SECRETARY OF LABOR,
Complainant,

v.

UNION BOILER CO.,
Respondent.

OSHRC Docket No. 79-0232

DECISION

Before: ROWLAND, Chairman; CLEARY and COTTINE,Commissioners.
BY THE COMMISSION:

In this case, Administrative Law Judge Cecil L. Cutler, Jr., held that Union Boiler Company ("Union Boiler") committed a serious violation of the Occupational Safety and Health Act, 29 U.S.C. §§ 651-678 ("the Act"), by failing to secure a railing in accordance with the requirements of the standard contained at 29 C.F.R. § 1926.500 (f)(1)(iv). [[1/]] The judge assessed a $500 penalty for the violation. Union Boiler petitioned for review of the judge's decision and its petition was granted. For the reasons that follow, we affirm the judge's decision.

I.

On Tuesday, October 10, 1978, Union Boiler, a contractor with more than 1,000 employees, was performing repair work on a boiler at the Philip Sporn power plant operated by the Appalachian Power Company ("APC") in New Haven, West Virginia. Thirty-three employees of Union Boiler were on the jobsite. The judge described the events that led to the issuance of a citation to Union Boiler as follows:

Bruce Sexton, an employee of Union Boiler, was manipulating a piece of equipment onto the "G" level of the number 5 boiler at the power plant. The equipment had been hoisted by a tugger located on the [top]...floor through a shaft-type opening from a pickup truck at ground level 80 to 100 feet below. In maneuvering the object, described as stress-relieving equipment, over a section of removable railing at the "G" level, Mr. Sexton backed against the railing. [The railing] came loose and fell down the opening striking two [Union Boiler] employees standing on ground level by the truck. As a result, one employee was killed and the other injured.

The railing in question was made of tubular steel and was 11 feet, 9 inches long. It had been installed on level G as a barrier at the edge of the shaft when that level was constructed in the 1960's. The railing was formed by two horizontal bars supported by two vertical posts, designated post 5 and post 6.

A collar at the base of each post served to anchor the railing to the floor of level G by means of bolts which passed through the collar and screwed into steel and lead anchors in the concrete floor. Each collar held four bolts.

Upon examination of the fallen railing on the ground level of the facility on the evening of the accident, Occupational Safety and Health Administration ("OSHA") compliance officer Stanley Elliott observed two bolts with anchors attached on the collar of post 5. A single bolt and attached anchor were observed on post 6. When he examined level G, the compliance officer found that two anchors remained in the concrete floor at the anchoring location of post 5 and two anchors were missing. At the anchoring position of post 6, the compliance officer found that three anchors remained in the concrete floor and one was missing. One of the anchors for post 6 contained part of a broken bolt. The exposed end of the broken bolt was not shiny but, rather, defaced and deteriorated, indicating that the break was not recent. The other four anchors still imbedded in the floor were filled with dirt and dust. Noting that the threads in all the anchors that remained were undamaged, Elliott opined that it was unlikely that bolts had been in place in these anchors when the railing fell since the threads of the anchors would have been damaged as the bolts were torn out. Elliott noted that the concrete around the anchors had deteriorated but that this deterioration was "very minimal." Elliott found no loose bolts on the floor even though he inquired about the missing bolts and inspected level G and the ground in the area of where the railing fell. Elliott inspected a railing adjacent to the one that fell and found bolts in only eight of the sixteen holes in the collars. Elliott also identified six employees of Union Boiler who had access to the railing that fell.

Michael Zerkle, safety coordinator for Union Boiler and an experienced investigator, testified that, during an investigation conducted on the afternoon and evening after the accident, he found one bolt on level G and two bolts on the ground level in the area where the railing landed. The bolts that were found were the same type as those attached to the collars of the fallen railing. Zerkle did not disturb the bolts that he found but did not point them out to the compliance officer during the OSHA inspection since he thought they were apparent and that the compliance officer had seen them. The threads of these bolts were intact and did not appear to be stripped. Zerkle did not examine the threads of the anchors that remained in the concrete on level G. When Zerkle was shown these anchors at the hearing he observed that "[s]ome [of their threads] are good and some are not so good." He added that some of the threads looked like they were stripped. Zerkle noted that the concrete floor on level G had a solid base but was "soft and powdery" around the anchors.

Sexton, the employee who had backed against the railing when it fell, testified that he had seen eight bolts anchoring it in place, although he had not bent down to observe closely the base of the railing. Before the railing fell, Sexton also tested it and found "a little bit of play in it" but considered it safe. Sexton noted that both his foreman, Dennis Cochran, and Mr. Statts, another Union Boiler supervisor, [[2/]] were present on level G on the morning before the accident occurred, but Sexton did not state whether either of them examined the railing. When Sexton maneuvered the 150-pound piece of equipment over the railing, he was positioned between the railing and the equipment, with his back in contact with the railing. According to Sexton, who weighed 175 pounds, he exerted "very little" pressure on the railing. Neither the equipment being hoisted nor the tugger cable came in contact with the railing.

The railing had been removed twice before the accident, on Friday, September 29, and Friday, October 6. Removal of railings was the responsibility of Union Boiler's pipefitters. William Arnott, one of the pipefitters who removed the railing, testified that he was instructed to remove the railing by assistant superintendent Statts. Arnott and Anthony Territo, a pipefitter who removed the railing with Arnott, testified that on both occasions the railing was returned to the same condition it was in before removal, i.e., all of the bolts that were removed were replaced. Although he was not certain, Territo believed that no bolts were missing. According to both employees, if they had noticed that a bolt was missing, it would have been replaced; however, Territo's testimony in this regard was somewhat equivocal. After replacing the railing, Arnott shook it and found it was "safe."

Ernest W. Call, Union Boiler's superintendent at the Phillip Sporn plant, testified that Union Boiler's employees used the area by the railing only as a loading zone. Call also noted that the area was not enclosed and was exposed to rain and snow.



S:\1983\Processed\79-0232\00000000\06.tif"

Frank Reynolds, an employee of Central Operating Company, a subsidiary of APC, testified that on Saturday, October 7, he checked the railing and found that there was no "play" in it. Reynolds did not notice how many bolts were in place. To Reynold's knowledge, the only employees who worked on level G between October 6, when the railing was last replaced, and October 10, when the railing fell, were employed by Union Boiler. Reynolds noted that fly ash produced during the plant's operation accumulated on level G but that this level was one of the cleaner areas in the plant.

B. H. Davis, Union Boiler's chief engineer, testified as an expert that the fly ash that accumulated on level G formed an acid when combined with water and that this acid could digest or deteriorate concrete and rust the steel portions of the anchors and bolts. In Davis' opinion, this acid deteriorated the concrete around the anchors and reduced the anchorage. According to Davis, if enough pressure was applied to the railing to cause it to pull out, both the bolts and the anchors would pull out of the concrete with the railing, unless the bolts or the anchors had deteriorated from the acid, in which case the ones that had deteriorated would break. Davis performed tests on the strength of the type of anchors used to attach the railing and determined that the anchors could withstand approximately 3,000 pounds of upward pressure. Davis also testified that, even with three bolts in place, the railing could withstand a force of more than 200 pounds. However, a post with only one bolt in place could withstand only 100 pounds of force directly on it if the bolt was on the side of the post opposite from the side where pressure was applied. Davis also calculated that the pressure exerted by Sexton an the railing when it fell was eleven pounds.

II.

Finding that only three bolts had been in place in the railing when it fell, the judge concluded that a violation of section 1926.500(f)(1)(iv) was established. He reasoned that, if all eight bolts had been in place when the railing fell, the bolts would have remained attached to the collars and anchors or they would have pulled out of their anchors. In the latter case, the forcible ejection of the bolts would have stripped the threads of the bolts and anchors. However, the judge noted, Elliott testified that the threads in the anchors left in the floor were not stripped. The judge also noted that the pressure exerted by Sexton that caused the railing to topple was "far less than the vertical pullout strength which Mr. Davis testified the bolts were designed to take." With respect to the bolts found by Zerkle, the judge observed that such bolts normally would be found "laying around" a power plant and that the bolts were not attached to anchors nor were their threads stripped, thus indicating that they were not pulled out when the railing fell. The judge further found the testimony of pipefitters Arnott and Territo inconclusive since neither worker could recall how many bolts were replaced in the railing. The judge also accorded no weight to Sexton's testimony that eight bolts were in place because Sexton observed the bolts from a standing position and did not "get down and inspect them." Moreover, the fact that neither the pipefitters nor Sexton noticed the broken bolt in one of the anchors cast doubt on the thoroughness of their observations. The judge found that the deterioration of the concrete through age and acid could have contributed to the collapse of the railing if only three bolts were holding the railing in place. The judge also found that the absence of eight of the sixteen required bolts from a nearby railing supported an inference that bolts were missing from the railing that fell.

Additionally, the judge held that the fact that Union Boiler's employees twice removed and replaced the guardrail imposed a duty on Union Boiler to make reasonable efforts to detect any hazardous condition associated with the railing. This duty was not fulfilled by the "slight shake" and "casual look" given the railing by Union Boiler employees, according to the judge. Noting that Union Boiler's employees removed the railing before the accident and that these employees testified that they would have fixed an unsafe railing, the judge found that Union Boiler controlled the hazard and thus concluded that a multi-employer worksite defense was not established under Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD ¶ 20,690 (Nos. 3694 & 4409, 1976) ("Anning-Johnson").

III.

On review, Union Boiler argues that the judge erred in finding that the
railing was supported by only three bolts. In Union Boiler's view, the judge ignored the evidence of several witnesses that the railing contained a full complement of bolts and failed to state reasons why he did not credit this testimony. In any event, Union Boiler contends that compliance with the cited standard does not turn on whether all the bolts were in place but on whether the railing could withstand 200 pounds of pressure. Union Boiler submits that its expert's testimony shows that, even if three bolts were in place, protection in excess of the standard's requirement was provided. Union Boiler further argues that, assuming only three bolts were in place, the judge erred in finding a violation because the deterioration of the concrete was the cause of the accident and not merely a "contributing factor," as the Judge found." [[3/]] Union Boiler argues that the fact that a nearby railing was supported by only eight of sixteen bolts is irrelevant since there is no evidence that its employees had ever touched that railing.

Noting that its employees used the area near the railing only as a "handy loading zone" and that its employees, having tested the railing, considered it safe and were unaware of the deteriorated concrete, Union Boiler submits that it neither created nor controlled the hazard and that it had no knowledge that the railing was hazardous. In view of these facts, Union Boiler argues that the judge erred in rejecting its Anning-Johnson defense.

IV.

To prove a violation of section 5(a)(2) of the Act, the Secretary must show by a preponderance of the evidence that (1) the cited standard applies, (2) there was a failure to comply with the cited standard, (3) employees had access to the violative condition, and (4) the cited employer either knew or could with the exercise of reasonable diligence have known of the condition. Daniel International Corp., 81 OSAHRC 71/D6, 9 BNA OSHC 2027, 1981 CCH OSHD ¶ 25,813 (No. 76-181, 1981).

Union Boiler does not dispute that the cited standard applies. With respect to the second element, Sexton testified that he exerted "very little" pressure on the railing before it fell. Union Boiler's expert calculated that the force exerted by Sexton was only eleven pounds. Moreover, if Sexton had been leaning heavily on the railing, it is likely that he would have fallen when the railing gave way. Thus, regardless of whether three or eight bolts were in place, the evidence supports a finding that the railing was not "capable of withstanding a load of at least 200 pounds," as required by the cited standard. With respect to the element of employee access, Union Boiler employees Sexton, Arnott, Territo, and the employees who were struck by the railing had access to the hazardous condition.

The dispute in this case centers around the fourth element, i.e., whether Union Boiler knew or with reasonable diligence could have known of the weakness of the railing. In determining whether an employer should have known of a hazardous condition, the Commission has inquired as to whether the employer exercised reasonable diligence to detect the condition. In exercising reasonable diligence an employer is required to inspect and perform tests to discover safety-related defects in material and equipment. Prestressed Systems, Inc.,, 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1981 CCH OSHD ¶ 25,358 (No. 16147, 1981).

We find that Union Boiler knew or, with the exercise of reasonable diligence, could have known that the railing was of insufficient strength. Crucial to this finding is our determination that the railing was anchored by only three bolts when it was dislodged by Sexton. The physical evidence compels this conclusion. Only three bolts remained attached to the railing after it fell. As the judge noted, the bolts found by Union Boiler's investigator, Zerkle, were not stripped, indicating that they were not forcibly ejected from their anchors when the railing fell. Although Zerkle testified that the threads of some of the anchors remaining in the floor were stripped while Elliott testified that none were stripped, Zerkle's opinion was based only on his examination of the anchors at the hearing, ten months after the railing fell. He did not examine the anchors' threads during his investigation of the accident. Elliott, on the other hand, examined these anchors on the day of the accident while they were still imbedded in the concrete And found that they were filled with dust and dirt and that their threads were not stripped, indicating that bolts were not attached to these anchors when the railing fell. After the accident, the anchors had been removed from the concrete by employees of Central Operating Company. There is no evidence concerning whether the threads of the anchors were damaged or altered during removal or at any time thereafter. Zerkle testified that the anchors looked the same at the hearing as they had when he investigated the accident, but, as already noted, he had not examined the threads of the anchors during his investigation. We conclude that the testimony of Elliott is more probative of the condition of the anchors at the time the railing fell than the testimony of Zerkle, since Elliott's testimony was based on observations made when the anchors were still in place on level G and at a time closer to when the accident happened. Moreover, even Zerkle did not contend that the threads of all of the anchors remaining in level G were stripped.[[4/]]

Finally, we note that Davis, Union Boiler's expert, testified that if a bolt were in place in an anchor when the railing gave way, both the bolt and anchor would have pulled out of the concrete or the bolt or the anchor would have broken. Here, five of the eight anchors remained intact in the concrete on level G after the railing fell. One of the five anchors contained a portion of broken bolt, but the broken end was defaced and deteriorated rather than shiny, indicating that the bolt had broken some time before the railing fell. No other broken bolts were discovered, and the three loose bolts that Union Boiler contended had been attached to the railing were not broken. Only three of the bolts pulled out with their anchors attached. Thus, evaluation of the physical evidence on the basis of the theory supplied by Union Boiler's expert leads to the conclusion that only three bolts were in place when the railing fell. [[5/ ]]

During the two week period before the accident, Union Boiler's pipefitters had removed the railing twice on the orders of a supervisor. The last time railing was removed and reinstalled was four days before it fell. Union Boiler's supervisors, Cochran and Statts, were present on level G before the equipment was hoisted to that level. These supervisors knew or should have known that Sexton would be required to work in close proximity to the railing while landing this equipment. An inspection of the railing would have disclosed that only three bolts were in place and thus apprised the supervisors that the railing might be of inadequate strength. Additionally, the deteriorated condition of the concrete at the base of the railing, as well as Union Boiler's knowledge that fly ash and water together cause concrete to deteriorate, should have prompted Union Boiler's supervisors to cheek the railing's strength. There is no evidence that any supervisor conducted such an inspection or otherwise provided any instructions to Sexton prior to directing him to work near the railing. Under the circumstances, we conclude that Union Boiler's supervisors should have inspected the railing. Cf. Automatic Sprinkler Corp. of America, 80 OSAHRC 47/E4, 8 BNA OSHC 1384, 1980 CCH OSHD ¶ 24,495 (No. 76-5089, 1980) (an employer must make reasonable effort to anticipate hazards to which employees may be exposed in course of scheduled work by inspecting work area to determine what hazards exist or may arise).

Although Union Boiler's employees previously had shaken the railing to test its stability, we agree with the judge that merely shaking the railing did not satisfy the employer's duty to inspect and perform tests to discover safety related defects in the railing. Prestressed Systems, Inc., supra. The fact that slight pressure exerted on the railing by Sexton caused it to topple four days after it was reinstalled indicates that the checks that had been made were cursory at best. In view of the foregoing, we conclude that with reasonable diligence Union Boiler could have known that the railing was not sufficiently strong.We also find inapposite Union Boiler's argument that the railing fell because of deterioration of the concrete surrounding the anchors and not because it was improperly secured. The standard imposes a minimum strength requirement, which it has been established that the railing did not meet. Additionally, it has been established that Union Boiler should have been alerted to check the strength of the railing. Thus, whether the railing fell because it was inadequately secured or because the concrete had deteriorated is immaterial to the finding that the standard was violated.

Finally, we reject Union Boiler's contention that the judge erred in rejecting its Anning-Johnson defense. If a subcontractor on a multi-employer worksite neither created nor controlled a hazardous condition, it may defend against a citation by showing either (a) that its employees who were exposed to the hazard were protected by realistic measures taken as an alternative to literal compliance with the cited standard, or (b) that it did not have nor with the exercise of reasonable diligence could have had notice that the condition was hazardous. See Anning-Johnson, supra, 4 BNA OSHC 1193 at 1198, 1975-76 CCH OSHD ¶ 20,690 at p. 24,783-84. A subcontractor asserting the Anning- Johnson defense must make a threshold showing that it neither created nor controlled the hazardous condition in question. Sunrise Plastering Corp., 80 OSAHRC 73/C4, 8 BNA OSHC 1765, 1980 CCH OSHD ¶ 24,639 (No. 78-846, 1980). Control is established when it is shown that an employer possessed the expertise and personnel to abate a hazard.

Tunnel Electric Construction Co., 80 OSAHRC 80/B7, 8 BNA OSHC 1961, 1980 CCH OSHD ¶ 24,706 (No. 76-1803, 1980). Union Boiler removed the railing twice during a two week period before the accident and its pipefitters possessed the ability to replace or repair an unsafe railing. In view of these facts, we find that Union Boiler controlled the hazard and, therefore, conclude that Union Boiler has failed to establish an Anning- Johnson defense.

In assessing a penalty for a violation, we are required to give consideration to the size of the employer's business, the gravity of the violation, the employer's good faith, and the employer's history of previous violations. 29 U.S.C. § 666(1). Union Boiler is a large employer with over 1,000 employees, thirty-three of whom worked on this jobsite. Six Union Boiler employees were exposed to the inadequate railing. The gravity of the violation is high, since a fall of eighty to one hundred feet, or being struck by a railing falling that distance, is likely to cause serious injury or death. However, there is no evidence of bad faith or prior violations on the part of Union Boiler. Therefore, we find a penalty of $500 to be appropriate.

Accordingly, we affirm the judge's decision finding Union Boiler to have committed a serious violation. A $500 penalty is assessed.

SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary


DATED: F E B 2 8 1983

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FOOTNOTES:

[[1/]] Section 1926.500(f)(i)(iv) provides:

The anchoring of posts and framing of members for railings
of all types shall be of such construction that the completed structure shall be capable of withstanding a load of at least 200 pounds applied in any direction at any point on the top rail, with a minimum of deflection.

[[2/]] Sexton named only Cochran as a supervisor and identified Statts as an "erector." However, both the compliance officer and pipefitter William Arnott testified that Statts was Union Boiler's assistant superintendent.

[[3/]] In reducing the penalty, the judge stated that "the weakness of the guardrail anchoring may have been attributable to the deterioration of the concrete -- an unseen defect."

[[4/]] We reject Union Boiler's argument that the judge failed to state reasons for rejecting testimony that eight bolts were in place when the railing fell. The judge noted that neither of the pipefitters could recall how many bolts they replaced when they reinstalled the railing and for this reason he found that their testimony did not establish that eight bolts were in place. The judge accorded no weight to Sexton's testimony that eight bolts were present because Sexton failed to "get down and inspect" the bolts. Moreover, the judge found that the employees' failure to detect the broken bolt in one of the anchors "casts some question as to the thoroughness of any prior visual inspections." Thus, we find that the judge properly rejected the foregoing testimony for the reasons he stated.

[[5/]] Union Boiler also argues that the judge erred in finding that the fact that bolts were missing from an adjacent railing supported his conclusion that bolts also were missing from the railing that fell. However, we find that the judge's inference was reasonable. In any event, since other evidence strongly supports the judge's conclusion that only three bolts were in place in the railing when it fell, it is unnecessary for us to rely on the condition of the adjacent railing in order to agree with the judge's conclusion.