DANIEL CONSTRUCTION COMPANY

OSHRC Docket No. 970

Occupational Safety and Health Review Commission

August 5, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission on Chairman Moran's order directing review of a decision made by Judge John S. Patton, Judge Patton concluded that Respondent committed a serious violation of Section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq. ) by violating the standard at 29 C.F.R. 1910.28(a). He assessed a penalty of $500.

We have reviewed the entire record and find no prejudicial error in the Judge's decision. In particular, our review indicates that the evidence of record completely supports the Judge's conclusions (1) that Respondent retained sufficient control over the actions of its employees such that they did not become the borrowed servants of another employer (Duke Power Company), and (2) that Respondent's employee could not safely perform his work from solid construction or from a ladder placed thereon and was not provided with a scaffold to work from contrary to the requirements of 29 C.F.R. 1910.28(a).

Accordingly, it is ORDERED that the decision of the Judge be and the same is hereby affirmed.

CONCURBY: CLEARY

CONCUR:

CLEARY, [*2] COMMISSIONER, concurring: I concur in affirming the Judge's finding of a violation because respondent failed to comply with the requirements of the standard at 29 C.F.R. 1910.28(a).

The Judge correctly concluded that respondent's employee was assigned to work at a location where the work could not be done safely from solid construction. It is admitted that no scaffolds were erected at this location.

Respondent's general foreman testified that he had no responsibility for the performance of the work of the crews consisting of a Duke Power Company leadman and an employee of respondent. He further testified, however, that safety was part of his supervisory responsibility. The record reflects that this foreman was familiar with the location to which he assigned the deceased employee; that he stated he had no reason to believe that this was a hazardous location; that although safety belts were available he did not suggest to the deceased that a safety belt be worn during the performance of this job because he did not consider the work a dangerous operation. He further testified that he did not consider scaffolding or a safety belt necessary because the valve was on a [*3] platform that could "take a ladder." Finally, this foreman testified that he does not anticipate making any change as far as safety requirements for this location are concerned.

The key to a valid citation is whether the cited employer can abate the allegedly hazardous condition. "(A) citation also serves to order an employer to correct the cited condition or practice, and a failure to so correct is a punishable violation 29 U.S.C. 666(d)." National Realty and Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973) at n. 31. One of the ways to abate the hazard, i.e., the construction of scaffolding for the performance of this work apparently lies solely within the control of Duke Power Company. n1 Respondent can abate the hazard by either refusing to assign its men to work in such conditions or by requiring that they wear properly tied-off safety belts when working under the conditions existing here.

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n1 It appears from this record that Duke Power Company was in non-compliance with this same standard, but it was not cited for this failure and that issue is not before us.

[*4]

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For these reasons as well as those given by the Judge in his decision, I concur in affirming the finding of a violation.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: Despite the lead opinion's unsupported conclusionary statements to the contrary, this disposition disregards both the sufficiency of the complainant's evidence as well as the "borrowed servant" doctrine. By upholding the Judge's affirmation of the citation in this case, the Commission continues a wholesale assault upon the logical parameters of 29 U.S.C. 654(a)(2).

The Citation

The citation charged respondent with failing to comply with the aforestated safety standard and described this infraction as follows:

Failure to provide scaffold or other safe work platform for worker exposed to fall of at least 140 feet while working on B.T. valves.

The citation was issued following the investigation by a representative of complainant of an accident in which an employee of respondent fell 140 feet to his death while engaged in repair of a boiler. The Commission's decision that a violation has occurred is based upon this incident.

The respondent, [*5] Daniel, is an employer engaged in construction and maintenance work. The Duke Power Company is the owner and operator of the Marshall Steam Plant. Duke's plant is the workplace where the alleged violation (absence of a scaffold or other safe work platform) existed.

Respondent had an agreement with Duke to supply Duke with a crew of eight mechanics and a supervisor to perform maintenance work on a regular basis at Duke's plant. On occasion, Duke would request and receive extra Daniel workers during an "outage," n2 or plant shutdown, when special repairs were undertaken.

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n2 An outage occurs when a machine breaks down and is unproductive.

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On April 22, 1972, the date of both the accident and the alleged violation, respondent supplied work crew and supervisor, a supplemental maintenance crew with a supervisor plus six to nine additional mechanics. The mechanics were assigned individually to jobs around Duke's plant and were neither accompanied by, nor under the control of, one of respondent's supervisors. [*6] On that morning one of these additional Daniel mechanics, Ralph Graham, was assigned to do repair work on a "B.T. valve" n3 which was located atop a boiler 140 feet above the floor of the plant. Buster Kessler, a Duke mechanic, was assigned to work as leadman with Graham. The two were to repair the valve without direct supervision from either a Daniel or a Duke supervisor, although a Duke supervisor had overall responsibility for the proper performance of the job. None of respondent's employees had ever worked on a B.T. valve prior to this occasion.

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n3 A B.T. valve is a boiler throttle valve, the purpose of which is to regulate the water wall pressure in a steam producing boiler on initial start-up of the unit.

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The valve upon which the repair work was being performed was located on a steam pipe which was 8 feet 6 inches above a working platform. The platform was 3 and 1/2 feet wide and extended to either side of the valve. It was approximately 4 feet long on one side of the valve and 18 feet on the other side. [*7]

In accordance with the usual system employed to repair this type valve, the steam pipe upon which the valve was located was to have been drained before work began on the valve. Unfortunately, however, the Duke foreman who assigned Graham and Kessler to do the repair work had been erroneously informed that the pipe had been drained and when Graham and Kessler, acting in reliance upon such information, loosened and removed the valve from the steam pipe, either hot water or steam escaped and scalded both men.

There were no surviving witnesses to the accident, so it is difficult to ascertain with certainty what happened or how the men were positioned at the time of the accident.

The record does reveal that following the accident Duke's foreman received a phone call from Kessler, apparently made from a telephone on the 9th working level of the boiler. The valve was located on the 10th level, so Kessler apparently walked down one level and a lateral distance of approximately 20 feet from the valve to reach the telephone. Kessler informed Duke's foreman that he and Graham had been either "burned" or "scalded." When help reached the scene of the accident, Kessler was found [*8] badly burned about 9 feet from the telephone. Graham had fallen 140 feet and was found on the plant floor almost directly below the spot where Kessler's body was found. Graham was dead when help arrived. Kessler died later of his burns.

The record does not disclose the method being used by the two men to perform their repair work. There was testimony, however, that one of the two men probably would sit astride the pipe upon which the valve was located, while the other would stand on a ladder which would be placed on the working platform running below the valve. One witness speculated that one man could stand on the ladder and pass tools to the man straddling the pipe. There was also testimony that one man could also straddle the pipe while the other sat atop the boiler.

There was no evidence that either of these alternatives was the only way that the B.T. valve repairs could be performed, nor was there any estimony concerning whether the pipe or the boiler top were "solid construction" (the terminology employed in the safety standard) from which the work could or could not be safely performed. It appears from the exhibits, however, that both the boiler top and the [*9] steam pipe were solid construction.

Could this repair work have been "done safely" while the men were astride the pipe, sitting atop the boiler, or standing on a ladder which was placed on the working platform? The occupational safety and health standard involved in this case, like any standard, is designed to govern the usual work situation, not every conceivable circumstance. It is designed to guard against normal and reasonable foreseeable hazards created by working conditions. It requires that scaffolds be used when, under usual and normal circumstances, the work cannot be safely performed from solid construction. Although there was no evidence concerning the working conditions under which the two employees in this case would normally have performed the repair work on the B.T. valve, it was established that it was customary and normal procedure to bleed the pipes of all water and steam prior to commencing work. From all that appears in the record the 140 foot fall was occasioned by the eruption of steam or water, an unusual occurrence which would never have taken place had the normal means of accomplishing the repair work been employed. Indeed, the Judge made a specific [*10] finding that complainant ". . . failed to establish that the proximate cause of the fall of Mr. Graham was the failure to have a scaffold as required by said standard."

The method by which the work would be performed, under normal circumstances, was not established except by speculative testimony as to how the work "could" be performed. It was testified that a man could sit astride the pipe upon which the valve was located or that he could sit atop the boiler itself which was only 12 inches from the valve. Testimony revealed that work had been done on the valve approximately 8 or 10 times in the past 7 years without incident.

The inescapable conclusion from these facts, it appears to me, is that, absent the unexpected eruption of steam from this valve, the work could be, and in fact in the past had been, safely performed without the use of scaffolds. Since the presence of the necessary condition to render the scaffolding requirement operative was not established, the occupational safety and health standard upon which respondent's violation was founded was not applicable to the facts in this case.

The Question of the Borrowed Employee

The Judge discussed the matter [*11] of supervisory responsibility and concluded that the Daniel employees remained under Daniel supervision because the Duke Company disclaimed responsibility for them. This is an inaccurate estimation of the law and the facts.

The issue is not who was willing to claim responsibility for the worker's safety, but who was legally and logically chargeable with that responsibility. I am firmly convinced that in this working situation the Duke Power Company exercised full control by virtue of its expertise. Because it borrowed an inexperienced employee of the respondent under a longstanding agreement, the Duke Power Company consequently inherited the legal duty to assume the full burden of worker safety.

It was Duke, not Daniel, which exercised full control of the working environment, and it was Duke's Class A mechanic who controlled the work process being performed upon the B.T. valve. It is unreasonable to hold that Mr. Graham, the Daniel employee, was not subject to Duke's absolute control and expertise under the circumstances.

The common-law principle of the borrowed employee may, with his consent, be loaned to another employer and become the servant of the borrowing employer [*12] provided the borrowing employer has exclusive control over the borrowed employee's work. Wittgrove v. Green Lea Dairies, 223 S.W. 2d 114, 115, 116 Mo. App. (1949). In such a situation the borrowing employer becomes liable for any injuries to the employee during the period of this special relationship. Roy Edwards v. Cutler-Hammer, Inc., 74 N.W. 2d 606, 607, 272 Wis. 59 (1956).

For a person to be a "borrowed employee," it must be shown that: 1) the special master had complete control and direction of such person for the occasion, 2) that the general master had no such control, and 3) that the special master had exclusive right to discharge the servant, put another in his place, or put him to other work. Pilcher v. Wise Electric Co., Inc., 198 S.E. 2d 713, 715, 129 Ga. App. 92. All these elements are represented in the record of this case.

Under the borrowed employee doctrine it was the Duke Power Company that became the employer for the purpose of 29 U.S.C. 654(a)(2), and it was the Duke Power Company that was responsible for compliance with the occupational safety and health standards at the worksite. To hold the Daniel Construction Company accountable [*13] without evidence of their opportunity to observe and control the workplace in question is both nonsensical and a deprivation of due process of law

[The Judge's decision referred to herein follows]

PATTON, JUDGE, OSAHRC: This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter called the Act) contesting a citation issued by James D. Hodgson, Secretary of Labor, hereinafter called complainant, against Daniel Constructiontion Company, hereinafter called respondent, under the authoirity vested in complainant by section 9(a) of the Act. The citation alleges violation of section 5(a)(2) of said Act and of Occupational Safety and Health Standard 29 C.F.R. 1910.28 by the respondent at the premises of Duke Power Company, Marshall Steam Plant, Terrell, North Carolina, where the respondent was engaged in work under a contract between Duke Power Company and respondent. Hearing was held before John S. Patton, the undersigned Judge, on September 20, 1972, at Charlotte, North Carolina.

LAW AND ISSUES OF THE CASE

Standard 29 C.F.R. 1910.28(a) is, in part, as follows:

Scaffolds shall be furnished and erected [*14] in accordance with this standard for persons engaged in work that cannot be done safely from the ground or from solid construction except that ladders used for such work shall conform to section 1910.25 and 1910.26.

There was no allegation that inadequate ladders were used but it is the position of complainant that no scaffold was provided and that an employee of respondent fell from a high elevation as a result of the lack of a scaffold. It is, therefore, necessary to determine whether an employee of the respondent worked in a workplace at which a scaffold was provided and, if so, whether a scaffold was provided which met the requirements of said standard.

EVIDENCE IN THE CASE

The respondent's answer admits that respondent, Daniel Construction Company is a corporation having a place of business in Greenville, South Carolina, and that respondent is engaged in contract maintenance and repair work, among other places at the Marshall Steam Plant, Terrell, North Carolina. It is admitted that respondent is and at all times relevant to this cause has been an employer engaged in a business affecting commerce within the meaning of the Act and that the Occupational Safety and [*15] Health Review Commission has jurisdiction of these proceedings.

The evidence established that Duke Power Company owns and operates the Marshall Steam Plant, an electric power generating facility located at Terrell, North Carolina. The plant has been operating for approximately five years. Duke Power Company has its own maintenance and repair crew, consisting of approximately 30 mechanics. A supplemental crew of eight Daniel mechanics and one foreman is regularly assigned to the plant. The respondent, Daniel Construction Company, engages in supplemental maintenance operations at a number of other power company plants. There was considerable evidence introduced as to whether Duke Power Company or Daniel Construction Company supervised the respondent's employees working at the Marshall Steam Plant. Mr. James Erskine, Superintendent of the Marshall Steam Plant and employed by Duke Power Company, testified that Duke Power Company does not exercise any supervision of employees of Daniel Construction Company. He stated that they tell the respondent how many men are wanted on a particular job and the respondent makes the arrangements. Respondent's employees perform on both preventive [*16] and trouble-shooting maintenance. The employees are selected by the respondent. Respondent submits an invoice to the purchasing agent of Duke Power Company for the services rendered. If a Duke Power Company supervisor is not satisfied with the work performed by the respondent, the matter is taken up with the respondent's supervisor. If one of respondent's employees violates safety standards the matter is taken up with the respondent's supervisor and respondent's supervisor is the direct contact with respondent's employees. Respondent brings in some additional employees on occasion. The maintenance requirements are established by Duke Power Company supervisors who convey instructions to Mr. Wasdin, respondent's supervisor. Respondent's employees work under respondent's own supervisor (TR 16 through 25).

According to the testimony of Mr. Erskine, two boilers in the plant are equipped with special valves known as "BT" valves which are designed to control the flow of steam into the boilers (TR 29). Mr. J.A. Holcombe who is in charge of general maintenance work for Duke Power Company testified that the valves require no regular maintenance and that they are disassembled [*17] only when malfunctions occur. He estimated that during his eight years of experience the valves had been repaired approximately ten times (TR 80-81). Mr. Erskine, Mr. Holcombe and Mr. Noblitt all testified that prior to the 10th of May, 1972, none of respondent's employees had ever worked on the "BT" valve. This work was done by Duke Power Company employees (TR 33, 84, 150). The "BT" valve was situated near the top of the boilers approximately 140 feet above the operating level. "BT" valve No. 2 is 12 inches from the boiler wall and 8'6" above a 36-inch wide working platform (TR 46, 47, 51, 52, 63). The "BT" valve admits boiling water through it (TR 53). Mr. Holcombe testified that an employee can get to the valve by walking on the edge of the boiler and on the pipe. He would take an elevator to the 10th level where the valve is located and would step across the guardrail. He stated there is no guardrail on the pipe. The valve on the pipe is three or four feet from the first step from where he would first step on the pipe. He testified he could either sit on the boiler or on a pipe; the valve is about 12 inches from the edge of the boiler. He stated however, [*18] that if two men were working on it one could be on top of the boiler and the other on the pipe or the other could be standing on the ladder, the foot of which was on the platform. The platform is 8'6" below the valve and the valve can be reached with a step ladder. the company has extension ladders and step ladders which are from four to eighteen feet high (TR 59-64). Mr. Noblitt, general foreman of Duke Power Company stated that on the date in question, the step ladder was on the left of the valve. He stated that the valve was over a platform and it took a ladder to work on the valve (TR 120). It was conceded by all witnesses that there was no scaffold used nor on said date did the employees use safety belts (TR 64, 127, 128, 163, 224, 225). Mr. Noblitt testified that he did not consider scaffolding or safety belts necessary on this operation because the valve was on a platform and took a ladder to work on the valve (TR 129). On April 22, 1972, a Mr. Kessler working for Duke Power Company and Mr. Ramsey, working for the respondent were assigned to work on the "BT" valve (TR 28, 57, 58, Complainant's Exhibits 3 and 4). Mr. Kessler acted as lead man and had the primary responsibility [*19] for the work (TR 100).

Mr. Noblitt testified that on April 22, 1972, he was informed that an accident had occurred and went to the ninth floor where he found Mr. Kessler in considerable pain. Mr. Kessler had been burned and subsequently died. When Mr. Noblitt returned to the ground he found Mr. Graham lying on the ground dead. There was water in the area (TR 117-122). Mr. Holcombe testified that he was paged and told that there had been an accident. He stated that when he saw Mr. Kessler, he stated "we are scalded, we are burned" or something to that effect. He did not go to the scene but went for an ambulance (TR 71-76). It was conceded by all parties that no one actually witnessed the accident. There was no evidence in the record as to whether Mr. Graham was on a ladder on the pipe or just where he was at the time he fell. The evidence established that the employees were scalded immediately before they fell.

Mr. Noblitt stated that safety belts were available if the employees wanted them. He stated he did not consider when the assignment was made whether the men would need safety belts or whether they would need scaffolding. He did not do so because he did [*20] not consider it an unsafe operation. He did not give any safety instructions to Mr. Graham on that occasion. He stated that when the valve is out in the open without a platform, a scaffold is erected. If there is no platform they must have a scaffold to work on. He did not consider scaffolding or a safety belt necessary on the operation because the valve was on a platform and it took a ladder to work on the valve (TR 128-129).

It was sought by the complainant to introduce evidence from Mr. Paul Closuit, Compliance Officer, as to certain statements made by Mr. Watkins, who was designated by the respondent to accompany the compliance officer in his inspection. Mr. Watkins was project coordinator. An offer of proof was rejected. It was stated upon the record by counsel for complainant that if permitted to do so he would prove that Mr. Watkins would have testified that investigation disclosed that the two men were assigned the work, that they went to the No. 2 valve and that from all the facts available to him it appears that said men had started working on the valve, the line had not been bleed or otherwise water drained from the line, that the hot steam escaping had [*21] fallen on the two men perhaps with such force that either through the force of the steam or shock resulting therefrom, Mr. Graham fell from 140 feet killing him, that they did not have scaffolds or safety belts or any other protective devices of that type but that such devices would have avoided the accident and that in the future such devices would have avoided the accident and that in the future such devices would be required or that the recommendation would be made that such devices would be required (TR 195, 196).

It was stated by the Judge that whether or not safety devices existed and what was planned to be done in the future would be competent as evidence and evidence as to those facts would be admitted, but the other facts tendered by the offer of proof were rejected (TR 197, 198, 199, 200). Mr. Closuit also stated that the management representative explained the accident but told him there were no eye-witnesses (TR 172). He stated that in his opinion, claimant could have had a scaffold, could have had backrails, safety belts, safety nets. Mr. Holcombe testified that it would be more dangerous to build a scaffold than to work without one.

EVALUATION OF THE FVIDENCE

Standard [*22] 29 C.F.R. 1910.28(a) provides that scaffolding shall be furnished for persons engaged in work that cannot be done safely from the ground or from solid construction. Said standard also requires that ladders did not meet the specifications set forth in the standards.

The issue for determination therefore, is whether employees of the respondent were engaged in work that cannot be done safely from the ground or from solid construction. The evidence establishes that Duke Power Company employees normally made the repairs on the "BT" valves and apparently the only instance in which an employee of the respondent worked on the "BT" valve was on April 22, 1972, when the single employee, Mr. Graham assisted Mr. Kessler in working at the elevation from which they both fell. The exposure of Duke Power Company employees to an unsafe condition would, of course, not in any way involve the respondent. It is, therefore, necessary to ascertain whether Mr. Graham at the time of his accident was working under conditions which constituted a violation of the Occupational Safety and Health Act.

It is the position of the respondent that the duty of supervision of Mr. Graham rested with supervisors [*23] of Duke Power Company and that, therefore, there was no obligation on the part of the respondent to supervise such activities. The weight of the evidence would appear to be to the effect that the respondent did retain the obligation of supervising its own employees at said site. Mr. Erskine testified that Duke Power Company does not exercise any supervision over employees of respondent and that if Duke Power Company was not satisfied with the way something was performed, the matter would be taken up with respondent's supervisor rather than with the employees performing the work. He further testified that if a safety regulation was being violated, Duke Power Company would call the matter to the attention of respondent's supervisor. Mr. Holcombe testified that Daniel employees operate under Duke instructions. He stated that to a certain extent, Mr. Kessler, an employee of Duke Power Company acted as a lead man and was responsible for completion of the work and to some extent responsible for employees with him but he had no power to make employees do anything and that the respondent's employees are still under the direction of the respondent's supervisor. Mr. Holcombe [*24] who was an executive with Duke Power Company stated that he did instruct respondent's employees when they were taken from the crew and assigned to him. He stated that if he saw one of respondent's employees doing something on which he felt he would get hurt, and that it required prompt action, he would call it to the employee's attention but under other circumstances the unsafe act would be called to the attention of respondent's supervisor. He would only go direct to the respondent's employee if it was an eminent danger situation, and he looked to the respondent's supervisor as direct supervisor of respondent's employees. The general foreman on the project for respondent, Mr. Noblitt stated that Duke Power Company supervisors do not deal directly with the subordinate employees of respondent. It would appear from the above testimony that the respondent retained responsibility and control over its own employees. Respondent is responsible for the conditions under which they worked even if the evidence showed that the respondent had turned over to Duke Power Company the responsibility for immediate supervision of the employees. Such fact would not, in the opinion of this Judge, [*25] exonorate the respondent from responsibility for permitting its employees to work in an unsafe condition. The respondent is charged by law with the responsibility of seeing that its employees work under safe working conditions. The respondent cannot contract away or sign away this responsibility but retains the obligation to itself to see that the Occupational Safety and Health Act is not violated.

This Judge is also of the opinion that the position of respondent that it was not responsible for the working conditions but that the obligation to erect scaffolding and so forth rested upon Duke Power Company is not a sound defense. The law places the obligation on respondent not to permit its men to work in unsafe conditions and to see to it that the standards are complied with and to require the erection of scaffolding in circumstances in which the standard requires scaffolding to be erected. If Duke Power Company was to refuse to erect a required scaffold, the respondent would be in violation of law by permitting its employees to work under conditions which do not meet the standards.

The issue remains as to whether the respondent's employee, Mr. Graham, was working under [*26] conditions which did violate the alleged standard. The evidence established that the respondent's employee, Mr. Graham, with Mr. Kessler an employee of Duke Power Company was, on April 22, 1972, working on a "BT" valve at an elevation of 140 feet above the ground. The evidence also reflects, however, that there was a platform approximately eight feet under the valve on which said individuals were working. Both men were severely scalded and fell, Mr. Graham, going all the way to the ground and Mr. Kessler being stopped at a higher elevation. The accident was fatal to both men. No one witnessed the accident and no one knows where Mr. Graham was at the time he fell. The evidence in the record establishes that at times employees would straddle the pipes and work on the valves and in other instances, they would climb a ladder and work from the ladder on the valves, the ladder being located on the platform about 8 feet under the valve. Mr. Noblitt testified that he did not consider scaffolding or safety belts necessary because the valve was on a platform and it took a ladder to work on the valve. Complainant's Exhibit 1 shows that not all of the area under the pipe was [*27] over a platform, but that there was some open area. The record is completely devoid of evidence as to whether Mr. Graham was working from the pipe or on the ladder.

An offer of proof was made by the complainant as to excluded testimony. It was the position of complainant that the evidence was competent as an admission or declaration against interest. Counsel for complainant stated that if permitted to do so he would prove that Mr. Watkins told the compliance officer that two men were assigned to work and they went to the No. 2 valve and from all the factors available to them it appeared that said men started working on the valve, the line had not been bleed or otherwise water drained from the line, that the hot steam escaping had fallen on the men, perhaps with such force that either through the force of the steam or shock resulting therefrom, Mr. Graham fell from 140 feet killing him; that they did not have scaffolds, safety belts, or any other safety devices of that type but such devices would have avoided this accident and that in the future such devices would be required or the recommendation would be made that such devices would be required. The counsel was advised that [*28] proof would be received as to whether or not safety devices were present and what was planned to be done in the future. Other items of the proposed offer of proof were rejected. It would be well at this point to determine whether this ruling of the Judge was error. Issues presented in determining competency were whether Mr. Watkins, not being a top supervisor or managing agent of the respondent could make admissions for the respondent and also whether Mr. Watkins' statement of opinions could be received as admissions. It was ruled that since Mr. Watkins had been designated by the respondent as the individual to accompany the compliance officer on the inspection and to speak for the company, he could speak for the company and his admissions of fact would be competent evidence. It was further held, however, that while admissions of fact would be received, opinions expressed by Mr. Watkins would not be received as admissions. In his brief, counsel for complainant, cites authority on this point. Whigmore on Evidence, Section 1053(3) states as follows:

The opinion rule does not limit the use of the party's admission. The reason for that rule does not apply to a party's [*29] admission. Moreover, every case presented in the allegations of pleadings and witnesses includes both facts and inferences; hence the opponent's admission will naturally range over both facts and inferences without distinction, e.g. as when a debtor's letter admits that he owes $20 out of $45 claimed by the creditors. To extent the arbitrary trivialities of the opinion rules, parties admissions would be the extreme of futility.

This Judge is, therefore, of the opinion that rejection of said evidence may have been error. Most of the above, however, is established by other evidence which is not disputed. It is undisputed that the two men were assigned to work, they went to No. 2 valve, they started working on the valve, the line had not been bleed or otherwise water drained from the line, the hot steam escaped, fell on the two men with such force that either the force of the steam or shock resulting therefrom caused Mr. Graham to fall 140 feet killing him, there were no scaffolds or safety belts or other protective devices of the type.

It appears that complainant's case has been proven without said excluded evidence. There was no definite proof as to where Mr. Graham was at the [*30] time he fell and the evidence is to the effect that Mr. Graham's body was not found immediately under the valve but some distance away, leading to speculation by respondent's counsel that he might have been burned and gone a few steps and then fallen as a result of his injuries.

It is not, however, required that the complainant establish that a violation of the standards led to the fall of Mr. Graham for the Citation to be sustained. It is only required that the complainant establish that a dangerous condition existed which violated the standards which could have lead to substantial injury to an employee situated as Mr. Graham was. It will be noted that the standard provided that scaffolding will be furnished and erected for persons engaged in work that cannot be done safely from the ground or from solid construction. As above noted, the evidence established that employees worked on the valve either by straddling the pipe or by working from a six-foot ladder which rested on a platform which was three feet, eight inches wide. The valve was 140 feet above the ground. The platform would meet the definition of solid construction. It will be noted, however, that the standard [*31] does not merely state that a person shall be engaged in work from solid construction, but states that the standard is violated if it cannot be "done safely" from solid construction. It is therefore necessary to determine whether work upon the valves could have been done with safety. The valve was eight and onehalf feet above the platform. Respondent's Exhibit 1 indicated that the valve was over said three feet eight inch platform at a position approximately half way across the width of the platform. This would leave an area of less that two feet of platform on each side of the valve. The risk would be very high that any person falling eight and one-half feet, even if he fell upon the platform would not remain on a platform of such small width. It is highly probable that in such a fall a person would go off the side of the platform if he hit the platform at all and fall to his death nearly 140 feet below. There certainly would be great danger of a fall if an employee was balancing himself on top of a pipe by straddling the pipe. The evidence does not establish what position Mr. Graham was in or whether he was working from a pipe or from a ladder. The risk would be [*32] somewhat less from a ladder, but with both hands engaged in work, there would be a distinct possibility that a man could lose his balance on a ladder and fall. If a ladder was to be used at that extreme height, the platform upon which the ladder rested should have been of suffiient width to have assured that anyone falling from the ladder would not fall off the edge of the platform as he hit the platform. Had a scaffold been used meeting the requirement of the standard as to towboards, railing and so forth, a ladder would not have been necessary and there would not have been danger of a fall occurring.

While the evidence does not establish the circumstances of Mr. Graham's fall as there were no eye witnesses, the evidence does establish that Mr. Graham was assigned to work on this valve at said elevation under the circumstances described and does establish that he could have performed the work assigned only by straddling the pipe or by climbing said ladder. Mr. Erskine testified (TR 38) that Mr. Graham was assigned to work on the "BT" valve with Mr. Kessler, an employee of Duke. The evidence established that hot water and steam did come from the valve scalding Mr. Kessler and [*33] Mr. Graham. This could not have happened to Mr. Graham if he had not been in the vicinity of the valve at the time the hot water came from it. It will be further noted that Respondent's Exhibit 3 which is the supervisors' report of the accident states that Mr. Graham was repairing said "BT" valve when hot water caused him to fall. The report to the North Carolina Industrial Commission also states he was repairing the "BT" valve when hot water from trap pressure hit him causing him to fall. The fact that Mr. Graham's clothing was wet, that he was burned, that the hot water did escape from the valve and Mr. Kessler was also burned and that Mr. Graham had been assigned to engage in such work does, in the opinion of this Judge, establish that Mr. Graham was so engaged and did suffer injury from the causes above described. Said reports Exhibits 3 and 4, were given to the compliance officer by the representative of the respondent, which in the opinion of this Judge, constitutes adequate authentication of said document. They would be competent as admissions of the respondent.

It is entirely possible that the respondent would not have fallen had the steam not escaped from [*34] the valve. It also is entirely possible that the respondent did not have reason to anticipate the escape of the steam from the valve. It therefore would appear that the complainant has not established that the lack of a scaffold was the proximate cause of Mr. Graham's fall.

The issue remains for decision, however, as to whether an employee was assigned to work in a dangerous situation in violation of the standards irrespective of whether any accident might have actually occurred as a result of such dangerous condition. In the opinion of this Judge, working at a point 140 feet above the ground either sitting atop a pipe or at the top of a sixfoot ladder does not meet the requirements of the standard that the employees must be engaged in work which can be done safely from a solid construction.

It is a certainty that an employee falling from a height of 140 feet would fall to his death. There is a chance that he might have fallen at such an angle that he would have hit a lower level, however, respondent's Exhibit No. 1 does reflect an open space immediately next to the platform which is under the valve. The space is adequate for an employee to have fallen far enough [*35] to have fallen to his death. Even a fall to a level at which Mr. Kessler was stopped in his fall could have been anticipated to have lead to very serious or fatal injury. Under these circumstances it would appear that the violation is a serious violation and the requested penalty of $500.00 is proper.

FINDINGS OF FACT

1. Respondent, Daniel Construction Company is a corporation having a place of business and doing business in Greenville, South Carolina.

2. Respondent is engaged in contract maintenance and repair work at various sites and is and at all times relevant to this case has been an employer engaged in a business affecting commerce within the meaning of the Act.

3. On April 22, 1972, respondent was engaged in contract maintenance and repair work at the Marshall Steam Plant, Terrell, North Carolina, under a contract with Duke Power Company.

4. On April 22, 1972, an employee of respondent, Mr. Graham, was assigned to work with Mr. Kessler on a "BT" valve which is located 140 feet above the ground at said Marshall Steam Plant, Terrell, North Carolina.

5. On said date, hot water and steam escaped from said valve severely scalding Mr. Kessler and Mr. Graham and both [*36] of said persons fell from the area in which they were working on said valve, Mr. Graham falling all the way to the ground.

6. Both Mr. Graham and Mr. Kessler were fatally injured.

7. Mr. Graham at the time he was working on said valve on April 22, 1972, was either working on said valve by straddling the pipe adjacent to said valve or by standing on a six-foot ladder which rested on a stationary platform which was three feet, eight inches wide.

8. Mr. Graham at said time and location was not working from a scaffold and no scaffold was provided for Mr. Graham to work from.

9. The complainant has failed to establish that the proximate cause of the fall of Mr. Graham was the failure to have a scaffold as required by said standard.

10. The platform was of inadequate width to catch an employee who might fall either from a ladder or from stradling the pipe and there was substantial danger that an employee who might so fall would fall to his death.

CONCLUSIONS OF LAW

1. Respondent is and at all times hereinafter mentioned has been an employer engaged in a business affecting commerce within the meaning of the Act and the Occupational Safety and Health Review Commission [*37] has jurisdiction of this cause.

2. On or about April 22, 1972, respondent violated section 5(a)(2) of the Occupational Safety and Health Act and Occupational Safety and Health Standard 29 C.F.R. 1910.28(a) in that respondent failed to furnish its employee a scaffold although said employee was engaged in work which could not be done safely from the ground or from solid construction.

3. Said violation was a serious violation as said term is defined by the Occupational Safety and Health Act and a penalty in the amount of $500.00 is proper.

ORDER

It is therefore ordered that the citation alleging violation of Occupational Safety and Health Standard 29 C.F.R. 1910.28(a) be and the same hereby is sustained.

The requirement that the violation be immediately abated is sustained.

A penalty in the amount of $500.00 be and the same hereby is assessed.