Docket No. 85-0384

SECRETARY OF LABOR
Complainant.

v.

PASCHEN CONTRACTORS INC.,
Respondent.

OSHRC DOCKET NO. 85-0384

ORDER

The Commission approves the parties' stipulation and settlement agreement.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

Dated: December 19, 1986

WILLIAM R. BROCK, SECRETARY OF LABOR,
Complainant,

v.

PASCHEN CONTRACTORS, INC.,
Respondent.

OSHRC DOCKET No. 85-384

STIPULATION AND SETTLEMENT AGREEMENT

I

The parties have reached agreement on a full and complete settlement of the instant matter which to presently pending before the Commission.

II

The parties stipulate as follows:

(a) The Occupational Safety and Health Review Commission (hereinafter "the Commission") has jurisdiction of this matter pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590; 29 U.S.C. 5651 et seq.) (hereinafter "the Act").

(b) Respondent, Paschen Contractors Inc., is a corporation with its principal place of business located in St. Petersburg, Florida.
It is engaged in the business of construction work and during the course of its business its employees perform various tasks in the nature of construction and related work. During the course of its business, respondent uses materials and equipment which it receives from places located outside St. Petersburg, Florida. Respondent, as a result of the aforesaid activities, is an employer engaged in a business affecting commerce as defined by section 3(3) and 3(5) of the Act, and has employees as defined by section 3(6) of the Act, and is subject to the requirements of the Act.

(c) As a result of an inspection conducted on January 2, 1985, at respondent's work place at highway 19, Skyway Bridge, St. Petersburg, Florida, a citation for one willful violation and a citation for two serious violations along with a Notification of Proposed Penalty assessing a total penalty of $6,900.00 was issued to respondent on March 22, 1985 pursuant to section 9(a) of the Act. The first citation cited respondent with violation of OSHA regulation 29 CFR 1926.802(c), which provides that "[c]offerdam walkways, bridges, or ramps...shall be provided with guardrails." The citation alleged that on December 28, 1984 employees "stepping to and from, and walking along the top periphery" of cofferdam 15-SN at the Skyway construction site were exposed to falls into the cofferdam.

The other citation alleged two violations, both serious. The citation cited respondent with a serious violation of 29 CFR 1926.605(b)(2), which provides that "[u]nless employees can step safely to or from the...barge,...either a ramp, meeting the requirements of paragraph (b)(1) of section, or a safe walkway, shall be provided." Paragraph (b)(1) provides that "[r]amps for access of vehicles to or between barges shall be of adequate strength, provided with sideboards, well maintained, and properly secured," The citation alleged that the "gangplank between barge and work platforms" at cofferdam 15-SN "was not well maintained nor provided with guardrails, in that slats on the surface were loose and broken and both sides were open, thus exposing employees to possible falls."

The citation further cited respondent with a serious violation of 29 CFR 1926.605(d)(3), which provides that "[e]mployees walking or working on the unguarded decks of barges shall be protected with U.S. Coast Guard-approved work vests or buoyant vests." The citation alleged that "[e]mployees walking/working on the unguarded deck" of the working barge called "digging rig" "were not wearing life jackets, thus being exposed to possible drowning."

(d) Respondent submitted a Notice of Contest informing complainant of its intention to contest the alleged violations and the Proposed Penalty. Thereafter, the parties duly filed a complaint and an answer.

(e) On July 18, 1985, Commission Administrative Law Judge Edwin G. Salyers held a hearing on respondent's notice of contest. On October 16, 1985, Judge Salyers issued his Decision and Order in which he affirm the willful item alleging violation of 29 CFR 1926.802(c) and affirmed the serious items alleging violations of 29 CFR 1926.605(b)(2) and 29 CFR 1926.605(d)(3). The Judge also assessed a penalty of $6,900.00. Thereafter, respondent filed a timely Petition for Review to the Commission and on December 12, 1985, Commissioner Rader granted review on the following issues:

1) Whether the administrative law judge erred in finding the violation of 29 CFR 1926.802(c) willful in nature as alleged,

2) Whether the judge erred in finding respondent in violation of 29 CFR 1926.605(b)(2) and 1926.605(d)(3).

III

Now, the Secretary of Labor and Paschan Contractors, Inc., in order to conclude this matter without the necessity of further litigation or review, stipulate and agree as follows:

IV

Respondent hereby agrees to withdraw its Petition for Review to the affirmance of the Citation for violations of 29 CFR 1926.802(c), 1926.605(b)(2) and 1926.605(d)(3) and submits that the violations have been abated and shall remain abated.

V

The Secretary hereby agrees to reduce the classification of the violation of 29 CFR 1926.802(c) from willful to serious and to reduce the penalty to $1,000.00; the Secretary further agrees to reduce the classification of the violation of 29 CFR 1926.605(d)(3) from serious to other-than-serious and to reduce the penalty to $-0-.

VI

By entering into this stipulated settlement of these proceedings and the undertaking and performance of any duty required by this stipulated settlement or the taking of any steps pursuant thereto, respondent does not admit that it has violated the Act or any standards or regulations issued thereunder nor shall the act of entering into this stipulated settlement or such performance or the taking of such steps constitute any evidence against or admission by respondent or form the basis of any assertion of collateral estoppel, res judicata or other preclusion against respondent except in proceedings brought under the Act by the Secretary.

VII

Respondent and Complainant agree that each party shall bear its own costs.

VIII

Respondent agrees to post this Stipulation and Settlement Agreement in accordance with Commission Rule 7.

WHEREFORE, the parties request that this Stipulation and Settlement Agreement be approved by the Commission.

ANTONY F. GIL
Attorney for the Secretary of Labor

GEORGE BARFORD
Carlton, Fields, Ward,
Emmanuel, Smith & Cutler, P.A.

Dated this 19th day of November, 1986.

SECRETARY OF LABOR,
Complainant,

v.

PASCHEN CONTRACTORS, INC.,
Respondent.

OSHRC Docket No. 85-384

APPEARANCES: Curtis L. Gaye, Esquire, Office of the Solicitor, U. S. Department of Labor, Atlanta, Georgia, on behalf of complainant
George Barford, Esquire, Tampa, Florida, on behalf of respondent

DECISION AND ORDER

SALYERS, Judge: The respondent, Paschen Contractors, Inc., is engaged in the construction of center spans for the new Sunshine Skyway Bridge over Tampa Bay. On December 28, 1984, one of respondent's employees fell from the rim of a cofferdam while working at the project and was seriously injured. An ensuing inspection conducted by agents of the Secretary of Labor resulted in the issuance of citations charging respondent with willful and serious violations of the Occupational Safety and Health Act (29 U.S.C. § 651, et seq.). The charges were timely contested by respondent and a hearing was conducted in St. Petersburg, Florida, on July 18, 1985. Both parties have filed briefs, and the case is now ready for decision.

The Secretary charges respondent with a willful violation of the cofferdam standard found at 29 C.F.R. § 1926.802(c)[[1/]] for its failure to provide guardrails around the rims of cofferdams designated as 15 S-N. During the month of December 1984, certain employees of respondent were engaged in the construction of support piers 15 South and North (hereafter 15 S-N) for the Skyway Bridge. These piers were to stand in approximately 25 feet of water, and their construction required the use of cofferdams which are hollow steel cylinders attached to concrete footings on the bay floor and pumped dry to provide a suitable workplace. The cofferdams in general use by respondent were approximately 20 feet high and 12 to 15 feet in diameter. Due to the depth of the water, the cofferdams used at the 15 S-N location required five-foot extensions which were added on December 13, 1984, at the time these cofferdams were installed. Although respondent usually rigged guardrails around the rim of each cofferdam, it did not do so with respect to cofferdams 15 S-N. Respondent's employees intermittently worked on, around, and inside these cofferdams during the two-week period from the time the cofferdams were installed until the date of the accident on December 28, 1984. During this period employees regularly used the narrow rim at the top of the cofferdams to gain access to and from work sites exposing these employees to falls of 25 feet.

Respondent admits the basic elements of the violation. At the hearing and in its brief, respondent conceded the cited standard required guardrail protection around the rims of the cofferdams, that this requirement was known to respondent's supervisory personnel, and that this protection was not provided at the cofferdams in question (Respondent's Brief, p.3; Tr. 25-26). Respondent does not specifically concede its supervisors were aware of employees' exposure to this hazard and contends this violation should not be characterized as "willful".

The term "willful" is not defined in the Act but has been considered and interpreted by the Commission to mean "an intentional disregard of, or plain indifference to, the Act's requirement." Kus-Tum Builders, Inc., 81 OSAHRC 97/B2, 10 BNA OSHC 1128, 1981 CCH OSHD ś 25,738, (76-2644, 1981), at p. 32, 105. An omission or failure to act is willfully done if done voluntarily and intentionally. Kent Nowlin Construction v. OSHRC, 593 F.2d 368, 372 (10th Cir. 1978). No showing of "bad purpose" is required. Georgia Electric Co. v. OSHRC, 595 F.2d 309 (5th Cir.1979).

At trial the Secretary offered the testimony of Brian G. Dutilly, an inspector employed by Skyside, a company charged with responsibility by the state of Florida to oversee the bridge construction to insure quality control and adherence to Department of Transportation requirements (Tr. 34). Mr. Dutilly made periodic inspections of this particular work site and verified the fact that guardrails were not in place on cofferdams 15 S-N during the period in question (Tr. 37). It was his impression he had called this matter to the attention of respondent's supervisory personnel at some point (Tr. 39). However, his testimony lacked specificity and was too nebulous to support a conclusion that respondent's supervisors had actual knowledge of the situation. The Secretary also produced as a witness David W. Parker[[2/]] who had worked for respondent since May 1984 and was on the jobsite in question prior to and on the day of the accident. This witness not only verified the two foremen on the jobsite (Tim Verdon and Barry Washburn) observed employees walking the rim of the cofferdam without guardrail protection (Tr. 49) but further related an incident which removes any doubt concerning respondent's knowledge of the violative condition. According to Parker's testimony on or about December 24, 1984,[[3/]] he overheard a radio conversation between the job foreman (Tim Verdon) and the project superintendent (Dan Solidi) wherein the foreman requested a welder be sent to the jobsite for the purpose of installing guardrails on the cofferdams. This request refused by the superintendent (Tr. 50-51), and no action was taken by respondent to install guardrails until after the accident occurred.

At the hearing respondent offered no evidence to contradict the facts just outlined. Instead, respondent relied upon the testimony of its safety director, Mr. Martin R. Kay, to establish a defense based on Eve, Inc., 78 OSAHRC 85/F14, 6 BNA OSHC 2190, 1978 CCH OSHD ś 23,134 (No. 77- 3292, 1978).[[4/]] In Eve, supra, the employer was cited for willful violation of the trenching standard. The evidence showed that the employer's job superintendent, together with five other employees, were working in a trench which was not shored or otherwise supported as required by the standard. The employer contended the superintendent's knowledge should not be imputed to the employer since the superintendent was highly experienced and since the employer had a written safety program forbidding employees to work in trenches that were not shored or supported. The employer also showed the responsible superintendent was disciplined for his failure to follow this work rule. The Administrative Law Judge concluded the employer had demonstrated a "safety consciousness" which merited a reduction of the charges from "willful" to "serious".

Respondent argues that Barry Washburn, the site foreman, on the day of the accident, was an experienced foreman well trained in safety through exposure to respondent's extensive safety training program (Tr. 100-101) and was aware of the company's standard practice requiring the installation of guardrails on cofferdams (Tr. 20-21). Respondent contends it was Washburn's responsibility to insure the guardrails were up before ordering workmen onto the cofferdams and that his omission in this regard on the day of the accident should not be imputed to respondent since Washburn acted in defiance of respondent's standard practice. In essence, this raises the defense of "employee misconduct," a defense which respondent raised in its answer to the Secretary's complaint but then abandoned at the hearing (Tr. 124-125).[[5/]]

The Secretary argues with persuasion that respondent's actions or inaction in this case require a willful characterization. The Secretary stresses that employees were suffered and permitted to work on, in, and around the unguarded cofferdams over a period of two weeks, during which period they were in plain view of the site foremen who were fully aware of employee exposure to this hazard. When the need for guardrails was made known to respondent's project superintendent at a higher corporate level, the request was summarily denied and the practice continued unabated until a serious accident resulted. The Secretary argues that this conduct demonstrates "intentional disregard of, or plain indifference to" the Act's requirements and cites Heimerman Masonry, Inc., 83 OSAHRC 45/D14, 11 BNA OSHC 1717, 1983-84 CCH OSHD ś 26,708 (No. 82-1090, 1983) and Havens Steel Company v. OSHRC, 738 F.2d 397 (10th Cir. 1984).[[6/]] The characterization of this charge as willful is fully sustained by the record.

Respondent is further charged with a serious violation of 29 C.F.R. § 1926.605(b)(2)[[7/]] for failure to provide a safe ramp or walkway (also referred to in the record as a gangplank or pickboard) between the barge and work platform at cofferdams 15 S-N as depicted in Exhibit C-1 and C-3. The Secretary interprets this standard to require guardrails on ramps or gangplanks (Tr. 69-70). At the hearing respondent's safety director, as well as its attorney, agreed with this position (Tr. 117). However, respondent argues in its brief that the standard "requires either a ramp provided with 'side boards' or a 'safe walkway'" (Respondent's Brief, p. 9). Respondent maintains the ramp in question provided a "safe walkway" even though it lacked guardrails and contained some loose planking. It relies upon the testimony of its safety director that the ramp was safe in his opinion (Tr. 115-116). The Secretary addressed this issue through the testimony of Compliance Officer Closuit who disclosed that certain slats on the ramp were broken or loose and that be considered the ramp to be "squirrelly" (Tr. 69-70). The absence of sideboards or guardrails on the ramp in question, when coupled with the undisputed fact that the ramp had loose planking, is sufficient to conclude it did not afford a safe walkway and that the standard has been breached as maintained by the Secretary.

The Secretary has also cited respondent for a serious violation of 29 C.F.R. § 1926.605(d)(3),[[8/]] the life vest standard. It is clear in the record that respondent furnished each employee with an approved life vest and required employees to wear these vests while being transported to and from the work site (Tr. 58, 119). It is equally clear in the testimony of David Parker, the only witness called who was familiar with work practices during the period preceding the accident, that employees did not wear life vests while working or walking on the unguarded barges until after the accident occurred (Tr. 57-58). Accordingly, this item will be affirmed.

The Secretary proposes penalties in this case in the total amount of $6,900. In reaching the proposed amount, the compliance officer applied the usual formula established to provide uniformity in the assessment of penalties (Tr. 79-88). Under the circumstances of this case, the proposed penalties are considered reasonable.

FINDINGS OF FACT

1. The Respondent, Paschen Contractors, Inc., is a construction contractor engaged to install center spans for the new Sunshine Skyway Bridge over Tampa Bay. Respondent has employees who handle or otherwise work on goods that have been moved in commerce.

2. During the period from December 13 to 28, 1984, respondent allowed employees to work on, around, and inside the cofferdams at Pier 15 S-N without providing guardrails around the rims. This practice subjected employees to potential falls of 25 feet and the possibility of serious or fatal injuries. During the aforesaid period respondent and its supervisory employees had knowledge of employees' exposure to this hazard and were aware of the requirements of 29 C.F.R. § 1926.802(c) but did not take effective steps to insure the protection of these employees. The respondent's failure to act constituted an intentional disregard of, or plain indifference to, the Act's requirements.

3. The ramp in use by employees of respondent between the barge and work platform at cofferdams 15 S-N was not provided with guardrails. This ramp also contained loose planking. Under these circumstances the ramp did not provide a safe walkway and subjected employees to the risk of drowning.

4. During the period prior to December 28, 1984, the respondent did not insure that employees working or walking on unguarded barges wore life vests. Failure to require the wearing of life vests exposed employees to the risk of drowning.

CONCLUSIONS OF LAW

1. The respondent is an employer engaged in an industry affecting commerce and is subject to the jurisdiction of the Occupational Safety and Health Review Commission.

2. During the period December 13 through 28, 1984, respondent willfully violated the provisions of 29 C.F.R. § 1926.802(c) by its failure to provide guardrails around the rims of cofferdams at Pier 15 S- N.

3. During the aforesaid period respondent seriously violated the provision of 29 C.F.R. § 1926.605(b)(2) by its failure to provide a safe walkway from the barge to the work platform at Pier 15 S-N.

4. During the aforesaid period respondent seriously violated 29 C.F.R. § 1926.605(d)(3) by permitting employees to work or walk on the unguarded decks of barges without wearing approved life vests.

ORDER

1. Serious Citation No. 1, item 1, is affirmed with a penalty of $400 assessed.

2. Serious Citation No. 1, item 2, is affirmed with a penalty of $500 assessed.

3. Willful Citation No. 2, item 1, is affirmed with a penalty of $6,000 assessed.

EDWIN G. SALYERS
Judge

Date: November 5, 1985

FOOTNOTES:

[[1/]]The standard at 29 C.F.R. § 1926.802(c) provides:
(c) Cofferdam walkways, bridges, or ramps with at least two means of rapid exit shall be provided with guardrails a specified in Subpart M of this part.

[[2/]]Respondent's counsel attempted to discredit this former employee by showing discrepancies in his testimony concerning the date he took a photograph (Ex. C-2; Tr. 111- 112) and by disclosing that he was terminated for excessive absences (Tr. 115). However, the demeanor of this witness convincing, and his testimony on the crucial issues is considered creditable.

[[3/]]Parker testified, "It was h\the day before we were supposed to go home for Christmas vacation" and was either "the 23rd or 24th of December" (Tr. 50). Since Christmas was on Tuesday, it is assumed the day of the conversation was Monday, December 24, 1984. This assumption is supported by the employee's time sheet (Ex. R-2).

[[4/]]It should be noted Eve case was not reviewed by the Commission and, therefore, is without precedential value.

[[5/]]In a posthearing motion, the Secretary moves to strike respondent's discussion of this issue. In view of the decision reached, the motion is now moot.

[[6/]]Both Heimerman (an unreviewed ALJ decision) and Havens are analogous to the case at bar. In each case the employer had failed to install guardrails despite the knowledge of the foremen that this protection was required by law and company policy. This failure to act was held to constitute "plain indifference" and was sufficient to support a willful charge.

[[7/]]The standard at 29 C.F.R. § 1926.605(b)(2) states:
(2) Unless employees can step safely to or from the wharf, float, barge, or river towboat, either a ramp, meeting the requirements of subparagraph (1) of this paragraph, or a safe walkway, shall be provided.

[[8/]]The standard at 29 C.F.R. § 1926.605(d)(3) provides:
Employees walking or working on the unguarded decks of barges shall be protected with U.S. Coast Guard-approved work vests or buoyant vests.