EDWARD B. FITZPATRICK, JR., ASSOCIATES, INC. AND SCHIAVONE CONSTRUCTION CO., INC., A JOINT VENTURE

OSHRC Docket No. 15096

Occupational Safety and Health Review Commission

November 2, 1977

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Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baurch A. Fellner, Office of the Solicitor, USDOL

F. V. LaRuffa, Reg. Sol., USDOL

Morris J. Levin, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Jerome C. Ditore is before the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"]. n1 In that decision, the Judge vacated that part of a citation for serious violation of section 5(a)(2) of the Act in which it was alleged that respondent, Edward B. Fitzpatrick, Jr., Associates, Inc. and Schiavone Construction Co., Inc., failed to comply with the standard at 29 CFR 1926.605(b)(2) n2 by not providing adequate access to an area known as barge 117. n3

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n1 This case was originally consolidated with Edward B. Fitzpatrick, Jr., Associates, Inc. and Schiavone Constr. Co., Inc. A Joint Venture, No. 15401. They were separated, however, for purposes of review. A final order was entered in No. 15401 on October 13, 1977.

n2 1926.605 Marine operations and equipment.

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(b) Access to barges.

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(2) Unless employees can step safely to or from the wharf, float, barge, or river towboat, either a ramp, meeting the requirements of subparagraph (1) of this paragraph, or a safe walkway, shall be provided.

n3 The citation also involved a failure to comply with 1926.605(b)(2) as to two other barges. The Judge's disposition of those parts of the citation, however, are not before us.

[*2]

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The Secretary filed a Petition for Discretionary Review excepting to the Judge's vacation of that part of the citation. Following the filing of the Secretary's petition, former Commissioner Moran issued a Direction for Review that neither specified any issues nor granted the Petition for Discretionary Review. Pursuant to paragraph 2 of the Commission's Policy Statement, 41 Fed. Reg. 53015 (December 3, 1976) the parties were invited to submit briefs on the issues raised by the Secretary's petition. In response to the invitation, both parties filed position statements, and respondent resubmitted its post-hearing brief.

At the time of the inspection respondent was engaged in the construction of a bulkhead and foundation for a high-rise building on a landfill site on the North River in Battery Park City, New York. A number of barges at the site were being used as work platforms. Among them was barge 117. The approach to barge 117 consisted of piles that were covered with a concrete cap containing protruding reinforcement bars. On top of the reinforcement bars were sets of either two or three 2 X [*3] 10-inch planks laid side by side. Each plank was ten feet long. The series of planks extended a distance of 40 feet, ending at a brow gangway that gave access to barge 117. The distance between the outer edge of the planks and the edge of the concrete footing was about 18 inches. At the edge of either side of the footing was the North River. The planks were tied to the reinforcement bars to prevent them from floating away during high tide. They were not, however, secured or cleated, and were wobbly when walked upon. The concrete footing was not provided with side rails. n4

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n4 Complainant's Exhibit No. 2, a diagram of the area, is attached for reference.

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The planked walkway was used as a work area for employees stripping forms and pouring concrete. Respondent's employee in charge of field personnel, Gerald Galvin, testified that although employees were not supposed to use the planks as access to the barge when coming from shore, the walkway, during working hours, was part of the passage between the barge and [*4] the work area on the concrete footing.

The compliance officer testified that he cited respondent for failing to comply with 1926.605(b)(2) because the planks were wobbly and unsecured and could have caused someone to fall over the side. Although the gangway of barge 117 had only one handrail, the compliance officer found it safe and indicated that he probably would not have cited barge 117 except for the wobbly condition of the planked concrete footing leading to the barge.

Judge Ditore held that the planked walkway was not an extension of the barge's gangway. He concluded that to hold otherwise would require that all wharves, floats, or barges be considered a part of the ramp. Noting that the gangway to barge 117 was in compliance with 1926.605(b)(2), the Judge vacated the item.

Commissioner Barnako would affirm the Judge's action. He interprets the standard as requiring employers to provide a safe means for employees to step from a barge to a dock. Respondent's gangway met that requirement. He notes that, at the beginning of the work day, employees did not enter the barge from the walkway, but rather were ferried to the barge from shore. Moreover, Commissioner Barnako [*5] agrees with the Judge that the planked walkway constituted a work area from which the gangway served as access to the barge. Therefore, he concludes that the walkway cannot be considered an extension of the gangway. Accordingly, he would vacate the item.

Chairman Cleary would reverse the Judge's action. In his view, it is anomolous to hold that a safe ramp must be provided from the barge to the concrete footing, but that once employees reach the bottom of the ramp a "safe walkway" is no longer required. The Chairman notes that occupational safety and health standards should be interpreted in light of the conduct to which they are addressed. Brennan v. O.S.H.R.C. & Santa Fe Truck Trans. Co., 505 F.2d 869, 872 (10th Cir. 1974); Ryder Truck Lines v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974); Julius Nasso Concrete Corp., 77 OSAHRC 45/C6, 5 BNA OSHC 1235, 1977-78 CCH OSHD para. 21,720 (No. 7542, 1977), petition for review dismissed, No. 77-4107, 2d Cir., August 16, 1977. The clear purpose of the cited standard is to provide employees with safe access to and from barges. The Chairman observes that during working hours, the planking served not only as a work area, [*6] but also as a means of access from the barge to the work locations on the concrete footing. In his view, in those instances, the planks were in effect an extension of the gangway to barge 117, and were required to comply with 1926.605(b)(2). The Chairman would find that the planks were wobbly and unsafe, thereby exposing employees to the hazard of falling into the river.

Because the members are equally divided no official action by an affirmative vote is possible. Section 12(f) of the Act, 29 U.S.C. section 661(e). Accordingly, the Judge's decision becomes final. See Vappi & Co., 77 OSAHRC 72/D7, 5 BNA OSHC 1358, 1977-78 CCH OSHD para. 21,787 (No. 8282, 1977).

So ORDERED.

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