SECRETARY OF LABOR,

Complainant,

v.

MOSSER CONSTRUCTION, Inc.,

Respondent.

OSHRC Docket No. 87-0198

ORDER

The parties' Stipulation and Settlement Agreement is approved.  This order is issued pursuant to a delegation of authority to the Executive Secretary.  41 Fed. Reg. 37173 (1976), amended at 44 Fed. Reg. 7255 (1979).

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary
Dated:  November 8, 1988

ANN McLAUGHLIN, SECRETARY OF LABOR,

Complainant,

v.

MOSSER CONSTRUCTION, INC.,

Respondent.

OSHRC Docket No. 87-0198

CERTIFICATE OF POSTING

On October 17, 1988, a copy of the Settlement Agreement in this matter was posted by Respondent Mosser Construction, Inc.,  and will remain posted through October 27, 1998.

ARTER & HADDEN

Douglas M. Bricker
One Columbus

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true copy of the foregoing Certificate of Posting has been served upon Antony F. Gil, U.S. Department of Labor, Office of the Solicitor, Washington, D.C. 20210, by first class United States Mail this 19th day of October, 1988.

Of Counsel

Complainant,

v.

MOSSER CONSTRUCTION, INC.

Respondent.

OSHRC Docket
No. 87-0198

STIPULATION AND SETTLEMENT AGREEMENT

I

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

II

The parties stipulate as follows:

(a) The Occupational Safety and Health Review Commission (hereafter "the Commission") has jurisdiction of this matter pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (84 Sat, 1590; 29 U.S.C. 651 et seq.) (hereafter "the Act").

(b) Respondent, Mosser Construction, Inc. is a corporation with its principal place of business in Fremont, Ohio.  It is engaged in the construction business and during the course of its business respondent uses materials and equipment which it receives from places located outside Fremont, Ohio.   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 is subject to the requirements of the Act.

(c) As a result of an inspection conducted on November 20 and 21, 1986 at respondent's workplace at 3518 St. Lawrence Drive in Toledo, Ohio, a citation for three serious violations,[[1]] a citation for one repeated violation and a citation for one other-than-serious violation were issued to respondent on January 13, 1987 pursuant to Section 9(a) of the Act.  A total penalty of $2,300 was proposed for the violations.

(d) Respondent contested the citations and proposed penalties.

On December 18, 1987, Commission Administrative Law Judge Edwin G. Salyers issued his Decision and Order in which he dismissed the two remaining serious citations alleging violations of 29 C.F.R. 1926.152(a)(2) and 29 C.F.R. 1926.152(b)(2)(iv), and the repeat violation of 29 C.F.R. 1926.350(j).  The judge affirmed the citation for the other-than-serious violation of 29 C.F.R. 1926.404(f)(6).  Thereafter, the Secretary filed a timely Petition for Review on the serious and repeat violations which was granted by the Commission on February 16, 1988.

III

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

(a) The Secretary hereby agrees to withdraw Item 1 of serious citation No. 1 for violation of 29 C.F.R. 1926.152(a)(2) and Item 2 of repeat citation No. 2 for violation of 29 C.F.R. 1926.350(j).

(b) The Secretary hereby agrees to reduce the classification for Item 2 of serious citation No. 1 for violation of 29 C.F.R. 1926.556(b)(2)(iv) from serious to other-than-serious with no penalty.

(c) Respondent hereby agrees to withdraw its notice of contest to the violation of 29 C.F.R. 1926.556(b)(2)(iv) and states that the violation has been abated and shall remain abated.

(d) Respondent hereby withdraws its Notice of Contest to the citations and to the Notification of Proposed Penalty so as to come in harmony with the terms of this agreement.

(e) None of the foregoing agreements, statements, stipulations and actions taken by the Respondent shall be deemed an admission by it of any of the allegations contained in the citations.  Respondent specifically denies each such allegation.  The agreements, statements, stipulations and actions herein are made solely for the purpose of settling this matter economically and amicably without further litigation in order to conserve the resources of both OSHA and Respondent.  They shall not be used by anyone for any other purpose, except by the Secretary of Labor for subsequent enforcement proceedings filed against the Respondent under the Occupational Safety and Health Act of 1970.

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

Antony F. Gil
Counsel for the
Secretary of Labor

Douglas M. Bricker
On Behalf of
Mosser Construction

The undersigned hereby certifies that a true copy of the foregoing Stipulation and Settlement Agreement has been served upon Antony F. Gil, U.S. Department of Labor, Office of the Solicitor, Washington, D.C. 20210, by first-class United States mail this 18th day of October, 1988.

Of Counsel

Complainant,

v.

MOSSER CONSTRUCTION, INC.,

Respondent

OSHRC Docket No. 87-0198

APPEARANCES:

Christopher J. Carney, Esquire, Office of the Solicitor, U. S. Department of Labor , Cleveland, Ohio, on behalf of complainant

Douglas M. Bricker, Esquire, Columbus, Ohio, on behalf of respondent

DECISION AND ORDER

SALYERS, Judge:  Respondent, Mosser Construction, Inc., is a construction contractor (Tr. 21).  At the time relevant to this proceeding, respondent was engaged as a subcontractor, erecting the iron work on a project known as the Toledo Distribution Center (Tr. 23, 153).  OSHA Compliance Officer Paul Brown inspected the worksite on November 20 and 21, 1986, pursuant to a report that a piece of equipment had been overturned (Tr. 21).

Brown began the opening conference on November 20 but, due to inclement weather and people leaving, he had to postpone the opening conference until November 21 (Tr. 22).  Brown conducted the actual walkaround on November 21 (Tr. 24).  Respondent's job office trailer was located at the south side of the worksite, approximately 100 feet from the building under construction (Tr. 29, 31).  The trailer was approximately 25 feet long and 8 feet wide (Tr. 30).  Brown was inside the trailer at least once on November 20 and was in and out of the trailer several times on November 21 (Tr. 32).  At the time of his inspection, Brown believed that the door he used was the only passageway to the trailer (Tr. 32).  It was established at the hearing, however, that there was a large overhead door at one end of the trailer with wooden steps leading up to it from the outside (Tr. 203; Respondent's Ex. 5).

Located near the steps leading to the small door were three propane cylinders, one oxygen cylinder, and a five-gallon can (Tr. 33, 36).  Brown believed the five-gallon can contained diesel fuel, but it was established at the hearing that the can contained form oil (Tr. 209).  There is a dispute as to the exact location of the four cylinders and the five-gallon can.  Brown asserts that the three propane cylinders were directly to the right of the wooden stairway, with the oxygen cylinder on the left (Tr. 33).  Brown testified that he measured the distance between the oxygen cylinder and the propane cylinders as being 50 inches (Tr. 35) and that the five-gallon can was sitting with the propane cylinders (Tr. 36).  In contrast, Raymond Ackerman, assistant to respondent's safety officer, testified that the propane cylinders were six to eight feet from the stairway's left rail, with the five-gallon can between the propane cylinders and the stairway (Tr. 207-208).  To bolster his argument, Ackerman pointed out a copper line to which the propane cylinders were hooked when in use.  The copper line was approximately six feet from the stairway (Tr. 215, 219).  It is unnecessary to resolve this conflict in the testimony in view of the decision reached.

The location of the cylinders and the five-gallon can was the basis for two citations for violations of two different standards.   Item 1 of Citation No. 1 charged a serious violation of 29 C.F.R. § 1926.152(a)(2) which provides:

(2) Flammable or combustible liquids shall not be stored in areas used for exits, stairways, or normally used for the safe passage of people.

Item 2 of Citation No. 2 charged a repeat violation of 29 C.F.R. § 1926.350(j) which provides:

(j) For additional details not covered in this subpart, applicable technical portions of American National Standards Institute, Z49.1-1967, Safety in Welding and Cutting, shall apply.

Section 3.2.4.3[[1/]] of ANSI standard Z-49.1-1967 provides:

Oxygen cylinders in storage shall be separated from fuel gas cylinders or combustible materials (especially oil or grease), a minimum distance of 20 feet or by a noncombustible barrier at least 5 feet high having a fire-resistance rating of at least 1/2 hour.

Section 1926.152(a)(2) specifies that the cylinders must "be stored"; section 1926.350(j) specifies that the cylinders must be "in storage."  The Review Commission has held that "cylinders are not 'in storage' if they are located in an area where they are used intermittently."  M.C.C. of Florida, Inc., 81 OSAHRC 57/C10, 9 BNA OSHC 1895, 1981 CCH OSHD ¶ 25,420, p. 31,681 (No. 15757, 1981).  In the present case, neither party presented evidence as to whether the cylinders were being stored or used intermittently.  It was the Secretary's burden to prove that the cylinders were in storage.

A similar situation occurred in Grossman Steel & Aluminum Corp., 78 OSAHRC 85/A2, 6 BNA OSHC 2020, 1978 CCH OSHD ¶ 21,567 (No. 76-2834, 1978).

During his inspection, the compliance officer observed one oxygen tank and one acetylene tank standing upright and tied together in front of the Respondent's trailer.  Neither hoses nor gauges were attached to the tanks.  The compliance officer testified he was informed by Respondent's representative that the tanks were in storage and were fully charged.  On the other hand, the Respondent's Chairman testified that the tanks were not in storage, but were ready for use in that location.  According to the witness, gauges and hoses were removed to avoid theft and were kept in the trailer.

Judge Fier found that the tanks were not "hooked up" and that there was no evidence to show that they were not inactive and stored.

In United Engineers and Construction, Inc., 75 OSAHRC 69/A2, 1974-1975 CCH OSHD ¶ 19,780 (No. 2414, 1975), appeal dismissed, No. 75-1946 (3d Cir., September 17, 1975), the Commission affirmed the Judge's conclusion that § 1910.252 (a)(2)(iv)(c) was not violated because the cylinders were not in storage within meaning of the standard.  In that case, oxygen and acetylene cylinders, found together on the site, did not have regulators and hoses attached but were located in an area where burning would be done on an intermittent basis.  The regulators and hoses were removed nightly to prevent leaks.  The facts in the instant case are essentially undistinguishable and United Engineers is therefore dispositive.  The Respondent has successfully rebutted the Secretary's prima facie case and has established that the tanks were not in storage but rather were available for use in an area where welding was to be performed on an intermittent basis.

Id. at pgs. 2,023-2,024.

In the present case, the Secretary presented no evidence on the question of whether the cylinders were in storage.  Accordingly, item 1 of Citation No. 1 and item 1 of Citation No. 2 are vacated.

During his walk-around inspection on the second day, Brown observed respondent's employees climbing over the rails of an aerial lift basket onto and off of the roof of the building under construction, approximately 35 feet above the ground (Tr. 43).  The employees were putting insulation on the roof.  One employee would stand in the basket, with the top handrail of the basket at roof level, and stretch four-foot-wide rolls of insulation from the peak of the roof down to the roof 's edge.  Once the insulation was stretched, the employee in the basket would climb onto the roof to assist another employee already on the roof in applying metal roof panels over the top of the insulation which had just been installed.  The employee would then climb back onto the basket and move it over to install the next section (Tr. 155-156, 158-159).

Respondent was issued item 2 of Citation No. 1 for a serious violation of 29 C.F.R. § 1926.556(b)(2)(iv) which provides:

(iv) Employees shall always stand firmly on the floor of the basket, and shall not sit or climb on the edge of the basket or use planks, ladders, or other devices for a work position.

Brown testified that the employees were violating the standard by climbing the rails to gain access to and from the roof (Tr. 50). Brown asserted that there would be no violation if the bottom of the basket were raised to roof level and the employees could remove the rails and walk onto the roof (Tr. 51).  Brown also testified that there would be no violation if the platform rails were closer to the roof so that the employees could get to and from the roof by climbing over the rails (Tr. 105).

The method that the employees used of crawling over the rails to get to and from the roof may constitute a hazard, but it is not a hazard proscribed by § 1926.556(b)(2)(iv).  That standard mandates that the employees "stand firmly on the floor of the basket . . . for a work position."  The evidence is clear that the employees were not doing work from their positions on the basket rails.  They were only on the rails momentarily while getting to and from the roof.  Therefore, respondent was not in violation of § 1926.556(b)(2)(iv).

In the course of his inspection, Brown observed two of respondent's employees using a power saw that was plugged into a receptacle (Tr. 95).  Brown stated that the receptacles were noticeably damaged.  "The metal covers for the receptacles inside the insulating case around the conductors themselves were cracked in two or three places" (Tr. 93).  Brown tested the receptacles with an Etcon circuit tester, which indicates whether or not a circuit is grounded (Tr. 90-91).  The test showed that the receptacles were ungrounded (Tr. 90).

The receptacles had been installed two days prior to Brown's inspection by the electrical subcontractor, Danelik Electric (Tr. 173). Upon being told that the receptacles were ungrounded, respondent's carpenter foreman, Robert Johnson, informed Danelik Electric who replaced the receptacles that same day (Tr. 114).  Johnson testified that he was unaware of the damage to the receptacles until it was pointed out to him, but he acknowledged that they were noticeably damaged (Tr. 184).

Respondent was cited for an "other" than serious violation of 29 C.F.R. § 1926.404(f)(6) which provides:  "The path to ground from circuits, equipment, and enclosures shall be permanent and continuous."  Respondent argues that the citation should be vacated because § 1926.404(f)(6) was not promulgated until after the November 21, 1986, inspection.   Respondent contends that it was without notice as to the requirements of the standard.  This contention is without merit.

Raymond Ackerman testified that he had a copy of the 1985 edition of the OSHA section 1926 regulations in his office (Tr. 188). In that edition, section 1926.401(c) provides in part:  "The path from circuits, equipment, structures, and conduits or enclosures to ground shall be permanent and continuous."  In 1987 the standards were revised to their present form, and section 401(c) was transformed into section 404(f)(6).  The standards require the same thing:  the path to ground from circuits shall be grounded. Respondent was on notice as to this requirement.

Respondent contends that it had no knowledge of the damaged receptacles and is, therefore, not in violation of the standard.  Yet, Robert Johnson testified that the receptacles were noticeably damaged.  "Constructive knowledge is demonstrated when the record reveals the violative conditions are detectable through the exercise of reasonable diligence."  M.C.C. of Florida, Inc., 1981 CCH OSHD at p. 31,682.  Respondent had constructive knowledge of the damaged receptacles.

Finally, respondent contends that it was Danelik Electric who was responsible for the installation and maintenance of the receptacles, citing Anning-Johnson, 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD ¶ 20,690 (Nos. 3694 & 4409, 1976).  Anning-Johnson provides a subcontractor who proves that it did not create or control a hazardous condition with an affirmative defense.

Once a cited construction subcontractor has established that it neither created nor controlled the hazardous condition, it may affirmatively defend against the Secretary's charge by showing either (a) that its employees who were or may have been exposed to the hazard were protected by means of 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.

Id. at pgs. 24,783-24,784.

In the present case, respondent did not create the hazardous condition of the damaged receptacles, but it did control it.   Respondent's employees used the receptacles.  When respondent notified Danelik Electric of the damage, the receptacles were replaced that same day.  It required minimal effort on respondent's part to have the hazard abated.  Reasonable efforts by the exposing subcontractor to abate the hazard are required, as the Review Commission stated in the companion case to Anning-Johnson, Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD ¶ 20,691, p. 24,791 (No. 12775, 1976):

[E]ach employer has primary responsibility for the safety of its own employees.  Simply because a subcontractor cannot himself abate a violative condition does not mean it is powerless to protect its employees.  It can, for example, attempt to have the general contractor correct the condition, attempt to persuade the employer responsible for the condition to correct it, instruct its employees to avoid the area where the hazard exists if the alternative is practical, or in some instances provide an alternative means of protection against the hazard.  We therefore expect every employer to make a reasonable effort to detect violations of standards not created by it but to which its employees have access and, when it detects such violations, to exert reasonable efforts to have them abated or take such other steps as the circumstances may dictate to protect its employees.  In the absence of such actions, we will still hold each employer responsible for all violative conditions to which its employees have access.

Respondent was responsible for the damaged receptacles to which its employees had access.  Item 1 of Citation No. 3 charging a violation of § 1926.404(f)(6) is affirmed.[[2/]]

FINDINGS OF FACT

1.  Respondent, Mosser Construction, Inc., is a construction company that was engaged as a subcontractor in erecting the iron work on a project known as the Toledo Distribution Center.

2.  On November 20 and 21, 1986, OSHA Compliance Officer Paul Brown conducted an inspection of respondent's worksite.

3.  Respondent's job office trailer was located on the south side of the worksite.  The trailer was approximately 25 feet by 8 feet. There were two doors leading into the trailer, a smaller door on the south side, and a large overhead door at the end of the trailer farthest from the small door.  There were wooden steps leading up to both doors.

4.  Outside of the south side of the trailer were three propane cylinders, an oxygen cylinder, and a five-gallon can of form oil.  The record does not reflect whether these items were "in storage" or were available for "intermittent use."

5.  Respondent's employees used an aerial lift basket to gain access to the roof of the building under construction, a height of approximately 35 feet.  Although the evidence reflects employees climbed over the rails of the basket to gain access to the roof, there was no showing that these employees performed work while standing on the rails.

6.  Two of respondent's employees were using a power saw plugged into a noticeably damaged receptacle that was not grounded. Respondent exercised control over the maintenance of the receptacles.

CONCLUSIONS OF LAW

1.  Respondent, at all times material to this proceeding, was engaged in a business affecting interstate commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970 ("Act").

2.  Respondent, at all times material to this proceeding, was subject to the requirements of the Act and the standards promulgated thereunder.  The Commission has jurisdiction of the parties and of the subject matter.

3.  Respondent was not in violation of 29 C.F.R. § 1926.152(a)(2) for storing flammable or combustible liquids in areas used for exits, stairways, or the safe passage of people.  No evidence was adduced showing that the Cylinders were in storage.

4.  Respondent was not in violation of 29 C.F.R. § 1926.350(j) for failing to separate combustible material by 20 feet or a 5-foot high barrier.  No evidence was adduced to show that the cylinders were in storage.

5.  Respondent was not in violation of 29 C.F.R. § 1926.556 (b)(2)(iv) for failing to require its employees to stand firmly on the floor of the basket while in a work position.  The employees were not in a work position when they were climbing over the basket rails.

6.  Respondent was in violation of 29 C.F.R. § 1926.404(f)(6) for allowing its employees to plug a power saw into a damaged receptacle that was not grounded.  Respondent had constructive knowledge of and control over the hazardous condition.

ORDER

Based upon the findings of fact and conclusions of law, it is
ORDERED:

1.  Item 1 of Citation No. 1 and proposed penalty issued to respondent on January 13, 1987, are vacated.

2.  Item 2 of Citation No. 2 and proposed penalty issued to respondent on January 13, 1987, are vacated.

3.  Item 3 of Citation No. 1 and proposed penalty issued to respondent on January 13, 1987, are vacated.

4.  Item 1 of Citation No. 3 issued to respondent on January 13, 1987, is affirmed as an "other" than serious violation, and no penalty is assessed.

EDWIN G. SALYERS
Judge
Date:  January 7, 1988

FOOTNOTES:

[[1]] At the hearing, the Secretary withdrew serious citation item for violations of 29 C.F.R. 1926.602(c)(1)(vi).

[[1/]] Section 3.2.4.3 was the section originally cited in the citation issued to respondent on January 13, 1987.  At the hearing the Secretary mistakenly amended this section to section 3.2.3.3, a section which is inapplicable to this situation ("Acetylene cylinders shall be stored valve and up.")  Despite the confusion, it was understood by all present at the hearing that the standard being litigated was section 3.2.4.3.

[[2/]] A fifth charge, item 2 of Citation No. 2, alleging a violation of 29 C.F.R. § 1926.102(a)(1) was litigated at the hearing but was withdrawn by the Secretary subsequent to the hearing.