PETER BRATTI ASSOCIATES, INC. & D'ADDERIO CONSTRUCTION CO., INC.  

OSHRC Docket Nos. 1990; 1956 (Consolidated)

Occupational Safety and Health Review Commission

January 17, 1975

  [*1]  

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

  MORAN, CHAIRMAN: A decision of Review Commission Judge David J. Knight, dated October 13, 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.   Accordingly, the Judge's decision is hereby affirmed in all respects.  

DISSENTBY: CLEARY

DISSENT:

  CLEARY, COMMISSIONER, dissenting: I would reverse Judge Knight's decision, which vacated all citations and proposed penalties as to both respondents.   The case is before us on the issue of whether respondents' employees were exposed to hazards created by non-serious violations of two standards (29 CFR §   1926.350(a)(1) and 29 CFR §   1926.350(a)(9)) dealing with compressed gas cylinders.

Respondent Bratti, the stonework subcontractor, and respondent D'Adderio, the brickwork subcontractor, had been working on a 15-story building, which by the time of inspection was 80-percent complete.   On June 31, 1972, Mr. Peter Richardson, a compliance officer with OSHA, arrived at the worksite.   He called an opening conference, which D'Adderio's representative attended, but Bratti's [*2]   foreman did not attend, even though he was called over a loudspeaker.   He subsequently inspected the building from the top down.   As a result of this inspection, citations were issued to both respondents. n1

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The Secretary found that the respondents committed the following violations and he proposed the following penalties:

Location (floors) -- Proposed Penalties

29 CFR §   1926.150(c)(1)(i) (no fire extinguishers) ** -- Bratti, 4-13; D'Adderio, 4-13 -- Bratti, $30; D'Adderio, $30

29 CFR §   1926.350(a)(1) (no valve caps) -- Bratti, 13, 12, 6, 1; D'Adderio, 12; -- Bratti, $50; D'Adderio, 0

29 CFR §   1926.350(a)(9) (gas cylinders not upright) -- Bratti, 13, 12, 6, 1; D'Adderio, 12 -- Bratti, $50; D'Adderio, 0

* As reduced at the hearing by consent of the parties.   The original proposed penalties ($60) were computed erroneously.

** Vacation of this citation was not contested by the Secretary in his Petition for Discretionary Review, and the propriety of the Judge's action is not before us.

The compressed gas cylinders cited on the various floors were arranged as follows:

13th floor: 3 oxygen and 2 acetyiene

12th floor: 1 oxygen and 2 acetylene

6th floor: 1 oxygen and 1 acetylene

1st floor: 1 oxygen and 1 acetylene

  [*3]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

  Officer Richardson saw compressed gas cylinders on the first, sixth, twelfth and thirteenth floors -- on their sides without valve caps. On the twelfth floor he saw an employer of Bratti, n2 about ten feet away from the cylinders. Upon learning of the violation, a Bratti employee immediately abated the cylinder violations.   No other Bratti employees were found on any other of the cited floors. A D'Adderio employee was found on the thirteenth floor. On the day of the inspection none of the cylinders was in use.   The cylinders were, however, identified as Bratti's. n3 It was not determined whether the cylinders were empty or full.   Inspector Richardson observed that several of the cylinders were of the conventional shape and color (green) of oxygen cylinders, and that the rest were of the shape and color of acetylene cylinders. Although he recognized that these colors were not universally used, in my view Mr. Richardson was entitled to rely on these indications of content, inasmuch as he was deprived of positive identification by Bratti's failure to comply with 29 CFR §   1910.252(b) (requiring [*4]   markings indicating content on gas cylinders).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 The parties have focused on a mis-identification of this Bratti employee by officer Richardson.   The specific identity of the individual, however, is irrelevant.   The record clearly supports the finding that he was a Bratti employee.   Judge Knight was in error when he found otherwise.

n3 Actually, Bratti rented the cylinders.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

  Mr. D'Adderio, testifying on behalf of D'Adderio Construction Co., Inc., maintained that neither he nor his men knew to whom the cylinders belonged, and that he felt he had no right to touch them since they were not his, and his men were apparently prohibited by union rules n4 from using them.   The Secretary, taking this into account, proposed no penalty for D'Adderio for the cylinder violations.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 The exact nature of the union rules does not appear in the record.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

  [*5]  

The Valve Cap Violation (29 CFR §   1926.350(a)(1)) n5

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 The standard reads as follows: "Valve protection caps shall be in place and secured."

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

There is no doubt that the cited cylinders lacked valve protection caps. I would so find.

Inspector Richardson testified that the hazard created by the lack of the valve caps was that the valves could be knocked off if struck.   It this happened, the compressed gas could rapidly escape, and the cylinder could "take off like a rocket."

Respondent Bratti contended that no evidence was introduced as to whether the cylinders were empty or full.   I would reject the contention that the Secretary has to prove that the cylinders were full for the following reasons.   First, the standard makes no distinction between empty and full bottles, apparently because many so-called "empty" cylinders still have some gas within them.   This is especially so with regard to acetylene. Secondly, the lack of any markings indicating emptiness permits an inference that they were not empty. Beall    [*6]   Constr. Co.. No. 557 (February 21, 1974).   See also ANSI Z 49.1 (1973), Standard 3.2.5.9.4 ("[E]mpty cylinders shall be . . . marked 'empty' or 'MT'.").   Third, it would impose an intolerable burden on the Secretary to ascertain whether the myriad gas cylinders on each site were empty or full.   Fourth, in my opinion compressed gas cylinders should be presumed to be "loaded." An employee should not have to find out the hard way through possible injury that they are not.

Thus, every employee in the vicinity of the worksite would be exposed to what is in reality a missile hazard. I would therefore   find employee exposure. n6 Indeed, at least one Bratti employee on the twelfth floor was within ten feet of the cylinders.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n6 The burden of proof of exposure was wrongfully imposed upon the Secretary of Labor, but in my view that burden was in any event sustained.   In my opinion, proof of employee exposure is not part of the Secretary of Labor's prima facie case.   The Secretary makes out his case by showing that a standard exists and that it is breached.   Bechtel Corp., No. 1038 (October 31, 1974) (Cleary, Commissioner, dissenting); Cam Industries, Inc., No. 258 (March 4, 1974) (Cleary, Commissioner, concurring and dissenting); and West Allis Lime & Cement Co., No. 1324 (December 23, 1974) (Cleary, Commissioner, dissenting).   Also, even if no Bratti employees were exposed to the hazard involved, a citation could be issued under section 9(a) of the Act in order to protect exposed employees of D'Adderio.   Given the remedial purpose of the Act, section 9(a) should be read broadly enough to permit the Secretary to fashion an effective order for abating hazards in a multi-employer situation.

  [*7]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

As to respondent D'Adderio, I would reverse the Judge's vacation, and find a violation, although I would impose no penalty because D'Adderio lacked physical control over the cylinders. D'Adderio wrongfully, but in good faith, concluded that it had no obligation to abate the exposure of his employees to the hazard. Respondent D'Adderio argued that he was not in violation because of this lack of physical control over the hazard. This is not necessarily essential.   R.H. Bishop Co., No. 637 (May 30, 1974).   It does not appear that respondent D'Adderio took any steps whatsoever to eliminate the exposure of his employees from the hazard. For example, he neither complained to Bratti nor to the prime contractor, Diesel Construction, about any of the cylinder violations.   Whatever reasonable steps an employer can take to eliminate hazards should be taken.

The Unsecured Cylinders Violation (29 CFR §   1926.350(a)(9)) n7

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n7 The standard reads as follows: "Compressed gas cylinders shall be secured in an upright position at all times except, if necessary, for short periods of time while cylinders are actually being hoisted or carried."

  [*8]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

There is no doubt that the cited cylinders were not secured in an upright position as required by the standard.   I would so find.

Inspector Richardson testified that the cylinders would roll and injure an employee. n8 Furthermore, acetylene cylinders lying   on their sides could leak acetone, corrode the valve and enter the hose; when use resumes, a flash-back fire and explosion could ensue.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n8 It makes no difference, for purposes of this standard, whether the cylinders are empty or full.   W.B. Meredith, II, Inc., No. 810 (June 7, 1974).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

As to the rolling hazard, respondent Bratti's employee on the twelfth floor was exposed to this hazard. Therefore, a violation against respondent Bratti should be found on this basis.   As to the flash-back fire and explosion hazard, respondent Bratti's employees were exposed to this hazard whenever any cited acetylene cylinder was used.   Therefore, on this basis as well, a violation against [*9]   respondent Bratti should be found.

As to respondent D'Adderio no evidence appears in the record as to whether his employees were exposed to the rolling hazard or not.   In accordance with my previously stated views, n9 respondent D'Adderio, has failed to show any non-exposure, a violation should be found.   As to the flash-back fire and explosion hazard, exposure should be found for the reason stated above regarding respondent Bratti.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n9 See note 6, infra.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

[The Judge's decision referred to herein follows]

KNIGHT, JUDGE: On November 24, 1972, a Compliance Officer of the Occupational Safety and Health Administration of the U.S. Department of Labor (Complainant) inspected a 15-story building under construction at 90 Trinity Place, New York, New York.     [*10]     651, et seq., (Act) and proposing penalties therefor.   The standards allegedly violated are set forth in the citation as follows:

  29 C.F.R. §   1926.150(c)(1)(i) -- Failure to provide a fire extinguisher rated not less than 2 A for each 3,000 sq. ft, of the unprotected bldg. area or major fraction thereof travel distance from any point of the protected area to the nearest fire extinguisher shall not exceed 100 ft. -- Proposed Penalty: Bratti, $30.00; D'Adderio, $30.00

29 C.F.R. §   1926.350(a)(1) -- Failure to provide valve protection caps for gas compressed cylinders. -- Proposed Penalty: Bratti, $60.00; D'Adderio, 0

29 C.F.R. §   1926.350(a)(9) -- Failure to secure compressed gas cylinder in an upright position. -- Proposed Penalty: Bratti, $60.00; D'Adderio, 0

The violations concerning the gas cylinders were to be abated immediately and the fire extinguisher violation was to be cured by January 3, 1973.   The citation specified the floors of the building [*11]   on which the violations supposedly occurred and the type of compressed gas cylinders involved.

As to Respondent Bratti, it was said to have unprotected valve caps [29 CFR 1926.350(a)(1)] and unsecured cylinders [29 CFR 1926.350(a)(9)] on the following floors:

13th floor: 3 oxygen and 2 acetylene cylinders

12th floor: 1 oxygen and 2 acetylene cylinders

Sixth and first floors: one of each

Respondent D'Adderio is charged with the same violation but only as to the cylinders located on the 12th floor. On floors four through 13 no fire extinguishers were provided and both Respondents were similarly charged for this.

Under the provisions of section 659(c) of the Act, notices contesting the alleged violations and proposed penalties were filed by D'Adderio on December 22, 1972, and Bratti on December 29, 1972, and as a result the proceedings before this Commission came into being.

The Complainant filed its complaint in each case substantially repeating the violations as alleged in the citation.   In the complaint against Bratti, however, the violations concerning the cylinders were amended.   While the citation alleges (1) a failure to provide valve protection caps, the complaint [*12]   (para. IV) alleges that those caps were not in place or secured; and (2) the citation alleges a failure to secure the cylinders in an upright position, but the complaint alleges a failure to store them uprightly.   The language of the complaint is harmonious with the reading of the standards as they have been promulgated, and these were correctly   cited by section number in the citation.   The standards read:

§   1926.350 Gas welding and cutting.

(a) Transportation, moving, and storing compressed gas cylinders. (1) Valve protection caps shall be in place and secured.

and

(9) Compressed gas cylinders shall be secured in an upright position at all times except, if necessary, for short periods of time while cylinders are actually being hoisted or carried.

Respondent Bratti, in its answer and brief, claims that these are material variances.   However, it was on notice of the sections of the standards alleged to be violated and, therefore, what it would have to defend against.   I find that the complaint does not materially vary from the citation but merely corrects it without prejudice to this Respondent.   The complaint also corrected the wording of the citation [*13]   concerning the areas to be covered by fire extinguishers but no new standard was introduced in either case.   The errors, or variances, between the standards and the D'Adderio citation went unchanged into the complaint insofar as the valve cap and fire extinguishers violations are alleged.

Both Respondents in their answers admit to the jurisdiction of this Commission in that they are employers engaged in a business affecting commerce receiving products, materials and supplies that have moved in interstate commerce.   Respondent Bratti claims that it was not given an opportunity to accompany the Compliance Officer on his inspection as directed by section 657(e) of the Act.

These proceedings were consolidated n1 since they are born by a single inspection with the two Respondents cited for substantially similar violations and hearing was held in New York, New York, on April 30, 1973.   The Complainant and Respondent Bratti were represented by counsel and the President of D'Adderio Construction appeared in its behalf.   Proposed findings of fact and conclusions of law and briefs were filed by July 9, 1973, but the Complainant made no post-hearing proposals in   the D'Adderio proceeding,   [*14]   Docket No. 1956. No employees or their representatives came forward to claim a party status.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The D'Adderio proceeding (Docket No. 1956) was to be heard individually on April 3, 1973, but Respondent was unavoidably unavailable and the hearing aborted.   Thereafter consolidation occurred to hear these two cases together.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

THE EVIDENCE

Mr. Peter Richardson, a Compliance Officer with the Occupational Safety and Health Administration since June 31, 1972, arrived at 90 Trinity Place, New York City, at 9:00 a.m., on November 24, 1972, to inspect a building under construction.   The building was 80 percent completed and was being "finished up." This was one of 120 construction inspections he made since becoming a Compliance Officer.

He called an opening conference at the general contractor's office at the site with some 10 trades at work on the building.   A Mr. Hunt, was described to him as Respondent Bratti's foreman, and he was called over the speaker but he did not attend the conference.   The Compliance Officer did meet [*15]   him later on during the inspection. A Mr. Domenco, representing Respondent D'Adderio, did attend.   Each floor of the building was inspected working from the top down but -- since so many persons would be on the inspection party -- the Officer decided to speak to each trade's representative at their respective work areas and then have a closing conference with each individual company.

Concerning the lack of fire extinguishers, the Officer testified that a standpipe ran the height of the building but it was dry and there were no hoses to connect to it on any floor. Except for the first floor, there were no fire extinguishers. On that floor there was an extinguisher but only to protect a hoist.   Some areas had 55 gallon water barrels but no buckets were around.   But there were some hoses and drums in the building but where they were was not specified.

The Officer saw the compressed gas cylinders, on the 13th, 12th, sixth, and first floors without caps and all of these cylinders or bottles were lying on their sides and did not appear to be in use.   There were at least one oxygen and one acetylene bottle on each of the specified floors and maybe more than this amount. n2

- - -   [*16]   - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 The Bratti citation and complaint allege the existence of five bottles on the 13th floor and three on the 12th and two on each of the remaining floors specified.   The D'Adderio citation and complaint specify three bottles on the 12 floor.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

  On the 12th floor the Officer found a Mr. Clancy and Mr. Hunt both of whom he assumed were employed by Respondent Bratti.   Mr. Hunt was the Bratti foreman and he provided the caps immediately and abated that violation on the 12th floor when told of the violation.   Mr. Hunt said the bottles belonged to him.   The closing conference took place at that time with Mr. Hunt.   Mr. Clancy was cleaning up the area on the 12th floor and was within 10 feet of the bottles there at least he "seemed to be cleaning up."

The Officer made no tests on the bottles and did not know if they were empty or full.   But it is difficult to tell the state of their contents unless they are in use.

The hazards that these bottles created in the described condition would be that, if the valve were broken and [*17]   opened accidentally, a bottle would "take off like a rocket" whether it was an acetylene or an oxygen cylinder. An acetylene cylinder on its side might leak acetone and corrode the valve and enter the hose. When burning starts, a flash-back fire and explosion could ensue.   The bottles could also roll around with the accidental knocking off of a valve.

The Officer testified that the D'Adderio employees were working on the 13th floor and remained there after he left.   But on cross-examination, he testified that one D'Adderio employee was on that floor, perhaps Mr. Machurio, and that this employee was only "passing through." A closing conference was had with a Mr. Rocco who disclaimed any responsibility for the absence of fire extinguishers or the condition of the compressed gas cylinders.

The penalties assessed against Respondent Bratti took into account its size, history, good faith and abatement and totalled $130.00 after an error in computation was corrected.   Considering these factors, Respondent D'Adderio received a proposed penalty of $30.00 concerning fire extinguishers but nothing on the cylinders for they did not belong to it.   Bratti agrees that the penalties are reasonable [*18]   and D'Adderio offered no evidence on this point.

The direct evidence by Respondent Bratti was offered by its General Superintendent who testified that there were a total of   four Bratti employees at the construction site on the day of the inspection and these were outside of the building on the ground floor installing a baseboard and on no other floor. Mr. Clancy, an employee of Bratti, was not working that day and was not at the site. There was no welding going on, but the bottles on the 13th, 12th and sixth floors were Bratti's, and these should have been in an upright position.   Bratti's Vice-President testified that the compressed gas cylinders were leased; that eight were on hand at the beginning of November and seven were returned during that month.   The inspection was on November 24.

The Compliance Officer was recalled to the stand on the question of who is Mr. Clancy and indicated that he may have made a mistake in transcribing names but a Bratti employee did so identify himself as such on the 12th floor.

Domenic D'Adderio, the President of Respondent D'Adderio, testified that his workmen needed water to tamp mortar and they had their own buckets to draw the water [*19]   from the drums.   His company is very safety conscious taking extra precautions.   He did not know whose gas bottles were in the building and whether they presented a hazard and he had no right to touch them in any event. n3 He was not at the site and no employee told him of any inspection by a Federal Officer.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 This raises the question of the propriety of charging D'Adderio with the violation of the specific standard rather than the general duty clause, 29 U.S.C. §   654(a)(1).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

FINDINGS OF FACT

As to Respondent Bratti: On the 12th floor of a building under construction at 90 Trinity Place, New York City, it had under its control an oxygen and acetylene compressed gas cylinders improperly placed and without proper protection for those cylinders' valves. But the evidence does not persuade me that any of its employees were exposed to any hazard created by the condition of these cylinders. There is insufficient evidence that any Bratti employee was on any floor where these cylinders except the 12th and, as to this,   [*20]   the Respondent has sufficiently overcome the Complainant's proof that its employee was on that   floor. Mr. Clancy was not there at all.   The Compliance Officer admits he may have made a mistake as to identification and the only Bratti crew at work there was outside the building.   I infer from the evidence that Mr. Hunt, Respondent Bratti's foreman, found the Compliance Officer on the 12th floor after not responding to the page and missing the opening conference at the general contractor's office. n4 But I cannot find that any other Bratti employee was in the building and exposed to any hazard from the compressed gas cylinder or fire.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 The inspection procedure did give Bratti's representative an opportunity to accompany the Compliance Officer on his inspection and, therefore, complied with the directive of 29 U.S.C. §   657(e).   See Chicago Bridge & Iron Co.,

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

As to Respondent D'Adderio: The evidence does not persuade me that any of its employees was exposed [*21]   to or unprotected against any hazard created by the compressed gas cylinders or fire.   The Compliance Officer testified as to the cylinders on the 12th floor but the one D'Adderio employee he saw "passing through" was on the 13th floor and his position vis-a-vis the cylinders there was not detailed.   Furthermore, "passing through" was not more explicitly described as an exposure to the hazard. And concerning the lack of fire extinguishers, in the very nature of the D'Adderio trade, water is an essential and must be available.   At this construction site, it drew water from the available water drums with its own buckets.   That is a proper substitute for the fire extinguishers required by the cited standard, see 29 CFR §   1926.150(c)(1)(ii).

CONCLUSION AND ORDERS

I conclude that the evidence of Complainant does not sustain the allegations of either of the citations or complaints in these cases.   Accordingly it is ORDERED:

1.     1926.150(c)(1)(i) and 1926.350(a)(1) and (9) and the penalties proposed therefor be, and they are hereby, vacated, and the complaint based on this [*22]   citation dismissed; and

  2.     1926.150(c)(1)(i) and 1926.350(a)(1) and (9) and the penalty proposed therefor be, and they are hereby, vacated, and the complaint based on this citation dismissed.