GEORGE B. GAINES, doing business as WESTERN STEEL COMPANY
OSHRC Docket No. 15010
Occupational Safety and Health Review Commission
April 18, 1977
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor
Edward M. Morris, President, Occupational Safety Consultants, Inc., for the employer
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 significance of an unreviewed [*2] 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 be affirmed.
MORAN, Commissioner, Concurring:
I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.
DECISION AND ORDER
James F. Gruben, for the Secretary of Labor
Edward M. Morris, for the Respondent
STATEMENT OF THE CASE
Complainant, in accordance with the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.), inspected a work site in Corpus Christi, Texas, on August 28, 1976, where respondent was engaged in steel erection in the construction of a warehouse for the United States Navy.
This activity resulted in the issuance of a non-serious citation, on September 12, 1976, by complainant to respondent charging three violations of section 5a(2) of the Act which was timely [*3] contested by respondent.
After a complaint and an answer were filed this case came on for hearing in Corpus Christi, Texas, on March 31, 1976.
At the outset of the hearing George B. Gaines raised the issue of employer-employee realtionship. He moved that the action be dismissed on the proposition that the complaint and all subsequent pleadings and correspondence had been directed to George B. Gaines, d/b/a Western Steel Co. as the respondent employer, whereas in truth and in fact Western Steel Co. is incorporated under the laws of the State of Texas and George B. Gaines is its duly elected and acting president. Thus, he concluded that the corporation is the employer and not George B. Gaines and therefore respondent George B. Gaines is not an employer within the meaning of section 3(5) of the Act. Secretary v. Vincent Rizzo Construction Co. or Masoncraft, Inc., OSAHRC Docket No. 4224 is cited as an authority for this proposition of law so asserted. Ruling on this motion was reserved until this point in time.
The Rizzo case, supra, is distinguishable on the facts. There the citation and the notification of proposed penalty were each issued to [*4] and served upon Rizzo, an individual entity, as the employer in that case. Also, complainant obstinately persisted to prosecute that case against Rizzo after learning the error of his way. In the instant case, however, the citation and notification of proposed penalty were each issued and directed to and served upon Western Steel Co. to the attention of George B. Gaines, President. Also, the notice of contest was filed here on behalf of Western Steel Co. Thereafter for some unexplained reason complainant chose to direct his complaint against George B. Gaines as the caption and paragraph II thereof so shows. Here also the answer, while retaining the caption begun by complainant, is signed by George B. Gaines as and for Western Steel Company as the respondent. By this action Western Steel Company denied that George B. Gaines was the employer as alleged in paragraph II of the complaint.
The issue then is whether this situation presents an enigma. It is a puzzling situation but not strictly inexplicable. It is interesting to note that the original complaint was served upon Western Steel Co. by addressing it to Mr. Edward M. Morris, President of Western Steel Co. Edward M. Morris, [*5] President of Occupational Safety Consultants, Inc. had filed the notice of contest for and on behalf of Western Steel Co. The record made in this case is clear. The totality of the thrust of complainant's case was directed against Western Steel Co. as the employer without objection. Western Steel Co. has suffered no material prejudice. From the inception, the issuance of process which is the citation and notification of proposed penalty, Western Steel Co., the corporate employer, by and through its president knew it was the party charged with violating section 5a(2) of the Act. With this knowledge it instituted its defense by causing the issuance of the notice of contest in its name as the employer.
Due process of law in the Fourteenth Amendment undoubtedly means, in the due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights; but not necessarily judicial proceedings; it may include summary proceedings if not arbitrary or unequal. It implies conformity with the natural and inherent principles of justice and requires that no one shall be condemned in person or property without opportunity to be heard. [*6]
Western Steel Co. was properly and legally served with notice of the action against it under the Act. From that point in time forward it has been given every opportunity to be heard, and Western Steel Co. has been duly heard at each and every step of the way as this case proceeded through the legal and judicial processes.
Complainant has failed to move to amend the complaint. Therefore, justice requires that this tribunal on its own motion amend the complaint at paragraph II so as to substitute Western Steel Co. in the place and stead of George B. Gaines. The error or mistake in the caption with respect to the party respondent is insignificant so long as the final judgment or order comports to the findings and conclusions of law showing that Western Steel Co. is the real party respondent.
CITATION AND STANDARDS
By the citation complainant charged Western Steel Co. as follows:
Item 1 "29 CFR 1926.51(a)(3) Containers used to distribute drinking water shall be clearly marked as to the nature of its contents: The Gott Water Can located on the International pickup truck was not marked."
Item 2 "29 CFR 1926.350(h) Oxygen and fuel gas regulators and guages shall be in proper [*7] working order when in use: The hose pressure gauge on the acetylene regulator, located in the back of the International Pickup Truck, had a broken glass."
Item 3 "29 CFR 1926.550(a)(5) The employer shall designate a competent person who shall inspect all machinery and equipment prior to each use, and during use, to make sure it is in safe operating condition. Any deficiencies shall be repaired, or defective parts replaced, before continued use: The Lima Model 50SC Serial No. 3612-5 Crawler Crane located on the jobsite had not been inspected prior to use to ensure it was in a safe operating condition. The boom was noted with 3 bent lacings in the top section."
The standards alleged to have been violated provide as follows:
Item 1 "Section 1926.51 - Sanitation
(a) Potable water
(3) Any container used to distribute drinking water shall be clearly marked as to the nature of its contents and not used for any other purpose."
Item 2 "Section 1926.350 - Gas Welding and Cutting
(h) Regulators and gauges
Oxygen and fuel gas pressure regulators, including their related gauges, shall be in proper working order while in use."
Item 3 "Section 1926.550 - Cranes and Derricks
(a) General [*8] requirements
(5) The employer shall designate a competent person who shall inspect all machinery and equipment prior to each use, and during use, to make sure it is in safe operating condition. Any deficiencies shall be repaired, or defective parts replaced, before continued use."
Western Steel Co. conceded that it engages in a business which affects commerce.
GOTT WATER CAN
The evidence shows Western Steel Co. provided a container which was sometimes used to distribute drinking water. This container was labeled "Gott" a water can well recognized by construction workers as a proper place to obtain a drink of water. It was carried and mounted within Western Steel's pickup truck. The marking on this container, if any, as to the nature of its contents may have been covered by a band encircling the can. There is some dispute as to whether at the time of inspection it was being used to distribute drinking water because there existed at the site other sources. On the other hand an employee was seen to take some water from the can and at least put it in his mouth.
From the facts it must be concluded that this can was used to distribute drinking water. The [*9] standard alleged is specific in its command. The container shall be clearly marked. (Emphasis added). Obviously if an employer permits the marking to be covered or obliterated he is not in compliance with the standard. Here, then, Western Steel Co. has violated 29 CFR 1926.51(a)(3) as charged.
GAUGE - ACETYLENE REGULATOR
Here the evidence shows that the glass on the related gauge of the acetylene pressure regulator was broken. There was no evidence that the instrument to which it was attached was in use. Obviously it was available for use and undoubtedly had been used in this condition. In this matter the sine qua non to make a case for a violation is the kind of working order the gauge is in while in use. If the working order is improper then there is a violation. If it is proper then there is no violation.
The compliance officer, Robert D. Holmes, frankly admitted that he made no determination with respect to whether the gauge was nor was not in proper working order. Reliable and credible evidence indicates this gauge had been and was then in proper working order. Therefore, the broken glass on the gauge standing alone does not constitute a violation of 29 [*10] CFR 1926(h) as charged.
BENT LACINGS - BOOM
Wsestern Steel Co. leased a Lima Crawler Crane, its operator, and oiler. This crane had a load capacity of 55 tons. At the time of inspection in question it was lifting loads not exceeding 20 tons. During the inspection the compliance officer requested the crane operator to lower the boom which he did. Thereupon a visual examination revealed three bent lacings on the bottom side of the top section of the boom. The degree of any one of the bends is not made known by the evidence. The best the evidence shows is that a bent lacing causes a shift in the intended distribution of the overall stresses placed upon the entire boom.
The citation charges Western Steel Co. with failing to inspect the crane prior to use to ensure it was in safe operating condition. And then the citation lists the three bent lacings. The evidence shows that complainant rests his case for a violation here on the proposition that these three bent lacings in the boom structure rendered the use of the crane unsafe while in that condition.
The citation does not charge Western Steel Co. with a failure to designate a competent person to inspect this crane prior [*11] to each use. Nevertheless, complainant argues that a case was made for a violation of that portion of the standard. It is true that Western Steel Co. did not designate such a person in the literal sense. It did, however, know that the lessor, who furnished the operator, maintained a policy of designating the operator as such competent person to make the required inspections. Any designation Western Steel Co. would make in this kind of lease arrangement would simply be duplicity. Thus, in effect Western Steel Co. adopted the operator as the designated person which satisfies that requirement.
Three issues emerge.
1. What is required by the phrase "shall inspect all machinery and equipment prior to each use?" Complainant apparently argues that it requires in the instant case a daily inspection, that is, before the crane is put in operation at the beginning of the work day. It could be argued that before each operation an inspection is required. Obviously an inspection of the entire components of a crawler crane before each lift would be an endless task and no work would be performed. This, of course, suggests that the requirement is vague. On the contrary, however, the requirement [*12] undoubtedly means reasonable inspections pursuant to the peculiar and particular facts surrounding any given piece of machinery or equipment.
2. Did complainant make a case for failure to inspect the crawler crane prior to use as charged? Complainant argues that it is reasonable to infer because he found bent lacings that an inspection had not been made prior to use. He would fortify this inference from the fact that one witness, an old time iron worker for Western Steel Co., had observed the bent lacings while in use. But here the point in time this observation was made is unknown. Speculation would indicate a time any point from immediately to several days or weeks before complainant's inspection. In any event this witness did not consider that the bent lacings caused any deficiency in the safe operating condition of the boom. Moreover, the compliance officer made no attempt to ascertain if and when the crane may have been inspected except to request the operator to deliver the records on the following day. The evidence does show that the operator was a conscientious and deliberate operator. Thus, one could speculate that he made his required inspection the night before [*13] as he shut his operation down or he could have accomplished it before starting up the morning before complainant's inspection on August 28, 1975. The bent lacings in and of themselves do not make a case for failure to inspect prior to use. Moreover, according to the record in this case the operator may well have known the lacings were bent and made a judgment that any deficiency thereby resulting did not and could not effectively or significantly decrease the safe operating condition of the boom at the time and place under the then existing conditions.
3. Did complainant make a case by showing that the crawler crane was not in a safe operating condition because of the three bent lacings? As applied to the instant case safe operating condition undoubtedly means that the crawler crane must be free of any mechanical or structural deficiency or defect which if left uncorrected may so encroach upon its continued operation which could result in a boom failure and thereby could cause an injury to an employee. It is this kind of condition the command of the standard contemplates ascertaining by inspection prior to use and during use. The preponderance of the evidence in this case answers [*14] the foregoing question in the negative.
Here the specific charge is failure to inspect prior to use. It would appear that the operator of a crane is an extraordinarily competent person to be designated as the inspector. The operator lives with his crane on a daily basis. He certainly is the one person possessing the skills and experience to know and understand the performance of his machine. He is constantly aware of what it can do and can't do under all and sundry trying conditions and circumstances, including the influence of bent lacings in the boom upon the safe operation thereof with respect to the particular job performance then at hand. The standard, of course, is unclear as to what its fashioners intended by inspection prior to each use. Inasmuch as they also inserted a requirement to inspect during use it would appear that inspection prior to use means prior to beginning a new job performance because thereafter it is in constant use on this job. And very likely inspection during use means reasonable scruitny as the job proceeds. But it in no way means the lowering of the boom for an inspection after each load has been lifted and placed. This would be an unreasonable [*15] requirement.
Complainant did not sustain his burden of proof in this case. He did not show that the equipment in question had not been inspected prior to use on the Navy warehouse job. In fact the preponderance of the evidence shows that the lessor carries out a continuous comprehensive procedure prior to use which is followed by a continuous inspection during use on the job by the operator. Again in no way does the standard require the boom to be inspected prior to each use.
Moreover, the preponderance of the evidence does not show that these bent lacings on this boom created the kind of deficiency or defect that could render the structure of the boom unsafe to operate and perform under the conditions then and there existing at the Navy warehouse construction site.
Also it should be observed that the necessary elements of a violation of 29 CFR 1226.550(a)(5) are:
1. Failure to designate a competent person with orders to make the required inspections.
2. Failure by such a person to inspect either prior to use or during use.
3. That but for the failure so alleged the deficiency or defect would have been timely discovered.
4. And that the deficiency or defect which should [*16] have been so discovered was of a kind that a reasonable competent inspector should conclude would render the machine or equipment unsafe to operate.
Here complainant has failed to show by a preponderance of the evidence the existence of these elements. Accordingly item 3 of citation 1 should be vacated.
Because of the foregoing and the conclusion of law hereinafter set forth it is unnecessary to consider the $30.00 proposed penalty for item 3 of the citation.
CONCLUSIONS OF LAW
1. The Review Commission has jurisdiction to hear and decide this case.
2. Western Steel Co. is the real party respondent in this case.
3. Western Steel Co. did violate 29 CFR 1926.51(a)(3).
4. Western Steel Co. did not violate 29 CFR.350(h).
5. An employer who leases a machine and its operator with the knowledge that the operator is a competent person to inspect the leased machine and that the lessor has designated this leased operator to undertake the inspections during use thereby adopts the leased operator as his competent person so designated.
6. Discovery of bent boom lacings by compliance officer without more is insufficient for the indulgence of a reasonable inference [*17] that there was a failure to inspect the machine prior to use or during use.
7. Inspection prior to each use as used in 29 CFR 1926.550(a)(5) means prior to use at and for a particular job.
8. 29 CFR 1926.550(a)(5) does not require unreasonable inspections during the such as the lowering of the boom of a crawler crane for inspection after each lift.
9. Deficiencies and defective parts as used in 29 CFR 1926.550(a)(5) means a deficiency or defect which is reasonably calculated by a reasonably competent person to render the machine unsafe to operate unless corrected.
10. Complainant failed to make his case for violation of 29 CFR 1926.550(a)(5) as charged.
Item 1 of citation 1 be and it hereby is, affirmed.
Items 2 and 3 of the citation 1 be and each hereby is, vacated.
The notification of the $30.00 penalty proposed to be assessed be and it hereby is, vacated.
June 8, 1976
J. Paul Brenton, Judge