KINGERY CONSTRUCTION COMPANY
OSHRC Docket No. 2565
Occupational Safety and Health Review Commission
April 11, 1975
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: MORAN
OPINION:
MORAN, CHAIRMAN: A decision of Review Commission Judge Vernon Riehl, dated November 19, 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.
CONCURBY: VAN NAMEE
CONCUR:
VAN NAMEE, COMMISSIONER, concurring: I concur in the vacation of the citation, but for reasons other than that assigned by the Judge.
The facts are these. Respondent (Kingery) was engaged in construction of a building when its worksite was inspected by Complainant's (Labor) compliance officer. During the inspection, Kingery's employee was working on a platform about 18 feet above the ground chipping concrete from the building facade. The platform was secured to the forks of a forklift, which had been used to lift it to its position. The forklift was situated on level ground and was unattended. There were no controls on the platform to enable the employee there to regulate the lifting mechanism of the forklift.
The alleged 5(a)(1) violation was predicated both [*2] on the fact that the forklift was left unattended and on the absence of controls on the platform. The compliance officer thought that the forklift, because it was unattended, might roll onto the adjacent street, and either tip over when it went over the curb or be exposed to being struck by a passing vehicle. As to the absence of controls, the compliance officer observed that part of the platform was several inches beneath an overhang of the building. He thought that, in raising the platform the forklift operator was in a poor position to observe the distance between the platform and the overhang. If he misjudged this distance and raised the platform too far, the platform could strike the overhang, causing the forklift to tip. Had there been controls on the platform, the employee on the platform, who could clearly judge the distance between the platform and overhang, could have controlled the raising of the platform.
In order to establish recognition of these hazards in the construction industry, Labor relies on Sections 603 (E) and (L) of an American National Standard, ANSI B56.1-1969, "Safety Standard for Powered Industrial Trucks. n1 Labor has apparently overlooked [*3] the fact that, by 29 C.F.R. 1926.602(c)(vi), it has adopted certain requirements of this ANSI standard as occupational safety and health standards applicable to construction work. n2 Where a specific standard is applicable, a 5(a)(1) charge is inappropriate. Brisk Waterproofing Co., Inc., 3 OSAHRC 1132, BNA 1 OSHC 1263, CCH E.S.H.G. para. 16,345 (1973); Godwin-Bevers Co., Inc., 14 OSAHRC 723, BNA 2 OSHC 1470, CCH E.S.H.G. para. 19,206 (Jan. 7, 1975).
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n1 These sections state:
603(E). When leaving a powered industrial truck unattended, load engaging means shall be fully lowered, controls shall be neutralized, power shut off, brakes set, key or connector plug removed. Block wheels if truck is parked on an incline.
603(L). Whenever a truck is equipped with vertical only, or vertical and horizontal travel controls elevatable with the lifting carriage or forks for lifting personnel, the following additional precautions should be taken for the protection of personnel being elevated.
(b) Provide means whereby personnel on the platform can shut off power to the truck.
n2 This section states:
All industrial trucks in use shall meet the applicable requirements of design, construction, stability, inspection, testing, maintenance, and operation, as defined in American National Standards Institute B56.1-1969, Safety Standards for Powered Industrial Trucks.
[*4]
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With respect to the charge that the forklift was unattended, it appears that Section 603(e) of the ANSI standard is an applicable requirement pertaining to the operation of the forklift, and that this section was therefore adopted by 29 C.F.R. 1926.602(c)(vi). The 5(a)(1) charge is therefore inappropriate. Even if the 5(a)(1) charge is considered on the merits, I think that Labor has failed to prove a violation. Labor's position was that the hazard lay in the possibility that the forklift might roll onto the adjacent street. The forklift, however, was on level ground, and there was no evidence establishing that its brakes were not set or that its engine was running. Thus, Labor has not proven that it was possible that the forklift might start to roll inadvertently, and has accordingly failed to prove the existence of a hazard likely to cause death or serious harm. n3
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n3 The Judge concluded that the fact that the forklift was unattended during the inspection was an isolated incident. There was evidence that Kingery generally instructed its forklift operators to remain at the forklifts while employees were on elevated platforms, but this policy was not always followed and was not strictly enforced prior to the inspection. Accordingly, Kingery has not established the defense of isolated incident. Murphy Pacific Marine Salvage Co.,
[*5]
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As to the absence of controls on the platform, it appears that the 5(a)(1) charge is appropriate. Section 603(L) of the ANSI standard uses the term "should" in stating its requirement. The standard is, therefore only advisory, n4 and Labor could not have adopted it as a mandatory standard. Oberhelman-Ritter Foundry, Inc., 3 OSAHRC 1212, BNA 1 OSHC 3087, CCH E.S.H.G. para. 16,243 (A.L.J., 1973).
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n4 Section 3 of ANSI B56.1-1969 states:
To carry out the provisions of this Standard, the word "shall" is to be understood as mandatory and the word "should" as advisory.
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The advisory nature of this section, however, also weakens its utility in establishing a 5(a)(1) violation. The fact that the drafters of the standard did not consider the necessity of controls on the platform suficiently important to impose a mandatory requirement indicates that the absence of such controls is not considered in the construction industry to constitute [*6] a serious hazard. Nor is this a case where the hazard is obvious. Labor's position is that the platform must have been raised in a hazardous manner because the forklift operator's vision was obscured. This is, however, only speculation, as other means, such as the use of an observer with unobstructed vision, might have been used to overcome the problem of the operator's obscured vision. Labor has thus failed to prove that the absence of controls on the platform was likely to cause death or serious harm.
DISSENTBY: CLEARY
DISSENT:
CLEARY, COMMISSIONER, dissenting: I disagree.
It is clear that respondent's forklift operator was absent while respondent's employees were working approximately 16 to 20 feet above ground on the elevated forklift platform which did not have controls provided for their use. The Secretary proceeded on the legal theory that these facts constituted a violation of section 5(a)(1) of the Act, the general duty clause, and I would affirm the citation on that basis.
I disagree with the concurring opinion that the construction standard at 29 CFR § 1926.602(c)(iv) incorporating American National Standard ANSI B56.1-1969, "Safety Standard for Powered Industrial [*7] Trucks," applies to this case. That opinion assumes that respondent's forklift is a powered industrial truck.
Appendix A of ANSI B56.1-1969, a "Glossary of Commonly Used Words and Phrases" defines a "powered industrial truck" as:
A mobile, power-driven vehicle used to carry, push, pull, lift, stack, or tier material (emphasis added).
The types of industrial trucks illustrated in Appendix A do not substantially resemble respondent's forklift. See Exhibits G-7 and G-8. Respondent's forklift had two hinged arms that were lifted hydraulically and attached to the ends of these arms were the forks. Apparently the greatest lifting height was attained by raising the hinged arms while additional height was attained by vertical movement of the forks. None of the injdustrial trucks illustrated in Appendix A of the ANSI standard have the hinged arms nor the large tractor-type wheels as did respondent's. Respondent had originally used the forklift to carry and lift materials, but respondent modified it by attaching to the forks a work platform for employees. From these circumstances it is my view that the forklift is not within the class of powered industrial trucks treated in [*8] the ANSI standard.
Moreover, the issue of whether respondent's forklift is a powered industrial truck within the meaning of the ANSI standard was not tried. See N.L.R.B. v. Majestic Weaving Co. 355 F.2d 854 (2d Cir. 1966); Godwin Bevers Co., Inc., No. 1373 (January 7, 1975) (Cleary, Commissioner, dissenting).
Both parties tried this case under the Secretary's theory that respondent was in violation of section 5(a)(1) of the Act. n5 In order to prove a violation of section 5(a)(1), the Secretary must prove:
(1) that the employer failed to render its workplace 'free' of a hazard which was (2) 'recognized' and (3) 'causing or likely to cause death or serious physical harm'.
National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1265 (D.C. Cir. 1973). A work practice may be a "recognized hazard" even if an employer is unaware of its existence or potential harm. A standard for determination of whether a "recognized hazard" exists is the common knowledge of safety experts familiar with the work practice in question. National Realty at 1265, n. 32.
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n5 Section 5(a)(1) of the Act requires that:
Sec. 5. (a) Each employer -- (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.
[*9]
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The compliance officer's testimony amply demonstrates that the cited practices were commonly known as hazards to safety experts, or in the words of the ultimate issue, "recognized hazards." The compliance officer considered the practices as hazardous, and he testified that they were prohibited with the use of powered industrial trucks. n6
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n6 The compliance officer referred to the General Industry Standard governing powered industrial trucks published at 29 CFR 1910.178 as well as the American National Standard, ANSI B 56.1-1969, "Safety Standard for Powered Industrial Trucks" in concluding that a recognized hazard existed.
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Moreover, it is hazardous to leave lifting or hoisting machinery unattended with suspended loads, and it is also hazardous to elevate employees without having controls for use by the employees being elevated. Some standards indicate this. The construction standards require operator controls for use by employees [*10] being lifted in equipment primarily designed for that purpose. n7 Also, when a material hoist is used, neither lifting nor elevating of employees is permitted, nor is suspension of a load in an unattended hoist permitted. n8 Thus it can be seen that when powered industrial trucks, elevating and rotating work platforms, aerial lifts, and material hoists are used, the practices of leaving unattended suspended or elevated loads and failing to provide operator controls on elevated work platforms are generally forbidden.
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n7 29 CFR 1926.451(f) plrovides:
1926.451 -- Scaffolding (f) Elevating and rotating work platforms: Applicable requirements of American National Standards Institute A92.2-1969, Vehicle Mounted Elevating and Rotating Work Platforms, shall be compiled with for such equipment, as required by the provisions of § 1926.556.
29 CFR 1926.556 provides in part: 1926.556 -- Aerial Lifts (b) Special Requirement (ix) Articulating boom and extensible boom platforms, primarily designed as personnel carriers, shall have both platform (upper) and lower controls. Upper controls shall be in or beside the platform within easy reach of the operator. . . .
n8 29 CFR 1926.552(b)(1)(ii) and (b)(8) provide:
1926.552 -- Material Hoists, Personnel Hoists, and Elevators. (b) Material hoists. (1), (ii) No person shall be allowed to ride on material hoists except for purposes of inspection and maintenance. (8) All material hoists shall conform to the requirements of ANSI A10.5-1969, Safety Requirements for Material Hoists.
ANSI A10.5-1969, Safety Requirements for Material Hoists provides in part:
18. Hoisting Machines. 18.5 Hoisting machines shall not be left unattended with the load suspended.
[*11]
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The majority does not distinguish the Commission's previous decision in Broadview Constr. Co., No. 124 (January 10, 1973). In Broadview, the Secretary alleged a violation of the general duty cause when six employees were lifted on a forklift platform to a height of 26 feet without the use of a safety platform firmly secured to the lifting forks and without means available to them to shut off the power. The Commission found the existence of a recognized hazard and affirmed the violation. n9 Our holding in Broadview supports a conclusion that a recognized hazard exists in the present case.
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n9 In Broadview, there was vertical and horizontal movement of the forklift. In the present case, there was only vertical movement of the forklift. This is not a significant factor which materially distinguishes the facts in the instant case. Also, in Broadview the pleadings alleged that respondent lifted employees "without means available to them to shut off the power." In the instant case, the pleadings alleged that respondent permitted employees to work on a forklift platform "without being provided means for controlling the platform."
[*12]
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In short, I would conclude that a recognized hazard existed, not only because of the lack of controls on the elevated platform but also because of the operator's absence from the forklift.
I am also convinced that the cited conditions were likely to cause death or serious physical injury. The obstructed view of the forklift operator as he moved the platform presented the danger of hitting the adjacent building with the elevated platform, causing it to fall. The risk of an injury caused by a fall from a height of 16 to 20 feet is obvious.
The cited conditions could have been prevented. Both respondent's president and its job superintendent knew that the forklift was used to elevate employees without operator controls being provided on the forklift platforms. Had they required operator controls to be provided on the platform, the recognized hazard would have been eliminated. n10 A violation of the general duty clause occurs "[W]henever an employer fails to take reasonable precautionary steps to protect his employees from reasonably foreseeable 'recognized hazards' that are causing or are likely [*13] to cause death or serious physical injury (emphasis in original)." Brennan v. O.S.H.R.C. & Vy Lactos Laboratories, Inc., 494 F.2d 460, 463 (8th Cir. 1974).
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n10 Both respondent's president and its job superintendent were unaware that the cited practices were hazardous. While actual knowledge of a hazard by an employer is evidence of the existence of a recognized hazard, an employer's ignorance of an activity's potential for harm does not prevent a finding that a recognized hazard exists. Brennan v. O.S.H.R.C. & Vy Lactos Laboratories, Inc., 494 F.2d 460, 464 (8th Cir. 1974); National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1265 n.32 (D.C. Cir. 1973).
Controls on the platform would not have prevented the operator's absence from the forklift while the employees were working on the elevated platform. It can be inferred, however, that platform controls would have eliminated the need for the operator's presence.
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I agree with the concurring opinion in holding that [*14] the violation was not an "isolated incident." See Murphy Pacific Marine Salvage Co., No. 2082 (January 13, 1975).
I would affirm the citation alleging a violation of section 5(a)(1) of the Act.
[The Judge's decision referred to herein follows]
RIEHL, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereinafter called the Act) contesting a Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act. The Citation alleges that an inspection of a workplace under the operation, and control of the Respondent revealed the existence of workplace conditions that violate Sections 5(a)(1) and 5(a)(2) of the Act for the reason that these conditions fail to comply with certain Occupational Safety and Health Standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.
The Citation, which was issued on March 8, 1973, alleges that the violation results from a failure to comply with standards promulgated by the Secretary by publication in the Federal Register. A description of the alleged serious and nonserious violations contained [*15] in said Citation states:
CITATION FOR NONSERIOUS VIOLATION
Item Number -- Standard or Regulation Allegedly Violated -- Description of Alleged Violation -- Date on Which Alleged Violation Must Be Corrected
1 -- 29 CFR 1926.400(c)(1) Page 27532, Column 3 -- (Job Site.) A 220-Volt A.C. flexible cord conductor feeding a Craftsman bench saw had insulation damage which resulted in a bare conductor exposure -- Immediately upon receipt of this citation.
2 -- 29 CFR 1926.401(f) and 29 CFR 1926.401(a)(1) Page 27533, Column 1 and 29 CFR 1926.402(a)(11) Page 27533, Column 2 -- (Job Site.) A temporary conductor (extension cord) with the ground wire cut was placed through a doorway (no protection for the cord at the doorway) and was used for supplying current to a portable drill. -- Immediately upon receipt of this citation.
3 -- 29 CFR 1926.451(a)(5) Page 27535, Column 2 -- (Job Site.) The wooden platform used with the Economobile was not equipped with a standard guardrail. -- Immediately upon receipt of this citation.
The alleged violations in this citation were cited from the Federal Register dated December 16, 1972, Volume 37, Number 243, Part II, Regulations for Construction. [*16]
CITATION FOR SERIOUS VIOLATION
Standard or Regulation Allegedly Violated -- Description of Alleged Violation -- Date On Which Alleged Violation Must Be Corrected
Public Law 91-596, Section 5(a)(1) General Duty Clause of the Act -- (Job Site.) The employer failed to provide safe working conditions in that an employee on an elevated platform which was mounted on a forklift truck had no control of the platform. Nor was there anyone else in the vicinity with control of the equipment. -- Immediately upon receipt of this citation.
The alleged violation in this Citation for Serious Violation was cited from the "Occupational Safety and Health Act of 1970" Public Law 91-596, dated December 29, 1970.
Pursuant to the enforcement procedures set forth in Section 10(a) of the Act, the Respondent was notified by letter of March 8, 1973, by the Occupational Safety and Health Administration, that the U.S. Department of Labor proposed to assess a penalty for the serious and nonserious violations alleged in the amount of $700 for the serious violation and $145 for the nonserious violations set forth in the Citation.
Pursuant to Section 10(c) of the Act, Respondent timely filed with the Secretary [*17] a notification to contest the Citation as to the serious and nonserious violations and the proposed penalty stated therein.
A hearing was held with respect to the Citation for serious and nonserious violation on June 19, 1973.
A Complaint was filed by the Secretary on April 17, 1973. The Respondent filed an Answer admitting that it is a corporation qualified to do business in Nebraska and that it is an employer within the meaning of the Act. Respondent additionally pleaded, as a defense, that the Act and Section 5(a)(1) thereof are invalid and unconstitutional.
DISCUSSION
We lack jurisdiction to pass on the constitutionality of Section 5(a)(1) and that issue must be litigated in other forums.
On the date in question, a Compliance Officer observed one of Respondent's cement finishers working from an elevated work platform approximately 20 feet above the ground. The workman on this platform was not provided with the means for controlling the platform or for shutting off the power of the truck. In addition, the [*18] Compliance Officer observed that the forklift operator was not at the controls of the forklift at the time the cement finisher was working from the platform. There is no specific reference to powered industrial trucks in the Occupational Safety and Health Construction Standards. Under the Act, however, it is not necessary that there be a specific standard applicable to the particular conditions maintained by the employer in order for a violation of the Act to exist.
Section 5(a)(1) of the Act, commonly referred to as the General Duty Clause, provides that:
Sec. 5.(a) Each employer -- (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; (Emphasis ours)
The purpose of the General Duty Clause is explained in Senate Report 91-1282, Page 9:
The committee recognizes that precise standards to cover every conceivable situation will not always exist. This legislation would be seriously deficient if any employee were killed or seriously injured on the job simply because there was no specific standard applicable to a recognized hazard [*19] which could result in such a misfortune. Therefore, to cover such circumstances the committee has included a requirement to the effect that employers are to furnish employment and places of employment which are free from recognized hazards to the health and safety of their employees.
"Recognized hazard" is an objective test. It is a hazard that is of common knowledge or general recognition in the particular industry in which it occurs and that is detectable by means of the senses (sight, smell, touch and hearing). Secretary of Labor v. American Smelting and Refining Company, Section 15000,043, Employment Safety and Health Guide, and Secretary of Labor v. George Nelson Roberts, Jr., The evidence is close as to whether or not the Compliance Officer's finding at the scene is a violation. The credible, substantive and probative evidence of record establishes that it was an isolated incident of disobedience on the part of the employee involved at the time and place in question. We cite a portion of said evidence in support of this contention.
CROSS EXAMINATION [*20] BY MR. REYNOLDS
Q Mr. Schwahn, you said that the operating engineer of this forklift truck was instructed to stay at the machine, is that correct?
A Yes.
Q Why do you instruct him to do that?
A Well, it's rather common knowledge I would say.
Q Well, what's the reason for having him at the machine? What's your reason for instructing your operators to stay at the machine?
A Well, I'd say there's a number of reasons. One is that they are there for that specific purpose. If the guy wants down, back or forth, or someone else wants to use the machine, they are there and available. That's what they are hired for.
Second, they would more than likely be over talking to somebody that ought to be working.
JUDGE RIEHL: In other words, you instruct them to stay with this forklift? Do you do this in all cases?
THE WITNESS: Yes.
JUDGE RIEHL: In this case he disobeyed you. Was this an isolated case or does it happen all the time? (Emphasis added)
THE WITNESS: No it's very isolated. As I say, they sit there on the machine like all day long, just like we're sitting here. And it's very boring. (Emphasis added)
JUDGE RIEHL: Since this has happened have you tended to make it [*21] unboring for them by pointing out that that's one of the regulations, to stay?
THE WITNESS: I make it a point to see that they are on the machine at all times, yes.
JUDGE RIEHL: There is no more problem?
THE WITNESS: No.
We note also that the Respondent has provided safety education for their superintendents. This consists of safety meetings within his own organization, and a safety training seminar provided by their association. This training was within the scope of the OSHA Act to familiarize the supervision, foremen, etc., with the necessities under the Act -- the basics under the Act, and it comprised a ten hour session over a period of time. A certificate was awarded for the completion of this program by his personnel and the seminar dealt almost exclusively with the regulations for construction that are contained in the Department of Labor Safety and Health Regulations for Construction. This being their guide, Mr. Schwahn did not know of the ANSI Standards mentioned by the Compliance Officer in his testimony and we feel that he is sincere in his contention.
The fact that this act was an isolated incident, contrary to the Respondent's instructions to their [*22] employees, renders moot any further consideration of the question of whether or not the platform and its use constitutes a violation of Section 5(a)(1) of the Act. Respondent is without fault and has violated no statute or regulation. Therefore, the Citation should be vacated and the Proposed Penalty should be vacated.
NONSERIOUS VIOLATIONS
Item 1
29 CFR 1926.400(c)(1), Page 27532, Column 3.
(Job Site.) A 220-volt A.C. flexible cord conductor feeding a Craftsman bench saw had insulation damage which resulted in a bare conductor exposure.
An electrical cord had been taped at a previous time and had slipped off by the time of inspection, February 13, 1973. Respondent did not notice that there was a break in the cord or that the tape had slipped. This break exposed 1/16th of an inch of live conductor. Mr. Levalds testified that he observed no residue of tape adhesives which would indicate that the subject break had ever been taped. However, Mr. Jerry Schwahn, Respondent's job superintendent, testified that the break in the insulation had been taped at some period in time and that the tape had slipped from the break in the cord.
There is a conflict in the testimony but under [*23] the circumstances the Government has failed to prove knowledge on the part of the Respondent. There is however a violation. Considering the Respondent's attempts at educating his employees in the enforcement provisions of OSHA and considering the total testimony in the case, we feel that the fine of $45 should be reduced to $25 on Item No. 1.
Item 2.
29 CFR 1926.402(a)(11).
Extension cords shall be protected against accidental damage as may be caused by . . . pinching in doors or elsewhere.
29 CFR 1926.401(f)
Extension cords used with portable electric tools and appliances shall be of three-wire type.
29 CFR 1926.401(a)(1)
The noncurrent-carrying metal parts of portable and/or plug-connected equipment shall be grounded.
The evidence supports the Citation for violation in Item No. 2 in that there was observed a flexible cord, used to energize a portable drill, which had its ground wire cut so that it was no longer the three wire type. This cord was passed through a double metal door but was not protected against pinching (Exhibit G-5). Exhibits G-3 and G-4 were used as a formula to determine the amount of the proposed penalties. A penalty of $45 was proposed [*24] after deductions for good faith, size, history and anticipated abatement for violations of Item No. 2. The penalty is not inappropriate under the circumstances.
Item 3.
29 CFR 1926.451(a)(4).
Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground. . .
29 CFR 1926.451(a)(5).
Guardrails shall be 2- X 4-inches, or the equivalent, approximately 42 inches high, with a midrail, when required.
The evidence substantiates that on the date of inspection a work platform located approximately 20 feet above the ground did not have adequate guardrails in that the midrail was placed diagonally between the top rail and the platform. This created a greater hazard and is conducive to having an employee during his work fall through this exposed open area and be injured in the fall. Purpose of a midrail is to reduce the side opening to prevent an employee from falling through the exposed open area. The midrail provided by the Respondent did not restrict the side openings adequately and presented a hazard. The adjusted penalty of $55 arrived at by the formula used by the Secretary is not inappropriate.
FINDINGS OF [*25] FACTS
CITATION FOR SERIOUS VIOLATION
A Citation for Serious Violation was issued Respondent under Section 5(a)(1) for failure to furnish employment and a place of employment which are free from recognized hazards likely to cause death or serious physical harm.
On the day of the inspection, the operating engineer of Respondent's forklift truck was instructed to stay at his machine. He disobeyed his orders and left the machine at a time when Respondent's employee was working on an elevated work platform. Without an operator available a machine could move or tip. In addition, the workman would have no means of getting down if he injured himself. The operator at the time of inspection was 80 feet from the lift. Exhibit G-8 is a copy of the American National Standards Institute. Respondent has four forklift trucks for use at his construction sites. None of these have dual controls. These forklift trucks are only occasionally used as work platforms.
A Penalty Assessment Worksheet (G-3) was used by the Compliance Officer to determine the penalty to be proposed for violation alleged in Item No. 1 of the Citation rendered as Serious Violation No. 1.
The unadjusted penalty, as [*26] shown in Column 5 of G-3, was based upon the gravity of the alleged violation (G-4).
Three factors were considered in determining the gravity of the particular violation: (a) the likelihood of injury, (b) the severity of the injury most likely to be incurred, and (c) the extent of the violation. A numerical value was given for each of these factors in accordance with a numerical evaluation table contained under each factor on G-4. These numerical values were totaled for each alleged violation. The total was then compared with the unadjusted penalty gauge contained on G-4. The unadjusted penalties as derived from this gauge is then transferred to Column 5 on G-3.
CITATIONS FOR NON SERIOUS VIOLATIONS
Item 1
29 CFR 1926.400(c)(1)
No employer shall permit an employee to work in such proximity to any part of an electric power circuit that he may contact the same in the course of his work unless the employee is protected . . . by guarding it by effective insulation . . .
On the date of the inspection, there was a flexible cord conductor carrying current to a Craftsman bench saw, which had a break in the insulation that exposed 1/16 inch of a live conductor. Evidence [*27] by Respondent showed that the flexible cord apparently came to the jobsite in the described condition. Respondent's job superintendent stated that the break in the insulation had been taped at some previous time and that the tape had slipped from the break in the cord. The Compliance Officer observed no residue of tape adhesive which would indicate that the subject break had ever been taped.
Exhibit G-3 was the penalty assessment worksheet used by the Government to determine the penalty to be proposed for the violation alleged in Item 1 of the Citation for Other Than Serious Violations.
For the violation the Compliance Officer rated the likelihood of an injury occurring as a result of the violation as moderate. His basis for this rating was that tools and materials to be used by two of Respondent's carpenters in their work were in the immediate vicinity of the bare conductor (Exhibit G-2). The numerical rating for likelihood as shown on G-4 was 6. Severity of the injury was rated numerically as 8 because hospitalization of 24 hours or more would be required if employees were to come into contact with the bare conductor. The extent of the violation was rated numerically [*28] as 2 because the violation was isolated. These total 16, which on the basis of G-4, required an unadjusted penalty of $140.
The unadjusted penalty representing the gravity of the violation was not the final proposed penalty. It was reduced by a percentage factor representing Respondent's good faith, size, and history.
Respondent was given a 10 percent reduction for good faith. Respondent was found to have had periodic safety meetings. However, because of the violations during the inspection of Respondent's workplace it was determined by the Compliance Officer that Respondent had only an average safety program and was not entitled to any greater reduction for good faith than 10 percent.
Respondent had only 16 employees at the jobsite, thus was given a 10 percent reduction for size.
Since Respondent had been previously inspected (in May of 1972) and violations had been found at that time also, Respondent was given only a 10 percent reduction for history of previous violations.
After the unadjusted penalty was reduced on the basis of Respondent's good faith, size, and history, the amount so reduced was entered in Column 8 of G-3. The amount in Column 8 was then reduced by a [*29] 50 percent abatement credit which was given contingent upon abatement to encourage prompt abatement. The final proposed penalty was then entered in Column 11 on G-3. Therefore, for Item 1, the Compliance Officer's proposed penalty was $45. We feel the total evidence indicates that the fine should be $25 after considering the Respondent's attempts at educating his employees in the enforcement provisions of OSHA and considering the total testimony in the case.
Item 2.
29 CFR 1926.402(a)(11)
Extension cords shall be protected against accidental damage as may be caused by . . . pinching in doors or elsewhere.
29 CFR 1926.401(f)
Extension cords used with portable electric tools and appliances shall be of three-wire type.
29 CFR 1926.401(a)(1)
The noncurrent-carrying metal parts of portable and/or plug-connected equipment shall be grounded.
Inspection of Respondent's premises found that there was a flexible cord, used to energize a portable drill, which had its ground wire cut so that it was no longer of the three-wire type. This cord was passed through a double metal door but was not protected against pinching (Exhibit G-5). Evidence was adduced that this insulation [*30] could have been padded. The portable drill which was energized by means of this cord was not of the double insulated type nor was it grounded since the ground wire on the cord had been cut.
Exhibits G-3 and G-4 were used in the manner described previously to determine the amounts of proposed penalty.
The Compliance Officer rated the likelihood of injury high (numerically, 8) because the system did not have a ground. If a short occurred an employee would offer the least resistance path to the ground. Also where the cord passed through the doors, if the insulation became damaged, the door frame could become energized. The severity of the injury to be expected, as a result of this violation, would require doctor's treatment. Severity was therefore rated numerically as 6. The violation was isolated. Therefore, the Compliance Officer rated the violation numerically as 2. These totaled 16, which, on the basis of G-4, required an unadjusted penalty of $140. The unadjusted penalty for this violation, was reduced for good faith, size, history and anticipated abatement in the same manner as previously described. A penalty of $45 was proposed which is appropriate.
Item 3
29 CFR [*31] 1926.451(a)(4).
Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground. . .
29 CFR 1926.451(a)(5).
Guardrails shall be 2- X 4-inches, or the equivalent, approximately 42 inches high, with a midrail, when required.
Inspection of Respondent's worksite revealed that there was a work platform approximately 20 feet above the ground which did not have adequate guardrails in the midrail in that the midrail was placed diagonally between the top rail and the platform. The purpose of a midrail is to reduce the side opening to prevent an employee from falling through the exposed open area. The midrail provided by Respondent did not restrict the side openings adequately.
Midrail is defined in 29 CFR 1926.452(a)(21) as "A rail approximately midway between the guardrail and platform, . . ."
Exhibits G-3 and G-4 were used in the manner as described previously in these findings to determine the amount of proposed penalty. The unadjusted penalty was reduced for good faith, size, history and anticipated abatement in the same manner as herein previously described. A penalty of $55 was proposed for Item No. 3. This [*32] penalty is appropriate.
CONCLUSIONS OF LAW
1. Jurisdiction of this proceeding is conferred upon the Commission by Section 10(c) of the Act.
2. Respondent is and at all material times was an employer within the meaning of Section 5(a) of the Act.
3. Inspection of Respondent's workplace was conducted under the authority granted in Section 8(a) of the Act.
4. Respondent has violated Section 5(a)(2) of the Act by violating the Occupational Safety and Health Standards 29 CFR 1926.400(c)(1) Page 27532, Column 3; 29 CFR 1926.401(f) and 29 CFR 1926.401(a)(1) Page 27533, Column 1, and 29 CFR 1926.402(a)(11) Page 27533, Column 2 and 29 CFR 1926.451(a)(5) Page 27533, Column 2, in the manner alleged in paragraph IV of the Complaint. The violations mentioned in paragraphs IV(a), IV(b) and IV(c) of the Complaint constituted nonserious violations within the meaning of Section 17; the contest as to the abatement date with respect to those violations is moot.
5. Proper penalty for the violation of Item No. 1 of the Nonserious violations should be $25. The penalty for violation of Item No. 2 of the Nonserious Violations should be $45. The penalty of Item No. 3 of the Nonserious [*33] Violations should be $55.
6. In respect to Citation for Serious Violation, Respondent has not violated Section 5(a)(1) or any standard of the Act and the penalty of $700 for said Serious Violation should be vacated.
DECISION
It is hereby ORDERED that:
1. Item No. 1 of the Citation for Other Than Serious Violations is affirmed.
2. Item No. 2 of the Citation for Other Than Serious Violations is affirmed.
3. Item No. 3 of the Citation for Other Than Serious Violations is affirmed.
4. The Citation for Serious Violation is hereby vacated.
5. The penalty for Item No. 1 for Nonserious Violation is $25.
6. The penalty for Item No. 2 for Nonserious Violation is $45.
7. The penalty for Item No. 3 for Nonserious Violation is $55.
8. The proposed penalty for the Serious Violation is hereby vacated.