OSHRC Docket No. 2159

Occupational Safety and Health Review Commission

June 14, 1977


Before BARNAKO, Chairman; CLEARY, Commissioner.  


Baruch A. Fellner, Office of the Solicitor, USDOL

Herman Grant, Reg. Solicitor

Steven H. Adelman, for the employer

Allen Douglas, Business Manager, Architectural & Ornamental Ironworkers, Local Union 63, for the employees

William J. Rooney, Secy/Treasurer, Sheet Metal Workers Union, Local 73, for the employees

Glen Stone, International Union of Operating Engineers, Local 150, for the employees




BARNAKO, Chairman:

A decision of Administrative Law Judge Louis J. Rubin is before us for review n1 pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act").   The major issue is whether Judge Rubin properly affirmed a citation which alleged a violation of section 5(a)(1) of the Act. n2 For the reasons below, we affirm the Judge's disposition of this citation.

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n1 The instant case was severed for decisional purposes from a number of other cases involving the same inspection in A.C. and S., Inc., No. 2097 et al., 4 OSHC 1529, 1976-77 OSHD para. 20,955 (1976).

n2 On review, Respondent also pursued two issues raised in Commissioner Moran's direction for review: whether the two citations issued to respondent were issued with reasonable promptness pursuant to section 9(a) of the Act, and whether the Judge's decision as to the other than section 5(a)(1) violations comported with the applicable principles of law set forth in Brennan v. O.S.H.R.C. (Underhill Construction Corp.), 513 F.2d 1032 (2d Cir. 1975) and Brennan v. O.S.H.R.C. (Raymond Hendrix d/b/a Alsea Lumber Co.), 511 F.2d 1139 (9th Cir. 1975). The latter issue implicitly concerns the question of how the Act should be applied to multi-employer construction sites. For the reasons set forth in A.C. and S., Inc., No. 2097 et al., 4 OSHC 1529, 1976-77 OSHD para. 20,955 (1976), we find that no purpose would be served by addressing these issues in this case.   However, we will stay the effective date of our order for thirty days to afford Respondent the opportunity to file a brief and particularized statement of reasons as to why the Commission should proceed to consider these issues.   The statement should discuss the pertinent cases noted in fn. 1 of A.C. & S., Inc., supra. Any objection shall indicate whether Respondent desires review to proceed, and if so, whether the case should be decided by the Review Commission, be remanded to an Administrative Law Judge for further proceedings, or be disposed of in accordance with an agreement that may be reached by the parties.


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The facts are these: Respondent was a contractor on the large Sears Tower construction project in Chicago.   The citation involved Respondent's method of "in-hauling" or moving a load of material from ground level to the 51st floor of the building.   Respondent had instructed its employees on the normal procedure of in-hauling. The normal procedure consisted of hooking the material on the ground to a hoist.   A boom then swung the load to the edge of the opensided floor. On the floor, a landing crew would consist of at least four employees and a "talker" whose job it was to communicate with the boom operator by telephone.   When the load was level with the floor, one employee would tie his safety lanyard to a pipe riser and would reach out to drift the load in and to sit it at the edge of the floor. The other members of the crew would then pull and push the load towards the middle of the floor while the boom operator slackened the line.   The movement of the line by the crane created a force directed to the outside of the building, against which force the employees pushed. The employees were not to work [*3]   between the load and the perimeter. The talker would occasionally touch the load in order to instruct the boom operator on the amount of slack to give in the line.

When the compliance officer first observed the load being in-hauled on the 51st floor, it had already been landed and was sitting on the floor about two feet from the perimeter. The load measured 5 feet wide, 12 feet long, 18 inches thick, and weighed approximately 500 pounds.   The compliance officer observed one employee standing between the load and the perimeter, pushing the load. After the load had been pushed ten to fifteen feet away from the perimeter, a second employee moved between the load and the perimeter to push. The talker actively assisted in pushing and pulling the load. Respondent admitted in its brief on review that a foreman was present at the site during the in-hauling procedure.   The perimeter of the floor was not guarded and the employees were not tied off to safety lines.   The compliance officer identified the hazards in the procedure as the danger of falling off the floor, of being pulled off the building by the force created by the movement of the line, or of being crushed by the load.

On   [*4]   these facts, Respondent was issued a citation n3 which alleged a violation of section 5(a)(1) of the Act, the so-called general duty clause, in that the method of in-hauling observed by the compliance officer was a recognized hazard. A penalty of $550 was proposed.

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n3 As a threshold matter, Respondent maintains that the citation lacked particularity, as required by section 9(a) of the Act, because it did not state that an employee was observed standing between the load and the perimeter. We reject that argument inasmuch as the citation fairly apprised Respondent of the facts surrounding the alleged violation.   See B.W. Harrison Lumber Co., Inc., 76 OSAHRC 49/A2, 4 OSHC 1091, 1975-76 OSHD para. 20,623 (1976).

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Judge Rubin affirmed the citation.   He determined that the in-hauling procedure constituted a recognized hazard which was not covered by any specific standard, and found that the Secretary had shown feasible steps which would have avoided the hazard. The Judge also held that Respondent either had or should [*5]   have had a foreman on the scene, and therefore either knew or could have, with the exercise of reasonable diligence, known of the existence of the condition. n4 He assessed a penalty of $300.

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n4 Inasmuch as a foreman was admittedly present, we do not adopt that part of the Judge's decision in which the Judge concluded that reasonable diligence required the presence of a foreman at the scene.

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On review, Respondent argues that the Judge erred in finding a violation of the general duty clause because a specific standard, 29 C.F.R. 1926.28(a), n5 applies.   Respondent further contends that the facts do not establish the existence of a recognized hazard and that the cited condition was an isolated occurrence since, even though a foreman was on the site, n6 the in-hauling procedure had always been accomplished without any employee working between the load and the perimeter.

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n5 Section 1926.28(a) states that "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." The standard has been interpreted to require the use of tied-off safety belts under appropriate circumstances.   See B & B Insulation, Inc., No. 9985, 5 OSHC 1265, 1977-78 OSHD para. 21,747 (April 18, 1977) and cases cited therein.

n6 Respondent also states that some of its foremen are sent from the union hiring hall and are appointed foremen pursuant to the union contract, so that the foreman's knowledge of a hazard cannot be imputed to Respondent.   Apparently, Respondent is suggesting that the foremen sent from the hiring hall are not its supervisory employees.   The use of the title "foreman," however, gives rise to the presumption that these employees had supervisory authority, and Respondent has not rebutted the presumption.   The fact that they were sent by the hiring hall does not affect their status.   See Northern Metal Co., 20 OSAHRC 869, 3 OSHC 1645, 1975-76 OSHD para. 20,105 (1975).


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We reject Respondent's argument that 1926.28(a) applies to the cited situation for the reason the Judge assigned: that the hazards presented by the violation were interlaced and were not covered by any single standard. n7 The hazard was created not only by employees working at the edge of an unguarded floor, but also by their working with a large unwieldy load at the perimeter and their pushing the load against a force directed towards the outside of the building.   See Advance Specialty Co., 76 OSAHRC 35/D4, 3 OSHC 2072, 2075, n. 11, 1975-76 OSHD para. 20,490 (1976). We also reject Respondent's argument that the hazard was not recognized.   In finding to the contrary, the Judge relied on the Respondent's admission that the method of in-hauling observed by the compliance officer was a departure from normal procedure.   The Judge also pointed to the testimony of Respondent's witnesses which indicated that the placement of employees at the edge of an opensided floor and between the load and the perimeter as well as the active participation of the talker in the in-hauling process were hazardous.   [*7]   Thus, the Judge properly concluded that Respondent itself recognized the hazard. See Brennan v. OSHRC (Vy Lactos Laboratories, Inc.), 494 F. 2d 460 (8th Cir. 1974). Finally, we reject Respondent's contention that the presence of an employee between the load and the perimeter was an "isolated occurrence." Clearly, when employees are required to handle a heavy load under the circumstances shown here, it is reasonably foreseeable that one or more of them might find it expedient to move between the load and the edge of the floor. The fact that several of Respondent's employees were performing their various tasks contrary to their instructions for normal procedure militates strongly against the Respondent's contention that any portion of the in-hauling method observed by the compliance officer was an "isolated occurrence." Additionally, the record shows that Respondent knew of the situation through the presence of a foreman on the scene. Accordingly, the burden is on Respondent to show that it gave specific instructions not to move between the load and the perimeter, and took adequate steps to enforce these instructions.   B-G Maintenance Mgmt., Inc., No. 76 OSAHRC 60/A2,   [*8]   4 OSHC 1282, 1976-77 OSHD para. 20,744 (1976); Ocean Electric Corp., 75 OSAHRC 6/C14, 3 OSHC 1705, 1975-76 OSHD para. 20,167 (1975). Since Respondent did not meet this burden, its defense is rejected.

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n7 Inasmuch as we find that section 5(a)(1) of the Act is applicable to the cited condition, we do not pass on the Secretary's motion to amend the citation to allege a violation of 1926.28(a) in the alternative.

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Accordingly, we find Respondent to have been in violation of section 5(a)(1) of the Act and affirm Judge Rubin's assessment of a $300 penalty therefor.   This order shall become final thirty days from its entry upon failure of Respondent to file objections pursuant to footnote 2.   It is so ORDERED.