WILLIAMS ENTERPRISES OF GEORGIA, INC.

OSHRC Docket No. 13875

Occupational Safety and Health Review Commission

October 25, 1979

[*1]

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Reg. Sol., USDOL

Ira J. Smotherman, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Review Commission Judge John S. Patton is before the Commission for review pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ["the Act"]. n1 At issue is whether the Judge erred by affirming three citations issued to respondent alleging violations of section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2), for failure to comply with the standards published at 29 C.F.R. 1926.500(c)(1) and (f)(1) n2 and 1926.350(j). n3 For the reasons that follow, we affirm the Judge's disposition.

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The Review Commission's decision in that case is now a final order under the Act.

n2 The standards at 29 C.F.R. 1926.500(c)(1) and (f)(1) provide, in pertinent part, the following:

1926.500 Guardrails, handrails, and covers.

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(c) Guarding of wall openings. (1) Wall openings, from which there is a drop of more than 4 feet, and the bottom of the opening is less than 3 feet above the working surface, shall be guarded as follows:

(i) When the height and placement of the opening in relation to the working surface is such that either a standard rail or intermediate rail will effectively reduce the danger of falling, one or both shall be provided;

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(f) Standard specifications. (1) A standard railing shall consist of top rail, intermediate rail, toeboard, and posts, and shall have a vertical height of approximately 42 inches from upper surface of top rail to floor, platform, runway, or ramp level . . . .

Note that two separate violations of these standards were alleged and affirmed. They are discussed separately in this decision.

n3 The standard at 29 C.F.R. 1926.350(j) provides the following:

1926.350 Gas welding and cutting.

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(j) Additional rules. For additional details not covered in this subpart, applicable technical portions of American National Standards Institute, Z49.1-1967, Safety in Welding and Cutting, shall apply.

The applicable ANSI standard, ANSI Z49.1, Article 3.2.4.3, provides the following:

3.2.4.3. Oxygen cylinders in storage shall be separated from fuel-gas cylinders or combustible materials (especially oil or grease), a minimum distance of 20 feet or by a noncombustible barrier at least 5 feet high having a fire-resistance rating of at least 1/2 hour.

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Respondent was a subcontractor for the construction of a control tower at Atlanta's Hartsfield International Airport. The first citation for failure to comply with the standards at 1926.500(c)(1) and (f)(1) involves wall openings that were found at the landing platforms of stairwells at five levels from 30' to 135' above ground. While Resp dent's employees normally used a "skip pan," a hoisting device lifted by a crane, to reach their work stations at the higher elevations of the building they did, on occasion, use the stairwells to reach the upper levels. Using the stairs required the employees to come within one to two feet of the wall openings, which had toprails but no midrails. Respondent's superintendent, Winfred Aenechbacker, admitted noticing that midrails were missing from time to time. Respondent presented no evidence indicating that its employees discontinued use of the stairwells during the times that the midrails were discovered to be missing, or that it instructed its employees not to use the stairwell. The evidence establishes, therefore, that respondent's employees had access [*3] to the improperly guarded wall openings. Otis Elevator Company, 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 CCH OSHD para. 23,135 (No. 16057, 1978); Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,448 (No. 504, 1976). Respondent's argument that its employees did not have access to the stairwells when the midrails were not in place is therefore rejected.

Respondent also contends on review that Judge Patton erred in not vacating the citation on the basis of the Seventh Circuit's decision in Anning-Johnson Co. & Workinger Electric, Inc. v. O.S.H.R.C., 516 F.2d 1081 (7th Cir. 1975), because it was a subcontractor not responsible for the installation of guardrails. Subsequent to the Seventh Circuit's decision, however, the Commission decided Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1975), and Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (Nos. 3694 & 4409, 1976). In these decisions the Commission held that, where the usual elements of employer liability are established, [*4] a subcontractor on a multi-employer construction site who did not create a violation and lacked the ability to abate it within the literal terms of the standard, may defend affirmatively by showing that it took realistic steps to protect its employees as an alternative to literal compliance with the standard. See also Mayfair Construction Co., 77 OSAHRC 178/A14, 5 BNA OSHC 1877, 1977-78 CCH OSHD para. 22,214 (No. 2171, 1977); Donovan Electric Co., 77 OSAHRC 198/C13, 6 BNA OSHC 1074, 1977-78 CCH OSHD para. 22,339 (No. 13822, 1977).

Here, the installation of guardrails was the responsibility of the general contractor. Mr. Aenechbacker testified that at times he had spoken to the general contractor about the absence of midrails and had been told that they would be installed. As noted above, however, Aenechbacker also testified that the midrails were missing from "time to time," an indication that their absence was a continuing problem not solved by respondent's request that the general contractor abate the condition. In view of the general contractor's failure to install midrails at respondent's request, Williams should have sought other means of [*5] protection for its employees. For example, respondent could have required its employees to use the "skip pan" exclusively for access rather than the stairs. Having failed to seek other means of protection or to show that other means were unavailable, respondent has not established the defense made available by Anning-Johnson and Grossman. McLean-Behm Steel Erectors, Inc., 78 OSAHRC 54/A2, 6 BNA OSHC 1712, 1978 CCH OSHD para. 22,812 (No. 76-2390, 1978).

The second citation for failure to comply with the standards at 1926.500(c)(1) and (f)(1) resulted from the alleged exposure of respondent's employees to a 75-foot fall because of the lack of a midrail in front of a wall opening. The employees were building a control tower that consisted of a central framework of steel beams and channels. At each of the four corners of the structure was a smaller tower consisting of concrete modules approximately 10' square and 7' 6" tall. The cited wall opening was in one of the modules that respondent's employees had recently placed on top of neoprene pads at the 150-foot level of a tower. Respondent's employees were working at that level on a temporary wooden platform [*6] resting on steel beams. At the time of the inspection, there were two iron workers and one stone mason working on the wooden platform. The compliance officer observed one of these employees set a bucket near the wall opening, which was guarded only by a loose cable approximately 36" high.

Respondent contended before the Judge, as it does on review, that it was engaged in steel erection and that the cited construction standards, therefore, are not applicable. It argues that it was engaged in steel erection because its employees were working upon "beams and channels" of the skeleton steel construction and because the concrete modules were elements of a steel structure resting upon the beams and channels.

In his decision, Judge Patton concluded that respondent was not engaged in steel erection at the time of the inspection. He found that the specific steel erection standards would apply only if the employees of respondent were erecting steel structures, and that respondent's employees at the time were erecting concrete structures. The Secretary, in his brief, agrees that respondent's employees were not engaged in steel erection, but he relies on different reasoning than the Judge. [*7] He contends that the applicability of the steel erection standards depends not on the particular type of work being performed, but rather on the stage of construction being undertaken at the time of that alleged violation. In this case, since the building under construction had reached the point of the installation of concrete modules and was well past the steel erection stage, it is argued that the steel erection standards are not applicable.

We conclude that respondent was not engaged in steel erection at the time of the inspection. Mr. Aenechbacker described the work occurring at that time as "placing the modules." These modules were permament structures distinct from the skeletal steel framework. There is no evidence that employees at that time were doing any other work besides work related to the impiacement of the modules. There is also no evidence that any erection of skeletal steel was to occur at the 150-foot level of the control tower after the inspection. Nor is there any indication that the placement of the concrete modules on the steel framework was by nature so related to the process of erection of the skeletal steel framework that such work properly should be [*8] classified as steel erection. Rather, the evidence reveals that placement of the concrete modules was a separate construction activity outside the ambit of the steel erection standards. We thus are unable to accept respondent's expansive definition of "steel erection" by concluding that work involving placement of nonsteel structures on a steel framework is part of the steel erection process. Such a definition is contrary to the plain meaning of the words "steel erection." Additionally, we find that under either the theory applied by Judge Patton or that advocated by the Secretary, the steel erection standards are not applicable under the facts of this case. In light of the determination that respondent was not engaged in steel erection, the remaining issues raised in our briefing order n4 need not be considered.

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n4 The briefing order, issued June 24, 1977, offered complainant the opportunity to file a brief in response to the following issues raised by respondent's brief on review:

(1) Whether respondent's employees were engaged in steel erection;

(2) Whether the structure was a tiered building;

(3) If (1) and (2) are answered in the affirmative, whether the cited standards apply; and

(4) If they don't apply, should the Judge's findings be modified to find respondent in violation of 29 C.F.R. 1926.750(b)(1)(iii).

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Respondent also contends that its employees were not exposed to the cited hazardous condition other than during the process of placing the module when the use of a guardrail was impossible. Here, the modules were hoisted by crane to the 150-foot level. Mr. Aenechbacker testified that guardrails positioned in front of where a module was to be placed had to be removed during placement of the module.

It is true that respondent would not be required to have a guardrail erected at the time that it was performing work that could not be performed with a guardrail in place. However, there is no proof that at the time of the inspection when employee exposure to the unguarded wall opening was observed, the module in front of the wall opening was in the process of being placed. Rather, photographic evidence indicates that the module was already in position when the alleged exposure occurred and that the wall opening could have been guarded at that time.

Further, as Judge Patton noted in his decision, respondent does not maintain that employees were not required to be on the platform after the module at issue [*10] was in place, but states that employees were not required to be in that area of the platform. Indeed, Mr. Aenechbacker described the work being done on the platform as "placing the modules." Since there is no evidence that the module that was the subject of the violation was the only module to be installed on that platform, it can be inferred that the employees observed by the compliance officer remained on the platform after installing the cited module in order to receive additional modules for implacenent. Therefore, respondent was required to place standard guardrails in front of the wall opening after the module was positioned. The employees on the platform were not so far removed from the opening that they could not have tripped and fallen through it. Therefore, the Secretary has established employee exposure to the unguarded wall opening. See Gilles and Cotting, supra. Since respondent has failed to establish that it was impossible at the time of the exposure to perform the required work with guardrails in place, the Judge was correct in affirming the citation.

With respect to the third citation, complainant alleges that an oxygen tank and an acetylene [*11] tank owned by respondent were stored one foot apart contrary to the requirements of ANSI Z49.1-1967, Article 3.2.4.3, incorporated by 29 C.F.R. 1926.350(j). Respondent argues that the violation was, at most, technical because the tanks were empty.

The ANSI standard requires that oxygen and fuel-gas cylinders be stored at least twenty feet apart, or be separated by a noncombustible barrier five feet high. Respondent stipulated that it did not separate oxygen cylinders in storage from fuel-gas cylinders a minimum distance of twenty feet or use a noncombustible barrier. The compliance officer stated that there is always a residual amount of gas left in such tanks. On direct examination, Mr. Aenechbacker testified that the tanks were empty. However, on cross-examination he equivocated with respect to whether some gas might be left in the tanks. Judge Patton affirmed the citation, finding that residual gas was present in the tanks and that the possibility of an explosion therefore existed.

We agree with these factual findings of the Judge. We have previously held with respect to the general industry standard n5 addressing this identical hazard that the standard raises the presumption [*12] that cylinders contain at least enough residual gas to present a hazard. Huber, Hunt & Nichols, Inc., and Blount Brothers Corp., A Joint Venture, 76 OSAHRC 71/A2, 4 BNA OSHC 1406, 1976-77 CCH OSHD para. 20,837 (No. 6007, 1976). The standard cited in this case requires the same presumption. There is no evidence in the record that the cylinders were so empty as to negate the possibility of injury. The presumption, therefore, has not been rebutted. Accordingly, the Judge properly affirmed the citation.

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n5 The standard at 29 C.F.R. 1910.252(a)(2)(iv)(a) provides the following:

1910.252 Welding, cutting, and brazing.

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(2) Cylinders and containers

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(iv) Oxygen storage. (a) Oxygen cylinders shall not be stored near highly combustible material, especially oil and grease; or near reserve stocks of carbide and acetylene or other fuel-gas cylinders, or near any other substance likely to cause or accelerate fire; or in an acetylene generator compartment.

See also the standards at 1910.252(a)(2)(iv)(b) and (c).

[*13]

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Complainant also alleges and Judge Patton found that the violation was repeated under section 17(a) of the Act, 29 U.S.C. 666(a). Respondent stipulated at the hearing that it had received a previous citation for violation of 1926.350(j) and ANSI Z49.1-1967 and that it did not contest the citation. Respondent, however, asserts that the violation was not repeated, relying on the court's holding in Bethlehem Steel v. O.S.H.R.C., 540 F.2d 157 (3rd Cir. 1976), that an employer must previously have violated the same standard at least twice before the violation could be characterized as repeated.

The Commission has respectfully declined to follow that aspect of the 3rd Circuit's decision upon which respondent relies. In Potlatch Corporation, 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD para. 23,294 (No. 16183, 1979), the Commission held that a violation is repeated if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation. The Commission explicity rejected the position advocated by [*14] respondent that a standard must be violated more than twice previously in order to be repeated. The Commission also held in Potlatch that the Secretary may establish a prima facie case of similarity by showing that the past and present violations are for failure to comply with the same standard. Such a prima facie case may be rebutted by a showing by the employer that the violations are dissimilar.

In this case, the Secretary established a prima facie case through respondent's stipulation, noted above, that it had not contested a prior citation for failure to comply with the same standard. Because the cited standard at 1926.350(j) is specific in its requirements for the storage of oxygen cylinders and because respondent failed to comply with the same standard here that it had previously violated, there is no evidence that Williams could submit to successfully rebut the Secretary's showing of similarity. Accordingly, there is no need to remand the case for additional evidence from respondent. Belger Cartage Service, Inc., 79 OSAHRC 16/B14, 7 BNA 1233, 1979 CCH OSHD P23,440 (No. 76-1480, 1979). We, therefore, affirm the Judge's finding that the violation is repeated. [*15]

The parties stipulated as to the appropriateness of the proposed penalties, which amounts were assessed by Judge Patton. Although the Commission is not bound by such a stipulation, n6 we find that the penalties assessed by the Judge are appropriate, taking into consideration the penalty assessment criteria set forth at section 17(j) of the Act, 29 U.S.C. 666(i). Accordingly, we assess a $35 penalty for each of the nonserious guardrail citations and a $140 penalty for the repeated cylinder violation.

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n6 Thorleif Larsen & Son of Indiana, Inc., 74 OSAHRC 74/C8, 2 BNA OSHC 1256, 1974-75 CCH OSHD para. 18,826 (No. 370, 1974).

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The Judge's decision is affirmed. SO ORDERED.

CONCURBY: BARNAKO (In Part)

DISSENTBY: BARNAKO (In Part)

DISSENT:

BARNAKO, Commissioner, Concurring in Part and Dissenting in Part:

I agree with the majority, for the reasons they state, that the judge did not err in affirming the citations alleging that Respondent violated 29 C.F.R. 1926.500(c)(1) and (f)(1) and in finding Respondent in violation [*16] of 29 C.F.R. 1926.350(j). However, for the reasons that follow, I dissent from their conclusion that the violation of 1926.350(j) is repeated within the meaning of 29 U.S.C. 666(a).

My colleagues properly conclude that evidence of at least two prior violations of the same standard is not a prerequisite to finding a violation to be repeated but that a violation, in order to be found repeated, must be substantially similar to a prior violation established by a final order of the Commission. However, as expressed in my separate opinion in Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, 1979) (concurring and dissenting opinion), I would not presume that a violation of the same standard fulfills the substantial similarity requirement and shift the burden to the employer to prove otherwise. Instead I would look to whether the second violation is of such a nature that the employer, as a result of the notice provided by the first citation, should have taken steps to eliminate from its workplace the condition alleged to constitute the repeated violation. Where such notice is not apparent from the face of the citation, I would require the Secretary [*17] to prove substantial similarity. Where such a showing has been made, I would permit an employer, by way of defense, to show that it took good faith steps after the entry of a final order to prevent the recurrence of a substantially similar violation.

Applying these principles to the facts of this case, I would find that Respondent was issued a prior citation for violation of 1926.350(j) which had become a final order of the Commission at the time of the issuance of the citation for repeated violation of 1926.350(j) involved herein. I would also find that the past and present violations of the standard were substantially similar. Both the prior and present citations on their face are identical in that both allege failure during storage to separate oxygen and fuel-gas cylinders in the manner prescribed by the standard. Both citations address a single, specific hazard that exists in all situations where oxygen and fuel gas cylinders are stored in proximity, and both require an identical means of abatement. Thus, I would conclude that the instant violation of this standard is substantially similar to the prior violation and that Respondent therefore was on notice by the prior [*18] citation that its safety precautions with respect to the separation of gas cylinders were inadequate.

Respondent contends only that a repeated violation cannot be found in the absence of at least two prior violations of the same standard. It offered no evidence that, after the entry of a prior final order, it had taken affirmative steps to ensure that a similar violation did not occur in the future. However, since this case was tried prior to the issuance of Potlatch, supra, I would afford Respondent an opportunity to present evidence as to this defense and therefore would remand to the judge for a hearing on the repeated issue. See Triple "A" South, Inc., 79 OSAHRC    , 7 BNA OSHC 1352, 1979 CCH OSHD P23,555 (No. 15908, 1979) (concurring and dissenting opinion).

Concerning the assessment of the penalties, I agree with the majority that assessments of $35 for each violation of 29 C.F.R. 1926.500(c)(1) and (f)(1) are appropriate. n1 However, for the reasons stated in my opinion in Triple "A" South, Inc., supra, I do not join with the majority's conclusion that where all parties have agreed upon the appropriateness of a penalty the Commission nevertheless [*19] should review the stipulated penalty to determine if it is consistent with the criteria of the Act. Rather, where the Secretary and Respondent have stipulated to a penalty amount, the Commission should not second guess or alter their agreement.

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n1 Since I am remanding with respect to the citation for repeated violation of 29 C.F.R. 1926.350(j), I would not determine what penalty should be assessed for that citation.

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