SLETTEN CONSTRUCTION COMPANY

OSHRC Docket No. 11027

Occupational Safety and Health Review Commission

December 31, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Henry C. Mahlman, Assoc. Regional Solicitor

Alexander Blewett, III, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On July 28, 1975, Judge John J. Morris rendered his decision in this case. On August 14, 1975, the respondent's petition for discretionary review was granted. Neither the petition nor the order of Commissioner Moran granting the petition specifies any issues for decision. Also, the parties have not filed any briefs with us. The Secretary, however, does state that he relies on the Judge's opinion. We therefore note the lack of party interest in full review. On the merits, we affirm.

With respect to the allegation of non-compliance with 29 CFR 1926.350(h), the Secretary argued, but did not present evidence proving that the broken glass cover on the pressure gauge of an acetylene tank would have permitted particles to enter the gauge and thereby cause a malfunction. The Judge was therefore correct in holding that the Secretary failed to prove that the gauge was not in proper working order.

We hold that the Judge's finding that the circumstantial evidence of actual exposure preponderated [*2] is supported by the record for the reasons he assigned. See generally, Chicago Bridge & Iron Co., No. 224 (December 26, 1974). We need go no further in deciding this case.

In all other respects, the Judge's decision is adopted and affirmed for the reasons he assigned.

SO ORDERED.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I would reverse the Judge's decision (attached hereto as Appendix A) insofar as it holds that circumstantial evidence adduced at the hearing established a violation of the occupational safety standard codified at 29 C.F.R. 1926.500(d)(1) by a preponderance of the evidence. The summary adoption of that finding by the majority necessitates a review of the facts and the relevant case law pertaining thereto.

Respondent is a corporation engaged in construction and, at the time of inspection, it was excavating piers along a river. The respondent had built a 40 foot bridge adjacent to a cofferdam to expedite the movement of equipment to the south end of the construction area where employees were setting forms. The bridge in issue was six to eight feet above the water and lacked the guardrails which [*3] the cited standard specifies. The complainant's inspector took no measurement of the bridge's width, observed no employees on the bridge, and failed to inquire as to whether any of respondent's employees had ever used the bridge. It was established that the bridge was not the sole route to the south end of the worksite, but rather that an overland route existed as an alternative means of access. From these facts the Judge concluded that employees of respondent were exposed to hazard as a result of noncompliance with the cited standard. He reached this conclusion by finding that the evidence set forth satisfied the circumstantial evidence criteria of Secretary v. Chicago Bridge and Iron Company, 14 OSAHRC 361 (1974). He therefore affirmed the Secretary's citation.

I note with alarm the Judge's ruling on burden of proof. It was his finding that since employees would be exposed to hazard when using the non-guardrail bridge, and that employees were working in the vicinity (100 to 200 feet from the south end) of the bridge, that respondent had the burden of proving a lack of exposure. This is plain error. The burden of proof on all elements of the violation [*4] rests with the complainant. Brennan v. OSAHRC and Raymond Hendrix d/b/a Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1975); 29 C.F.R. 2200.73(a). It was complainant's burden to show that some employee of respondent had used the bridge - not respondent's burden to show the contrary. Only when the complainant establishes a prima facie case will the burden of going forward with the evidence shift to the respondent, but the ultimate burden of establishing the violation by a preponderance of the evidence remains with the complainant. Id. The complainant must make its case with evidence, not supposition.

The rule of law that the complainant must establish every element of the alleged violation is well-settled. Olin Construction Company, Incorporated v. OSAHRC, No. 1134 (2nd Cir., september 9, 1975); Secretary v. Armor Elevator Company, Inc., 5 OSAHRC 260 (1973). In many prior decisions, n1 the Commission has required the complainant to establish actual employee exposure to the hazard created by an alleged violation of the Act. Although there has been some question as to whether the Commission rule requires actual exposure, n2 the decisions cited in [*5] footnote 1 demonstrate that the actual exposure rule has in fact been followed by the Commission. I adhere to that rule because it is the only construction consistent with the law's purpose of reducing employee injuries and illnesses.

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n2 Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255 (4th Cir. 1974).

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In this case there were two means of access to a common worksite and the inspector did not testify as to whether one or both were utilized by respondent's employees. We are thereby left to speculate that, at some point in time, unknown employees were actually walking on the bridge which had no guardrails. A conviction cannot be sustained on a silly putty foundation or on a what-might-have-been notion. Proof that at least one employee was actually exposed to a hazardous condition is critical to holding an employer in violation of an occupational safety and health standard. The inspector doesn't have to see it but somebody has to testify or produce evidence that it occurred. This essential element may not be subject to conjecture or speculation. Moore v. Chesapeake & Ohio Railway Company, 340 U.S. 573, 578 (1951); Galloway v. United States, 319 U.S. 372, 395 (1943); Troutman v. Mutual Life Insurance Company, 125 F.2d 769 (6th Cir. 1942). The law under which this action was brought was enacted exclusively for the purpose of reducing employee injuries and illnesses. It is not to be used as a building code or construction manual. Faulty construction [*7] of a bridge walkway cannot injure an employee who doesn't use that walkway.

The evidence in this case simply does not establish that any employee of the respondent was exposed to the alleged hazard. To the contrary, its employees who were between one and two hundred feet from the south end of the bridge could have reached that location by using the overland route. In the absence of evidence that they used the substandard bridge there can be no finding that any employee was exposed to hazard as a result of noncompliance with the cited standard.

APPENDIX A

DECISION AND ORDER

James H. Barkley, Office of Henry C. Mahlman, Associate Regional Solicitor, U.S. Department of Labor, for the complainant

Alexander Blewett, III, for the respondent

Hearing in Great Falls, Montana on March 5, 1975 Judge John J. Morris presiding.

Morris, Judge, OSAHRC: On November 1, 1974 complainant caused citations to be filed against respondent alleging violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter called the Act). Complainant asserts that during the construction of a bridge, respondent violated 654(a)(2) of the Act in failing to comply with occupational [*8] safety and health standards established pursuant to 655. Pending before the Commission are:

Standard Allegedly Violated

Proposed Civil

Penalty

Citation 11,

item 1

29 CFR 1926.500(d)(1)

$340

Citation 12,

item 1

29 CFR 1926.350(j) and

$340

Section 3.2.4.3 of American

National Standards

Institute Standard, ANSI

Z49.1 as adopted thereby

Citation 13,

item 1

29 CFR 1926.550(a)(9)

$170

Citation 14,

item 1

29 CFR 1926.152(g)(1)

None

     2

29 CFR 1926.350(h)

None

     4

29 CFR 1926.550(a)(13)(ii)

None

     6

29 CFR 1926.602(a)(2)(i)

$25

At the commencement of the trial complainant sought to reduce the proposed civil penalties for citation 12 and citation 13 respectively to $170 and $100. Respondent then moved to withdraw its notice of contest to such items and to items 1, 4 and 6 of citation 14.

The record shows:

1. Posting of the notice of hearing.

2. Abatement accomplished.

3. Tender of payment.

As no objection was lodged the motions should be granted.

Citation number 11, item 1 describes the alleged violation in the following terms:

The open-sided floor six feet or more above the adjacent ground and water level on the work bridge was not [*9] guarded by a standard railing or the equivalent.

In connection with this alleged repeated violation of 29 CFR 1926.500(d)(1) complainant proposes a civil penalty of $340. The foregoing standard reads:

1926.500 Guardrails, handrails, and covers. (d) Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

The evidence: In excavating for piers along a river, respondent used a 40 foot work bridge adjacent to a cofferdam (Tr. 16-18). Both sides of the work bridge lacked guardrails (Tr. 19, 20; compl's. ex. 1). The work bridge facilitated movement of equipment across the river (Tr. 24). Piling had been installed at the north end of the bridge; 100 feet to 200 feet beyond the south end workers [*10] utilizing heavy equipment set forms (Tr. 19, 24, 25). No employees were observed on the bridge during the inspection (Tr. 20, 26). The compliance officer felt there was possibility of drowning if a worker fell the 8 to 10 feet from the bridge to the adjacent water level (Tr. 13, 20).

At the close of complainant's case respondent moved to dismiss asserting lack of employee exposure (Tr. 27), no violation (Tr. 27-28), and incorrect citation (Tr. 14, 28).

Evidence of employee exposure is essential to sustain a violation but such exposure may be established circumstantially. Secretary v. Chicago Bridge and Iron 14 OSAHRC 361 (1974); Secretary v. Hawkins Construction Co. 8 OSAHRC 569 (1974); Secretary v. City Wide Tuckpointing Company 3 OSAHRC 194 (1973). The evidence here meets the circumstantial criteria of Chicago Bridge. The violation exists; employees would necessarily be exposed when using the bridge, and employees were working in the vicinity, 100 to 200 feet beyond the south end of the bridge (Tr. 25). These facts shift the burden of proof to respondent to prove a lack of exposure. Respondent failed to do so. There is no need to address this decision to [*11] the conflicting appellate court decisions on exposure: Brennan v. Occupational Safety and Health Review Commission (Underhill Construction Co.) No. 74-1579, 74-1562 (2d Cir., March 10, 1975); Brennan v. Occupational Safety and Health Review Commission (Gilles and Cotting), 504 F.2d 1225 (4th Circ., 1974); Southeast Contractors, Inc., v. Occupational Safety and Health Review Commission, No. 74-2698 (5th Circ., March 19, 1975).

Respondent contends that complainant erred in citation 11 in alleging a violation of Part 1926.500(d)(1). Respondent argues the applicable standard is Part 1926.802(c) which reads:

Cofferdam walkways, bridges, or ramps with at least two means of rapid exit shall be provided with guardrails as specified in Subpart M of this part.

Subpart M refers to guardrails, handrails and covers; Part 1926.500(d)(1) is within subpart M; complainant correctly charged respondent. The facts herein require guardrails for this bridge. Part 1926.802(c) uses the legitimate legislative tool of adoption by reference. The evidence establishes a violation of citation number 11; respondent's contentions are denied.

The parties stipulated the proposed civil penalty [*12] of $340 would be a reasonable amount if a repeated violation existed. Respondent contends no such repeat violation occurred as the prior violations did not involve a potential fall into water. Respondent's argument lacks merit. The gravamen of a violation of Part 1926.500(d)(1) lies in a failure to guard an open-sided floor or platform 6 feet or more above an adjacent level. Whether the level adjacent to a workman be water, dirt, or concrete or whatever has little relevancy. Regardless of the composition of the adjacent level the violation is a failure to provide guardrails.

The parties may stipulate as to the fairness of a penalty. As such stipulation is not repugnant to the Act affirmation of the proposed penalty is in order. Secretary v. thorleif Larson & Son, 12 OSAHRC 313 (1974).

As to citation number 14, item 2 the citation recites:

The acetylene pressure regulator gauge connected to the fuel gas cylinder in the center of the construction site was not in proper working order in that the protective glass cover was broken.

The standard alleged violated reads:

1926.350 Gas welding and cutting. (h) Regulators and gauges. Oxygen and fuel gas pressure regulators, [*13] including their related gauges, shall be in proper working order while in use.

The parties agreed that the pressure gauge of the acetylene tank functioned properly but its protective glass cover was broken (Tr. 7-8). Complainant argued the broken glass would permit particles to enter the gauge, hence causing a probable malfunction. Complainant's argument conflicts with the stipulated evidence indicating the gauge was in proper working order (Tr. 7-8). Mere broken glass on a pressure regulation gauge is not a violation of Part 1926.350(h). Citation 14 item 2 and the proposed civil penalty should be vacated.

FINDINGS OF FACT

1. Respondent does business in several States (Tr. 3-4).

2. Respondent employed 22 workers at the jobsite in Missoula, Montana (Tr. 3-4).

3. No controversy exists as the facts and motions as heretofore set forth and they are adopted by reference in this paragraph.

CONCLUSIONS

1. Respondent is, and was at all times relevant to the issues herein, engaged in a business affecting commerce within the meaning of 26 U.S.C. 652 (Facts 1, 2).

2. Respondent is and was at all times herein mentioned, an employer within the meaning of 29 U.S.C. 652(5) [*14] and subject to the provisions thereof and the standards promulgated under 29 U.S.C. 655 (Facts 1, 2).

3. On the undisputed facts an order may be entered disposing of the issues of the case (Facts 3).

ORDER

Based on the foregoing findings of fact and conclusions of law it is hereby ORDERED and ADJUDGED:

1. Citation 11, item 1 for the alleged violation of 29 CFR 1926.500(d)(1) and the proposed civil penalty of $340 therefor are affirmed.

2. Citation number 12, item 1 for the alleged violation of 29 CFR 1926.350(j) and Section 3.2.4.3 of American National Standards Institute Standard, ANSI Z49.1 as adopted thereby and the proposed amended civil penalty in the amount of $170 are affirmed.

3. Citation number 13, item 1 for the alleged violation of 29 CFR 1926.550(a)(9) and the proposed amended civil penalty of $100 are affirmed.

4. Citation number 14 consisting in part of:

Item

Standard

Proposed Penalty

1

29 CFR 152(g)(1)

None

4

29 CFR 1926.550(a)(13)(ii)

None

6

29 CFR 1926.602(a)(2)(i)

$25

is affirmed.

5. Citation number 14 item 2 for the alleged violation of 29 CFR 1926.350(h) and the proposed civil penalty of "none" are vacated.

SO ORDERED in the [*15] City and County of Denver, Colorado.

John J. Morris, Judge, OSHRC