BECHTEL POWER CORPORATION
OSHRC Docket No. 13832
Occupational Safety and Health Review Commission
May 15, 1979
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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
John M. Orban, Assoc. Regional Solicitor
Jeffrey F. Lee, Bechtel Power Corporation, for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Chairman:
A March 8, 1976, decision of Administrative Law Judge Erwin L. Stuller is before this Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970. n1 The question before us is whether the judge erred in his disposition of nine alleged violations. We affirm the judge's decision as to eight of the alleged violations, but reverse his decision that respondent failed to comply with the standard at 29 CFR § 1926.150(a)(4).
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n1 29 U.S.C. § 651 et seq., hereinafter "the Act."
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Respondent, a general contractor, was engaged in the construction of a large power generating station at Page, Arizona, at the time of the inspection. Approximately one thousand of respondent's employees were working at the site.
Respondent was inspected by representatives [*2] of the Secretary of Labor on May 13 and 14, 1975, and thereafter charged with twenty-four nonserious violations of the Act. The Secretary was granted leave to withdraw two allegations entirely and portions of two other alleged violations, and to amend the aggregate proposed penalty from $210 to $190 to reflect these withdrawals. In its answer, respondent admitted noncompliance with nine standards in their entirety. Additionally, at the hearing respondent was granted leave to withdraw its notice of contest with respect to three other allegations in their entirety and a portion of one other alleged violation. Of the ten alleged violations remaining in issue, the judge affirmed nine and vacated one.
Respondent petitioned for review of the nine items affirmed by the judge, and has filed a brief on review directed at those alleged violations. The Secretary has not taken exception to the judge's decision. Former Commissioner Moran directed that the judge's decision be reviewed, but did not state specific issues for adjudication. Inasmuch as neither party has taken exception to the judge's vacating of one item and there is no compelling public interest warranting Commission review [*3] of the judge's action, this item is not before us for review. See Champion Construction & Engineering Co., Inc., 78 OSAHRC , 6 BNA OSHC 2116, 1978 CCH OSHD P23,186 (No. 76-2576, 1978); Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976). Only the judge's disposition with respect to the nine violations to which respondent has taken exception are before us.
Item 2 - Alleged Violation of 29 CFR § 1926.25(a) n2
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n2 The standard provides:
During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures.
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The Secretary contends that respondent failed to maintain work areas, stairs, and passageways free of scrap and other debris as required by the cited standard. The compliance officer testified that several locations at the worksite were cluttered by scattered hoses, chains, cables, [*4] pipes, odd pieces of equipment, combustible materials (such as lumber, rags, and cardboard boxes), and various other excess materials. He indicated that the scattered materials created a tripping hazard as well as a potential fire hazard. Respondent did not present rebuttal evidence. Rather, it makes several arguments to the effect that the Secretary failed to satisy his burden of proof. Respondent argues that the scattered materials do not constitute "debris" within the meaning of the cited standard. It also argues that the judge's decision is in error because "unsupported inferences from the testimony of the compliance officer do not fulfill the complainant's obligation to establish the existence of the alleged violations," and that the compliance officer's use of the descriptive term "general housekeeping" during cross-examination is unduly vague. Respondent contends further that the term "combustibles" lacks significance unless the combustible materials also constitute obstructions. Respondent also attacks the accuracy of the complaint and the compliance officer's testimony in that the complaint describes a cited location at an elevation where no worksite existed and the [*5] compliance officer confused several of the cited locations during his testimony. Last, respondent argues that several of the cited areas were used mainly for storage, and are, therefore, not within the scope of 29 CFR § 1926.25(a).
The judge specifically rejected all of respondent's arguments and affirmed the item as alleged. With respect to respondent's arguments attacking the credibility of the compliance officer, it is sufficient to point out that the judge made a specific credibility finding favoring the testimony of the compliance officer over that of respondent's safety officer. We generally defer to a judge's credibility findings. C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977-78 CCH OSHD P22,481 (No. 14249, 1978). We have no reason to reject this finding. As to respondent's remaining contentions, we agree with the conclusions reached by the judge for the reasons that he assigns.
Item 11 - Alleged Violation of 29 CFR § 1926.150(a)(4) n3
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n3 The standard provides:
All firefighting equipment shall be periodically inspected and maintained in operating condition. Defective equipment shall be immediately replaced.
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This item alleges that respondent failed to maintain a fire extinguisher properly. The lead seal on the extinguisher was broken. The seal surrounded a pull pin that enabled activation of the extinguisher when pulled. The compliance officer testified that a broken seal could indicate prior use of the extinguisher, but conceded that he had not checked to discover whether the extinguisher was adequately charged for subsequent use. Respondent's safety officer testified that a broken seal does not of itself indicate that the extinguisher had been used and that the dial on the extinguisher registered a sufficient charge. Respondent also introduced documentation of its weekly fire inspection program, which included a weekly inspection of all fire extinguishers.
Judge Stuller affirmed the item, reasoning that proper maintenance within the meaning of the cited standard requires replacement of a broken seal as well as testing of an extinguisher's charge level. We disagree. Without more, a broken seal on an extinguisher of this design does not indicate that the extinguisher is defective. Furthermore, respondent [*7] presented unrebutted evidence that it conducted the periodic inspections required by the standard and that the extinguisher was adequately charged. Accordingly, respondent was in compliance with the standard.
Item 13 - Alleged Violation of 29 CFR § 1926.102(a) n4
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n4 The standard provides in pertinent part:
EYE AND FACE PROTECTION
(a) General. (1) Employees shall be provided with eye and face protection equipment when machines or operations present potential eye or face injury from physical, chemical, or radiation agents.
(2) Eye and face protection equipment required by this Part shall meet the requirements specified in American National Standards Institute, Z87.1-1968, Practce for Occupational and Educational Eye and Face Protection.
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(4) Face and eye protection equipment shall be kept clean and in good repair. The use of this type equipment with structural or optical defects shall be prohibited.
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The compliance officer observed a welding hood with a defective face-shield lens in an area where [*8] welding had been done. He did not see the hood being used. The applicable standard requires that employees be provided with eye and face protection that is in good repair and that mployees be prohibited from using defective equipment. Respondent contends that the Secretary has not sustained his burden of proof because of the absence of direct evidence that the defective hood was used. We reject this contention. The Secretary need not prove that defective equipment was used. Evidence that defective equipment was available for use is sufficient. Havens Steel Co., 78 OSAHRC 33/E6, 6 BNA OSHC 1564, 1978 CCH OSHD P22,689 (No. 13463, 1978), appeal docketed, No. 78-1511 (D.C. Cir., June 8, 1978). There is no evidence that employees id not use the hood or that any steps were taken to prohibit the use of the defective hood. The item is affirmed.
Item 14 - Alleged Violation of 29 CFR § 1926.152(a)(1) n5
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n5 The standard provides in pertinent part:
Only approved containers and portable tanks shall be used for storage and handling of flammable and combustible liquids. Approved metal safety cans shall be used for the handling and use of flammable liquids in quantities greater than one gallon, except that this shall not apply to those flammable liquid materials which are highly viscid (extremely hard to pour), which may be used and handled in original shipping containers. For quantities of one gallon or less, only the original container or approved metal safety cans shall be used for storage, use, and handling of flammable liquids.
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This item involves respondent's alleged failure to ensure that an approved, flame-retardant container was used to store flammable paint thinner. The container held paint thinner. n6 It is undisputed that paint thinner is a flammable liquid and that the container was not approved as the standard requires. Respondent argues that it cannot be held to have violated the standard, however, because the Secretary failed to establish (1) that the unapproved can was owned by respondent and (2) that respondent's employees were exposed to the alleged hazard. Judge Stuller affirmed the violation, holding that respondent is obligated to protect its employees from the potential hazard in its workplace even if it did not own the unapproved container. The judge found that respondent's employees had been exposed because respondent's safety officer was in the area of the hazard while accompanying the compliance officer during the inspection.
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n6 Respondent contends that the evidence is insufficient to support a finding that the container stored paint thinner. The label on the container identified the contents as paint thinner. This evidence is sufficient in the absence of contrary evidence. Alpha Poster Service, Inc., 76 OSAHRC 141/B8, 4 BNA OSHC 1883, 1976-77 CCH OSHD P21,354 (No. 7869, 1976). There is no contrary evidence here. Indeed, the compliance officer testified that he smelled and tasted the contents of the container and recognized it as paint thinner.
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We find no merit in respondent's arguments. First, lack of ownership of equipment that does not comply with a standard is not a defense. Chicago & North Western Transportation Co., 77 OSAHRC 30/E4, 5 BNA OSHC 1121, 1977-78 CCH OSHD P21,608 (No. 13071, 1977). Second, a violation is established by showing employee access to noncomplying conditions and evidence of actual exposure is not required. Otis Elevator Company, OSAHRC , 6 BNA OSHC 2048, 1978 CCH OSHD P23,135 (No. 16057, 1978). We find that employees had access to the container. It was observed on level forty of the construction site, which contained a storage area, a pipe fitting area, and an elevator. There is no evidence that the level was barricaded or placed off-limits to employees and it is reasonable to anticipate that one or more of respondent's approximately 1000 on-site employees would enter the storage and pipe fitting areas in the regular course of work, particularly because the elevator made level forty easily accessible. This item is therefore affirmed. n7
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n7 We reject the judge's reliance on the "exposure" of respondent's safety officer. Employers were granted the right to be represented during an inspection ". . . for the purpose of aiding such inspection." Section 8(e) of the Act. Representatives can provide enlightening information and resolve factual questions during an inspection, thus avoiding the trouble and expense of litigation. Chicago Bridge & Iron Company v. OSAHRC and Dunlop, 535 F.2d 371, 376, n.12 (7th Cir. 1976). Employers faced with the possibility of being cited solely because of the "exposure" of walkaround representatives during an inspection may well forego representation. This disincentive would interfere with the free exercise of the right to representation. In addition, the failure to exercise this right would eliminate the benefits the right was designed to produce. We therefore conclude that a violation of the Act may not be based upon the "exposure" of an employer's walkaround representative during an inspection.
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Item 15 - Alleged Violation of 29 CFR § 1926.28(a) n8
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n8 The standard provides:
The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.
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This item involves an alleged failure to require the use of appropriate eye and face protection. An employee welding and chipping slag was not wearing safety goggles and was not using the face shield attached to his welding hood. All welding hoods were equipped with a face shield consisting of an outside lens to protect against flash burns and an inside lens made of safety glass to protect the eyes against foreign particles. There was testimony that safety goggles were provided by respondent, but the compliance officer did not see any near the welder. Respondent argues that it complied with the cited standard by providing appropriate protective equipment and by enforcing use of the equipment through a safety program. Respondent contends [*13] that it should not be held responsible for its employee's idiosyncratic failure to take advantage of the equipment because all reasonable precautions were taken to prevent employees from being exposed to the hazard.
Judge Stuller rejected these contentions, concluding that the evidence did not demonstrate that respondent's safety program was effectively implemented. We agree. Respondent provides each employee with a booklet of work practices, one of which states: "You must wear proper eye protection when exposed to flying objects, dust, chemicals, or harmful rays." The booklet also specifies the types of eye protective equipment to be used under various circumstances. This is insufficient. "The Commission has consistently held that the mere issuance of safety instructions does not satisfy the employer's duty under section 5(a)(2) of the Act." A.J. McNulty & Company, Inc., 76 OSAHRC 46/D2, 4 BNA OSHC 1097, 1975-76 CCH OAHD P20,600 (No. 2295, 1976). Safety instructions must be effectively communicated to employees. Candler-Rusche, Inc., 76 OSAHRC 56/A2, 4 BNA OSHC 1232, 1976-77 CCH OSHD P20,723 (No. 4675, 1976), aff'd without opinion, 559 F.2d 187 (D.C. Cir. 1976). [*14] Respondent's safety director testified that employees "supposedly" understood the contents of the booklet. We cannot, however, rely on supposition. He also testified that weekly safety meetings were held, but failed to state whether attendance was mandatory or universal, or what was discussed at these meetings. We do not find from this evidence that respondent effectively communicated its work rules to employees. The item is affirmed.
Item 17 - Alleged Violation of 29 CFR § 1926.103(b)(1) n9
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n9 The standard deals with respirator protection. It provides:
The chemical and physical properties of the contaminant, as well as the toxicity and concentration of the hazardous material, shall be considered in selecting the proper respirators.
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This item deals with respondent's alleged failure to ensure that its employee was protected by a suitable respirator while using flammable paint thinner. The employee in question was wearing a paper filter mask but respondent's safety officer conceded that the mask was inadequate [*15] under the circumstances. Respondent again contends that it did not violate the cited standard because various suitable respirators were available and their use was enforced through a safety program.
The judge again rejected these arguments, noting the absence of evidence that a proper respirator was available or that any affirmative action was taken by respondent to require the use of appropriate respirators on the job. We agree with the judge. An employer may not shift its ultimate responsibility of compliance by relying on employees to select the proper protective equipment from that which is available. See F.H. Sparks of Maryland, Inc., 73 OSAHRC 13/C13, 6 BNA OSHC 1356, 1978 CCH OSHD P22,543 (Nos. 15472 & 15760, 1978). The item is affirmed.
Item 20 - Alleged Violation of 29 CFR § 1926.303(c)(4) n10
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n10 The standard provides in pertinent part:
Portable abrasive wheels used for internal grinding shall be provided with safety flanges (protection flanges) meeting the requirements of subparagraph (6) of this paragraph. . . .
Subparagraph (6) provides:
When safety flanges are required, they shall be used only with wheels designed to fit the flanges. Only safety flanges, of a type and design and properly assembled so as to ensure that the pieces of the wheel will be retained in case of accidental breakage, shall be used.
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This item involves an allegedly unguarded portable grinding machine. The machine was not in use at the time of the inspection. The compliance officer was told a guard existed, but he did not see it during the inspection. Respondent's witness testified that the unguarded grinder was in the bottom portion of a bin located in a machine shop, and that the guard was in the top portion of the same bin. Respondent argues that the grinder was provided with protection within the meaning of the cited standard because of the "close proximity" of the guard to the grinder.
Judge Stuller rejected this argument, finding that the credible evidence did not establish the close proximity of guarding. As noted above, we generally defer to a judge's credibility findings. C. Kaufman, Inc., supra. There is no reason to reject this finding. Moreover, the judge theorized that the standard would have been violated even if the evidence had established that guarding was in the immediate vicinity because the machine was not tagged to alert potential users of the absence of guarding. Although not in use during the [*17] inspection, the machine was located in a machine shop and available for use by respondent's employees. The area was not a tool room where tools were stored under a "check-out" system. The judge therefore rejected respondent's argument that the evidence established that the machine was in storage and not available for use. We agree with the trial judge's conclusions. As we have held in analogous cases, proof of actual use is unnecessary where, as here, it is established that a tool in a violative condition is available for use by employees. Palmer Christiansen Co., 76 OSAHRC 39/D10, 4 BNA OSHC 1020, 1975-76 CCH OSHD P20,517 (No. 3108, 1976).
Item 23 - Alleged Violation of 29 CFR § 1926.150(a)(2) n11
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n11 The standard provides:
Access to all available firefighting equipment shall be maintained at all times.
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This item charges respondent with a failure to maintain access to a fire extinguisher. The extinguisher was obstructed by two panels taken off an electrical box. Pipes and a piece of plywood or plasterboard [*18] were leaning against the extinguisher. Two workmen were in the vicinity of the extinguisher. Respondent concedes that the fire extinguisher was obstructed, but contends that it should not be held responsible for the isolated act of the two electricians who had placed the panels against the extinguisher.
We would accept respondent's contention if we were persuaded that the conduct of the electricians could properly be considered an isolated act, but we are not so persuaded. Employers seeking to absolve themselves of responsibility for allegedly isolated acts of employees must show that the employees acted without the employer's knowledge and in violation of an effectively communicated, uniformly enforced workrule. B-G Maintenance Management, Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD P20,744 (No. 4713, 1976). There is no evidence that respondent had a workrule prohibiting employees from obstructing fire extinguishers or that such a rule was communicated to any employee. Judge Stuller properly held respondent responsible for obstructing access to a fire extinguisher.
Item 24 - Alleged Violation of 29 CFR § 1926.500(b)(8) n12
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n12 The standard provides:
Floor holes, into which persons can accidentally walk, shall be guarded by either a standard railing with standard toeboard on all exposed sides, or a floor hole cover of standard strength and construction that is secured against accidental displacement. While the cover is not in place, the floor hole shall be protected by a standard railing.
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This item alleges respondent's failure to guard thirty-two circular floor holes in an open passageway at the site. The holes, which were the uppermost extension of piping in a duct system that ran beneath the floor level, were seven to eight inches in diameter. A metal lip two to three inches in height surrounded each hole. Respondent argues that uncovered floor holes of this dimension do not violate the standard because they are not sufficiently large for persons to "accidentally walk into" within the meaning of the standard. The judge rejected this argument. He noted that it was doubtful that an employee's foot could go all the way into one of the duct pipes, and that [*20] it was impossible for an employee's body to fall into one of the pipes, but concluded that respondent had not complied with the standard because an employee could trip or twist a foot by stepping into the holes. We agree.
Section 1926.502(a) defines "floor hole" as "an opening measuring less than 12 inches but more than 1 inch in its least dimension in any floor, roof, or platform through which materials but not persons may fall, such as a belt hold, pipe opening, or slot opening (emphasis added)." In contrast, § 1926.502(b) defines "floor opening" as an opening measuring 12 inches or more in its least dimension in any floor, roof, or platform through which persons may fall (emphasis added)." Only the latter definition concerns floor openings through which persons could fall. In Buhls Laundry and Dry Cleaning, Inc., 73 OSAHRC 18/A3, 1 BNA OSHC 1215, 1971-73 CCH OSHD P15,693 (No. 583, 1973), the Commission interpreted a standard (29 CFR § 1910.23(a)(8)) worded identically to the standard relevant here to cover only holes through which persons could fall. To the contrary, we find that there is no inconsistency in § 1926.500(b)(8) [*21] that requires guarding of floor holes into which persons may accidentally walk. Even though a hole is less than 12 inches in diameter, one can walk into it and trip without falling through. Buhls is therefore overruled. n13 Inasmuch as the standard with which respondent was cited uses the term "floor hole" rather than "floor opening," we must construe the cited standard as directed toward holes smaller than those through which a person could fall.
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n13 To the extent W.C. Sivers Co., 74 OSAHRC 30/B5, 1 BNA OSHC 1074, 1973-74 CCH OSHD P17,792 (No. 239, 1972), is inconsistent, it is also overruled.
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Accordingly, the judge's decision is affirmed except for Item 11, which alleged a violation of the standard at 29 CFR § 1926.150(a)(4). The judge gave proper consideration to the factors enumerated in section 17(j) of the Act for determination of an appropriate penalty. We reduce the penalty assessed by the judge by $10, however, to reflect our vacation of Item 11. An aggregate penalty of $90 is assessed.
CONCURBY: BARNAKO
CONCUR:
[*22]
BARNAKO, Commissioner, Concurring:
I agree with the majority's disposition of all items of the citation, and would note in addition my adherence to the rationale I set forth in S & H Riggers, Inc., Docket No. 15855 (April 13, 1979) (concurring opinion) in determining whether item 15 of the citation should be affirmed.
Item 15 of the citation alleged a violation of 29 C.F.R. § 1926.28(a). In S & H Riggers, Inc., I stated that the Secretary not only must establish that Respondent's employees were exposed to a hazardous condition within the meaning of the cited standard, n1 but also must establish a feasible means of abatement. Furthermore, there must be another standard in Part 1926 to be used as a reference in determining the conditions under which § 1926.28(a) requires the use of the particular equipment suggested by the Secretary as the method of abatement.
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n1 29 CFR 1926.28(a) mandates compliance where "there is an exposure to hazardous conditions."
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Respondent does not dispute that its employees were [*23] exposed to a hazard, and indeed defended against the charge on the basis that it had instituted and effectively implemented a safety program requiring protection for its welders. Moreover, by providing its employees with the very goggles and hoods whose use is at issue in this case, Respondent implicitly conceded the feasibility of this protection. Indeed, it appears beyond dispute that goggles and hoods would provide protection to employees who are welding and chipping slag. Finally, 29 C.F.R. § 1926.102(a) put Respondent on notice that safety goggles and welding hoods with face shields are appropriate for welding. n2 Accordingly, I would find that the Secretary carried his burden regarding all elements of proof required by my interpretion of § 1926.28(a). Since I agree with the majority that Respondent did not establish any defense, I would affirm item 15 of the citation.
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n2 Among the examples of equipment specifically deemed acceptable under 29 C.F.R. § 1926.102(a) for welding are safety goggles and welding hoods with face shields. See Table E-1 incorporated at 29 C.F.R. § 1926.102(a)(5).
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