SECRETARY OF LABOR,

Complainant,

v.

LEXCON BUILDING SYSTEMS,

Respondent.

OSHRC Docket No. 88-0854

ORDER

This case was directed for review before the Occupational Safety and Health Review Commission by Former Commissioner Linda L. Arey on December 30, 1988 from a decision by Administrative Law Judge Edwin G. Salyers dated November 23, 1988. The Secretary of Labor has filed a Withdrawal of Item 1 of Citation 1 pursuant to Commission Rule 102, 29 C.F.R. § 2200.102.

Having reviewed the official record in this case, the Commission construes the Secretary's withdrawal as a motion to Withdraw Item 1 of Citation 1 and grants the motion. In addition, the Commission sets aside the Judge's decision to the citation. Judge Salyers' Decision and Order now becomes a final order to the extent that it rules on Item 2 of Citation 1.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: May 24, 1990

SECRETARY OF LABOR,

Complainant,

v.

LEXCON BUILDING SYSTEMS ,

Respondent.

OSHRC Docket No. 88-0854

APPEARANCES:

Sandra R. Kramer, Esquire, Office of the Solicitor, U. S. Department of Labor, Cleveland, Ohio on behalf of complainant.

James H. Newman, Safety Engineer, Lexcon Building Systems, Forest Fair Mall Project, Fairfield, Ohio, on behalf of respondent.

DECISION AND ORDER

SALYERS, Judge: Respondent, Lexcon Building Systems, is a wholly-owned subsidiary of Lathrop Company, Inc. At the time in question, Lexcon was engaged by the project developer as the construction manager or general contractor at the Forest Fair Mall Project in Fairfield, Ohio (Tr. 59). In this capacity, Lexcon employed approximately eight employees to oversee the operations of numerous subcontractors at the site (Tr. 10). Lexcon's primary responsibility was to coordinate the construction and to assure that construction schedules were met and that work performed by subcontractors met specifications (Tr. 27). The role of Lexcon was supervision and its employees did not engage in actual construction (Tr. 28). Included among the responsibilities of Lexcon, however, was the obligation to conduct safety inspections at the project to insure compliance with applicable safety standards (Ex. R-1).

The Forest Fair project was inspected by compliance officers of the Occupational Safety and Health Administration during the period December 22, 1987, through February 1, 1988. This inspection resulted in the issuance of 143 citations to various subcontractors at the site (Ex. C-3) alleging violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et. seq.). The Secretary also charged Lexcon with the following items;

1
29 CFR 1926.20(b)(2): Programs providing for frequent and regular inspections or the job sites, materials and equipment were not being made by competent persons designated by the employer:

(a) On the mall part of the project, inspections were being done on a monthly basis with the past two conducted resulting in only six and ten violations noted.

2
29 CFR 1926.153(h)(5): Valves on containers having water capacity greater than 50 pounds (nominal 20 pounds LP-Gas capacity) were not protected from damage while in use or storage:

(a) On the east side of the Lexcon office trailer, there was a 100 gallon capacity LP gas cylinder in use that was not protected from physical damage of vehicular traffic.[[1]]

3
29 CFR 1926.500(b)(1): Floor openings were not guarded by standard railings and toeboards or covers as specified in paragraph (f) of this section:

(a) At the east end of the mall in area E, near column lines N5 and 3-18.5, employees were exposed to unprotected floor openings measuring 6'1" x 6'1" and 15 1/2' x 16'1" that were 5" deep.

ADEQUACY OF INSPECTION PROGRAM

Section 1926.20 of 29 C.F.R. requires an employer to initiate and maintain an accident prevention program to assure a safe workplace is provided for employees. Subsection b(2) of this standard requires:

Such programs shall provide for frequent and regular inspections of the job sites, materials, and equipment to be made by competent persons designated by the employers.

The Secretary contends in this case that Lexcon failed to meet its responsibilities under this standard since it did not conduct "frequent and regular inspections." [[2]] While the standard is nonspecific, the Secretary maintains that inspections should be performed on a weekly basis and that the results of each inspection should be written up and communicated to the responsible parties (Tr. 14-15).

The evidence is undisputed that Lexcon's safety engineer, Jim Newman, did not make formal inspections on a weekly basis. During the time in question, Mr. Newman made four inspections in a five-month period (Ex. C-1; Tr. 18). These reports note a variety of unsafe acts and conditions relative to several of the subcontractors at the site. These reports also make specific reference to construction standards allegedly violated and observed during the course of the inspection.

In support of her contention that weekly inspections are required by the standard, the Secretary offered a report made by one of Lathrop's insurance carriers (Ex. C-4). The report makes three references to weekly inspections. On page one under Job Planning, it is noted that "controls for these hazards include hazard recognition by your Safety Manager during his weekly inspections." Page two refers to a meeting with Mr. Daulton [[3]] in which he stated that the company's Safety and Accident Prevention Manual was followed and "[t]his included weekly safety inspections conducted by himself." Also, on page two, Lathrop is advised "[i]t may also be beneficial to post signs, as well as note the violators during your weekly safety inspections."

The Secretary's contention is bolstered by the testimony of Compliance Officer James M. Denton, who holds a degree in Environmental Safety and Management from Indiana University and has nine years' experience in construction safety (Tr. 7-8). Mr. Denton's testimony, based upon his experience, reflects an industry practice of conducting safety inspections on a weekly basis (Tr. 26).

The Secretary also calls attention to the numerous citations, issued to the various subcontractors at the site and urges this tribunal to draw an inference that this circumstance reflects Lexcon's safety inspection program was inadequate and ineffective.

Lexcon was represented at the hearing by its safety engineer, James H. Newman, acting pro se. In support of his company's position, he offered into evidence Lexcon's Safety and Accident Prevention Manual (Ex. R-1), various certificates reflecting his membership in safety societies and completion of safety training courses (Ex. R-2), and certain summaries showing names of persons attending safety meetings during the period September 19, 1987, through July 3, 1988 (Ex. R-3).[[4]]

The safety manual (Ex. R-1) sets forth the company's concern for safety and accident prevention and places primary responsibility for this program on the safety engineer. it specifically reflects the safety engineer (Ex. R-1, page 5):

Performs compliance reviews on an unscheduled, yet planned, periodic basis to evaluate job conditions and personnel compliance. Reviews results which concerned and involved Management and Supervisory Staff. Formulates plans to correct noted deficiencies. Refers to Managers all of those safety requirements and recommendations involving changes to Corporate policy.

In his testimony, Mr. Newman outlines, in general terms, the procedures he follows in making his inspections. This testimony reflects he looks only for obvious infractions (i.e., missing ground plugs or guardrails) and marks them with tags to warn of hazards. If he considers a problem requires immediate attention, he will discuss it with project managers or the superintendent and request action (Tr. 60-61). He emphasized, however, that he in careful to avoid the implication that his inspections relieve the subcontractors of their primary responsibility for safety, because his company "takes a position that if all the subcontractors make me their safety representative, then we've taken on a large responsibility that we don't want and can't handle" (Tr. 60).

As previously noted, the issue for determination with respect to Citation Number One, Item One, is whether the practice followed by respondent prior to and at the time of the Secretary's inspection comports with the cited standard. No case law has been found which resolves this issue. Under this circumstance, deference should be given to the Secretary's interpretation of the standard. If the interpretation made by the policymaking agency is reasonable, it should be given controlling weight. United Steelworkers of America v. Schuylkill Metals Corp., 828 F.2d 314 at 319 (5th Cir. 1987).

In this case, respondent has undertaken by contract to conduct safety inspections in furtherance of an accident prevention program. The Secretary's interpretation that these inspections should be made on a weekly basis is reasonable and appears to accord with industry practice. The purpose of such inspections is to promote safety awareness among the various subcontractors and to reflect the concern of the general contractor in this regard. While this procedure does not shift the primary responsibility for the safety of subcontractors' employees to Lexcon, it does impose an obligation to conduct regular and effective inspections in furtherance of Lexcon's accident prevention policy and its overall responsibility as the general contractor/construction manager to promote a safe workplace. In this case, the failure of Lexcon to conduct inspections on a weekly basis constitutes a violation of the cited standard.

GUARDING FLOOR OPENINGS

The Secretary charges Lexcon with a violation of 29 C.F.R. § 1926.500(b)(1) [[5]] for its alleged failure to guard or cover certain floor openings on the ground floor in the east end of the mall. One of these openings was roughly six feet by six feet and the other fifteen feet by sixteen feet. Both were approximately five inches deep (Ex. C-5--C-8; Tr. 44). The Secretary maintains these openings created a serious hazard to employees working in the area including employees of respondent who allegedly traversed the area in the performance of their duties. [[6]] Lexcon argues that this standard is directed at protection against employee falls through the openings and does not to the shallow openings here involved where the "fall" would be a maximum of five inches (Tr. 68-69).

The general provisions of the cited standard provide that the standard applies to conditions "where there in danger of employees or materials falling through the floor, roof or wall openings" [1926.500(a)]. (Emphasis added.) In similar fashion, the definition of "floor opening" found at 1926.502(b) provides "an opening measuring 12 inches or more in its least dimension in any floor, roof, or platform through which persons may fall." (Emphasis added.) It is concluded that the cited standard was intended to protect against falls which could result in serious consequences to employees At the very most, this condition exposed employees to no more than a minor tripping hazard with minimal potential for serious injury (Tr. 47). This item will be vacated.

The foregoing constitutes my findings of fact and conclusions of law.

ORDER It is ORDERED:

1. Serious Citation One, Item One, is affirmed and a civil penalty of $640.00 is assessed.

2. Serious Citation One, Item Two, is vacated. Dated this 23rd day of November, 1988.

EDWIN G. SALYERS
Judge

FOOTNOTES:

[[1]] This item was withdrawn by counsel for the Secretary at the hearing and is no longer in contention.

[[2]] The Secretary concedes that James H. Newman, respondent's safety engineer who conducted inspections, is a competent person as contemplated by the standard (Tr. 15; see also Ex. R-2).

[[3]] This individual is not identified in the record but is, apparently, a Lathrop supervisor.

[[4]] The significance of this exhibit was not fully explained in the testimony of Newman. Apparently, Newman conducted periodic meetings with the supervisor/foremen of subcontractors during which safety topics were discussed (Tr. 57). However, this evidence does not directly relate to the crucial issue, i.e, safety inspections of the jobsite.

[[5]] Section 1926.500(b)(1) of 29 C.F.R. provides:
(b) Guarding of floor openings and floor holes. (1) Floor openings shall be guarded by a standard railing and toe boards or cover, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways.

[[6]] No proof was offered by the Secretary that Lexcon's employees actually were exposed to the alleged hazard.