SECRETARY OF LABOR,

Complainant,

v.

DOVER ELEVATOR COMPANY,

Respondent.

OSHRC Docket No. 88-2642

DECISION

BEFORE:    FOULKE, Chairman; WISEMAN, Commissioner.

BY THE COMMISSION:

The primary issue in this case is whether an oxygen cylinder belonging to Dover Elevator Company ("Dover") was "being hoisted or carried" within the meaning of 29 C.F.R. 1926.350(a)(9), which provides that such cylinders must be secured "except, if necessary, for short periods of time while cylinders are actually being hoisted or carried" (emphasis added).[[1]] For the reasons that follow, we conclude that Dover failed to establish that it satisfied the exception clause of the standard in the circumstances presented here. We further conclude that Dover knew, or with the exercise of reasonable diligence could have known, that the cylinder was not secured as required by the standard. Accordingly, we affirm the decision of Administrative Law Judge Edwin G. Salyers finding that Dover violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-78 ("the Act") by failing to comply with the standard, as alleged in item 2 of the citation issued by the Secretary.[[2]] We further conclude that the violation is not de minimis in nature.

FACTS

Dover was the elevator subcontractor at a large residential housing construction site in Jersey City, New Jersey. On July 7, 1988, the day the Secretary inspected the worksite, Dover's employees Thomas Macchia and a helper intended to install elevator equipment in one of the elevator shafts using a hoist motor which had been positioned at the edge of the shaft opening at the first floor level, about 15 feet above the next lower level. When they discovered that the hoist did not operate due to an electrical problem, they summoned George Clarke, Dover's supervisory mechanic at the worksite. Clark was accompanied by Mike Poshkus, Dover's elevator adjuster. Poshkus, who was familiar with electrical circuits, attempted without success to get the hoist motor to work. Dover then closed down its work at that shaft and assigned Macchia to work at another building.

In the meantime, an oxygen cylinder was delivered to the worksite. This cylinder was a replacement for another cylinder which had been stolen, theft being a constant problem at the site. James, or "Jay," Brannon, another elevator mechanic and a foreman, was returning to the site from a meeting with the general contractor when he met the delivery truck. He took the oxygen cylinder, carried it to the area of the shaft opening, and laid it onto the edge of the floor through a window opening at approximately the same time that Clarke arrived on the floor to check the hoist. Macchia took the cylinder from Brannon, and Brannon then went back to park his car. Macchia set the cylinder upright on the floor but did not secure it in any way. It was Dover's intention to lower the cylinder by the hoist down to a shanty used for storage in the basement area below. After it was determined that the hoist could not be made to work, either Clarke or Macchia carried the cylinder down into the storage area. The evidence presented at the hearing demonstrated that Dover's safety rules require that gas cylinders be tied in an upright position when in storage: "Welding gases should be stored in upright, secured position with caps on. Oxygen and fuel gases should be stored separately."

Compliance officers David Katsock and George Boyd arrived at the worksite shortly after Brannon brought the gas cylinder onto the floor. Although Katsock testified that the cylinder was left standing upright and unsecured for at least half an hour, Clarke stated that it was carried down after about 15 minutes. Katsock stated that the hazard presented was that if the oxygen cylinder were displaced, it could be punctured or its cap could break off, causing oxygen to escape. The escaping oxygen could come into contact with oily rags that were in the area or could become ignited through friction, causing an explosion and fire. If the valve broke off, the cylinder could either fall on an employee or become a projectile, propelled through the worksite by escaping gas.

  ARGUMENTS OF THE PARTIES

Dover did not dispute before Judge Salvers that it left the oxygen cylinder unsecured. Dover contended that it came within the exception to the securing requirement of the standard because the cylinder was situated on the floor where it was viewed by the compliance officers only for the "brief" period of time during which Dover's employees were determining whether they would he able to lower the cylinder to the storage area by using the hoist, as they had intended, or whether they would have to carry it down by hand. Thus, Dover argued that in the circumstances, there was only a transitory and temporary hiatus in the movement of the cylinder, and that the cylinder, for all practical purposes, remained in a transit status.

Dover also asserted that the Secretary failed to prove that it knew or should have known of the alleged violative conditions. While Dover conceded that normally the knowledge of supervisory employees is imputed to the employer, e.g., Dull-Par Engd. Form Co., 12 BNA OSHC 1962, 1965-66, 1986-87 CCH OSHD 27,651, p. 36,033 (No. 82-928, 1986), it contended that it should not be held responsible for the actions of Brannon and Clarke because of the temporary and "unforeseeable" nature of the conditions and because Brannon and Clarke were highly trained and experienced employees who could reasonably be expected to adhere to Dover's safety rules. In Dover's view, it had taken appropriate measures to prevent the occurrence of the violation, and the citation item should be vacated even if it had failed to comply with the terms of the standard.

Judge Salyers rejected Dover's contentions. Essentially, he accepted the Secretary's argument that the exception clause of the standard literally requires that the cylinder be secured unless it is in actual physical motion. As did the Secretary, the judge relied on two Commission decisions finding employers in violation of 1926.350(a)(9) for having unsecured cylinders, Austin Building Co., 8 BNA OSHC 2150, 1980 CCH OSHD 24,839 (No. 77-3878, 1980) and Constructora Maza, Inc., 6 BNA OSHC 1208, 1977-78 CCH OSHD 22,421 (No. 12434, 1977). While stating that he was "sympathetic" to Dover's position. Judge Salyers concluded that the facts did not come within the language of the exception clause:

A literal reading of the standard reveals that "cylinders shall be secured at all times ... except ... for short periods of time while cylinders are actually being hoisted or carried." 29 C.F.R. 1926.350(a)(9). (Emphasis supplied.) This language does not include an exception for the circumstances disclosed in the evidence. It is concluded that the Secretary's position is in accord with the terms of the standard and is supported by Commission precedent.

Although the judge observed that the conditions at the worksite were within the plain view of supervisor Clarke, he did not address Dover's contention that it could not have reasonably anticipated that the cylinder would be left unsecured for a period of time.

The parties' arguments on review before us largely parallel their arguments before the judge. Dover asserts that to read the exception clause literally to apply only where a cylinder is actually in physical motion would render the clause meaningless because a cylinder obviously cannot be secured while it is moving. Therefore, Dover contends that the clause cannot be read totally literally. It also asserts that the clause may reasonably be construed to apply in the circumstances presented here because Brannon brought the cylinder into the work area expecting that it would be placed in the basement storage area, and the cylinder was carried to the basement as soon as Dover determined that the hoist was inoperable. Thus, Dover contends that the unforeseen circumstance of the hoist motor breaking down prevented it from moving the cylinder without interruption and that therefore it has satisfied the requirement of the exception clause permitting a cylinder to be unsecured for a short period of time "where necessary." Essentially, Dover contends that the exception clause of the standard excuses an employer from having to secure a cylinder in an upright position where the employer intends to move the cylinder but its actual movement is briefly interrupted by circumstances beyond the employer's control.

For the same reason, Dover reiterates its position that it had taken all reasonable measures to comply with the requirement of the standard. Dover does not dispute that both Clarke and Brannon knew that the cylinder had been left unsecured but contends that it had acted with due diligence in the circumstances here. In Dover's view, to find it in violation would be tantamount to imposing strict liability. See National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1266 & n.35 (D.C. Cir. 1973) (Act requires the elimination only of hazards which are preventable).

Finally, Dover contends that even if a violation exists, it is de minimis in nature because there is no tangible likelihood of a hazard occurring in the circumstances here. Pointing out that the standard by its terms does not necessarily require a cylinder to be secured at all times, Dover contends that the standard itself reflects a realization by the Secretary that there may be circumstances in which securing a cylinder is not essential for employee safety. Dover asserts that the need to repair the hoist and the brevity of the interruption in the cylinder's movement Justify a finding of de minimis.

The Secretary disputes Dover's contention that a cylinder can never be secured in an upright position while it is in motion. The Secretary observes that there are mechanical devices, such as a cradle, that would allow an employer normally to transport a cylinder while keeping it secured in an upright position. In the Secretary's view, the exception clause allows a limited exemption from the standard's requirement if for some reason it becomes necessary to have the cylinder unsecured for a short period of time while such a device is in use. For this reason, the Secretary argues that her interpretation limiting the exception provision only to situations where cylinders are in actual physical motion is reasonable.

The Secretary also contends that her interpretation is reasonable because 1) the Commission has accepted that interpretation in its decisions in Austin Building and Constructora Maza, 2) the plain wording of the standard supports the Secretary's view, and 3) a narrow reading of the exception better effectuates the protective purposes of the standard and the Act. The Secretary asserts that we must accept her interpretation under Martin v. OSHRC (CF&I Steel Corp.), 111 S.Ct. 1171 (1991) (the Secretary's interpretations of regulations are entitled to deference when reasonable). In any event, the Secretary further argues, in interruption of 30 minutes does not constitute a brief or momentary lapse in the movement of a cylinder even under Dover's view of the meaning of the exception clause, nor did Dover establish that it was "necessary" to leave the cylinder standing unsecured for this length of time.

Regarding the question of whether Dover should be held responsible for the actions of its supervisory employees, the Secretary disputes Dover's claim that it had a safety rule with which its employees failed to comply. In the Secretary's view, that claim is contradicted by Dover's position that it was not required to secure the cylinder under the terms of the standard. Finally, the Secretary contends that a de minimis classification is inappropriate because the violation has a direct and tangible relationship to employee safety and health, and the hazard presented by an unsecured cylinder is substantial.

  DISCUSSION AND ANALYSIS

We reject the Secretary's narrow and literal view that the exception clause requires a cylinder to be secured in an upright position whenever a cylinder ceases to be in actual motion regardless how brief the interruption in the movement of the cylinder or the reason for the interruption. The Secretary's interpretation sets forth a rigid and inflexible rule that fails to reflect the variety of circumstances that may exist on a construction worksite or the realities of the work environment. While we do not dispute the Secretary's contention that it cylinder being transported by a mechanical device can readily be secured as it is moved from one location to another, the exception clause applies to cylinders that are being "hoisted or carried" (emphasis added). This language plainly is broad enough to include a cylinder that is being hand-carried by an employee, as in this case. An employee carrying a cylinder by hand may naturally be expected to pause briefly to rest or change his grip, for example. In our view, the standard cannot reasonably be read to require the employee to secure the cylinder in an upright position when its movement is momentarily interrupted for reasons of this nature. Indeed, under certain facts the Secretary's literal interpretation would be unreasonable even where a cylinder is being moved by a mechanical device. The Secretary's construction of the exception clause would require the cylinder to be secured upright when employees, for instance, momentarily set the cylinder down simply to attach or remove the lifting apparatus. While we recognize the broad remedial purposes of the Act, we agree with the observation of the Court of Appeals for the Eighth Circuit in H.S. Holtze Construction Co. v. Marshall, 627 F.2d 149, 151 (8th Cir. 1980) that the Act also implies "some modicum of reasonableness and common sense." In our view, the Secretary's strictly literal interpretation of the exception clause is unreasonable to the extent that it can result in the imposition of abatement requirements that may not be realistic or practical in certain circumstances. As the court stated in Holtze, "[t]here is a point at which the impracticality of the requirement voids its effectiveness." Id.[[3]]

Such circumstances, however, are not present in this case. The burden is on the party claiming the benefit of an exception to prove that it comes within the exception, StanBest, Inc., 11 BNA OSHC 121-2, 1226. 1983-84 CCH OSHD 26,455, p. 33,619 (No. 76-4355, 1983). We conclude that the evidence fails to establish that Dover has satisfied the exception clause. Brannon carried the oxygen cylinder to the work area so that it could be lowered into the storage facility by means of the hoist, and the cylinder was then taken to the storage area, again by hand, after the hoist motor was determined to be inoperative. Since Dover intended to place the cylinder in storage by using the hoist, the interruption in the movement of the cylinder clearly resulted from the need to repair the hoist motor. Accordingly, Dover has shown that the reason for the interruption had a connection with the process of moving the cylinder; that is, Dover did not simply leave the cylinder in an unsecured condition in order to engage in a totally unrelated work activity. On the other hand, completion of any repair to the hoist, while related to the overall operation of placing the cylinder into the storage area, was not essential for the movement of the cylinder. Furthermore, Brannon and Clarke allowed the cylinder to remain unsecured for 15 to 30 minutes while the hoist motor was being worked on, whereas the cylinder unquestionably could have been moved into the storage area at any time. In our view, these circumstances fail to show a brief or momentary lapse in the movement of the cylinder or a necessity to leave the cylinder unsecured so as to bring Dover within the scope of the exception clause.

We also conclude that Dover knew or with the exercise of reasonable diligence could have known of the existence of the violation. As previously indicated, Dover concedes that Brannon and Clarke were supervisory employees whose knowledge and actions normally are imputed to their employer. The Secretary having made a prima facie showing of employer knowledge through Dover's supervisory employees, the burden shifts to Dover to rebut the Secretary's case by establishing that it could not have prevented the violation. Specifically, Dover must establish that it had relevant work rules that it adequately communicated and effectively enforced. Consolidated Freightways Corp., 15 BNA OSHC 1317, 1991 CCH OSHD 29,500 (No. 86-531, 1991): H. E. Wiese, Inc., 10 BNA OSHC 1499, 1505, 1982 CCH OSHD 25,985, p. 32,614 (No. 78-204, 1982), aff'd without published opinion, 705 F.2d 449 (5th Cir. 1983). Although there is some evidence that Dover will terminate employees who violate safety rules and that Dover's union conducts periodic safety inspections of its worksites, Dover resented no evidence to show that it took any measures to monitor adherence to safety rules by supervisory employees. See Regina Constr. Co., 15 BNA OSHC 1044, 1051, 1991 CCH OSHD 29,354, p. 39,470 (No. 87-1309, 1991) (employer's burden to adduce evidence that it took action to discover violations of work rules). Furthermore, while Dover provides safety instruction to new employees and conducts periodic seminars at which safety matters are discussed, Dover has not shown that it gives its employees any specific training on securing gas cylinders. In fact, there is no showing that Dover even has a safety rule that is equivalent to the cited standard. Its rule deals only with securing gas cylinders in storage and does not address the matter of securing cylinders during transportation or moving operations. See Ormet Corp., 14 BNA OSHC 2134, 2138-39, 1991 CCH OSHD 29,254, p. 39,203 (No. 85-531, 1991) (work rule on which employer relies must parallel the requirements of the cited standard). Accordingly, Dover has failed to show that it took sufficient steps to prevent the occurrence of the violation.

Lastly, we find that the violation may not properly be classified as de minimis in nature. A de minimis violation is one having no "direct or immediate" relationship to employee safety; normally, that classification is limited to situations in which the hazard is so trifling that an abatement order would not significantly promote the objectives of the Act. Super Excavators, Inc., 15 BNA OSHC 1313, 1991 CCH OSHD 29,498 (No. 89-2253,1991); Pratt & Whitney Aircraft, 9 BNA OSHC 1653, 1981 CCH OSHD 25,359 (No. 13401, 1981). Compliance officer Katsock testified without rebuttal that the unsecured cylinder presented a hazard of fire or explosion or the possibility that the cylinder could become a projectile. Katsock's testimony is consistent with long-standing Commission precedent in which the Commission has recognized that the hazards 1926.350(a)(9) is intended to protect against are not insignificant. Beall Constr. Co., 1 BNA OSHC 1559, 1562, 1973-74 CCH OSHD 17,339, p. 21,879 (No. 557, 1974). aff'd, 507 F.2d 1041 (8th Cir. 1974); Bechtel Power Corp., 4 BNA OSHC 1005, 1009, 1975-76 CCH OSHD 20,503, p. 24,501 (No. 5064, 1976), aff'd. 548 F.2d 249 (8th Cir. 1977). Furthermore, Dover's motive for leaving the cylinder unsecured--the need to work on the hoist--does not have any bearing on the hazard. The relatively short duration of the violation also does not justify finding the violation de minimis. The cylinder was in an admittedly cluttered area, about 12 feet from the shaft opening where the employees were working. Clearly, the movement of the employees in the cluttered area could have caused the cylinder to tip over, thus creating a hazard. The facts fail to show either a remote possibility of an accident or a remote or non-existent likelihood of injury should an accident occur.[[4]]

However, although Dover left the Cylinder unsecured for more than a brief or momentary period, the length of time it kept the cylinder in the work area before taking it to the storage area was relatively short. Therefore, the likelihood of an accident occurring is reduced. Accordingly, we find) the gravity of the violation, while not insignificant, to be low. Furthermore, Dover has taken some measures to implement a safety program, and the circumstances of the violation itself demonstrate that Dover acted in good faith. Considering the criteria for assessing penalties set forth in section 17(j) of the Act, 29 U.S.C. 666(j), we conclude that a penalty of $100, rather than $300 as proposed by the Secretary, is appropriate.

Accordingly, item 2 of the citation alleging a violation of 29 C.F.R. 1926.350(a)(9) is affirmed and a penalty of $100 is assessed therefor.

Edwin G. Foulke, Jr.                                                                                                                      Chairman

Donald G. Wiseman
Commissioner

Dated: November 19, 1991


SECRETARY OF LABOR,

Complainant,

v.

DOVER ELEVATOR COMPANY,

Respondent.

OSHRC Docket No. 88-2642

APPEARANCES:

Alan Kammerman, Esquire, Office of the Solicitor, U. S. Department of Labor, New York, New York, on behalf of complainant.

W. Scott Railton, Esquire, and Lawrence G. Brett, Esquire, Reed, Smith, Shaw and McClay, Washington, D.C., on behalf of respondent.

DECISION AND ORDER

SALYERS, Judge: On July 7, 1988, respondent was the elevator subcontractor on a multi-employer work site located at the Foot of Chapel Avenue in Jersey City, New Jersey. This complex consisted of townhouses and multi-story condominiums under construction in an area the size of "ten football fields" (Tr. 57). Compliance officers David Katsock and George Boyd of the Occupational Safety and Health Administration conducted an inspection of these premises on that date under the provisions of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.). At approximately 1:00 p.m., they observed a work site on the first floor of a multi-story complex where respondent's employees were moving in materials and supplies in preparation for the installation of an elevator. They noticed two employees of respondent working near an elevator shaft which was not fully covered or protected by guardrails and one free-standing oxygen cylinder on the first floor which had not been secured from displacement (Tr. 11-15). As a result of this inspection, on October 20, 1988, respondent was charged with the following violations:[[1]]

2
29 CFR 1926.350(a)(9): Compressed gas cylinders were not secured in an upright position:

(a) Ring Condo 1-2 - Elevator shaft area - South end - One (1) oxygen cylinder was not secured while in storage so as to prevent displacement.

Violation observed on or about 7/7/88.

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

(a) Ring condo 1-2 - Elevator shaft area - South end - Floor opening measuring 22 inches x 9 ft with a fall of 15 ft was not guarded by standard railings or toeboards to prevent falls.

Violation observed on or about 7/7/88.

For the most part, the facts in this matter are not in serious dispute. On the day of the inspection, respondent was beginning its work activities at the inspection site. On the morning of that day, James Brannon, an elevator mechanic employed by respondent, had noted the shaft on the first floor was covered by planks and protected by portable guardrails which had been placed by the general contractor (Tr. 132). After lunch a Dover crew arrived at the scene to deliver materials (including the oxygen cylinder) and store these materials in respondent's shanty located in the basement of the building (Tr. 77-78). This procedure was to be accomplished by using a hoist to lower the material from the first floor down the shaft to the basement floor 15 feet below. Respondent's crew removed some planking covering the shaft and moved the portable guardrails back from the edge in anticipation of using the hoist. George Clarke, respondent's mechanic in charge, testified the hatch or shaft must be open to use the hoist and that its normal procedure to clear the area of covers and guardrails during hoisting operations (Tr. 86). This was especially true in this instance since the pit work, as large as the elevator structure, was to be moved into the shaft (Tr. 83). Before the hoisting began, it was discovered that the hoist was not working properly and Clarke and Mike Poshkas, an elevator adjuster, were called to the site from an adjacent building to effectuate repairs (Tr. 78). At this point, respondent's operations in regard to moving materials were suspended until the hoist could be fixed. Shortly before it was discovered the hoist was inoperable, Brannon had received delivery of an oxygen cylinder, carried it to the site and placed it on the first floor near the shaft for hoisting into storage in the basement (Tr. 75). After placing the cylinder, Brannon was parking his car when the OSHA inspectors arrived on the scene (Tr. 111).

At the time of their arrival, the inspectors noted and photographed the unsecured oxygen cylinder (Ex. C-1). They also photographed the unguarded floor opening (Ex. C-2) and observed respondent's employees working in close proximity to this opening while attempting to repair the hoist (Tr. 31). Respondent does not dispute the fact that the cylinder was not secured while on the first floor awaiting storage in the basement. Also, respondent does not dispute that its employees were working around the floor opening which was not fully covered or protected by guardrails.

THE 29 C.F.R. 1926.350(a)(9) CHARGE

The cited standard deals with "[t]ransporting, moving and storing compressed gas cylinders" and provides "[c]ompressed gas cylinders shall be secured in an upright position at all times except, if necessary, for short periods of time while cylinders are actually being hoisted or carried."

The evidence reflects that the cylinder had just been brought into the building as the inspectors arrived. Had the hoist been operative, the cylinder would have been immediately lowered into the basement for storage. However, because the hoist was inoperative, the cylinder was allowed to stay where it had been placed for a short period of time until it was determined that the hoist could not be repaired at which time the cylinder was carried down the stairs to the storage area (Tr. 98-99). There is some conflict in the testimony concerning the period of time the cylinder sat on the first floor before being carried into the basement. Compliance officer Katsock testified the cylinder remained on the first floor for about 30 minutes (Tr. 19). George Clarke testified the cylinder was on the first floor for about 15 minutes until it was determined that the hoist could not be repaired, at which point it was immediately carried into the basement (Tr. 98-99).

Respondent contends the cylinder was in transit to storage which was interrupted by a fortuitous event (the breakdown of the hoist) and that respondent's action in not securing the cylinder for this brief period was reasonable under the unforeseeable circumstances encountered by respondent. It cites two ALJ decisions [[2]] in support of this position.

In Secretary of Labor v. M. J. Lee Construction Co., 77 OSAHRC 157/A2, 5 BNA OSHC 1993, CCH OSHD (No. 76-1478, 1977), Judge Morris noted that an oxygen cylinder that was lying on the ground after being carried to the vicinity of a pickup truck "was in effect in the process of being 'carried' from the car to the pickup trick, although for a short time it was laying on the ground and not secured." He concluded the cylinder was in transit and, therefore, fell within the exception provided in the standard for short time periods when the cylinder is being carried into storage.

Respondent also cites Secretary v. Baystone Construction, Inc., 74 OSAHRC 67/C12, 2 BNA OSHC 3166, 1974-75 CCH OSHD 18,505 (No. 3772, 1974), in which Judge Brady reached a similar conclusion that cylinders briefly unsecured while in transit did not contravene the standard.

The Secretary disagrees with respondent's theory that the cylinder in question was "in transit" while it remained on the first floor since it was neither being "hoisted or carried" at the time. The Secretary cites Constructora, Maza, Inc., 77 OSAHRC 213/B3, 6 BNA OSHC 1209, 1977-78 CCH OSHD 22,421 (No. 12434, 1977); and Austin Building Co., 80 OSAHRC 98/E1, 8 BNA OSHC 2151, 1980 CCH OSHC 24,839 (No. 77-3878, 1980), in which the Review Commission takes a strict view that cylinders must be secured at all times unless they are actually in the process of being hoisted or carried. She contends, under the circumstances of this case, the standard required the cylinder be secured during the period it remained on the first floor and urges that this unsecured cylinder presented a potential for being knocked over and releasing the pressure resulting in a fire hazard or conversion of the cylinder into a flying object. Since employees were in the area near the cylinder, they were exposed to this potential hazard. The area in the vicinity of the cylinder was cluttered with other materials thereby intensifying the possibility that it might be tipped over by employees traversing the area (Ex. C-1; Tr. 144). The Secretary maintains that the interruption of the cylinder's delivery into storage resulting from the inoperative hoist did not relieve respondent from securing the cylinder while it remained on the first floor and constituted a violation of the cited standard.

The respective positions of the parties have been considered in light of the evidence and existing precedent. While this court is sympathetic to respondent's position, it is concluded that respondent's failure to secure the cylinder for a period of 15 to 30 minutes contravened the standard. A literal reading of the standard reveals that "cylinders shall be secured at all times . . . except . . . for short periods of time while cylinders are actually being hoisted or carried " 29 C.F.R. 1926.350(a)(9). (Emphasis supplied.) This language does not include an exception for the circumstances disclosed in the evidence. It is concluded the Secretary's position is in accord with the terms of the standard and is supported by Commission precedent.

 The 29 C.F.R. 1926.500 (b) (1) CHARGE

There is little dispute concerning the sequence of events that occurred with respect to the floor opening in the hoistway (shaft). Sometime prior to the Secretary's inspection, this opening had been covered with planking and barricaded with portable guardrails by the general contractor (Tr. 132). In anticipation of using the hoist, respondent's employees had removed most of the planking and moved the guardrails back from the shaft. At the time of the inspection, the shaft appeared as depicted in Exhibit C-2. Boards had been removed between the hoist and center of the shaft, creating an opening measuring 9 feet by 22 inches with a 15-foot fall potential to the concrete floor below (Tr. 28). Two of respondent's employees were working on the hoist near this opening (Tr. 31, 86-90). The testimony differs with respect to the distance these employees were working from the opening. Compliance officer Katsock believed they were within "a foot from the opening" (Tr. 31). Compliance officer Boyd believed the distance was "approximately three feet" (Tr. 143). George Clarke testified that neither he nor Poshkas, while working on the hoist, got any "closer than five feet" to the edge (Tr. 91).

Respondent argues that the Secretary has failed to prove that respondent's employees were exposed to a fall hazard, because "no employee was closer than about five or six feet from the shaft and even then was shielded from the opening by the hoist" (Respondent's brief p. 11). Respondent's factual assertions do not coincide with the credible evidence. Both compliance officers testified at least one of respondent's employees was working near the edge of the shaft (from one to three feet) and this testimony is accepted as an accurate description of the circumstances they observed. The evidence also fails to support that the hoist served as a barrier to employees working near the shaft. Exhibit C-2 clearly reveals substantial openings on either side of the hoist through which employees could fall while working in the area. The structure of the hoist provides no protection from falls through these openings.

In any event, the Secretary is not required to prove actual exposure to a hazard to sustain her charges. The Review Commission in Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD 20,448 (No. 504, 1976), addressed this question and concluded "that a rule of access based on reasonable predictability is more likely to further the purposes of the Act than is a rule requiring proof of actual exposure." Id. at 2003. See also Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 CCH OSHD 23,135 (No. 16057, 1978); Daniel Construction Co., 82 OSAHRC 23/A2, 10 BNA OSHC 1549, 1982 CCH OSHD 26,027 (No. 16265, 1982); Zwicker Electric Co., 77 OSAHRC 214/F1, 6 BNA OSHC 1268, 1977-78 CCH OSHD 21,817 (No. 12271, 1977). In the case at bar, the Secretary has satisfied the "reasonable predictability test" based upon the weight of the evidence.

Respondent's argument that it had no knowledge of the hazardous conditions at the jobsite is also rejected. These conditions were in plain view of respondent's mechanic in charge, George Clarke, who had the authority to abate by either replacing the boards in the shaft, replacing the portable guardrails or requiring employees working near the edge to wear safety belts attached to a lifeline before attempting to fix the hoist. Clarke's failure to take measures to protect employees from this fall hazard is imputed to respondent and constitutes a violation of the cited standard. Iowa Southern Utilities Co., 77 OSAHRC 32/C10, 5 BNA OSHC 1138, 1977-78 CCH OSHD 21,612 (No. 9295, 1977); Georgia Electric Co., 77 OSAHRC 30/A2, 5 BNA OSHC 1112, 1977-78 CCH OSHD 21,613 (No. 9339, 1977).

The Secretary's proposed penalties were not addressed in respondent's posthearing brief and are considered reasonable and appropriate.

The foregoing constitute findings of fact and conclusions of law in accordance with Rule 52 of the Federal Rules of Civil Procedure.

ORDER

It is hereby ORDERED:

1. Serious Citation 1, Item 2, is affirmed with a penalty of $300.00 assessed.

2. Serious Citation 1, Item 3, is affirmed with a penalty of $600.00 assessed.

Dated this 7th day of May, 1990.

EDWIN G. SALYERS
Judge


FOOTNOTES:

[[*]]Commissioner Montoya did not participate in the deliberations on this case or in the issuance of this decision.

[[1]] The full text of the standard is as follows:

1926.350 Gas welding and cutting.
(a) Transporting, moving, and storing compressed gas cylinders.
....
(9) Compressed gas cylinders shall be secured in an upright position at all times except, if necessary, for short periods of time while the cylinders are actually being hoisted or carried.

[[2]] In addition to the citation item at issue here, the Secretary also alleged, in item 3 of the citation, that Dover failed to comply with another standard, 29 C.F.R. 1926.500(b)(1), by exposing its employees to the hazard of a fall through an unguarded floor opening. Dover petitioned for review of the judge's decision affirming this item, but review was not directed on his item, nor did the Commission's subsequent briefing order request briefs on the issues Dover sought to raise with respect to item 3. Nevertheless, in its brief on review, Dover argues that the judge erred in finding that its employees were exposed to a hazard and that it knew or reasonably could have known of the existence of the violative conditions at issue in item 3. The Secretary contends that the Commission should not entertain any issues relating to item 3.

The Commission has authority to consider any issues raised in a case directed for review. Hamilton Die Cast, Inc., 12 BNA OSHC 1797,1986-87 CCH OSHD 27,576 (No. 83-308, 1986). At the same time, however, the Commission has discretion to limit the scope of its review. Pennsylvania Steel Foundry & Machine Co., 12 BNA OSHC 2017, 2019 n.3, 1986-87 CCH OSHD 27,671, p. 36,063 n.3 (No. 78-638, 1986), aff'd, 831 F.2d 1211 (3d Cir. 1987). Dover's arguments with respect to item 3 raise essentially factual questions which Judge Salyers addressed in his decision. Accordingly, we decline to exercise our discretion to consider those issues on review.

[[3]] We reject the Secretary's contention that our prior decisions in Austin Building Co., 8 BNA OSHC 2150, 1980) CCH OSHD 24,839 (No. 77-3878, 1980) and Constructora Maza, Inc. 6 BNA OSHC 1208, 1977-78 CCH OSHD 22,421 (No. 12434, 1977) require that we accept her interpretation here. The issue in Austin Building was whether 1926.350(a)(9) requires cylinders to be secured while they are in use. Constructora Maza involved unsecured cylinders at various locations in the worksite, some lying on the ground. Neither case dealt with cylinders being transported or in the process of being transported, and in neither case did the Commission's decision address the exception clause at issue here.

[[4]] We note that the Secretary alleged that the violation was serious in nature under section 17 (k) of the Act, 29 U.S.C. 666(k), which defines a serious violation as one presenting "a substantial probability of death or serious physical harm." A serious violation does not depend on the likelihood of an accident but only on the likely result should an accident occur. Spancrete Northeast, Inc., 15 BNA OSHC 1020, 1024, 1991 CCH 29,313, p. 39,358 (No. 86-521, 1991) Dover does not contend that the violation should be characterized as other than serious in the event the Commission rejects its argument that a de minimis characterization is appropriate. In any event, the hazards described by the compliance officer could easily result in serious injury of death.

[[1]] Respondent was also charged with a violation of 29 C.F.R. 1926.21(b)(2) (failure to instruct employees in recognition and avoidance of unsafe conditions), but this charge was withdrawn by the Secretary prior to trial (Tr. 6).

[[2]] Unreviewed ALJ decisions have no precedential value. Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD 20,387 (No. 4090, 1976).