BROWN AND ROOT, INC.  

OSHRC Docket No. 12527

Occupational Safety and Health Review Commission

January 3, 1977

  [*1]  

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Reg. Sol., USDOL

Stanley E. Rauhut, for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review.   The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review.   Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest.   Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1973); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance of an unreviewed Judge's decision.   [*2]   Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.  

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A.   For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.

APPENDIX A

DECISION AND ORDER

William E. Everheart, for the complainant

Stanley E. Rauhut, for the respondent

This is a proceeding brought pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.), hereinafter referred to as the Act, wherein three citations and a notification of proposed penalty were issued to respondent under the authority invested in complainant by section 9(a) of the Act.   A work place under the operation and control of respondent at the Barney Davis power plant, 4301 Waldron Rd., Corpus Christi, Texas, was inspected by representatives of the Occupational Safety and Health [*3]   Administration on February 5, 6, and 7, 1975.   As a result of this inspection respondent was issued a citation for an alleged nonserious violation, two citations for serious violations, and another citation alleging a repeated violation.   The citations were issued on February 7, 1975, and thereafter on February 10, 1975, a notification of proposed penalty was issued, requesting the payment of a total of $2870.00.   Thereafter, on March 3, 1975, complainant's area director, then located in San Antonio, Texas, received from respondent a notice of contest with reference to each of the aforementioned citations as well as the proposed penalties and abatement periods fixed by the complainant.   Respondent denied that it had violated the Act as alleged in the citations.

The alleged nonserious citation reads as follows:

Date on Which

Item

Standard or Regulation

Description of Alleged

Alleged Violation

Number

Allegedly Violated

Violation

Must be Corrected

1

29 CFR 1904.6

Employer failed to retain

Feb. 14, 1975

the OSHA Forms 100, 101, 102,

February 14, for 1971, 1972,

1973, in the establishment

for 5 years 1975 following

the end of the years to which

they relate.

  [*4]  

Serious citation No. 2 alleges as follows:

Date on Which

Item

Standard or Regulation

Description of Alleged

Alleged Violation

Number

Allegedly Violated

Violation

Must be Corrected

1

Section 5(a)(1) of

The employer failed to

Immediately upon

the Occupational

furnish his employees a place

receipt of this

Safety and Health

of employment which was free

citation.

Act

from recognized hazards that

were causing or were likely to

cause death or serious physical

harm to his employees in that a

piece of 5" supply boiler pipe,

approximately 18 feet long, was

not slung in such a manner as

to prevent the tugger line,

which was wrapped around

the pipe, from sliding on

the pipe, nor were other

equivalent means used.

The piece of supply pipe,

while being lifted, slipped

out of the sling and fell

approximately 140 feet to

the grade floor of the

structure.   This condition

existed on 2/4/75.

 

Serious citation No. 3 alleges that the following three sections of the standards were violated:

Date on Which

Item

Standard or Regulation

Description of Alleged

Alleged Violation

Number

Allegedly Violated

Violations

Must be Corrected

1A

29 CFR 1926.500(b)(1)

Floor openings shall be

Immediately upon

guarded by a cover as

receipt of this

specified in paragraph (f)

citation.

of this section.   The

floor opening which was

approximately 3 feet by 3

feet, and located on the

east runway at the steam

drum level, was not pro-

tected with a cover over

the floor opening.

1B

29 CFR 1926.500(d)(1)

Every opensided floor or

Immediately upon

platform 6 feet or more

receipt of this

adjacent floor or ground

citation.

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 en-

trance to a ramp, stairway,

or fixed ladder.

The working platform

surrounding the tugger winch

was not provided with a

standard railing or the

equivalent.   Subject tugger

winch was located on the

southeast corner of the

steam drum level.

1C

29 CFR 1926.500(d)(2)

Runways shall be guarded

Immediately upon

by a standard railing, or

receipt of this

the equivalent, as speci-

citation.

in paragraph (f) of this

section, on all open sides,

4 feet or more above floor

or ground level.

The runway on the north

and east side, at the steam

drum level, which was

utilized to provide access

to the tugger winch on the

southeast corner, was not

equipped with a standard

railing or equivalent.

Subject conditions existed

at the steam drum elevation

which was approximately 140

feet from the grade floor of

the structure.

Failure to provide the above

could reasonably be expected

to cause death or serious

physical harm to employees.

  [*5]  

Citation No. 4 alleges a repeated violation and is quoted as follows:

Date on Which

Item

Standard or Regulation

Description of Alleged

Alleged Violation

Number

Allegedly Violated

Violations

Must be Corrected

1

29 CFR 1926.451(a)(6)

Persons were required to

Immediately

work under the scaffold

upon receipt

that was not provided with

citation.

a screen between the toe-

board and the guardrail, ex-

tending along the entire

opening, consisting of No. 18

guage U.S. Standard wire 1/2

inch mesh, or the equivalent.

The scaffolding utilized as a

working surface on the east and

west sides below the steam

drum, and located approximately

140 feet from the ground, was

not provided with a screen

between the toeboard and the

guardfail.   Employees were

working beneath the scaffolding.

This condition existed on

2/4/75. n1

 

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 This citation as well as the corresponding section of the complaint (paragraph IV) was withdrawn by complainant at the opening of the hearing.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Following [*6]   the receipt of respondent's notice of contest by complainant's area director complainant, through the Regional Solicitor's office, filed a formal complaint with the Review Commission and respondent, through its counsel, filed a formal answer thereto, generally denying the allegations set forth in the citation and complaint.   The answer admits that respondent is subject to the jurisdiction of the Occupational Safety and Health Review Commission and admits that on the dates in question respondent was engaged in the business of construction contracting and was at all times referred to engaged in a business affecting commerce and had employees within the meaning of section 3(5) of the Act.

Pursuant to notice a formal hearing was conducted in this matter in Corpus Christi, Texas, on August 26, 1975, at which time complainant was represented by William E. Everheart, Esq. of the Regional Solicitor's office, Dallas, Texas, and respondent was represented by its attorney, Stanley E. Rauhut, Esq. of the Houston, Texas, bar.   Following the hearing proposed findings and conclusions as well as briefs were submitted for the undersigned Judge's consideration.

At the opening of the hearing counsel [*7]   for both parties announced that they had agreed to settle the matters alleged in the serious citations (Nos. 2 and 3).   The settlement agreement was received in evidence as joint exhibit No. 1.   It was indicated therein that complainant had reconsidered the gravity of the allegations dealing with part 29 of the Code of Federal Regulations, subsections 1926.500(b)(1), 1926.500(d)(1), and 1926.500(d)(2), and section 5(a)(1) of the Act.   Complainant also advised that reconsideration was given to other factors such as respondent's good faith, size, and history of prior infractions and had determined that the total penalty should be reduced to the amount of $1,000.00.   Respondent, without admitting that it had violated the aforementioned sections of the regulations and the Act, moved to withdraw its notice of contest with reference thereto.   Respondent represented that it had paid the penalty, had abated the alleged violations, and would comply with the Act in the future.   This agreement was posted or served in accordance with the Commission's Rules of Procedure.

The only issues remaining for consideration herein are whether respondent violated the provisions of 29 CFR 1926.451(a)(6),   [*8]   whether the alleged violation was a serious repeated one, and if a violation is found what penalty would be appropriate.

On February 5, 6, and 7, 1975, respondent had in excess of 1980 employees engaged in the construction of the Barney Davis power plant at Corpus Christi, Texas.   Several of respondent's employees were engaged in the construction of a boiler and were installing large pipes, 18 inches in diameter and approximately 65 feet long, known as "downcomers", which are used to transport hot water from the bottom of the steam drum to the lower walls of the boiler furnace.   The steam drum was located about 160 feet above the surface and the downcomers were installed about 8 feet apart.   In positioning and attaching the downcomers it was necessary for employees to work off of two parallel platforms, 30 inches wide and 40 feet long, which platforms were suspended by wire rope cables from the steam drum. The platforms, on the outside edges, had the necessary handrails and toeboards. There were no screens or half-inch wire mesh between the toeboards and guardrails as specified in 29 CFR 1926.451(a)(6).   This standard provides as follows:

"Where persons are required to work or [*9]   pass under the scaffold scaffolds shall be provided with a screen between the toeboard and the guardrail, extending along the entire opening, consisting of No. 18 gauge U.S. Standard wire 1/2-inch mesh or the equivalent."

Two employees were on the scaffolding or plywood platform at the 158 foot level intending to secure the downcomer to the bottom of the steel drum with steel bolts.   Prior to completing this operation it was necessary for two members of the crew to go to the 110 foot level to get the steel pipe or dowcomer properly aligned.   The employees then returned to the upper level to assist with the erection bolts.

Rule 73 of the Commission's Rules of Procedure provides that the burden of proof shall be upon the complainant in enforcement proceedings of this type.   After carefully reviewing all of the cestimony and exhibits in the record, it is concluded that complainant's evidence is insufficient to prove that respondent violated 29 CFR 1926.451(a)(6) as charged in the citation and complaint.   The citation charges that respondent had employees at the 140 foot level just below the steel drum; however, the evidence shows that they were at a height of approximately 158 feet.   [*10]   Respondent cannot be held in violation for failure to attach a wire screen between the toeboard to the handrail unless its workers were required to work or pass under the scaffold. (underlining supplied) The record is inconclusive as to whether the two man at the 110 foot level, who were aligning the downcomer, were under the scaffolding in question.   (underlining supplied) According to the only witnesses called by complainant the two men at the lower level were not directly under the scaffolding and hence there would have been no hazard. The boiler superintendent, Mr. Gilleland, testified that the men at the 110 foot level were not directly under the higher scaffolding. He stated that they were "below and slightly to the west". (tr. 46) He testified further that at the time the crew is aligning the downcomer no one is required to work or pass through the area.   (Tr. 56) He stated further:

"Q Now, is it fair to say the when the men are standing on the platform or on the beam below the platform or a little bit to the side of it, as I believe you testified, that there is no work going on on the platforms?

"A There is nothing they can do until that dropper is completed."   [*11]   (Tr. 58)

He also advised that there are no types of materials piled on the platform and that the men carry their tools in a five gallon bucket which is secured to a scaffold bracket and further that there would be no tools or materials on the platform higher than the toeboards.

A helper, Mr. Kelso, who was on the upper level or scaffold at 158 feet, was questioned as to whether he was over the men who were working off of the beam at the 110 foot level. The following testimony was elicited:

"Q Where you were sitting on the platform at the particular instances you have just described in talking with Mr. Everheart, were you over the men who were working down on the beam at the 110 foot level?

"A No. Sir.   I wasn't directly over them.   I guess you can call them under me, but they weren't directly under me.

"Q They were over to one side?

"A Yes, Sir." (Tr. 87)

The record further discloses that respondent did not permit or sanction persons working or passing under the downcomer installation process.   One employee, Mr. Garcia, was on the ground for the purpose of hooking up supply tubes to be raised to the top.   Howver, he was located off to the side some 20 to 30 feet away according [*12]   to the testimony of Mr. Gilleland and Mr. Kelso.   It is further a part of Mr. Garcia's duties to keep persons from entering or passing under the aforementioned scaffolds. The evidence revealed that the area under the scaffolding la barricaded or tagged with yellow tape and various signs were posted containing words of warning such as "danger", "man overhead", "no thoroughfare", etc., cautioning people to stay out of the area.   Since no persons or employees were "under" the scaffolds in question the absence of wire mesh or screens created no hazard.

The compliance officer testified that he felt that a hazard was present because of the results of his interviews.   He advised that employees had come-alongs, torches, and other materials which they were using on the job.   He felt that anything falling from a height of 160 feet, such as a chipping hammer or something else, would cause serious physical harm or death.   His testimony did not indicate, however, that he had seen any persons passing under the area beneath the scaffolds in question.

Accordingly, it is concluded that a preponderance of the evidence in the record does not establish a violation of 29 CFR 1926.451(a)(6) at the time [*13]   of the inspection.

Since the record here does not establish a violation of the section as charged, it is unnecessary to consider the question as to whether a repeated violation took place.

FINDINGS AND CONCLUSIONS

Based upon the entire record the following findings and conclusions are entered:

1.   That respondent, Brown and Root, Inc., at all times relevant hereto, was an employer in a business affecting commerce within the meaning of section 3(5) of the Act and the Review Commission has jurisdiction over the parties and subject matter herein.

2.   That on February 5, 6, and 7, 1975, complainant's representatives conducted an inspection of respondent's work site located at the Barney Davis power plant, 4301 Waldron Road, Corpus Christi, Texas, where respondent had employees engaged in the construction of a power plant.

3.   That on the aforementioned dates a small crew of respondent's employees were installing downcomers under steel drum during which operation workers were on a scaffold approximately 158 feet above the surface and said scaffold did not have half-inch wire mesh or screens between the toeboards and guardrails.

4.   That during the aforementioned installation [*14]   two of respondent's employees were on a steel beam at an approximate 110 foot level engaged in aligning the downcomers; however, these employees were not directly under the higher scaffolds.

5.   That one employee was on the ground engaged in raising supply tubes and it was also his duty to see that persons were kept out of the barricaded area under the scaffolds, and further than this employee was not directly under the scaffold but 20 to 30 feet or more off to the side.

6.   That the record herein does not establish by preponderance of the reliable and probative evidence that respondent violated the provisions of 29 CFR 1926.451(a)(6) since respondent was not required to provide a screen, or its equivalent, because no persons were required to work or pass underneat' the platform or scaffold while work was being performed thereon.

7.   That complainant has withdrawn nonserious citation 1 alleging a violation of section 29 CFR 1904.6 and the same will be vacated.

8.   That a settlement agreement was executed by the parties and made a part of the record in connection with the alleged serious citations 2 and 3; that said agreement is in accordance with the requirements of the Act and [*15]   this Commission; and that the same should be approved.

ORDER

Based upon the foregoing findings and conclusions, it is ORDERED that:

1.   The aforementioned settlement agreement be and the same is hereby approved, and respondent's motion to withdraw its notice of contest with reference to citations 2 and 3 is granted.

2.   Item 1 of citation 2 and items 1(a), 1(b), and 1(c) of citation 3 are hereby affirmed and a total penalty of $1,000.00 is assessed therefor.

3.   Complainant's motion to withdraw item 1 of citation 1 is hereby granted, and said citation is vacated along with the proposed penalty.

4.   Item 1 of citation 4, alleging a repeated violation, be and the same is hereby vacated together with the proposed penalty therefor.

5.   This proceeding be and the same is hereby terminated.

HENRY F. MARTIN JR., JUDGE

Dated: March 15, 1976