T.J. SERVICE COMPANY

OSHRC Docket No. 14991

Occupational Safety and Health Review Commission

March 17, 1978

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald H. Gaswirth, Reg. Sol., USDOL

Thos. R. Hartnett III, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

The decision of Administrative Law Judge David G. Oringer is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ("the Act"). In his decision, Judge Oringer, among other things, affirmed a citation for serious violation of the Act for failure of the respondent to comply with the standard at 29 CFR 1926.450(a)(5) n1 and vacated an other than serious citation alleging failure to comply with the standard at 29 CFR 1926.150(c)(1)(viii). n2

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n1 The standard reads:

1926.450 Ladders

(a) General requirements.

* * *

(5) Fixed ladders shall be in accordance with the provisions of the American National Standards Institute, A 14.3-1956, Safety Code for Fixed Ladders.

n2 The standard reads:

1926.150 Fire protection

* * *

(c) Portable firefighting equipment-

(1) Fire extinguishers and small hose lines.

* * *

(viii) Portable fire extinguishers shall be inspected periodically and maintained in accordance with Maintenance and Use of Portable Fire Extinguishers, NFPA No. 10A-1970.

[*2]

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Both respondent and the Secretary have filed petitions for discretionry review. The respondent excepts to the Judge's affirmance of the alleged violation of 29 CFR 1926.450(a)(5) as serious and the assessment of a $500 penalty, and the Secretary excepts to the Judge's vacation of the other than serious citation on the ground that the standard applies only to fire extinguishers located within a building or structure. Both petitions were granted. n3

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n3 Former Commissioner Moran directed review without specifying any issues.

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The respondent is an oil well service company engaged in the workover and general repair of oil wells. At the time of the inspection, respondent was engaged in workover of an oil well located approximately 20 miles from Laredo, Texas, in a remote rural area off the highway. Respondent's crew consisted of five employees. The workover rig used by respondent was a truck-mounted telescoping rig. When the rig is [*3] operating, the derrick is in a nearly vertical position, and the "monkey board" from which the derrick man works is located about 44 feet above the ground.

The derrick man gains access to the "monkey board" by climbing a ladder affixed to the derrick. No protection from falling is afforded the derrick man during this climb up or down. The derrick man testified that when "tripping the pipe," as they were doing on the day of the inspection, he makes four to six trips to the "monkey board" a day, and that it takes him about one and a half to two minutes to climb either up or down.

The standard at 29 CFR 1926.450(a)(5) requires that fixed ladders be in accordance with the American National Standards Institute (ANSI) Safety Code, A14.3-1956. The ANSI Safety Code prescribes alternative methods of protecting employees climbing fixed ladders: They may be caged; they may be provided with offset platforms; or they may be provided with ladder climbing safety devices. It is admitted on the record that respondent's fixed ladder was not equipped with any of these protective measures. The compliance officer testified that either of two types of ladder climbing safety devices were feasible [*4] for use on respondent's ladder. One consists of a block with a line and the other of a wire running the entire length of the ladder, each with a braking mechanism to which the employee hooks his safety belt. In view of the lack of any protective device on the ladder, the violation has been established.

On review, respondent argues that even-handed administration of the Act requires that the violation here be found to be non-serious, because, as respondent notes, in another case the employer was cited for a non-serious violation for failure to comply with the fixed ladder standard while respondent has been cited for a serious violation. The Secretary's exercise of his enforcement discretion in another case is not controlling here. The Commission's role is adjudicatory and our function is to decide the case before us. Fleming Foods of Nebraska, Inc., 77 OSAHRC 196/C12, 6 BNA OSHC 1233 (No. 14484, 1977).

In view of the potential fall distance, we conclude that there was substantial probability that a fall would result in serious physical injury or death. The violation is affirmed as serious. The record evidence persuades us, however, that the likelihood of a fall was [*5] only moderate. We thus conclude that the gravity of the violation was also moderate. In light of this, and after considering the other factors in section 17(j), we assess a penalty of $200.

The second citation concerned an other than serious violation of 5(a)(2) of the Act for failure to comply with the standard at 29 CFR 1926.1926.150(c)(1)(viii), supra. Respondent had a general portable fire extinguisher in its truck. The extinguisher was empty and carried no inspection tag. Judge Oringer vacated this item because, in his view, the standard applies only to fire extinguishers located in enclosed spaces such as buildings.

Respondent agrees with the Secretary that the Judge should be reversed insofar as he found that the standard applies only to fire extinguishers located in enclosed spaces. Respondent agrees with the Secretary that the standard applies to its open work place, but urges that no penalty be assessed for the violation. The Secretary, in his petition for discretionary review, does not address the question of an appropriate penalty for this violation, if affirmed.

We find that the Judge erred in limiting the application of the standard to fire extinguishers [*6] located in enclosed spaces. While it is true, as the Judge noted, that certain sub-paragraphs of section 1926.150(c) refer to buildings or structures, this reference is omitted from certain other sub-paragraphs, including 1926.150(c)(1)(viii). If the Secretary had intended that this standard apply only to enclosed structures, a reference limiting the standard could have easily been included. We conclude that the standard applied to the fire extinguisher in question here. The citation for failure to comply with the standard at 29 CFR 1926.150(c)(1)(viii) is affirmed. However, based on the relatively low gravity of this condition, the $25 penalty proposed by the Secretary should be vacated.

Accordingly, it is ORDERED that the serious citation for failure to comply with the standard at 29 CFR 1926.450(a)(5) is affirmed and a penalty of $200 is assessed therefor; and, the citation for failure to comply with the standard at 29 CFR 1926.150(c)(1)(viii) is affirmed and no penalty is assessed.