SECRETARY OF LABOR,

CompIainant,

v.

DOVER ELEVATOR COMPANY,

Respondent.

OSHRC DOCKET NO.   89-0095

ORDER

This matter is before the Commission on a Direction for Review entered by Commissioner Donald G. Wiseman on July 9, 1990. The parties have now filed a Stipulation and Settlement Agreement.

Having reviewed the record, and based upon the representations appearing in the Stipulation and Settlement Agreement, we conclude that this case raises no matters warranting further review by the Commission. The terms of the Stipulation and Settlement Agreement do not appear to be contrary to the Occupational Safety and Health Act and are in compliance with the Commission's Rules of Procedure.

Accordingly, we incorporate the terms of the Stipulation and Settlement Agreement into this order. This is the final order of the Commission in this case. See 29 U.S.C. 659(c), 660(a) and (b).

Edwin G. Foulke, Jr.                                                                                                                      Chairman

Donald G. Wiseman                                                                                                              Commissioner

Dated: June 5, 1991

LYNN MARTIN, SECRETARY OF LABOR,

Complainant,

v.

DOVER ELEVATOR COMPANY,

Respondent.

OSHRC Docket No. 89-0095

STIPULATION AND SETTLEMENT AGREEMENT

In full settlement and disposition of the issues in this proceeding, it is hereby stipulated and agreed by and between the Complainant, Secretary of Labor, and the Respondent, Dover Elevator Company, that:

1.  This case is before the Commission upon respondent's contest of Citation 1, Items 1, 2, 3 and 4 which alleged serious violations of 29 CFR 1926, 21(b) (2), 29 CFR 1926.28(a), 29 CFR 1926.450(a) (10) and 29 CFR 1926.500(b) (1) along with a proposed penalty of $2,700.  Serious Citation 1, Item 1, was dismissed by the Commission's Administrative Law Judge but Items 2, 3, and 4 were affirmed with penalties of $630.00, $720.00 respectively. (Decision and Order, May 15, 1990.

2.  The Secretary hereby withdraws Serious Citation 1, Item 2 and Serious Citation 1, Item 4 for violations of 29 CFR 1926,28(a) and 29 CFR 1926.500(b) (1) and the proposed related penalty.

3.  Respondent hereby withdraws its Notice of Contest to Serious Citation 1, Item 3 for violation of 29 CFR 1926.  450(a) (10) and to the notification of proposed penalty and agrees that the violation has been abated.

4.  Respondent agrees to pay the sum of $720.00 in full settlement of Serious Citation 1, Item 3.

5.  The parties have entered into this stipulated settlement solely to avoid protracted and expensive litigation.  This settlement is not to be construed as an admission of fault or liability of any violation of the Occupational Safety and Health Act or regulations or standards promulgated thereunder of any other law, regulation or standard.  The parties have entered into this stipulated settlement with the intent and on the basis that is related solely to the disposition of this case and is determinative of issues in this case only.  It shall not be binding in any subsequent actions, proceedings or events consistent with the terms of this agreement and it in no way affects any rights, defenses, or remedies which may be available in the future to Respondent or any other party.

6.  Respondent certifies that a copy of this Stipulation and Settlement Agreement was posted at the workplace on the 15th day of May 1991, in accordance with Rules 7 and 100 of the Commission's Rules of Procedure.  There are no authorized representatives of affected employees and no employee has elected party status.

7.  Complainant and Respondent will bear their own litigation costs and expenses.

FOR THE SECRETARY:
Antony F. Gil (Date)
Attorney for the
Secretary of  Labor
U.S. Department of Labor
Office of the Solicitor

FOR RESPONDENT:
W. Scott Railton (Date)
Attorney for Respondent
(Dover Elevator Co.)

Reed, Smith Shaw
and McClay

SECRETARY OF LABOR,

Complainant,

v.

DOVER ELEVATOR COMPANY,

Respondent.

APPEARANCES:

William G. Staton, Esquire, Office of the Solicitor, U.S. Department of Labor, New York, New York, on behalf of complainant.

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

DECISION AND ORDER

SALYERS, Judge:    On November 2, 1988, Compliance Officer George Boyd of the Occupational Safety and Health Administration was conducting an inspection of a work site at Ann and Court Streets in Morristown, New Jersey.  About 9:00 a.m., Boyd entered the first floor of a five-story building undergoing renovation and observed a worker standing on a ladder which was resting on a work platform inside an open elevator shaft.  The distance from the platform to the bottom of the shaft was 40 feet (Tr. 11).  As Boyd approached the ladder, he noted openings in the floor of the platform and that the ladder was not secured at the top or cleated at the bottom.  He concluded this circumstance placed the worker at risk and asked the worker to step down from the ladder, at which time Boyd identified himself and presented his credentials as an OSHA Inspector (Tr. 12-13).  The observed worker was Ernest Woods, respondent's mechanic-in-charge (foreman), who was working at the time with respondent's mechanic, Michael Riley, in the placement of a horizontal beam at the second floor level to support another work platform in the open shaft and to provide overhead protection from falling objects.

After descending from the ladder, Woods was engaged by Boyd in a discussion concerning the floor openings and the ladder when he observed and photographed Riley standing in the partially opened doorway on the second floor of the elevator shaft without benefit of any fall protection (Ex. C-1; Tr. 25-26).  Boyd inquired of Woods and Riley whether they had received safety training from respondent and was advised they had not (Tr. 32).

Following Boyd's inspection, respondent was issued serious citation one consisting of the following items:

1
29 CFR 1926.21(b) (2):    The employer did not instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury;

(a)     Construction site - Ann Street & Court Street, Morristown, NJ - Employee was not trained in the recognition and avoidance of unsafe conditions to eliminate any hazard and other exposure to injury, i.e., working at the edge of elevator shaft without wearing a safety belt and working at the edge of floor openings.

2
29 CFR 1926.28(a):[[1]] Appropriate personal protective equipment was not worn by employee(s) in all operations where there was exposure to hazardous conditions:

(2)     Second floor, north side of building - Elevator shaft - Employee - Employee was observed working at the edge of the second floor elevator shaft who had been issued a safety belt but was not required to wear the safety belt.   Employee was exposed to a fall of 12 feet 8 inches to a wooden deck with floor openings.

3
29 CFR 1926.450(a)(10): Portable ladders in use were not tied, blocked, or otherwise secured to prevent their being displaced:

(a)    First Floor, north side - Elevator shaft-Employee was observed working from a wooden 24 ft. extension ladder that was not tied off or had the feet blocked.

Ladder was placed beside a 12 inch x 14 inch floor opening, exposing employee to a 40 ft. fall to a concrete floor below.

4
29 CFR 1926.500(b)(1): Floor opening(s) were not quarded by standard railings and toeboards or covers as specified in paragraph (f) of this section:

(a) First floor, north side - Elevator shaft-Employee was working from a 24 ft. extension ladder that was not tied off, with unguarded floor opening on either side of ladder.  Openings were 13 inches x 19 inches and 12 inches x 14 inches, exposing employee to a 40 foot fall to a concrete floor.

Respondent contends that the manner in which Boyd conducted his inspection violated respondent's Fourth Amendment rights and prejudiced respondent's opportunity to gather evidence to support its defense.  This argument is premised on respondent's assertions that Boyd "was illegally on the premises" and did not provide respondent an opportunity to participate in the Secretary's inspection[[2]]  (Resp.'s brief p. 2).

It is clear in the Act that the Secretary is invested with the right to make reasonable inspections of work sites.  Section 8(a) of the Act (29 U.S.C. 651, et seq.) provides:

Sec. 8.(a)  In order to carry out the purposes of this Act, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized--
(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and
(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits an din a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.

Under the terms of the statute, the only prerequisite to conducting an inspection at a work site is the presentation of "appropriate credentials."  In this case, there is no dispute that Boyd presented his credentials to respondent's mechanic-in-charge, Ernest Woods, immediately upon Woods' descent from the ladder (Tr. 75, 195-198).  At the time, Boyd was wearing a hard hat with the OSHA decal displayed thereon which further identified him as an agency inspector (Tr. 74-75).  It is also undisputed that woods was aware of Boyd's intent to inspect and made no attempt to exercise Fourth Amendment rights by refusing go permit Boyd to make an inspection (Tr. 94, 154-154).  It further appears that respondent had no policy in this regard (Tr. 197).   Under these circumstances, it is concluded that Boyd's inspection was conducted with respondent's consent and did not, therefore, impinge upon respondent's constitutional rights.  Kropp Forge Co., 657 F2 d 119 (7th Cir. 1981); Lake Butler Apparel Co., 519 F.2d 84 (5th Cir. 1975); Poughkeepsie Yacht Club, Inc., 79 OSAHRC 77/D4, 7 BNA OSHC 1725, 1979 CCH OSHD 23,888 (No. 76-4026, 1979).

It is also evident that Compliance Officer Boyd did not circumvent the requirements of section 8(e) of the Act which provides: (e) Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection.   Where there is no authorized employee representative, the Secretary or his authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace.

Respondent's mechanic-in-charge, Ernest Woods, was in the presence of Compliance Officer Boyd throughout the inspection process.  Woods was present when Boyd made the photographs received in evidence as exhibits C-1 through C-5 and took measurements of the holes in the work platform using a steel tape (Tr. 139-140).  He was also advised by Boyd of the circumstances at the work site which Boyd considered to be violations of standards.  There is nothing in the record to reflect that Boyd restricted Woods' participation in the inspection nor is there any evidence to support respondent's claim that it was prejudiced in the preparation of its defense as a result of Boyd's conduct of the Secretary's inspection.  Without such a showing, respondent's argument falls of its own weight.  S & H Riggers & Erectors, Inc., 80 OSAHRC 27/A2, 8 BNA OSHC 1174, 1977-78 CCH OSHD 21,672 (Nos. 76-1104 & 76-1739, 1977): Pullman Power Products, 80 OSAHRC 77/B11, 8 BNA OSHC 1930, 1980 CCH OSHD 24,4989, 1980).

THE 29 C.F.R. 1926.21(b) (2) CHARGE

This standard provides:

(2) The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness of injury.

The Secretary bases this charge primarily on statements allegedly made by Woods and Riley to Compliance Officer Boyd to the effect that they had received no safety training from the respondent.  Boyd's testimony on this point is as follows (Tr. 32-33):

A.  We were on the first floor.  We were now on the actual floor itself.   We were out of the elevator shaft.  Both Dover employees were standing within four feet of each other.

I had first asked the foreman if he had received any training as far as fall protection or the requirement of wearing safety belts and how to properly build a deck, and so forth.

And, his response as far as the training goes was that he had not received any training from the Company, but h e had been in the business for quite some time and that he had received his training through this experience that the had obtained through working in the industry.

I then turned my head and looked toward Mr. Riley and asked him if he had received any king of safety training as as as wearing safety belts and so forth.  Mr. Riley said, "No," he had not.

Apparently, Boyd made no further attempt to determine the extent to which respondent trained employees in the recognition and avoidance of hazards on the work site.  In particular, he did not inquire concerning the existence of a written safety program or whether respondent conducted regular safety meetings with its employees.

At the hearing, respondent offered into evidence its Safety Handbook (Ex. R-1) which is distributed to each employee.  Woods testified we carries this manual to each jobsite for ready reference (Tr. 105).  This booklet was prepared by the elevator industry and is based upon the experience of field personnel and the research of safety specialists.  It deals in a comprehensive fashion with all major hazards which may be encountered on a work site and specifically included the requirement to use safety belts and lanyards to protect against fall hazards above ten feet (Ex. R-1, p. 11 and 12); the need to cover floor openings (ex. R-1, p. 28-29).  The manual provides material for use at respondent's safety meetings which are conducted each Friday by the mechanic-in-charge (Tr. 164).  Both Woods and Riley testified they were familiar with the contents of the safety manual and tried to follow the rules (tr. 104-105, 225-226).  

It also appears that both employees had received safety training prior to the Secretary's inspection.  Woods has been an elevator mechanic for 25 years and has received "on the job training" and safety courses throughout his employment (Tr. 104).  He attended a training session provided by respondent "a few months back" (before the inspection) which included the proper use of safety belts and the need to provide proper planking in open shafts to protect against falls and falling objects (Tr. 107-109).  Riley received and passed training on elevator safety issues during a three-year period while enrolled in the National Elevator Industry Educational Program (Tr. 214).  This entailed the completion of safety "modules" and the taking of tests on safety matters as a prerequisite to being certified as a mechanic (Tr. 215).  Riley received regular on-the-job training from respondent and attended a one-day safety session provided by respondent a few months before the Secretary's inspection (Tr. 175-176, 180-181, 217).

It further appears that respondent utilizes an inspection program of its work sites to insure its work rules are followed.  Regular inspections are conducted by supervisory personnel each week (Tr. 106-107, 166-168), and respondent uses a disciplinary system in the event infractions of work rules are disclosed (Tr. 228-230).

It is concluded that the Secretary has failed to establish by the weight of the evidence that respondent violated the provisions of 29 C.F.R. 1926.21(b) (2) and this item will be vacated.

The 29 C.F.R. 1926.28(a) CHARGE

This standard provides:

The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or this part indicates the need for using such equipment to reduce the hazards to the employees.

The Secretary's charge with respect to this item is based upon the observation of Compliance Officer Boyd together with a photograph (Ex. C-1) depicting respondent's employee Riley standing in an opening on the second floor of the building at a height of 12 feet, 2 inches, above the first floor platform (Tr. 26).  It is undisputed that Riley was not wearing a safety belt at the time.

Just prior to Boyd's appearance on the scene, Woods and Riley had been engaged in the placement of a timber through a hole in the wall of the elevator shaft at the second floor level.  Riley was working behind this wall in guiding the timber through the hole.   He was within "four to five feet" from the shaft opening (Tr. 236) while performing this work.  The evidence is in dispute concerning why Riley was directly in the opening at the time Boyd took his picture.  Boyd claims he was talking to Woods on the first floor platform when he "looked upward and saw an employee standing in the west doorway of the elevator shaft on the second floor"  (Tr. 25-26).   Both woods and Riley claim that Boyd asked Riley to come to the shaft opening so that Boyd could take his picture (Tr. 134-136, 223) and thereby "entrapped" Riley into posing for a picture which the Secretary now uses as evidence to support a claim of violation.

The Secretary's charge, however, is not predicated solely on the photographic evidence.   The record discloses that Riley had been working in close proximity to the open shaft while placing the timber through the shaft wall.  This activity exposed him to a potential fall hazard even before the compliance officer arrived upon the scene.   Since the opening was not quarded by railings, Riley was exposed to this hazard and should have been wearing a safety belt and lanyard as required by the company's rules (Ex. R-1 p. 11) and the cited standard.

The 29 C.F.R. 1926.450(a) (10) CHARGE

It is undisputed that Woods was working on a ladder which was not tied off at the top or cleated at the bottom.  The ladder in question was new and had been delivered to the work site without "non-skid feet" which are rubber treads normally attached to the bottom of the ladder to prevent displacement while in use (Tr. 173).

Woods testified that he placed the top of this 12-foot ladder against the shaft wall with the bottom resting on the plywood platform about 4 feet back from the wall (Tr. 121-122).  The floor upon which the ladder was placed was "plyscore" which is a construction grade unfinished plywood with a rough surface (Tr. 123).  Before use, Woods mounted the ladder to see if it was secure and found that it did not slide (Tr. 121-122).  He, therefore, considered it to be safe for use (Tr. 124).

Respondent argues that the terms of the standard which require that portable ladders shall be tied and blocked also provide  "or otherwise secured to prevent their being displaced."  Respondent contends that the 'ply score" surface of the platform effectively prevented the bottom of the ladder from sliding and, therefore, satisfied the "otherwise secured" provision of the standard.  Woods testified, however, that he had been specifically instructed by respondent's superintendent that ladders "would have to be cleated at the bottom" (tr. 173) if they were not equipped with non-skid foot (Tr. 173).  This procedure was not followed in this case.  As a result, the ladder in question, which was neither tied off at the top or cleated at the bottom to prevent displacement, was no "otherwise secured."  This circumstance constitutes a breach of the cited standard.

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

The cited standard requires that floor openings be guarded by either standard railings or a cover to protect employees from falls.  The term "floor opening" is defined at 1926.502(b) as "an opening measuring 12 inches or more in its least dimension in any floor, roof or platform through which persons may fall."

The presence of openings in the platform covering the shaft at the first floor is not disputed and the circumstances are depicted in exhibits C-2 through C-5.  Compliance Officer Boyd measured these openings and determined that three of them were 19 by 13 inches in dimension (Tr. 14).  These openings were located in close proximity to the ladder being used by Woods at the time of and prior to the inspection (Ex. C-2).  In fact, the ladder was within two feet of the openings (Tr. 147).  Boyd noted that the planks surrounding the openings were not secured (Tr. 15) and he was able to move them by exerting pressure with his foot (Tr. 88-89).  He concluded this condition would cause the planks to displace in the event of a fall and increase the potential for a 40-foot plunge to the bottom of the shaft.

Respondent argues in its posthearing brief that this citation should be vacated since the exposed employees were in the process of installing the required protection at the time they were observed by the compliance officer.  The evidence reflects that Woods and Riley arrived at the site at 7:00 a.m. and began to install the deck over the shaft at the first floor level.  This was accomplished by placing four-by-six timbers through holes in the shaft wall.  Two-by-ten planks were laid crosswise over the timbers and plywood was then placed on top of the planks to complete the deck (Tr. 169-170).   However, the deck in this case was not completely covered before Woods and Riley embarked upon the task of placing overhead protection in the shaft at the second floor level at approximately 9:00 a.m.

Respondent contends that its employees were confronted at the time of inspection with the potential of being struck by objects, i.e., nuts, tools, etc., dropped or kicked into the shaft by employees of other subcontractors working at higher levels around the shaft.  Woods testified his usual procedure was to partially cover the deck, erect the overhead protection and then complete the partial deck by fully planking it over (Tr. 148).  He was unable to satisfactorily explain why the deck could not be fully covered before using it to install the overhead protection.  In response to a question in this regard, he indicated that completing the deck would be "time-consuming"  (Tr. 151).  However, this explanation conflicts with the fact that he was able to cover the holes "almost immediately" after the compliance officer called this situation to his attention by simply covering the openings with two sheets of plywood (Tr. 183-184).

This court has considered Flour Engineering & Constructors, Inc., 77 OSAHRC 109/F7, 5 BNA OSHC 1803, 1976-77 CCH OSHD 20,972 (No. 76-77, 1976);  Carsons Heating & Ventilating Co., 74 OSAHRC 29/F2, 2 BNA OSHC 3021, 1973-74 CCH OSHD 17,680 (No. 2977, 1974), cited by respondent in support of its position that a citation is improper if issued at at time when the exposed employees were engaged in the installation of the protection required by the cited standard.  It is noted that these cases are unreviewed ALJ decisions and have not precedential value.  Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD 20,387 (No. 4090, 1976).  In any event, the facts of the instant case support a conclusion that Woods' failure to cover the openings in the platform to protect against a potential 40-foot fall before using this platform to install overhead protection was a gross misapplication of priorities and a violation of the cited standard.

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

CONCLUSIONS OF LAW

1.    Respondent is an employer engated in an industry affecting commerce.  The Review Commission has jurisdiction of the parties and subject matter in this cause.

2.    The conduct of the Secretary's compliance officer in this case did not contravene the provisions of sections 8(a) and 8(e) of the Acot and respondent was not prejudiced by the manner in which the inspection was conducted.

3.    Respondent did not violate 29 C.F.R. 1926.21(b)(2).

4.    Respondent violated 29 C.F.R. 1926.28(a) by its failure to require its employee Michael Riley to wear at a safety

belt and lanyard while working in close proximity to a wall opening 12 feet, 2 inches, above a partially covered dock.

5.    Respondent violated 29 C.F.R. 1926.450(a)(1) by its failure to tie, block or otherwise secure a ladder in use at the first floor level on a deck covering the elevator shaft.

6.    Respondent violated 29 C.F.R. 1926.500(b)(1) by its failure to guard floor openings in a deck covering an elevator shaft thereby exposing employees to a 40-foot fall.

7.    The penalties proposed by the Secretary are appropriate under the circumstances of this case.

ORDER

It is ORDERED:

1.    Serious Citation 1, Item 1, is vacated.

2.    Serious Citation 1, Item 2, is affirmed with a civil penalty of $630.00 assessed.

3.    Serious Citation 1, Item 3, is affirmed with a civil penalty of $720.00 assessed.

4.    Serious Citation 1, Item 4, is affirmed with a civil penalty of $720.00 assessed.

Dated this 4th day of June, 1990.

________________________
EDWIN G. SALYERS
Judge

FOOTNOTES:

[[1]] In Her complaint, the Secretary alleged, in the alternative, a violation of 1926.105(a) (failure to provide safety nets).  However, this alternative was not pursued by the Secretary during the hearing nor is it addressed in the Secretary's posthearing brief.

[[2]] It is noted that respondent did not raise this defense in its answer to the Secretary's complaint (See Ex. J-13).