DRAVO CORPORATION

OSHRC Docket Nos. 76-360; 76-437

Occupational Safety and Health Review Commission

November 8, 1977

[*1]

Before: CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Regional Solicitor, U.S. Department of Labor

Carl H. Hellerstedt, Jr., for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge Donald K. DaVall, dated November 1, 1976, is before the Commission for review pursuant to 29 U.S.C. 661(i). The portion of that opinion pertaining to Docket No. 76-437 affirmed Citation No. 1 for nonserious violations of 29 C.F.R. 1916.51(c) and 1916.62(b). n1 The Judge assessed a total penalty of $130 for these two violations. n2

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n1 The Judge vacated Citation No. 2 even though the respondent withdrew its notice of contest to that citation after the complainant, by amendment, changed the characterization of the violation from repeated to nonserious and reduced the proposed penalty from $640 to $64. Since the Judge correctly observed at the outset of his decision that Citation No. 2 was no longer in issue, the vacation is obviously a clerical error. Therefore, the Judge's decision is corrected to affirm Citation No. 2, as amended, and a $64 penalty is assessed.

n2 The parties have not taken issue with the Judge's disposition of Docket No. 76-360. In these circumstances, the Commission will not review that portion of the Judge's decision. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD para. 20,780 (No. 4136, 1976); Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976). The Judge's decision in Docket No. 76-360 is accorded the significance of an unreviewed Judge's decision. Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

[*2]

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The respondent contends in its petition for review that the Judge erred in affirming a violation of 29 C.F.R. 1916.62(b) because it had complied with that standard. The standard provides:

"Protruding ends on strands in splices on slings and bridles shall be covered or blunted."

Although the strands in the splices of the respondent's sixty-ton spreader bar cable were blunted, n3 the splices were wrapped with steel wires which were loose and rusty and created a hazard because of jagged edges. Two or three months prior to the inspection, workers had pinched their hands or caught their clothing on these edges. Their complaints to the respondent's foreman to rectify the hazard were to no avail.

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n3 Blunting of such strands is usually accomplished by applying a torch at "the end of the wire to produce a small blot of slag and melt the metal in place of the sharp, sheared point."

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The Judge held that neither another specific standard nor [*3] 29 U.S.C. 654(a)(1), the so-called general duty clause, applied to the wire wrappings. He concluded that a reasonable reading of the cited standard required the covering to be safe even though the cable was properly blunted. The Commission agrees.

The standard requires employers to protect their employees from cutting injuries by covering or blunting splices in slings. Here, the respondent elected to do both. Whether an employer resorts to covering or blunting, or both, he must do so in such a way as to eliminate any cutting hazard. Obviously, an employer cannot comply with the standard's requirement to reduce sharp edges on a cable by using wire which also presents the same hazard. A contrary conclusion would conflict with the Act's purpose of protecting the health and safety of workers. See 29 U.S.C. 651. Therefore, the citation for a violation of 29 C.F.R. 1916.62(b) and a $60 penalty are affirmed.

The respondent also contends that the Judge erred in affirming a violation of 29 C.F.R. 1916.51(c). Section 1916.51, which applies to shipbuilding, provides general requirements for good housekeeping. Paragraph (c) of that section states:

"Slippery conditions [*4] on walkways or working surfaces shall be eliminated as they occur."

The respondent builds and repairs riverboats and barges. On the day of the inspection, one-half inch of snow had fallen prior to the 8 a.m. workshift. The respondent's worksite was inspected between 10 and 10:30 a.m. At that time, snow remained on the decks of several barges that workers used as working surfaces or for access to and from the work areas. The respondent's snow removal instructions did not specifically provide for snow clearance in these areas. Although respondent did encourage its outside workers to clean their own particular area, this system was ineffective.

The Judge determined that the standard is applicable to natural as well as man-made conditions. He then concluded that even though an employer cannot be expected to remove all snow as it occurs as literally required by the standard, he must correct the conditions within a reasonable time and he must take "unusual preventive or precautionary measures" dictated by the given circumstances. Because the snow had fallen prior to the 8 a.m. shift and no clean-up had begun at the time of the 10 a.m. inspection, he found that the respondent did [*5] not do all it could have to eliminate the hazard.

The respondent contends that the Judge erred because the standard only applies to man-made conditions and not to slippery conditions caused by snow. The respondent also asserts that even if the standard is applicable to natural conditions, its snow removal efforts were reasonable and sufficient and that the standard does not require employers to resort to "unusual preventive or precautionary measures" to correct slippery conditions. The Commission members disagree on the disposition of these contentions.

Commissioner Barnako would invite the complainant to file a brief on the applicability of the standard. n4 He notes that the phrase "as they occur" in the standard tends to indicate that the standard does not apply to slippery conditions caused by bad weather because it is virtually impossible to correct such conditions "as they occur." Furthermore, the examples in other paragraphs of section 1916.51 seem to support the respondent's contention that the cited standard only applies to man-made conditions. Paragraph (a) refers to keeping various areas clear of "tools, materials, and equipment . . . and all debris such as welding [*6] rod tips, bolts, nuts, and similar material." It also mentions elevating hoses and electric conductors. Paragraph (b) requires that working areas be kept "free of debris" and that "construction material shall be so piled as not to present a hazard." Paragraph (e) requires that "[a]ll oils, thinners, solvents, waste, rags, or other flammable substances shall be kept in fire resistant covered containers when not in use." See Allis-Chalmers Corp., 76 OSAHRC 142/C3, 4 BNA OSHC 1876, 1976-77 CCH OSHD para. 21,341 (No. 8274, 1976).

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n4 See subparagraph D2 of the Commission's policy statement published at 41 Fed. Reg. 53015 (1976).

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Chairman Cleary would affirm the violation for the reasons given in the Judge's decision. He also observes that 29 C.F.R. Part 1916 applies to shipbuilding, which obviously involves outside work. In his opinion, slippery conditions caused by weather therefore come within the purview of section 1916.51(c). Moreover, Chairman Cleary does not find that the examples limit the applicability [*7] of the standard. He concludes that the hazard at which the standard is directed, "[s]lippery conditions," is the controlling factor in interpreting the standard.

The respondent argues that the Judge ignored the snow removal efforts actually made by respondent and that the Judge improperly substituted his judgment for respondent's concerning the areas to be given priority in the snow removal process. Chairman Cleary rejects these arguments. The Judge did not ignore respondent's efforts. In fact, the decision reflects a caretal consideration of these efforts. Only after evaluating respondent's efforts in light of all the relevant considerations, did Judge Duvall conclude that the efforts were inadequate to meet respondent's duty under the cited standard. Chairman Cleary agrees with this conclusion.

Considering the Judge's remarks concerning "unusual preventive or precautionary measures" in context, Chairman Cleary finds no error. He interprets the Judge's decision as holding that, although an employer is not expected to eliminate slippery conditions the very instant that snow hits the ground, he must do so within a reasonable time. Since the snow had fallen prior to the 8 [*8] a.m. shift, the respondent had an obligation to eliminate the hazard insofar as was reasonably possible and practicable after the beginning of that shift. Up until the time of the inspection, some two hours after 8 a.m., no effort had been made to eliminate the hazardous conditions. Thus, the respondent had not taken appropriate corrective action within a reasonable time.

Due to the inability of the present two-member Commission to agree on the disposition of the section 1916.51(c) violation, no official action can be taken on it. 29 U.S.C. 661(e). The Judge's affirmance of that violation and assessment of a $70 penalty therefore becomes the final action of the Commission. See Vappi & Company, 77 OSAHRC 72/D7, 5 BNA OSHC 1358, 1977-76 CCH OSHD para. 21,787 (No. 8282, 1977). So ordered.