JENSEN CONSTRUCTION CO.

OSHRC Docket No. 14300

Occupational Safety and Health Review Commission

November 14, 1977

[*1]

Before: CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Larry L. Swanda, Safety Officer, Jensen Construction Company, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

This case is before the Commission by my order, issued pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter cited as "the Act"], directing that Judge Vernon Riehl's decision be reviewed on the basis of exceptions filed by respondent, Jensen Construction Company. On July 3, 1975, a compliance officer for the Secretary of Labor inspected respondent's worksite, a bridge under construction in Wichita, Kansas. Following the inspection, a citation was issued alleging several nonserious violations of section 5(a)(2) of the Act. Respondent timely contested items alleging failure to comply with the standards at 29 CFR 1926.500(d)(2) n1 and 1926.550(a)(9). n2 Complainant proposed a penalty of $35 for the former violation and no penalty for the latter.

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n129 CFR 1926.500 Guardrails, handrails, and covers.

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(d) Guarding of open-sided floors, platforms, and runways. (2) Runways shall be guarded by a standard railing, or the equivalent, . . . on all open sides, 4 feet or more above floor or ground level.

n2 29 CFR 1926.550 Cranes and derricks.

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(a) General requirements.

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(9) Accessible areas within the swing radius of the rear of the rotating superstructure of the crane, either permanently or temporarily mounted, shall be barricaded in such a manner as to prevent an employee from being struck or crushed by the crane.

[*2]

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Judge Riehl rendered his decision in this case, affirming both items, including the Secretary's proposed $35 penalty, and assessing a penalty of $100 for the 1926.550(a)(9) item.

For the reasons given below we affirm.

The 1926.50C(d)(2) Allegation

The compliance officer testified that he observed two of respondent's employees walk across a 2" X 12" plank that was suspended over formwork nine feet above the floor below. The compliance officer stated that after his observation respondent's superintendent, who accompanied him on his inspection, removed the plank to a position only three and one-half feet above the nearest deck. Respondent contends that the plank was suspended only four feet over a temporary floor, which consisted of joists one and one-half feet apart.

Respondent argues that the Secretary erroneously characterized the plank as a "runway" as defined by 1926.502(f). n3 Respondent also claims that the use of the plank was an "isolated incident" and that the Judge erred in failing to consider all the facts surrounding the alleged violation.

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n3 29 CFR 1926.502 Definitions applicable to this subpart.

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(f) Runway - A passageway for persons, elevated above the surrounding floor or ground level, such as a footwalk along shafting or a walkway between buildings.

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In a recent decision, Granite Groves, A Joint Venture, n4 77 OSAHRC 28/B12, 5 BNA OSHC 1100, 1977-78 CCH OSHD para. 21,594 (No. 10677, 1977), the Commission held that a strut used to traverse an excavation was a "walkway" within the meaning of 29 CFR 1926.651(w) requiring guardrails. Here, the use of the plank as a runway, despite the fact that it was not designed as such, mandates that it meet the appropriate safety requirements for runways.

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n4 In Granite Groves, 1926.651(w) and 1926.500(d)(2) were both cited, but the Commission dismissed the 500(d)(2) charge holding that it was a general standard regulating the same conditions as the more specific 1926.651(w).

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Respondent argues that the Secretary must prove that the violation consisting of employees' use of an unguarded runway was not an "isolated incident" of which respondent was unaware. It is well settled that the "isolated incident" or "unpreventability" concept is an affirmative defense that is only sustained by an employer proving that the assertedly "isolated incident" resulted from an employee's departure from a uniformly enforced work rule. B-G Maintenance Management, Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD para. 20,744 (No. 4713, 1976); Robert T. Winzinger, Inc., 76 OSAHRC 88/D13, 4 BNA OSHC 1475, 1976-77 CCH OSHD para. 20,929 (No. 6790, 1976).

Respondent also contends that the Judge erred in not fully considering the evidence concerning the plank, specifically that the plank was actually located less than four feet above a temporary floor, thereby excusing it from the requirements of the cited standard. The Judge, however, credited the compliance officer's testimony that the joists were located one and one-half feet apart, and therefore could not be considered a temporary floor. n5 In addition, the Judge based his finding [*5] on photographic evidence and the admissions by respondent's superintendent that, "These floors have to be left open. . . ." We adopt the Judge's findings.

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n5 The Commission will generally defer to a Judge's credibility finding. Evansville Materials, Inc., 77 OSHARC 143/F1, 3 BNA OSHC 1741, 1975-76 CCH OSHD para. 20,187 (No. 3444, 1975).

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The 1926.550(a)(9) Allegation

The second violation concerns the uncontroverted failure to barricade the swing radius of a crane used to position beams and rebar. Respondent's superintendent concedes that he never used barricades between the track and superstructure of a crane, unless there was a chance of having a man caught between them. The compliance officer testified that he observed employees near the superstructure of the crane.

Respondent contends that the Secretary failed to prove employee exposure and that he also failed to consider a signalman as a substitute for barricades. Respondent also argues that the Secretary did not show the practicality of barricading [*6] the crane or that barricading would enhance the safety of employees at the worksite. Finally, respondent maintains that the Judge erred by relying on another case to support his finding of a risk of serious injury to respondent's employees and by assessing a penalty where none had been proposed by complainant.

The compliance officer observed one employee pass near the superstructure of the unbarricaded crane, and noted that the area was accessible to other workers. Respondent maintains that at the time of the compliance officer's observation the crane was immobile. The compliance officer, however, testified that the crane was in operation during a later stage of his inspection. There is no evidence establishing the use of a barricade at any time. On the basis of these facts complainant has proved that respondent's employees had access to the violative condition. Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,448 (No. 504, 1976). In addition, the standard itself requires the barricading of areas that are accessible to employees. See note 2, infra.

The contention that a signalman is a proper substitute for a physical barricade is [*7] without merit. The Commission held in Concrete Construction Company, 76 OSAHRC 139/A2, 4 BNA OSHC 1828, 1976-77 CCH OSHD para. 21,269 (No. 5692, 1976), that 1926.550(a)(9) mandates the use of a physical barricade. Respondent's arguments that the Secretary failed to show either the practicality of barricading or that barricading would enhance employee safety are also lacking in merit. The Secretary does not have the burden of proving the practicality of the specifically prescribed means for coviating a hazard that are set forth in a standard. Ace Sheeting and Repair Co. v. O.S.H.R.C., 555 F.2d 439 (5th Cir. 1977); See Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864 (10th Cir. 1975); Concrete Construction Company, supra.

Respondent's final objection to the Judge's decision concerns his assessment of a $100 penalty for the violation of 1926.550(a)(9) when no penalty had been proposed by the Secretary. Respondent maintains that the Judge was improperly influenced by Park Construction Company, 75 OSAHRC 53/A13, 3 BNA OSHC 1120, 1974-75 CCH OSHD para. 19,591 (No. 2044, 1975). It is clear, however, that the Judge relied upon that decision [*8] only to buttress the compliance officer's testimony concerning the gravity of the violation. n6 The Judge is not bound by the Secretary's penalty proposal. California Stevedore & Ballast Co. v. O.S.H.R.C., 493 F.2d 1064 (9th Cir. 1975). The assessment of a $100 penalty is appropriate pursuant to section 17(j) of the Act.

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n6 The Judge also referred to the fact that the violation could have been cited as serious. See Finding of Fact No. 9. This issue is not before us.

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Accordingly, both items of the citation and the assessment of a $135 penalty are affirmed.

So ORDERED.