O.K. CONSTRUCTION COMPANY, INC.

OSHRC Docket No. 13724

Occupational Safety and Health Review Commission

April 19, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Regional Solicitor, USDOL

George S. Faulkes, President, O.K. Construction Co., Inc., 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, 1976); 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 [*2] significance of an unreviewed Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision the affirmed.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

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

I would affirm items 2, 3, 4, and 8 of the nonserious citation for the reasons stated in Judge Chodes' decision, which is attached hereto as Appendix A. The citation for a repeated violation and item 5 of the nonserious citation should be vacated, however, because the evidence fails to establish that the respondent possessed the requisite knowledge of the alleged violative conditions. See Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Co., 511 F.2d 1139 (9th Cir. 1975).

Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges.

APPENDIX A

DECISION AND ORDER

Howard K. Agran, For Complainant

George S. Faulkes, pro se, For [*3] Respondent

Chodes, Judge:

STATEMENT OF THE CASE

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 659) in which the respondent is contesting citations issued by the complainant under the authority vested in complainant by section 9(a) of the Act (29 U.S.C. 658(a)). The citations and the complaint subsequently filed alleged that following an inspection on May 29, 1975, of a place of employment located at Fairlawn Avenue Lift Station, Dunbar, West Virginia, the respondent allegedly violated the Act by failing to comply with certain occupational safety and health standards and regulations promulgated by the Secretary of Labor pursuant to section 6 and 8(c) thereof (29 U.S.C. 655 and 657(c)) and codified in 29 C.F.R., Chapter XVII, Parts 1926 and 1904.

Specifically, respondent was cited for the repeat violation of the standard set forth at 29 C.F.R. 1926.550(a)(14)(i), for which a penalty of $200 was proposed. Respondent was also cited for 9 items of nonserious violations as follows:

Item

Standard

Penalty

1

29 C.F.R. 1926.301(d)

$ 0

2

29 C.F.R. 1926.550(a)(2)

40

3

29 C.F.R. 1926.550(a)(9)

65

4

29 C.F.R. 1926.550(a)(6)

40

5

29 C.F.R. 1926.650(e)

45

6

29 C.F.R. 1926.550(b)(2)

0

7

29 C.F.R. 1926.50(f)

0

8

29 C.F.R. 1904.2

45

9

29 C.F.R. 1904.5

0

Total

$235

[*4]

On June 13, 1975, respondent mailed a notice to the complainant contesting the citations and proposed penalties, thereby conferring jurisdiction on the Occupational Safety and Health Review Commission. The case came on for hearing in Charleston, West Virginia on November 17, 1975.

At the hearing respondent stated that it was not contesting items 1, 6, 7 and 9 of the nonserious citation. Accordingly, violation of these items, for which no penalties were proposed, are deemed admitted.

The allegation in the complaint that respondent is engaged in excavation work and uses machinery and equipment received from points outside the State of West Virginia was not denied by the respondent in its answer and is therefore deemed admitted pursuant to Rule 33(b)(2) of the Commission's Rules of Procedure.

SUMMARY AND EVALUATION OF EVIDENCE

The worksite involved herein was inspected on May 29, 1975 by two of the complainant's compliance officers, Perry D. Jones and Stanley H. Elliott. The worksite consisted of an excavation approximately 30 feet by 36 feet. In the center of the excavation there was a braced and shored hole approximately 8 feet, 4 inches by 6 feet in width and length and [*5] 12 feet deep. A crawler crane was adjacent to the excavation. Three employees were in the excavation and one employee was in the crane (T-14, 15).

1. Alleged Repeat Violation of 29 C.F.R. 1926.550(a)(14)(i) n1

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n1 The standard provides:

An accessible fire extinguisher of 5 BC rating, or higher, shall be available at all operator stations or cabs of equipment.

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Mr. Jones noted that there was no fire extinguisher in the cab of the crawler crane or anywhere else at the worksite (T-34, 35). Mr. Faulkes, respondent's president, testified that the fire extinguisher was kept in the open cab of the crane and if left there overnight it would be stolen. As a result, the operator of the crane kept the fire extinguisher in his truck, but on the day of inspection the operator did not drive his truck to work (T-82, 83). Be that as it may, a violation of the standard is established.

In determining the amount of the proposed penalty, n2 the complainant first considers the gravity of the violation. This encompasses the [*6] likelihood of an injury occurring, the severity of any resulting injury and the extent to which the standard is violated. The amount of the (unadjusted) penalty is arrived at by utilizing a gravity work sheet (Exhibit C-9). Once the amount of the unadjusted penalty is determined, the mitigating factors of good faith, history of previous violations and size of the business are taken into account. Respondent was allowed a reduction of 10 percent for good faith, 5 percent for size and 10 percent for history, a total of 25 percent. A 50 percent reduction for the expected abatement of the violations is them applied to arrive at the proposed penalties (T-54-61, Exhibits C-9 and 10).

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n2 Section 17(j) of the Act (29 U.S.C. 666(i)) provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

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In the instant case the violation of 29 C.F.R. 1926.550(a)(14)(i) was considered a "repeat" violation because respondent had previously, on April 24, 1973, been cited for violation on the identical standard. This citation was not contested and became a final order of the Commission (T-53, 54). The proposed unadjusted penalty for the earlier citation was $100, which after taking in account the factors of good faith, previous history, size of respondent's business, and expected abatement of the violation, was reduced to an adjusted penalty of $30. Since the citation involved in the instant case was a repeated violation, the adjustment factors were not considered and the initial unadjusted penalty of $100 was doubled, resulting in a proposed penalty of $200 (T-54-56, Exhibit C-8).

The penalty of $200 proposed in the instant case is considered excessive in that the evidence shows that respondent did intend that a fire extinguisher would be available at the jobsite. That it was not available on the day of inspection was due to the crane operator's failure to bring his truck (in which the fire extinguisher was kept) to the jobsite [*8] as the usually did. Under the criteria set forth in section 17(j) of the Act, a penalty of $100 is considered appropriate.

2. Alleged Violation of 29 C.F.R. 1926.550(a)(2) n3

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n3 This section, referring to cranes (and other types of equipment) provides:

Rated load capacities, and recommended operating speeds, special hazard warnings, or instruction, shall be conspicuously posted on all equipment. Instructions or warnings shall be visible to the operator while he is at his control station.

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Mr. Jones inspected the crawler crane and found that there was no plaque, decal or sign showing the rated load capacity, recommended operating speeds, or special hazard warnings (T-18). Failure to post the instructions and warnings on the equipment was not denied by respondent's president, George S. Faulkes (T-79, 80).

The hazard caused by failure to post the information required by the standard includes the possibility that the operator, without realizing it, could overload the crane and injure himself and others. Posting [*9] of special hazard warnings could include instructions to keep the boom of the crane a safe distance from high power lines (T-21, 22). The penalty of $40 proposed by the complainant is considered appropriate under the criteria set forth in section 17(j) of the Act.

3. Alleged Violations of 29 C.F.R. 1926.550(a)(9) n4

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n4 The standard provides: Accessible areas within the swing radius of the rear of the rotating superstructure of the crane, either permanently or temporarily mounted, shall be barricaded in such a manner as to prevent an employee from being struck or crushed by the crane.

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During the inspection the crawler crane, which was located along the highway (Exhibits C-2, 3 and 4), was lifting dirt from the center of the excavation and placing it beside the excavation. This caused the crane to rotate 25 to 30 degrees. The rear of the crane was not barricaded so that employees could get into the rear area of the crane while it was operating (T-25, 26). Mr. Jones testified that the normal path for employees [*10] in the excavation to get to the driveway where some of the employees' vehicles were parked would require the employees to come immediately adjacent to the rear of the crane (T-26, 27 Exhibit C-1A). Mr. Elliott testified that employees must pass the rear of the crane to obtain parts and tools and would come within 4 feet of the swing radius (T-50, 95). Mr. Faulkes testified that the operator of the crane was the only one who could get to the back of the crane (T-80, 81).

The hazard caused by the failure to barricade the accessible area within the swing radius of the rotating crane was that an employee could get caught in between the superstructure of the crane and the crane tracks (T-27).

A violation of the standard is established. Perhaps, as contended by the respondent, employees (other than the operator) were not required to come in proximity to the swing radius of the crane, but employees could walk into the danger zone to get to and from the jobsite or to procure tools. The penalty of $65 proposed by the complainant is considered appropriate.

4. Alleged Violation of 29 C.F.R. 1926.550(a)(6) n5

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n5 The standard provides:

A thorough, annual inspection of the hoisting machinery shall be made by a competent person, or by a government or private agency recognized by the U.S. Department of Labor. The employer shall maintain a record of the dates and results of inspections for each hoisting machine and piece of equipment.

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Discussions by Mr. Jones with Mr. Faulkes and an employee revealed that in the past couple of years respondent did not maintain any records relating to the inspection of the hoisting equipment of the crane. Absence of such records could result in the employer's not knowing the condition of the crane (T-28, 29). Maintenance of the machinery in working order, as testified to by Mr. Faulkes (T-82), is not compliance with the standard. The penalty of $40 proposed by the complainant is considered appropriate.

5. Alleged Violation of 29 C.F.R. 1926.650(e) n6

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n6 The standard provides:

All employees shall be protected with personal protective equipment for the protection of the head, eyes, respiratory organs, hands, feet, and other parts of the body as set forth in Subpart E of this part.

The standard at 29 C.F.R. 1926.100 is included under subpart E referred to above. 1926.100 provides in pertinent part:

(a) Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, shall be protected by protective helmets.

(b) Helmets for the protection of employees against impact and penetration of falling and flying objects shall meet the specifications contained in American National Standards Institute, Z89.1-1969, Safety Requirements for Industrial Head Protection.

[*12]

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An employee of the respondent was working in and about the shored hole in the center of the excavation. The employee was controlling a tag line attached to the clamshell (a shovel used to pick up dirt at the bottom of the excavation) at the bottom of the hole. The clamshell, when loaded, moves to the side above the employee's head to dump the load. The procedure is then reversed (T-30, 31, Exhibits C-1, 5 and 6). The hazard was that the employee could be struck in the head by the clamshell or, if the clamshell dumped its load prematurely, he could be struck by the contents which included some rocks (T-31-33). Respondent maintained that the employees were furnished protective helmets (T-82), but a violation is established on the basis of the evidence which shows the employee did not wear a protective helmet during the inspection.

Since the employee was not wearing a protective helmet where there was a possible danger of head injury from impact or falling objects, a violation has been established. Insofar as the penalty of $45 proposed for this violation is concerned, in view of the evidence which [*13] shows that hard hats were available on the job (T-82) and other employees on the job did wear hard hats (Exhibit C-6), it is considered appropriate to reduce the penalty to $25.

6. Alleged Violation of 29 C.F.R. 1904.2 n7

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n7 This regulation provides, in pertinent part:

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. Each employer shall enter each recordable occupational injury and illness on the log as early as practicable but no later than 6 working days after receiving information that a recordable case has occurred. For this purpose, Occupational Safety and Health Administration OSHA Form No. 100 or any private equivalent may be used. OSHA Form No. 100 or its equivalent shall be completed in the detail provided in the form and the instruction contained in OSHA Form No. 100. If an equivalent to OSHA Form No. 100 is used, such as a printout from data-processing equipment, the information shall be as readable and comprehensible to a person not familiar with the data-processing equipment as the OSHA Form No. 100 itself.

[*14]

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Although respondent did not maintain Form No. 100 or an equivalent form since 1973, it did maintain records relating to injuries since 1971. The purpose of maintaining a log of injuries is to pinpoint problem areas, as for example, the log could reveal a type of injury that occurred frequently so that corrective action could be taken promptly (T-52, 89-91, 93, Exhibits R-2 through 6).

While a technical violation of the regulation is established, in light of the moderate size of the respondent's business, and the fact that the basic records relating to injuries were maintained by respondent, it is deemed appropriate that no penalty be assessed.

CONCLUSIONS OF LAW

1. The respondent at all times material hereto was engaged in business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.

2. The respondent at all times material hereto was subject to the requirements of the Occupational Safety and Health Act and the standards and regulations promulgated thereunder, and the Commission has jurisdiction of the parties and the subject matter herein. [*15]

3. Respondent repeatedly violated the occupational safety and health standard set forth at 29 C.F.R. 1926.550(a)(14)(i) and is assessed a penalty of $100.

4. Respondent admitted the violations of the standards at 29 C.F.R. 1926.301(d), 1926.550(b)(2) and 1926.50(f) and the regulation at 29 C.F.R. 1904.5. No penalties are assessed for these violations.

5. Respondent violated the standard set forth at 29 C.F.R. 1926.550(a)(2) and is assessed a penalty of $40.

6. Respondent violated the standard set forth at 29 C.F.R. 1926.550(a)(9) and is assessed a penalty of $65.

7. Respondent violated the standard set forth at 29 C.F.R. 1926.550(a)(6) and is assessed a penalty of $40.

8. Respondent violated the standard set forth at 29 C.F.R. 1926.650(e) and is assessed a penalty of $25.

9. The respondent violated the regulation set forth at 29 C.F.R. 1904.2 and is assessed a penalty of zero dollars.

ORDER

Upon the basis of the foregoing and upon the entire record it is

ORDERED that the citation issued on May 30, 1975, for repeat violation of the standard set forth at 29 C.F.R. 1926.550(a)(14)(i) is affirmed and a penalty is assessed of $100; and it is further [*16]

ORDERED that the citation for nonserious violations issued on May 30, 1975, is affirmed and the penalties shown above under "Conclusions of Law" are assessed.

JOSEPH CHODES, Judge, OSAHRC

FEB 24 1976

Hyattsville, Maryland