COASTAL PILE DRIVING, INC.

OSHRC Docket No. 14458

Occupational Safety and Health Review Commission

July 21, 1977

[*1]

Before BARANAKO, Chairman, and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Harold J. Engel, Asst. Counsel For Regional Litigation, USDOL

David B. Hill, President, Coastal Pile Driving, Inc., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On March 3, 1976, Administrative Law Judge Ben D. Worcester held respondent Coastal Pile Driving, Inc. in "nonserious" violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq [hereinafter "the Act"] for failure to comply with the safety standards published at 29 CFR 1926.550(a)(9) n1 and 1926.28(a). n2 He assessed a total penalty of $150. The Secretary had cited both violations as "serious" and had proposed a total penalty of $1,100.

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n1 1926.550 Cranes and derricks.

(a) General requirements

* * *

(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.

n2 1926.28 Personal protective equipment.

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

[*2]

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A petition for discretionary review of the Judge's decision was filed by the Secretary. It was granted and submissions were invited on the following issue: n3

Whether the Administrative Law Judge erred in finding that the violations were not "serious" as defined in section 17(k) of the Act?

For the reasons given below, we hold that the violations should have been affirmed as "serious".

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n3 A direction for review was also issued by former Commissioner Moran which did not specify any issues.

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On June 5, 1975, an occupational safety and health compliance inspection was conducted at a construction site in Washington, D.C. where respondent was engaged in pile driving work as a subcontractor. During the inspection the compliance officer observed an employee of respondent standing on the metal framework of a "pile lead" n4, about 18 feet above the ground. The employee was not equipped with any form of protection from a fall. Subsequently, [*3] respondent was issued a citation for "serious" violation of the Act for failing to comply with 1926.28(a).

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n4 A "pile lead" is a tall metal frame structure which is used to guide and support piles being driven into the ground.

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The compliance officer also observed several of respondent's employees standing about two to five feet from the unbarricaded rotating superstructure of a Link Belt LS 118 Track Crane located adjacent to an excavation. This condition resulted in a citation for a "serious" violation because of a failure to comply with 1926.550(a)(9). n5

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n5 A citation alleging several nonserious violations was also issued to respondent. Respondent did not contest this citation and, accordingly, it has become a final order of the Commission pursuant to section 10(a) of the Act.

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In its notice of contest, respondent admitted the violations, [*4] but argued that they should not have been classified as "serious". At the hearing, the Administrative Law Judge informed respondent's President and representative, David B. Hill, that he regarded the notice of contest as placing the merits of both citations for serious violation in issue. Mr. Hill, however, again admitted the violations, but continued to argue that the citations should not have been classified as serious.

In his decision, Judge Worcester found the violations not to be "serious". According to the Judge:

The evidence shows that the possibility of serious injury or death in either case was remote.

It is unclear from the Judge's decision whether he found that the possibility of an accident was remote, or that the likelihood of death or serious injury in the event of an accident was remote. Under either interpretation, however, we find that the Judge erred. n6

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n6 Judge Worcester has made no subsidiary findings of fact to support his finding that the possibility of death or serious injury was remote. Something more than the ultimate finding is necessary. See, for example, Missouri Pacific Railroad Co. v. U.S., 203 F. Supp. 629 (March 1962).

[*5]

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It is well settled that in determining whether a violation is "serious", within the meaning of section 17(k) of the Act, the only relevant consideration is whether there would be a substantial probability of death or serious physical harm in the event an accident occurs. California Stevedore and Ballast Co., 1 BNA OSHC 1305, 1973-74 CCH OSHD para. 16,520 (No. 14, 1973), aff'd 517 F.2d 986, 988 (9th Cir. 1975). The probability of an accident occurring is relevant only to the gravity of the violation. California Stevedore and Ballast Co., supra. We find that the overwhelming weight of the evidence establishes that there was a substantial probability of death or serious physical harm in the event that either hazard resulted in an accident.

The compliance officer testified unequivocally, and without rebuttal, that both violations could result in death or serious physical harm. Regarding the hazard of falling off the "pile lead," he testified as follows:

Q. What could happen to an employee working on this pile lead without protection?

A. An employee, first of all, the ground area [*6] was muddy and wet, and they had to climb the 18 feet to the top of this from the ladder and then swing inside of the framework. If an employee was to fall the 18 feet or even if he was to strike part of the metal frame going down, I feel that serious harm or possibly death could result in the fall of 18 feet.

Q. What kind of serious harm could result?

A. Broken arms, legs, neck, or crushed back, possibly a fractured skull, anything like that.

Concerning the hazard posed by the unbarricaded crane, the compliance officer testified as follows:

Q. Are there any dangers to employees from this condition?

A. Yes there are.

Q. And would you tell us what those are?

A. If an employee got hit by just the counterweight section, in this instance, he could have been pushed into the excavation, or if he happened to be inside and the track radius and the superstructure swung around, then he could be crushed.

Q. Have you ever observed personally any accidents of this nature?

A. Yes, I have.

Q. Approximately how many?

A. Three different fatalities that have resulted from superstructures crushing people.

This testimony establishes that the violative conditions were serious in nature. [*7] The Judge's unsupported finding to the contrary is reversed.

We turn now to the assessment of penalty amounts on this record rather than remanding the case to the Judge. See Accu-Namics, Inc. v. O.S.H.R.C., 515 F.2d 828 (5th Cir. 1975), rehearing denied 521 F.2d 814, cert. denied, 425 U.S. 903 (1976). The Secretary proposed a penalty of $550 for each of the citations for "serious" violation. Judge Worcester reduced the penalties, assessing $50 for the 1926.28(a) violation and $100 for the failure to comply with 1926.550(a)(9). Regarding the 1926.28(a) violation, the evidence is that respondent's employee would be on the "pile lead" several times during the day for 5 to 10 minutes each time. Indeed, during the inspection the compliance officer observed an employee on the "pile lead" on three separate occasions. At no time was any form of fall protection worn. On the basis of the duration of exposure of the one employee exposed to the hazard, we find the gravity of the violation to be moderate. Considering the gravity together with the other penalty assessment factors set forth in section 17(j) of the Act we consider a penalty of $400 to be appropriate. [*8]

Similarly, we find that the failure to comply with 1926.550(a)(9) created a hazard of moderate gravity. The compliance officer testified that at least three employees were observed passing within two or three feet of the crane, and another employee was seen standing within five feet of it. We find a $400 penalty to be appropriate.

It is ORDERED that the citations for "serious" violation of the Act for failure to comply with 1926.28(a) and 1926.550(a)(9) are affirmed. A total penalty of $800 is assessed.