DICK CORPORATION

OSHRC Docket No. 14456

Occupational Safety and Health Review Commission

November 4, 1977

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Regional Solicitor, U.S. Department of Labor

C. Arthur Dimond, for the employer

OPINION:

DECISION

BY THE COMMISSION:

Respondent Dick Corporation, a construction contractor, received two citations on July 16, 1975, as a result of an inspection of a worksite in Aliquippa, Pennsylvania. Respondent contested Citation No. 1, which alleges a serious violation of 29 U.S.C. 654(a)(2) for not complying with the standards at 29 CFR 1926.700(b)(1) and (b)(2) by permitting employees, who were not using fall protection equipment, to place and tie reinforcing steel columns approximately 22 feet above a cement floor from which rebars protruded vertically. Respondent also contested Items 3, 4, 5, 6, 9, 10, and 14 of Citation No. 2, which alleges nonserious violations. Item 5 alleges that respondent did not comply with the standard at 29 CFR 1926.302(b)(7) by failing to install a safety device at the source of supply to a hose attached to an air compressor. Item 14 alleges that respondent failed to comply with the standard at 29 CFR 1926.652(h) by permitting employees [*2] to work in a trench that did not have an adequate exit. A hearing on the contested matters was conducted by Administrative Law Judge Harris. Judge Harris affirmed Citation No. 1, and assessed a $600 penalty. He also affirmed Items 3 and 4 of Citation No, 2, and assessed $35 penalties for each. All other items were vacated.

Both parties petitioned for review of the Judge's decision, and both petitions were granted. Respondent excepts to the Judge's conclusion that the standards referenced in Citation No. 1 are applicable to the work that gave rise to the Citation. The penalties assessed by the Judge for the violations alleged in Citation No. 1 and Items 3 and 4 of Citation No. 2 are challenged as being excessive. Complainant argues that the Judge erroneously vacated Item 5 of Citation No. 2 by failing to assign controlling probative value to unrebutted evidence relevant to one element of complainant's case. Complainant also argues that the Judge erred in vacating Item 14 on the ground that complainant failed to prove that the exit ramp of the trench was inadequately sloped.

Chairman Cleary and Commissioner Barnako affirm the Judge's action concerning Citation No. 1, the $600 [*3] penalty assessed therefor, and the $35 penalties assessed for Items 3 and 4 of Citation No. 2. The two members disagree however on the disposition of Items 5 and 14 of Citation No. 2. The discussion below relating to Items 5 and 14 has no precedential value. Vappi & Company, Inc., 77 OSAHRC 72/D7, 5 BNA OSHC 1358, 1977-78 CCH OSHD para. 21,787 (No. 8282, 1977). The Judge's decision is accorded only the significance of an unreviewed Judge's decision. Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

I

Citation No. 1: The Reinforcing Steel Standards.

The parties do not dispute the facts pertaining to respondent's alleged noncompliance with the standards at 29 CFR 1926.700(b)(1) and (2). While sitting on top of a two and one-half inch wide wall of a 22 foot-high wooden form, one of respondent's employees, a rod-buster, directed a crane operator as he lifted and positioned a twenty-foot column of steel reinforcing rods (rebars) against the wall. The rod-buster physically assisted in positioning the column. A row of seven-foot high rebars protruded vertically from the cement floor below approximately three inches [*4] from the side of the wall on which the column was positioned.

The column was stabilized to permit additional reinforcing steel to be attached safely to the column before cement for the wall was poured. Respondent's iron worker foreman ascended to the top of the wall to assist the rod-buster in stabilizing the column. The foreman held the column in position while the rod-buster tied the column to the top of the wall using wire of the type used to construct the column. During the five minutes this task required, the foreman squatted on a waler that was attached to the backside of the wall approximately six inches from the top and wrapped his left leg around a two-inch square piece of lumber protruding six inches above the top of the form. The rod-buster stood on a 12-inch by 18-inch section of the column. The column was 18 inches wide and 32 inches deep except for the top three feet, where it was only 20 inches deep. The rod-buster stood on the "platform" formed where the column's depth decreased. Neither employee was provided with or used a safety belt or equivalent device.

Respondent contends that the standard at 29 CFR 1926.700(b)(1) is inapplicable to these facts. The [*5] standard, in pertinent part, states:

(b) Reinforcing Steel

(1) Employees working more than 6 feet above any working surfaces, placing and tying reinforcing steel in walls, plers, columns, etc., shall be provided with a safety belt, or equivalent device. . . . (emphasis added)

Opinions about the construction industry's interpretation of the phrase "placing and tying reinforcing steel" were given by respondent's site superintendent and the compliance officer, neither of whom was offered as an expert. The superintendent, who had seven years of construction experience, testified that the phrase is understood to refer to tying metal to metal, not steel to wooden forms. The compliance officer, whose 23 years of experience in the construction field included several years as an assistant safety director for one of the country's largest construction companies, testified that the task that gave rise to the citation is understood as placing and tying steel. The Judge did not credit the testimony of respondent's employee; he adopted the interpretation suggested by the compliance officer. We accept the Judge's evaluation of the testimony.

The Secretary of Labor interprets the disputed [*6] phrase to include the work performed by respondent's employees. His interpretation of the standard is more reasonable than the interpretation urged by respondent. The hazard to which respondent's employees were exposed would not have been different if the steel column had been tied to a metal structure rather than a wooden form, nor would the work performed by respondent's employees have varied. There is no practical basis for respondent's distinction between the two situations. Furthermore, there are no words in the standard to indicate that it was meant to be read as restrictively as does respondent. Respondent's employees "placed" the reinforcing steel column near to the wall and "tied" it into position as those words are commonly understood. We therefore adopt the Secretary's interpretation. n1

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n1 Chairman Cleary notes that this result based on the "plain wording" of the standard is strengthened by the rule of construction that standards are to be read in light of the Act's purpose of protecting workers. GAF Corp. and United Engineers & Constructors, Inc., 75 OSAHRC 3/A2, 3 BNA OSHC 1686, 1975-76 CCH OSHD para 20, 1 3 (Nos. 3203, 4008, & 7355, 1976) (consolidated), petition for review denied in No. 7355, 546 F.2d 419 (3d Cir. 1976), aff'd Nos. 3203 & 4008, No. 76-1028 (D.C. Cir., June 28, 1977).

[*7]

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As described above, a row of seven-foot rebars protruding vertically were positioned along the wooden form three inches from the side on which the column was positioned. The second standard allegedly violated by respondent for permitting its rod-buster and foreman to work under such conditions reads:

Employees shall not be permitted to work above vertically protruding reinforcing steel unless it has been protected to eliminate the hazard of impalement. [29 CFR 1926.700(b)(2)].

The rebars had not been protected in any manner. Respondent argues that the employees were not working above the rebars because the injury contemplated by the standard, impalement, could not have occurred. Respondent first contends that if the foreman had fallen, he would have fallen six feet to a scaffold located on the side of the wall where there were no rebars. Respondent contends further that if the rod-buster had fallen, he would have fallen backwards away from the wall, making it impossible to be impaled on rebars only three inches from the wall.

The evidence pertaining to the direction in which the foreman [*8] would fall is the foreman's testimony that he would have struggled to fall backward if he lost his balance. Respondent's argument assumes that the foreman would have been successful. We are not persuaded. By and large, the standards are designed to prevent employees from being put in a position of danger where the avoidance of injury is predominantly dependent upon the skill or good fortune of employees. See Taylor Building Associates, 77 OSAHRC 27/A10, 5 BNA OSHC 1083, 1977-78 CCH OSHD para. 21,592 (No. 3735, 1977) (Item No. 2), and cases cited therein. Moreover the evidence pertaining to the direction in which the rod-buster would fall consists of the opinions of several of respondent's employees, none of whom claim any expertise. Nothing would prevent the rod-buster from falling to his right or left, in which event impalement was possible. Indeed, two of respondent's foremen, including the foreman who helped the rod-buster stabilize the column, admitted this possibility. The Judge characterized the hazard of falling as obvious, and we agree.

We find no merit to respondent's contention that the $600 penalty assessed by Judge Harris is excessive. Respondent is a [*9] large corporation that employed daily an average of 700 persons during 1975. Its sales for 1974 exceeded $65 million. Although respondent had not received citations previously, we find particularly persuasive respondent's knowledge that rod-busters at the Aliquippa worksite worked daily on wooden forms more than six feet above working surfaces without being protected by safety belts or other equipment. In addition, the rod-buster exposed to the hazard cited in this case had not been instructed to use a safety belt. It is significant that respondent's foreman, a supervisory employee, apparently felt free to work atop the 22 foot wall while not wearing a safety belt. Cf. National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir., 1973).

II

Item 5: The Unguarded Air Hose.

Item 5 of Citation 2 alleges that respondent failed to comply with the standard at 29 CFR 1926.302(b)(7), which states:

All hoses exceeding 1/2 inch inside diameter shall have a safety device at the source of supply or branch line to reduce pressure in case of hose failure.

The item specifically alleges that the inside diameter of a hose attached to a ram hoe, i.e., an air compressor, [*10] was one and one-quarter inches, yet no air pressure cut-off valve or other safety device was in use. The parties stipulated that safety devices were not in use at the time of inspection. The size of the hose's inside diameter, however, is disputed.

Judge Harris vacated this item on the ground that the Secretary failed to sustain his burden of proving that the inside diameter of the air hose was one and one-quarter inches. Two compliance officers testified that the engineer operating the compressor informed them of the measurement of the hose's diameter. This evidence was not rebutted or challenged in any way. The Judge, noting that the compliance officers' failure to measure the diameter was not explained, found the testimony inadequate because he considered it to be uncorroborated hearsay.

The Secretary excepts to vacation on two grounds: the operating engineer's statement was an admission, not hearsay; and, if the evidence is hearsay, it is sufficient to meet the Secretary's burden of proving the measurement alleged in the citation because no rebuttal or conflicting evidence was introduced. Respondent argues that the statement was not an admission because the Secretary failed [*11] to prove the two elements required by Rule 801(d)(2)(D) of the Federal Rules of Evidence: that the engineer was respondent's employee and that the statement concerned a matter within the scope of the engineer's employment. Commissioner Barnako concludes that the Judge properly classified the evidence as uncorroborated hearsay because the Secretary has failed to prove that the statement is an admission. He affirms the Judge's disposition of this item on the ground that uncorroborated hearsay is insufficient to establish a violation. B & K Paving Co., 74 OSAHRC 64/A2, 2 BNA OSHC 1173, 1974-75 CCH OSHD para. 18,570 (No. 59, 1974). Chairman Cleary concludes that the engineer's statement was an admission. n2

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n2 In so concluding, the Chairman points to the following circumstances.

Before the hearing began, the parties stipulated to several facts, including the following:

In reference to Item No. 5 of the nonserious citation, the compressor and hose referred to were not owned by respondent but were under the control of respondent, and respondent's employee's were using the said compressor and hose at the time of the OSHA inspection.

The Secretary reads this stipulation as an admission that persons observed using the compressor at the time of inspection, including the operating engineer, were employed by respondent. Respondent argues, however, that the stipulation was intended only as an admission of employee exposure to the compressor at some time during the inspection. Like other agreements, such as contracts and settlements, stipulations are to be construed to reflect the intentions of the parties. See generally 83 C.J.S. Stipulations 11 & 24. Although there is no extrinsic evidence of the intended scope of the stipulation, Chairman Clearly considers the stipulation to be unambiguous and not qualified in any manner that will support respondent's interpretation. He declines to read restrictive terms into the stipulation. Compare Marbury-Pattillo Construction Co., Inc. v. Bayside Warehouse Co., 490 F.2d 155 (5th Cir., 1974). He finds therefore that the stipulation establishes that the engineer operating the compressor during the inspection was employed by respondent.

Chairman Cleary also concludes that the engineer's statement was within the scope of his employment. During the inspection an employee was knocked over when the compressor hose he was dragging ruptured at the air source. The engineer operating the compressor immediately shut off the power. The compliance officers then inspected the compressor and discovered that an air pressure release valve was not in use. The engineer told the compliance officers that a release valve was not used, but was on order. Based upon the evidence that the operator's job was limited to controlling the compressor, Chairman Cleary infers that the engineer had at least partial control over the use of parts attached to the compressor.

[*12]

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III

Item 14: The Sloped Exit Ramp.

Two of respondent's employees worked in a trench in which neither steps nor a ladder was available. One end of the trench, however, was sloped to facilitate entrance and exit. The trench was six feet deep, eight feet wide, and thirteen feet long. The standard with which respondent allegedly failed to comply is 29 CFR 1926.652(h) (Specific trenching requirements), and it reads:

When employees are required to be in trenches 4 feet deep or more, an adequate means of exit, such as a ladder or steps, shall be provided and located so as to require no more than 25 feet of lateral travel.

The inspecting compliance officers testified that the slope did not provide an adequate means of exit. The sloped ramp was composed of soil that was soft, loose fill, or mill slag. Although he did not observe anyone using the ramp, one of the compliance officers testified that walking up the ramp would have been difficult. He further testified that the conditions would prove to be hazardous in the event of an accident. In addition, a pipe and two beams partially obstructed access [*13] to the ramp. The angle of the slope was not measured or introduced into evidence.

In response to a question about the general adequacy of sloped exit ramps, respondent's expert witness testified that the sloped end of a trench normally will provide an adequate means of exit so long as the soil is not "sand, mud, or something like that." There is no evidence that the expert saw the trench dug by respondent. Indeed, he admitted that his testimony about the soil composition of the trench was based entirely on the testimony of other witnesses.

The Judge vacated the item. He held that the Secretary had failed to prove the inadequacy of the sloped ramp as an exit because the angle of the slope was not established. In reference to the testimony given by respondent's expert, the Judge stated: "There is testimony that the sloped end of the trench was an adequate means of exit (Tr. 115)."

Commissioner Barnako accepts the Judge's disposition and discussion of this item. The Commission previously has held that the sloped end of a trench dug in backfill may provide an adequate means of exit. Paul Hutchinson & Sons, 76 OSAHRC 62/A2, 4 BNA OSHC 1327, 1976-77 CCH OSHD para. 20,783 (No. [*14] 3301, 1976). The Commissioner would not reverse the Judge because he fairly weighed the evidence and it supports his findings. See Okland Construction Co., 76 OSAHRC 30/F4, 3 BNA OSHC 2023, 1975-76 CCH OSHD para. 20,441 (No. 3395, 1976).

Chairman Cleary would hold that the Judge erred in vacating this item. In his view the Judge misinterpreted the testimony of respondent's expert witness. The witness did not testify that the sloped end of respondent's trench provided an adequate means of exit. The testimony was qualified. The witness stated that sloped ends of trenches normally provide adequate exits. Also, in the Chairman's view the compliance officers' testimony that the sloped end was inadequate can be reconciled with the testimony of respondent's expert. As noted above, the expert stated that an earthen ramp may provide an adequate exit unless composed of "sand, mud, or something like that." "Something like that" clearly refers to unstable substances like sand and mud through which walking would be difficult. The compliance officer who observed the trench testified that walking up the earthen ramp would have been difficult because it was composed of soft, unstable [*15] soil. He also noted that ramps composed of soil of that quality would be hazardous in the event of an accident, such as a cave-in, when a speedy exit would be crucial. Chairman Cleary considers this unrebutted testimony persuasive. See Harrington Construction Corporation, 77 OSAHRC 7/B3, 4 BNA OSHC 1471, 1976-77 CCH OSHD para. 21,440 (No. 9809, 1976). He would hold, therefore, that the sloped exit ramp in the trench dug by respondent was not an adequate exit. See Stimpson Construction Company, 77 OSAHRC 38/A2, 5 BNA OSHC 1176, 1977-78 CCH OSHD para. 21,675 (No. 13812, 1977).

IV

Items 3 and 4: Propriety of Penalties Assessed.

Respondent excepts only to the $35 penalties assessed for Items 3 and 4 of Citation No. 2. Item 3 alleges noncompliance with the standard at CFR 1926.151(a)(3), which provides:

Smoking shall be prohibited at or in the vicinity of operations which constitute a fire hazard, and shall be conspicuously posted: "No Smoking or Open Flame."

The required sign was not posted at or in the vicinity of a 1,000 gallon fuel tank during the first day of inspection. Item 4 alleges noncompliance with the standard at 29 CFR 1926.151(c)(6), which [*16] provides in pertinent part:

Portable fire extinguishing equipment, suitable for the fire hazard involved, shall be provided at convenient, conspicuously accessible locations in the yard area.

No fire extinguishing equipment was located at or near a 1,000 gallon fuel tank during the inspection.

The hazard of fire sought to be reduced by these standards could result in serious and wide-spread injury. Fire hazards existed here for at least one full work day. In light of respondent's size and the gravity of the violations, a penalty greater than $35 for each violation would be warranted except for mitigating circumstances: a small sign reading "Flammable" was posted near the fuel tank; and respondent had difficulty keeping fire extinguishers near the fuel tank because of theft. We agree that $35 penalties are appropriate in these circumstances.

Accordingly, it is ORDERED that Citation No. 1, the $600 penalty assessed for the violation alleged in Citation No. 1, and the $35 penalties assessed for the violations alleged in Items 3 and 4 of Citation No. 2 are affirmed. Because the Commission is equally divided on the other items under review, the Judge's disposition of these items [*17] is binding on the parties.