PARNON CONSTRUCTION, INC.

OSHRC Docket No. 12485

Occupational Safety and Health Review Commission

April 5, 1977

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

F. V. LaRuffa, Reg. Sol., USDOL

Frederick D. Braid, for the employer

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: A decision of Review Commission Judge Ben D. Worcester, dated October 14, 1975, is before this Commission for review pursuant to the provisions of 29 U.S.C. 661(i). That decision, which is attached hereto as Appendix A, n1 held in part that respondent had not violated 29 U.S.C. 654(a)(2) by failing to comply with 29 C.F.R. 1904.2(a) and 1926.150(c)(1)(i). Review was directed on the following questions:

"(1) Whether the Administrative Law Judge erred in concluding that the Secretary of Labor failed to prove non-compliance with the standards at 29 CFR 1904.2(a), 1926.150(c)(1)(i)?

(2) Whether the Administrative Law Judge erred in applying Brennan v. Underhill Construction Corp., 513 F.2d 1032 (2d Cir. 1975) to the facts of this case?"

For reasons that follow, we answer the first question in the negative and affirm the Judge's decision. The second question also pertains to the 1926.150(c)(1)(i) charge and is rendered moot by our action on the first [*2] question.

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n1 Chairman Barnako does not agree to this attachment.

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The Recordkeeping Charge

Respondent was cited for noncompliance with 29 C.F.R. 1904.2(a, n2 for failing to maintain an injury and illness log at one of its construction sites. Although the log was not maintained at the construction site in question, the log was maintained at respondent's main office. Nevertheless, Complainant contends that respondent was in violation of the standard because respondent did not qualify for an exception under 29 C.F.R. 1904.2(b) n3 since it had not complied with subparagraph (2) of 1904.2(b). Complainant, however, overlooks 29 C.F.R. 1904.14 which provides that:

"Employers of employees engaged in physically dispersed operations such as occur in construction, installation, repair or service activities who do not report to any fixed establishment on a regular basis but are subject to common supervision may satisfy the provisions of 1904.2 . . . with respect to such employees by:

(a) Maintaining the [*3] required records for each operation or group of operations which is subject to common supervision (field superintendent, field supervisor, etc.) in an established central place;

(b) Having the address and telephone number of the central place available at each worksite; and

(c) Having personnel available at the central place during normal business hours to provide information from the records maintained there by telephone and by mail." (Emphasis added.)

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n2 That standard provides in pertinent part that:

"Each employer shall maintain in each establishment a log of all recordable occupational injuries and illnesses for that establishment, except that under the circumstances described in paragraph (b) of this section an employer may maintain the log of occupational injuries and illnesses at a place other than the establishment. . . ."

n3 That regulation provides as follows:

"Any employer may maintain the log of occupational injuries and illnesses at a place other than the establishment or by means of data-processing equipment, or both, under the following circumstances:

(1) There is available at the place where the log is maintained sufficient information to complete the log to a date within 6 working days after receiving information that a recordable case has occurred, as required by paragraph (a) of this section.

(2) At each of the employer's establishments, there is available a copy of the log which reflects separately the injury and illness experience of that establishment complete and current to a date within 45 calendar days."

[*4]

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Respondent is a construction firm simultaneously engaged in masonry subcontracting work on 5 to 10 jobsites geographically dispersed throughout Long Island and New York City. Depending upon the nature of the work, a jobsite is staffed with between 3 and 60 employees. It is cherefore clear that respondent qualifies as an employer of employees "engaged in physically dispersed operations such as occur in construction . . ." and therefore falls within the scope of 1904.14. Furthermore, respondent's recordkeeping procedures satisfy the criteria contained in paragraphs (a), (b), and (c) of that regulation. A foreman at each jobsite, concomitant with his supervisory responsibilities, reports at least once daily to respondent's main office on the activity at the jobsite for that day, including accidents which may have occurred. All safety and health records are maintained at the main office on the basis of the information provided by the foreman to one of respondent's employees who is primarily responsible for occupational safety and health and employee insurance matters. The address and phone number [*5] of the main office is available through the foreman at each jobsite, and personnel at the main office are available during normal business hours to provide information by telephone and mail from the injury and illness records maintained there. Thus, there is no violation of 29 C.F.R. 1904.2(a).

The Fire Extinguisher Charge

Respondent was also cited for failing to comply with the provision in 29 C.F.R. 1926.150(c)(1)(i) which requires that "[a] fire extinguisher, rated not less than 2A, shall be provided for each 3,000 square feet of the protected building area, or major fraction thereof." This standard refers to the location of fire extinguishers, but it does not specify when they must be provided. In recognition of the fact there may not be a fire hazard during all phases of construction work. The Secretary of Labor has provided as a general requirement at the outset of this fire protection regulations for construction that:

"The employer shall be responsible for the development of a fire protection program to be followed throughout all phases of the construction and demolition work, and he shall provide for the firefighting equipment as specified in this subpart. [*6] As fire hazards occur, there shall be no delay in providing the necessary equipment."

29 C.F.R. 1926.150(a)(1) (emphasis added). It is therefore obvious that subparagraphs (a)(1) and (c)(1)(i) of 29 C.F.R. 1926.150 must be read together and that compliance with subparagraph (c)(1)(i) is not required until a fire hazard exists at the construction site. Secretary v. Johns Manville Sales Corporation, 13 OSAHRC 327, 332-333 (1974). Also see Secretary v. Producers Supply Company, 9 OSAHRC 220, 222 (1974).

Judge Worcester correctly found that complainant failed to prove that a fire hazard was present at respondent's worksite. The evidence shows that the building under construction had no roof, door frames, or window casings, and that the erection of cement block walls was not completed. The structure contained only a minimal amount of combustible materials, such as a wooden scaffold that was built on one wall, material wrappings, and plastic concrete shields. In the event that a fire were to occur, employees would be free to leave the unenclosed structure immediately. Smoke and fumes would pass freely into the open air. Under these circumstances, there is no [*7] violation of 29 C.F.R. 1926.150(c)(1)(i).

Accordingly, the Judge's decision is affirmed.

CONCURBY: CLEARY (In Part)

DISSENTBY: CLEARY (In Part)

DISSENT:

CLEARY, Commissioner, CONCURRING IN PART AND DISSENTING IN PART:

I agree that the evidence shows no violation of the recordkeeping requirements, and that Item No. 1 should therefore be vacated.

I dissent, however, from the majority's reading of 29 CFR 1926.150 and its disposition of Item No. 2.

I.

The majority reverses without discussion the Commission's earlier decision in Larry D. Mack, 13 OSAHRC 571, 575, 2 OSHC 1411, CCH 1974-75 para. 19,105 (No. 3865, 1974), affirming an Administrative Law Judge's decision that section 1926.150(c)(1)(i) requires fire extinguishers even though there was no proof of a fire hazard. The majority's failure to explain its change of precedent constitutes error. Brennan v. Gilles & Cotting, Inc., 504 F.2d 19,225, 1964-66 (4th Cir. 1974). See N.L.R.B. v. Metropolitan Life Insurance Co., 380 U.S. 438, 442-443 & n.6 (1965). The majority relies upon Producers Supply Co., 9 BNA 2 OSHC 3045, OSAHRC 220, 222, CCH 1973-74 OSHD para. 17,844 (No. 4239, 1974), an Administrative Law Judge's decision that was [*8] not reviewed by the full Commission. The Commission has ruled that an Administrative Law Judge's decision that is not reviewed by the full Commission is not precedent binding upon us. Leone Construction Co., BNA 3 OSHC 1979, CCH 1975-76 para. 20,387 (No. 4090, 1976). It also ralies upon Johns Manville Sale Corp. The Judge's decision does not support the principle for which it is cited.

II.

Section 1926.150 provides in relevant part as follows:

1926.150 Fire protection.

(a) General Requirements. (1) The emuloyer shall be responsible for the development of a fire protection program to be followed throughout all phases of the construction and demolition work, and he shall provide for the firefighting equipment as specified in this subpart. As fire hazards occur, there shall be no delay in providing the necessary equipment. [Emphasis added.]

(2) Access to all available firefighting equipment shall be maintained at all times. [Emphasis added.]

(3) All firefighting equipment, provided by the employer, shall be conspicuously located.

(4) All firefighting equipment shall be periodically inspected and maintained in operating condition. Defective equipment [*9] shall be immediately replaced.

* * *

(b) Water supply. (1) A temporary or permanent water supply . . . shall be made available as soon as combustible materials accumulate. [Emphasis added.]

* * *

(c) Portable firefighting equipment -- (1) Fire extinguishers and small hose lines. (i) A fire extinguisher, rated not less than 2A, shall be provided for each 3,000 square feet of the protected building area, or major fraction thereof. Travel distance from any point of the protected area to the nearest fire extinguisher shall not exceed 100 feet.

* * *

(vi) A fire extinguisher, rated not less than 1OB, shall be provided within 50 feet of wherever more than 5 gallons of flammable or combustible liquids or 5 pounds of flammable gas are being used on the jobsite. * * *

Paragraph (a) of the section should be construed as a whole. Subparagraph (1) of paragraph (a) requires a fire protection program for "all phases" of building construction, and not just some phases as the majority may suggest. Subparagraph (2) of the same paragraph requires that the firefighting equipment that is to be available must be accessible "at all times." Subparagraph (3) requires that "all" [*10] firefighting equipment provided by the employer be conspicuously located. Subparagraph (4) requires that "all" firefighting equipment be periodically inspected. Plainly, the subparagraph anticipates that the equipment will be at the jobsite. In this context, the reliance by the majority upon the last sentence in subparagraph (1) is misplaced. The sentence reads as follows: "[a]s fire hazards occur, there shall be no delay in providing the necessary equipment." This is plainly not a condition precedent to the duties of an employer that are otherwise prescribed by the paragraph (a) or elsewhere in section 1926.150. These duties are plainly not contingent upon the occurrence of a fire hazard. If anything, the sentence prescribes a duty not to delay in supplying what is needed from the firefighting equipment that is otherwise required in coping with the fire hazard.

The majority's reading of section 1926.150(a)(1) also makes redundant limitations in other portions of section 1926.150. Section 1926.150(b)(1) requires that a temporary or permanent water supply be made available "as soon as combustible materials accumulate." Section 1926.150(c)(1)(vi) requires at least a 1OB-rated [*11] extinguisher whenever five gallons of flammable or combustible liquids or gas are being used at the jobsite.

APPENDIX A

DECISION AND ORDER

Helen Huyler, for the Secretary

Frederick D. Braid, for the Respondent

Ben D. Worcester, Judge, OSAHRC

This proceeding arises pursuant to a notice of contest filed by the respondent, Parnon Construction, Inc., under the provisions of section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq.) hereinafter called the Act. On February 4, 1975, a citation was issued alleging that the respondent had violated section 5(a)(2) of the Act.

THE ISSUES

It was conceded by Parnon in its answer that it is a corporate employer subject to the Act engaged in the construction business as a masonry contractor. On January 30, 1975, Parnon's employees were involved in the erection of a high school building at Shoreham, New York. After an inspection on that date two citations for alleged violations of standards promulgated by the Secretary were issued. Citation No. 1 alleged that three separate nonserious violations as defined in 29 U.S.C. 666(c) were observed. They were:

1. Failure [*12] to maintain a record of occupational injuries at the job site in violation of 29 CFR 1904.2(a), proposed penalty $65.00.

2. Failure to provide a portable fire extinguisher in a protected building area in violation of 29 CFR 1926.150(c)(1)(i). No Penalty was proposed.

3. Failure to equip a mobile loading machine with a back-up alarm in violation of 29 CFR 1920.602(a)(9)(i). No penalty was proposed.

Citation No. 2 alleged that Parnon had Committed a serious violation, as defined in 29 U.S.C. 666(d), of 29 CFR 1926.451(a)(4) by failing to equip a scaffold used by employees in block laying walls of an auditorium with standard guardrails and toeboards. A penalty of 650 was proposed.

Item No. 2 of Citation No. 1 was vacated on motion of the respondent at the close of complainant's case on the ground that complainant had failed to sustain the burden of proof that the respondent was in control of the worksites and responsible for its maintenance.

FINDINGS OF FACT

Under the rule in force in this jurisdiction where there was no evidence adduced by the Secretary showing that Parnon, as a subcontractor, had maintenance responsibility. The general contractor was responsible for [*13] fire protection. n1 The mere existence of a hazard does not establish a violation if there is not proof of control and responsibility. See Secretary of Labor v. Underhill Construction Corporation, 513 F.2d 1032, 1033 (footnote 1), 1038. Even if this rule were not applicable, the compliance officer admitted that except for the planks on the scaffold and a small amount of waste materials, the area was mostly concrete blocks and floors which would not burn. The burden of proof of exposure to a fire hazard in the "protected" building area as alleged in Item No. 2, Citation No. 1 was not met.

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n1 Tr. 20

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Moreover, as the respondent contends, the word "protected" puts a limit upon the applicability of this standard. The building had no roof, no windows and no doors. It was composed of noncombustible material. The Secretary's compliance officer did not say upon what basis he concluded that this was a "protected" area nor did he say that there was no fire extinguisher for every 3,000 feet of the area which is an [*14] essential element of proof.

The allegation in Item No. 1, Citation No. 1 that respondent failed to maintain the log of injuries and illnesses required by section 1904.2 has not been sustained by the proof. Parnon usually has from five to ten projects in progress at the same time. It has no field offices on job sites. There is only a tool shed. However, each foreman makes a daily report to Parnon's principal office where the required log is kept. This is all that the regulation requires. There was full compliance with the standard.

The testimony of the compliance officer that there was no back-up alarm on the machine used to transport pallets of blocks is not disputed. This violation was promptly abated. The compliance officer felt that the danger to employees was so minimal that he recommended that no penalty be assessed.

With respect to the citation for serious violation, Parnon's bricklayer foreman testified that the men the compliance officer said he saw on platforms were either erecting scaffolds or unloading supplies to be used by the bricklayer later. He explained in great detail how this is done. n2 Guardrails cannot be erected until the scaffold is put up. He [*15] said that supplies and equipment to be used by bricklayers could not have been off loaded from the forklift-type vehicle called a Lull to the feed platform with rails and toeboards on the scaffold. This testimony was not rebutted.

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n2 Tr. 102

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CONCLUSIONS OF LAW

The complainant has failed to sustain the burden of proof that the respondent committed the alleged violations described in Items No. 1 and No. 2 of Citation No. 1 and Citation No. 2 for serious violation. The Lull machine did not have a back-up alarm which establishes a violation of section 602(a)(9)(i) as alleged in Item No. 3, Citation No. 1.

ORDER

It is therefore hereby Ordered that Items No. 1 and 2, Citation No. 1 alleging violation of sections 1904.2(a) and 1926.150(c)(1)(i) and Citation No. 2 (serious violation) alleging violation of section 1926.45(a)(4) and the total proposed penalties thereon of $715 be vacated; and that Citation No, 3, Citation No. 1 for which no penalty was proposed be affirmed.

BEN D. WORCESTER, Judge, OSAHRC

Dated: [*16] October 14, 1975

Hyattsville, Maryland