UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

February 24, 1984

DECISION

Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

BY THE COMMISSION:

  Following a March 1981 inspection, the Secretary cited Anderson Excavating and Wrecking Company under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678, for failing to provide its employees with life jackets while they worked around water. The Secretary also cited Anderson for failing to post emergency telephone numbers and OSHA posters at the workplace.

  Administrative Law Judge George Taylor affirmed all three items. Chairman Rowland directed review on the following questions:

  (1) Whether the judge erred in finding Respondent in violation of 29 C.F.R. § 1926.106(a) (life jackets),

  (2) Whether the judge erred in finding Respondent in violation of 29 C.F.R. § 1903.2(a)(1) (OSHA poster) and in assessing a penalty of $25 therefor,

  (3) Whether the judge erred in his assessment of a penalty of $25 for the violation of 29 C.F.R. § 1926.50(f) (emergency telephone numbers).

  Commissioners Cleary and Buckley join to affirm the item concerning the life jackets. Chairman Rowland and Commissioner Buckley join to reverse and vacate the item dealing with the OSHA poster. All three Commissioners agree to assess no penalty for the failure to post emergency phone numbers at the worksite.

I

  Anderson was the general contractor for the demolition of a bridge over the Occoquan River in Virginia. At the time of the inspection, Anderson employees were securing a crane to a barge. Two sides of the barge were adjacent to land, the other two sides were on the water. Anderson’s assistant superintendent testified that the water was at least five or six feet deep around the barge.

  On the day before observing the cited conditions, the compliance officer advised an Anderson supervisor that employees were required to wear life jackets when working on or near water and gave the supervisor a copy of 29 C.F.R. § 1926.106. When the officer returned the next day, five to seven Anderson employees were around the barge. Two of the employees were working on the barge within three feet of the water. None of these employees were wearing life jackets despite the warnings of the previous day. When the officer insisted that the employees working on the barge get life jackets, the employees conducted a search for any nearby life jackets. They were not able to find any life jackets in the immediate vicinity of the barge, but were able to find a single jacket in a work truck.

  Because the employees were not provided with life jackets, the Secretary cited Anderson for violating 29 C.F.R. § 1926.106(a). That standard provides,

Employees working over or near water, where the danger of drowning exists, shall be provided with U.S. Coast Guard-approved life jacket or buoyant work vests.

  The officer also noticed that no OSHA poster or emergency telephone numbers were posted at the workplace. The Secretary cited Anderson for violating 29 C.F.R. § 1903.2(a)(1)1and § 1926.50(f).2

II

  Concerning the alleged failure to supply life jackets, the evidence established that Anderson employees who were working near water were not wearing life jackets. Moreover, Anderson could not produce a sufficient number of jackets to protect its employees when asked to do so.

  Judge Taylor found a violation under these circumstances and assessed a penalty of $200. His finding is consistent with Commission precedent. See Harbert Construction Corp., 77 OSAHRC 194/B13, 5 BNA OSHC 2076, 1977 CCH OSHD ¶ 22,316 (No. 13578, 1977); G.A. & F.C. Wagman, Inc., 74 OSAHRC 78/B10, 2 BNA OSHC 1297, 1974–75 CCH OSHD ¶ 18,882 (No. 1284, 1974). Commissioners Cleary and Buckley find no prejudicial error in the judge’s disposition of the 29 C.F.R. § 1926.106(a) citation and affirm that portion of the decision.3

  The Commission reverses Judge Taylor’s finding that Anderson violated 29 C.F.R. § 1903.2(a)(1). That standard requires that an employer display an OSHA poster, furnished to him by OSHA, which informs employees of their rights and obligations under the Act. The Secretary must provide the employer with the poster before the employer is obligated to display the poster. See Puterbaugh Enterprises, Inc., 74 OSAHRC 44/B11, 2 BNA OSHC 1030, 1973–74 CCH OSHD ¶ 18,158 (No. 1097, 1974). The Secretary failed to establish that Anderson received an OSHA poster prior to the inspection and thus failed to prove Anderson violated section 1903.2(a)(1).4

  Having reviewed the circumstances and facts of the case, we conclude that no penalty should be assessed for the violation of 29 C.F.R. § 1926.50(f), regarding the posting of emergency telephone numbers. Accordingly, the judge’s decision is modified to vacate the citation item alleging a violation of 29 C.F.R. § 1903.2(a)(1) and to assess no penalty for the violation of 29 C.F.R. § 1926.50(f). As so modified, the judge’s decision is affirmed.

FOR THE COMMISSION

RAY. H. DARLING, JR.

EXECUTIVE SECRETARY

February 24, 1984

[No ALJ decision is available.]

1 29 C.F.R. § 1903.2(a)(1) requires that,

(a)(1) Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor. Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to insure that such notices are not altered, defaced, or covered by other material.

2 29 C.F.R. § 1926.50(f) requires that,

(f) The telephone numbers of the physicians, hospitals, or ambulances shall be conspicuously posted.

3 Chairman Rowland dissents from this portion of the decision. He notes that the two workers who were on the barge were securing a crane to the middle of the barge, which was at least 50 feet by 40 feet in surface area. The compliance officer stated that when she entered onto the barge during the inspection, she was not “at the edge,” but mostly around the crane area “where the employees were.” The closest the compliance officer observed either of the employees come to the edge was three feet. However, the compliance officer did not indicate the activity that the employee was performing when he was three feet from the edge, nor was there any specific testimony which would show that the employee was exposed to danger at that time. Further, the record does not show any reason for either of the workers to come close to the edge of the barge. In the absence of such evidence, Chairman Rowland concludes that exposure to the alleged violative condition has not been established.

The cases that the Commission cites as precedent are easily distinguishable. In both Harbert and Wagman, employees without life jackets were working in small boats in the middle of rivers. Also, in Wagman, other employees were working on a cofferdam surrounded by water. Here, the barge was large, well secured, and immediately adjacent to the land. The compliance officer testified that she did not feel any movement on the barge at the time of the inspection. The danger presented to the workers on the barge thus is not analogous to the danger of being in a small boat, or on a cofferdam, but is similar to working on dry land which is close to some body of water. Accordingly, Chairman Rowland concludes that the Secretary has failed to establish that Anderson’s employees were exposed to a hazard. In view of this disposition, Chairman Rowland expresses no opinion concerning Commission precedent as set forth in Harbert and Wagman that employers must require the use of life jackets as well as provide them to employees where the standard only states that the jackets “shall be provided.” See generally Chairman Rowland’s views on the word “provide” in Borton, Inc., 81 OSAHRC 17/E13, 10 BNA OSHC 1462, 1982 CCH OSHD ¶ 25,983 (No. 77–2115, 1982), appeal filed, No. 82–1661 (10th Cir. May 26, 1982).

4 Commissioner Cleary disagrees with this portion of the decision. He notes that this employer had been inspected on several other occasions and that Anderson’s own witness, Mr. Kubicek, admitted that Anderson had displayed OSHA posters at its other worksites. Since Anderson did not specifically deny that it received an OSHA poster, Commissioner Cleary would presume that it did and find that its failure to display the poster was a violation. Clarence M. Jones, 83 OSAHRC 23/A2, 11 BNA OSHC 1529, 1983 CCH OSHD ¶ 26,516 (No. 77–3676, 1983).