent was observed climbing the ladder leaning against hull #108 [Trans., pp. 20, 23 and 61].

9. During the period of the inspection of the Respondent's workplace no employee of Respondent was observed standing at the foot of any of the four portable ladders that are the subject of the Secretary's complaint herein steadying such ladders [Trans., pp. 56 and 61], and there were no signs or types of barriers at or around the locations of the unsecured ladders which would have warned or prevented an employee from climbing the ladders [Trans., pp. 26 and 81].

10. An unsecured portable ladder presents a hazard in that the metal is slippery and the ladder does not have any holding power. If the employee were to shift his weight it is possible that the ladder could very easily slide and fall with the employee on it.

11. During the period of the inspection of the Respondent's workplace, the compliance officers observed two oxygen cylinder bottles located approximately ten or fifteen feet from the access [*34] stairway to hull #106, approximately four or five feet from a roadway, and in close proximity to a cylinder rack with an oxygen cylinder and an acetylene chamber which were chained thereto and hooked up to a burning torch [Trans., pp. 27 and 58].

12. These oxygen cylinders, although without gauges or burning torches attached, were standing without being capped, were not secured to prevent them from being knocked over, and had residual pressures remaining in them [Trans., pp. 27, 62 and 97].

13. These cylinders are never completely empty and there would be as much as 500 pounds of pressure remaining in these cylinders when the Respondent's workers were through with them [Trans., pp. 27 and 97].

14. No notices and signs or barriers and barricades were placed around these cylinder bottles that would have prevented an employee from walking directly to them or apprise an employee to not use these cylinders.

15. These unsecured oxygen cylinders presented a hazard in that they were subject to being knocked over and having the valves broken off. Such an occurrence would cause the cylinders to become projectiles, and if an employee were struck, would cause injury [Trans., [*35] pp. 29 and 104].

CONCLUSIONS OF LAW

1. On June 20, 1972, the Mangone Shipbuilding Company, Respondent, was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970. The Occupational Safety and Health Review Commission has jurisdiction of the parties and subject matter herein pursuant to Section 10(c) of the Act.

2. Section 5(a)(2) of the Act [29 USC 654(a)(2)] imposed a duty on the Respondent to comply with safety and health regulations promulgated by the Secretary pursuant to Section 6(a)(2) of the Act.

3. On June 20, 1972, the Respondent was subject to the provisions of the Act in that it was engaged in employment performed in a workplace, in a state within the meaning of Section 4(a) of the Act.

4. All violations of standards contained in the citation issued July 26, 1972, except those alleged in items 1 and 2, having been admitted by the Respondent, are deemed final orders of this Commission.

5. The Respondent violated Section 5(a)(2) of the Act on June 20, 1972, by its noncompliance with standards 29 CFR Section 1916.42(a)(3) and 29 CFR Section 1916.35(a)(7), as charged by items [*36] 1 and 2 of the citation issued July 26, 1972, by failing to secure portable ladders so as to prevent their being displaced and by their failure to use a suitable steadying device to keep oxygen cylinder bottles from being knocked over while in use.

6. The total proposed penalty for the aforesaid violations in the amount of $75.00 is appropriate giving due consideration to the size of the business of the employer, the gravity of the violation, the good faith of the employer, the employer's previous history and its action to abate the conditions.

ORDER

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

1. Items 1 and 2 of the citation issued July 26, 1972, charging violation of standards 29 CFR Section 1916.42(a)(3) and 29 CFR Section 1916.35(a)(7), and the respective proposed penalties totaling $75.00, are affirmed in all respects.

2. All other violations of standards herein contained in the citation issued July 26, 1972, having been admitted by the Respondent and deemed final orders of this Commission together with no assessment of penalties thereon are affirmed in all respects.