McHUGH & McHUGH

OSHRC Docket No. 13010

Occupational Safety and Health Review Commission

March 18, 1977

[*1]

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Robert Friel, Assoc Regional Solicitor

David C. McHugh, for the employer

OPINION:

DECISION

BY THE COMMISSION: A December 8, 1975, decision of Review Commission Judge Jerry W. Mitchell is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision, which is attached hereto as Appendix A, n1 disposed of three citations which alleged that respondent had violated 29 U.S.C. 654(a)(2) by failing to comply with seven occupational safety and health standards. On review, the parties question the correctness of the Judge's disposition of four of the seven charges. n2 For reasons that follow, the Judge's decision is affirmed.

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n1 Chairman Barnako does not agree to this attachment.

n2 Commissioner Moran would find that the Judge erred in assessing a penalty of $50 for Item 1, Citation Number 1. Secretary v. Worcester Pressed Steel Co., 20 OSAHRC 737 (1975) (concurring and dissenting opinion). Chairman Barnako and Commissioner Cleary decline to consider this issue because neither party has sought modification or reversal of the Judge's decision on this issue. See 41 Fed. Reg. 53015 (1976).

[*2]

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Respondent was inspected by complainant while engaged in constructing a railroad bridge over the Williamette River. At the time of the inspection, two of respondent's floating barges were moored to bridge footings in the center of the river. Respondent's employees traveled from the barges to the shore by means of a skiff. A crane, described as Lorain Crane #9115 and mounted on one of the barges, was used by respondent to hoist steel girders to the bridge area from the other supply barge.

Item 2, Citation Number 1

This item alleges a nonserious violation in that respondent failed to construct a walkway between two barges that were about two feet apart in contravention of the occupational safety standard codified at 29 C.F.R. 1926.605(b)(2). That standard provides that:

"Unless employees can step safely to or from the . . . barge . . . either a ramp . . . or a safe walkway, shall be provided."

The Judge vacated this item because he found that respondent's employees could walk safely between the barges which were "secured to each other."

Chairman Barnako and Commissioner Moran agree with [*3] the Judge's conclusion and his reasons therefor. Assuming arguendo that respondent has the burden of establishing safe passage by its employees between the barges, they are satisfied that respondent's burden was satisfied. Furthermore, they find that the danger of tripping on various materials located near the perimeters of the barges was insignificant and that no significant danger resulted from the fluctuation of height between the two barges which lasted for only a few seconds at a time.

Commissioner Cleary would reverse the Judge and affirm this item. In his opinion, a ramp or walkway is required to eliminate falls that are likely to result from tripping hazards (lines, steel beams, etc.) along the edges of the barges, the fluctuation of height between the barges, and the lack of a slip-resistant surface on one of the barges. He would also note that under the "unless" clause of the standard, the employer rather than complainant has the burden of proving that an employee can "step safely" when there is no ramp.

Item 4, Citation Number 1

The gravamen of this alleged nonserious violation is respondent's failure to have first aid supplies on its barges contrary to the [*4] requirements of 29 C.F.R. 1926.50(d)(1), which provides that:

"First aid supplies approved by the consulting physician shall be easily accessible when required."

The Judge affirmed this charge.

Chairman Barnako and Commissioner Cleary agree with the Judge's conclusion that first aid supplies stored in a locked trailer-office on land, approximately 400 to 500 feet from respondent's barges moored in the middle of the river, were not "easily accessible" to employees working on the barges. The purpose of the easy accessibility requirement is to insure that an employee sustaining injuries will receive immediate first aid treatment when needed. Accessibility in this case depended upon obtaining the key to the locked trailer-office and securing the skiff for transportation to the shore. If either the key or respondent's skiff could not be readily located, first aid treatment would be unduly delayed. Under these circumstances, it is clear that first aid supplies were not easily accessible.

In its petition for review, respondent contends that an alternate method for obtaining first aid supplies was for the employees on the bridge to retrieve them from the trailer-office and that [*5] other first aid kits were available in respondent's vehicles and at the general contractor's office. These contentions, however, are not supported by any evidence of record and, as to the latter contention, respondent's foreman admitted to the complainant's inspector that the only available first aid kit was in respondent's trailer-office.

Commissioner Moran would vacate this charge on the ground that the first aid supplies were "easily accessible." In his opinion, the worksite included not only the barges but the trailers and other facilities on land. He construes the evidence as showing that a one-way trip in the skiff to shore would take less than three minutes and that the first aid supplies could be obtained from the trailer-office in about three minutes. He observes that the standard does not require "instant access." If that was the intent of the drafters of the standard, they should have so stated. Diamond Roofing Co. v. OSAHRC, 528 F.2d 645, 648 (5th Cir. 1976). Commissioner Moran believes that the majority's unreasonable construction of the standard could lead to ridiculous results, as for example, a requirement on a 50-story high-rise project for location of first [*6] aid supplies on every floor. In his opinion, the majority errs in not applying a "reasonable man" test in interpreting this standard. See Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974).

Citation Number 2

This citation alleges a serious violation in that respondent failed to barricade the accessible areas within the swing radius of the rear of the rotating superstructure of the Lorain crane in contravention of 29 C.F.R. 1926.550(a)(9) while working on the barge. The Commission agrees with the Judge's affirmance of this citation for the reasons expressed in his decision.

Respondent states in its petition for review "that if it were possible for the counterweight to strike an employee that it is extremely doubtful that a serious injury would result." The Commission disagrees. As the Judge correctly observes in his decision, "if an employee should be caught between the rotating crane body and one of the cross frames or outriggers, he would be crushed." This is sufficient to establish a serious violation. Secretary v. Standard Glass & Supply Co., 2 OSAHRC 1488 (1973).

Citation Number 3

This citation also alleges a serious violation. [*7] It avers that respondent failed to comply with 29 C.F.R. 1910.180(h)(4)(ii) in that one of its employees "was standing under a steel beam weighing 5 ton[s] that was attached to a truck crane on a barge." That standard provides that:

"No person should be permitted to stand or pass under a load on a hook." (Emphasis added.)

The Judge vacated the citation on the basis that the standard is advisory rather than mandatory. Chairman Barnako and Commissioner Moran agree with the Judge's conclusion. See Secretary v. Kennecott Copper Corp., OSAHRC Docket No. 5958, July 8, 1976; Secretary v. Pan American World Airways, OSAHRC Docket No. 5056, May 5, 1976; Secretary v. Kingery Construction Co., 16 OSAHRC 835, 837 (1975) (concurring opinion); Secretary v. H.K. Ferguson Co., 12 OSAHRC 343, 351-352 (1974); Secretary v. Oberhelman-Ritter Foundry, Inc., 3 OSAHRC 1212 (1973).

Complainant contends in its review brief that 1910.180(h)(4)(ii) is a mandatory standard because the Secretary of Labor stated the following when he promulgated Part 1910:

"The new Part 1910 contains occupational safety and health standards which are either national consensus standards or [*8] established Federal standards.

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. . . . I do hereby designate as national consensus standards those standards in Part 1910 which are standards adopted and promulgated by either the American National Standards Institute or the National Fire Protection Association. The national consensus standards contain only mandatory provisions of the standards promulgated by those two organizations. The standards of ANSI and NPPA may also contain advisory provisions and recommendations the adoption of which by employers is encouraged, but they are not adopted in Part 1910."

36 Fed. Reg. 10466 (1971) (emphasis added by complainant). Chairman Barnako and Commissioner Moran disagree with complainant's contention. The source of 1910.180(h)(4)(ii) is paragraph 5-3.2.4(b), American National Standards Institute (ANSI) standard B30.5-1968. 29 C.F.R. 1910.189. The wording of 1910.180(h)(4)(ii) and its source standard are identical. Section V of the introduction to ANSI standard B-30.5-1968 provides that:

"Mandatory rules of this Code are characterized by the use of the word 'shall.' If a rule is of an advisory nature it is indicated by the use of the word 'should' or is stated as [*9] a recommendation."

Thus, the source standard was not a mandatory ANSI standard. Furthermore, complainant's contention that the Secretary made the standard mandatory by promulgating Part 1910 lacks merit. Secretary v. Kennecott Copper Corp., supra.

Commissioner Cleary would reverse the Judge's decision and affirm the citation. He concludes from an examination of the Act and its legislative history that they support complainant's position that all national consensus standards adopted in 29 C.F.R. Part 1910 require mandatory compliance by employers subject to the Act. See his dissenting opinion in Secretary v. Kennecott Copper Corp., supra.

Accordingly, the Judge's decision is affirmed.