SECRETARY OF LABOR,

Complainant,

v.

CURT BULLOCK BUILDERS, INC.,
Respondent.

OSHRC Docket No. 82-0065

DECISION

Before:  BUCKLEY, Chairman; and CLEARY, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 (" the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA").  It was established to resolve disputes arising out of enforcement, actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. 659(c).

The Secretary has petitioned for review of a decision by Commission Judge Edwin G. Salyers vacating two alleged serious violations and changing the characterization of two others, one to de minimis and one to nonserious.  The standards require guarding of platforms, saws, sprocket wheels and chains, and grounding of electrical equipment.  The two Commissioners are divided on the disposition of the four items. [[1]]  As a result, they have agreed to vacate the direction for review, making the judge's decision the final order of the Commission.

Citation 1 , Item 1:  unguarded storage area
Curt Bullock Builders, Inc. ("Bullock"), manufactures prefabricated garages at its plant in Springfield, Ohio.  Inside the maintenance garage there is a tool crib, approximately 13 feet long and 7 feet wide, with a flat roof about 8-1/2 feet above the concrete floor of the garage.  The tool crib's roof is used as a storage surface for light-weight materials such as quick drying compound and automotive filters.  Automotive filters are stored on the edge of the crib roof, while the quick dry compound, which is removed infrequently, is stored at the rear of the roof.  Employees reach the storage surface with a 6-foot stepladder.  The alleged violation involves the absence of guardrails and toeboards around the open sides of the storage surface.[[2]]

The compliance officer who inspected the plant on behalf of the Secretary did not see any employees on the roof of the tool crib. However, on the basis of conversations with two employees, he testified that employees would climb up to the roof on the ladder once a week at the most to remove automotive filters, or in special situations when they stocked the area with floor drying materials. He understood that employees had been on top of the tool crib the week of the inspection to obtain floor drying material.  However, the compliance officer further testified that the plant manager told him during the inspection that the roof was not a work area and that employees went there only to place or remove material.  Further explaining this during the hearing, the plant manager testified that employees went on top of the tool crib once a year to stock quick drying compound and occasionally to remove it.  Because the automotive filters were stored at the edge of the roof, the employees did not need to leave the ladder and go onto the roof to store or remove the filters.

The judge concluded that the tool crib roof was a "platform" under Commission precedent construing the cited standard and 1910.21(a)(4).[[3]]  He found noncompliance with the cited standard but found it de minimis "since employee exposure to the hazard was both infrequent and of short duration."

Commissioner Cleary would agree with the Judge to the extent he found the roof was a platform and that 1910.23(c)(1) was violated.  The top of the structure was 8 1/2 feet above a concrete floor, and was a storage area.  While it is arguably true that the amount of use may have some bearing on whether or not the area should be considered a platform under the definition in the standard, this was an area that was accessible for the placing and removal of materials used in the employer's business.  The frequency of use is not established by this evidence and must remain a matter of conjecture.

The testimony of the employer seems to be that materials are stocked and removed infrequently, but it is not reasonable to assume that materials would be stored for up to a year without being utilized in the process of manufacturing the garage doors.  The Commission has a "responsibility to be 'reasonable' in interpreting the standards cited in cases before it."  Globe Industries, Inc., 82 OSAHRC 24/D4, 10 BNA OSHC 1596, 1598, 1982 CCH OSHD 26,048, pp. 32,718-19 (No. 77-4313, 1982).  In that case, involving cleaning of rollers on conveyor belts which were approximately 5 feet high and 7 feet, 9 inches wide, the Commission held it would not be reasonable to construe the belts as platforms.  These were simply conveyors, not platforms as the term is commonly understood, and in view of the totality of the facts, the Commission vacated.

In the instant case, Commissioner Cleary concedes exposure to a hazard may be brief, but it involves a possible fall of 8 1/2 feet to a concrete floor, and it would require a very minimum of effort and expense to erect a guardrail.  In Globe Industries, the ordinary employer would not visualize the belts as platforms, but here there is nothing to distinguish this structure from a working platform except possibly a low frequency of use.  Looking at the totality of the circumstances he would regard it as a platform.

Commissioner Cleary, unlike the Judge, would find a serious violation.  The fact that exposure to the hazard was infrequent and of short duration does not render a violation de minimis if serious injury is possible.  Brevity of exposure goes only to penalty assessment.  A violation is serious if an accident is possible and death or serious physical harm would be the probable result of an accident.  E.g., H. H. Hall Construction Co., 81 OSAHRC 91/D12, 10 BNA OSHC 1042, 1047, 1981 CCH OSHD 25,712 (No. 76-4765, 1981); see also Frank Swidzinski Co., 81 OSAHRC 4/E14, 9 BNA OSHC 1230, 1981 CCH OSHD 25,129 (No. 76-4627, 1981).  The testimony establishes that a falling hazard of 8 1/2 feet to a concrete floor existed and that multiple fractures would be the probable result of a fall.[[4]]  Thus, Commissioner Cleary would would affirm the violation as serious.

Chairman Buckley would vacate this item because the storage surface was not a platform under the cited standard.[[5]]  Section 1910.21(a)(4) defines a platform as an elevated working space, such as one for the operation of machinery and equipment or analogous functions.  The term "working space" and the examples given implicitly require employee presence for a length of time.

"An elevated flat surface does not automatically become a 'working space' and a 'platform' merely because employees occasionally set foot on it while working."  General Electrical Co. v. OSHRC, 583 F.2d 61, 64 (2d Cir. 1978) (surface on which infrequent maintenance functions were done was not a "platform").  The Commission has noted that this standard must be interpreted in a reasonable manner, consistent with commonsense understanding of the language of the standard, so that employers can understand and have fair notice of the required conduct.  Globe Industries.  The definition of "platform" as a "working space" cannot reasonably apply to the storage surface here.  As the Commission observed in Globe, the defined term "platform" would be stretched beyond common understanding and the plain meaning of the definition contained in the standard if the performance of infrequent work on any surface four feet above the ground were enough to require guarding.  The storage surface atop the tool crib was not designed for employees to stand on for substantial lengths of time as they would when operating machinery and equipment. Nor was the surface used as a "working space."  The area was used only for storage, with very brief, infrequent employee trips onto it.[[6]]

Citation 1, Item 8(b):  unguarded sprocket wheels and chains [[7]]
The compliance officer testified that an unguarded chain and sprocket wheel were located about 6 feet above ground level on a scrap conveyor adjacent to a scrap bin.  He testified that the driver who emptied the bin with a forklift truck possibly could be exposed to the unguarded parts if he were to get off the forklift for some reason.  However, Bullock's plant manager testified that the unguarded parts were 6 feet 8-1/4 inches above the ground, that employees do not use the entrance near the conveyor under normal circumstances and that they would have no occasion to go near the unguarded parts except during maintenance and repairs, when the machine would not be operating.  The judge found a violation but termed it nonserious "in view of the unlikely exposure of employees to this hazard."

Commissioner Cleary agrees there was a violation but considers it serious.  In his view, the issue directed for review was limited to whether the violation was serious or nonserious.[[8]]  He would find it serious because the compliance officer testified without rebuttal that serious injury (amputation of fingers) would be the likely result if an employee's hand were caught in the unguarded parts while they were in motion.  The judge's finding of a nonserious violation was inconsistent with Commission precedent, under which the degree of likelihood of an accident is irrelevant.  A violation is serious if an accident could occur and the probable result would be death or serious physical harm.  E.g., Frank Swidzinski.

Commissioner Cleary also finds that employees had sufficient access to the hazards to warrant finding a violation.  It is inappropriate to base decisions on machine guarding issues on speculation as to what might motivate an employee to approach an unguarded area.  The fact that employees worked in the vicinity of the unguarded parts is enough to require compliance with the cited standard.  See, e.g., Carpenter Contracting Corp., 84 OSAHRC ____, 11 BNA OSHC 2027, 2030 n. 3, 1984 CCH OSHD 26,950, p. 34,564 n. 3 (No. 81-838, 1984)(Cleary, Commissioner, dissenting).[[9]]

Chairman Buckley would reverse the judge's decision and vacate this item because he finds that the Secretary failed to prove that employees would ever be in the zone of danger.   Carpenter Contracting (the Secretary must establish that it is reasonable to predict or anticipate that employees will be, are, or have been at risk as a result of the violation); Todd Shipyards Corp., 84 OSAHRC ____, 11 BNA OSHC 2177, 2181, 1984 CCH OSHD 27,001, p. 34,744 (No. 77-1598, 1984)(Chairman Buckley, concurring)(an employer may comply with Act's requirements by correcting violative conditions or by limiting employee access to such conditions.)  The only substantial testimony of potential employee exposure to the unguarded parts was during maintenance and repairs, but at that time the machine would not be operating.  Thus, the alleged hazards would not exist at that time.  The remaining testimony is pure speculation.  The compliance officer stated that the driver who emptied the large scrap bin adjacent to the unguarded parts might possibly approach them but did not indicate any factual basis for that conclusion.  Also, although employees occasionally entered the building near the other side of the wide scrap conveyor, those employees' paths would not take them past the side with the unguarded parts.  It was not a work area or passageway for them.

Citation 1, Item 9:  unguarded circular saws[[10]]
The compliance officer observed two portable electric circular wood saws with their lower blade guards wired to prevent the guards from returning and covering the blades after a cut.  The saws were used for trimming and notching the gables of the garages. Bullock argued that employees had wired the guards back without its knowledge.  The judge agreed, noting that the compliance officer found them on the second day of his inspection after Bullock's plant manager had the entire building inspected to be certain that no more violations would be found.  The judge vacated the item accordingly.

Chairman Buckley would affirm the judge's decision that the Secretary did not prove employer knowledge.  The Secretary must prove by a preponderance of the evidence that Bullock knew or reasonably could have known of the existence of the violative conditions.  Scheel Construction Co., 76 OSAHRC 138/D6, 4 BNA OSHC 1824, 1826-27, 1976-77 CCH OSHD 21,263, p. 25,560 (No. 8687, 1976).  Because there is no allegation or proof that Bullock actually knew that the guards were tied back, the Secretary must demonstrate that a reasonable diligent employer in Bullock's position would have discovered the violation.  Here the Secretary simply asserted, without support, that Bullock could have discovered the violative condition.   The record supports the opposite conclusion.  The plant manager testified that an intensive inspection had been done under his direction the night before the compliance officer found the guards wired back, and that the conditions had not been found.   Such an intensive inspection certainly qualifies Bullock as reasonably diligent under any definition of those terms.  The Secretary offered no evidence as to what more Bullock could have done, or why the inspection conducted was not reasonable or diligent.  Because the condition was not discovered, it can only be concluded that a reasonably diligent employer, Bullock, could not have discovered the violation.  Thus, Chairman Buckley concludes that the Secretary has not proven that Bullock knew or reasonably could have known about the wiring back of the guards.

Commissioner Cleary would affirm a serious violation.  It is appropriate generally to presume that violative conditions observed by a compliance officer have existed for a sufficient period that the employer could have discovered them before the inspection with the exercise of reasonable diligence.   Unless the conditions by their nature change rapidly, this is the most reasonable assumption.  Also, the employer generally is in a better position than the Secretary to present evidence on whether the conditions previously existed.  In the usual case Commissioner Cleary would presume that violative conditions could have been discovered with the exercise of reasonable diligence, absent evidence overcoming the presumption.   See Hermitage Concrete Pipe Co., 82 OSAHRC 14/A2, 10 BNA OSHC 1517, 1520, 1982 CCH OSHD 25,975, pp. 32,574-75 (No. 4678, 1982); Lewis v. Baker, 526 F.2d 470, 474-75 (2d Cir. 1975); Girardi v. Gates Rubber Co. Sales Div., Inc., 325 F.2d 196, 203-04 (9th Cir. 1963); cf. McFarland v. Gregory, 425 F.2d 443 (2d Cir. 1970).

Bullock's inspection the night before the compliance officer saw the guards wired back does not rebut the presumption.  The plant manager testified that he never checked the lower blade guards on his periodic shop safety tours and that he had "no idea" how long they had been wired back.   Moreover, Bullock was on notice from employee complaints that they had long considered the guards to be a hindrance, if not; a hazard, when in place.  To find for the employer here, one would have to assume that someone wired back the guards between the time of the employer's inspection the night before and the compliance officer's inspection the next day--an unlikely circumstance.[[11]]  The testimony established that the wired-back guards were in plain view.  Based on the preponderance of the evidence, Commissioner Cleary concludes that the Secretary has shown that Bullock could have discovered the violative conditions with the exercise of reasonable diligence.  Astra Pharmaceutical Products Inc., 81 OSAHRC 79/D9, 9 BNA OSHC 2126, 1981 CCH OSHD 25,578 (No. 78-6247, 1981), aff'd, 681 F.2d 69 (1st Cir. 1982).  Considering the hazards of serious lacerations or amputation of fingers that existed, Commissioner Cleary would find a serious violation.

Citation 1, Item 10:  ungrounded electrical equipment [[12]]
The compliance officer found two ungrounded refrigerators as well as a portable drill that was not properly grounded, by using what he called a "field bi-medical probe."[[13]]  The refrigerators had been brought to the plant by employees for their personal use and the portable drill was also the property of an employee.  The judge vacated the item for lack of knowledge because the conditions were not apparent without the use of a sophisticated device.

Chairman Buckley would affirm the judge's decision.  Bullock's plant manager testified that he had never seen an instrument like the "field bi-medical probe" which the compliance officer had used to detect each alleged violation.  The plant manager further testified that he did not know of the ungrounded condition of the portable drill or the refrigerators.   Concerning the portable drill, he stated that he was not aware that the employee had brought it into the workplace and that only the employees working on construction crews erecting the prefabricated garages on sites owned or chosen by customers -- not the employees in this plant -- supplied their own tools.  The compliance officer learned from conversations with employees during the inspection that the portable tool had been used, but there was no evidence showing how long the tool had been present in the workplace or how often it was used.  Without such evidence indicating how Bullock could reasonably be expected to have discovered the ungrounded tool, the Secretary has not established knowledge.

The record is similarly sparse regarding the refrigerators.  For their own use in their break area and in the maintenance area, employees brought in the two refrigerators which were equipped with two-prong plugs rather than three-prong plugs.  The receptacle in the maintenance area was for three-pronged plugs, however, and the compliance officer did not describe the receptacle in the break area.  There was no evidence regarding how long the refrigerators had been in use and, considering that the compliance officer detected the grounding problem with an electrical device, it is evident that the two-prong plugs were not in sight.  More evidence is needed than this to establish that Bullock reasonably could have known of the violative conditions.

Chapman Construction Co., 80 OSAHRC 122/D9, 9 BNA OSHC 1175, 1981 CCH OSHD 25,024 (No. 76-2677, 1980), relied on by the Secretary, does not establish that Bullock should have known about and used a continuity light to detect the violations. Chapman was a carpentry contractor and the compliance officer in that case specifically testified that most carpenters carry and use the continuity lights to detect lack of grounding of their tools.  Bullock manufactures prefabricated garages and there was no testimony showing that employers or employees in Bullock's industry customarily use instruments to detect grounding faults.  Thus, Chairman Buckley would vacate this item.

Commissioner Cleary would affirm the item.   In order to determine whether it is in compliance with the cited standard the employer must check the equipment in a manner calculated to discover whether it is grounded.  The compliance officer testified that the portable drill had been used previously and the drill's grounding prong had been removed, so that defect would be visible at times and certainly could be detected by a reasonable inspection.  An employer is generally responsible for hazards existing in the workplace.  It is not enough for him to simply say he did not see a hazard when he could have detected the violation with the use of reasonable diligence.  Thus, a violation is established.  As Bullock's plant manager acknowledged, Bullock is responsible for the safety of employee-owned equipment brought to the job and used only by that employee.  Chicago and North Western Trans. Co., 77 OSAHRC 30/E4, 5 BNA OSHC 1121, 1977-78 CCH OSHD 21,608 (No. 13071, 1977).

The two refrigerators had two-prong electrical plugs.  It is common industrial knowledge that two-prong plugs do not provide grounding, and thus further investigation is required to determine whether grounding exists.  There was no testimony that Bullock had investigated the grounding of the refrigerators.  One method would be to look for an alternative form of grounding on the equipment.  Another method would be to use a common, inexpensive continuity light, as the Commission noted in Chapman Construction Co., supra.  Commissioner Cleary would affirm the violation as serious, noting that the hazard was possibly fatal electrical shock.

To resolve their impasse on the disposition of the four citation items on review and to permit the parties to conclude this litigation, Chairman Buckley and Commissioner Cleary agree to vacate the direction for review.  E.g., Texaco, Inc., 80 OSAHRC 74/B1, 8 BNA OSHC 1758, 1980 CCH OSHD 24,634 (Nos. 77-3040 & 77-3542, 1980).  The judge's decision in this case therefore becomes the final order of the Commission but is accorded the precedential value of an unreviewed judge's decision.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  APR 17 1985





FOOTNOTES:

[[1]] As established by the Act, the Commission is composed of three members.
Section 12(a), 29 U.S.C. 661(a).  Presently, the Commission has two members as the result of a vacancy.

[[2]] The cited standard, 29 C.F.R. 1910.23(c)(1), states in pertinent part:

Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent . . . ) on all open sides except where there is entrance to a ramp, stairway, or fixed ladder.  The railing shall be provided with a toeboard wherever, beneath the open sides,

(i) Persons can pass,
(ii) There is moving machinery, or
(iii) There is equipment with which falling materials could create a hazard.

[[3]] Section 1910.21(a)(4) provides:

Platform.  A working space for persons, elevated above the surrounding floor or ground; such as a balcony or platform for the operation of machinery and equipment.

[[4]] Moreover, the only issue raised by the Secretary's petition, in Commissioner Cleary's view, was whether the lack of guarding was de minimis or a serious violation.  The direction for review is granted, review shall be limited to the issues specified in the petition, unless the order for review expressly provides differently."  Commission Rule 92(c), 29 C.F.R. 2200.92(c).

[[5]] Chairman Buckley concludes that he is not precluded by the direction for review in this case from considering whether the tool crib roof was a platform.  The Commission may consider any issue addressed by the judge in his report or raised by the parties in their trial or argument of the case.  The specification of issues in a direction for review is not a jurisdiction bar.  Schiavone Construction Co., 84 OSAHRC ____, 12 BNA OSHC 1105, 1110 n. 8, 1984 CCH OSHD 27,145, p. 35,041 n. 8 (No. 80-914, 1984) (Buckley, Chairman, separate views).  Cf. John T. Brady & Co., 82 OSAHRC 9/D10, 10 BNA OSHC 1385, 1982 CCH OSHD 25,941 (No. 76-2894, 1982) (Commission may consider issues not raised in direction for review in certain circumstances), vac'd on other grounds, No. 82-4082 (2d Cir. Oct. 14, 1982).

[[6]] Indeed, the compliance officer did not testify that employees actually stepped onto the roof except to stock or remove floor drying compound, and the record does not establish how often that was done.  There is no conflict in testimony between the compliance officer and the plant manager.  Although the compliance officer understood that employees went up to the crib roof with some frequency to remove auto filters, this was accomplished without employees going onto the roof.  The plant manager's testimony is uncontradicted and fully consistent with the compliance officer's testimony about what he was told.

[[7]] The cited standard, 1910.219(f)(3), states:

All sprocket wheels and chains shall be enclosed unless they are more than seven (7) feet above the floor or platform.  Where the drive extends over other machine or working areas, protection against falling shall be provided.  This subparagraph does not apply to manually operated sprockets.

[[8]] The only issue raised by the Secretary's petition, in Commissioner Cleary's view, was whether the lack of guarding was a serious violation or nonserious.  He interprets the direction for review as limited to that issue.  See n. 4 supra.

[[9]] Commissioner Cleary notes, however, that the evidence indicates that employees at times would be in the zone of danger. Though the conveyor would not normally be operating when maintenance and repair work was being done near the unguarded sprocket wheel and chain, experience teaches that machinery occasionally is turned on when it should not be and accidents result. E.g., General Electric Co., 82 OSAHRC 56/A2, 10 BNA OSHC 1034, 1982 CCH OSHD 26,259 (No. 79-504, 1982).  There was no testimony that Bullock had a lockout system or similar system to prevent possible inadvertent operation of the conveyor during maintenance and repairs.

[[10]] The cited standard, 1910.243(a)(1)(i), states:

All portable, power-driven circular saws having a blade diameter greater than 2 in. shall be equipped with guards above and below the base plate or shoe. . . . The lower guard shall cover the saw to the depth of the teeth, except for the minimum are required to allow proper retraction and contact with the work.  When the tool is withdrawn from the work, the lower guard shall automatically and instantly return to covering position.

[[11]] Commissioner Cleary also notes that although the plant manager testified to certain hazards allegedly caused by the guards, Bullock has not attempted to make out the elements of a greater hazard defense, including the lack of available alternatives to literal compliance and the inappropriateness of a variance application.  E.g., M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD 23,330 (No. 15094, 1979).

[[12]] The cited standard, 1910.304(f)(5)(v), states in pertinent part:

Equipment connected by cord and plug.  Under any of the conditions described in paragraphs (f)(5)(v)(A) through (f)(5)(v)(C) of this section, exposed non-current-carrying metal parts of cord- and plug-connected equipment which may become energized shall be grounded. . . .

(C) If the equipment is of the following types:

(1) Refrigerators, freezers, and air conditioners;. . . .
(3) Hand-held motor-operated tools; . . . .
(7) Tools likely to be used in wet and conductive locations; . . .

[[13]] The Secretary has withdrawn his charge regarding an ungrounded arc welder.