HOWARD P. FOLEY COMPANY

OSHRC Docket No. 15121

Occupational Safety and Health Review Commission

March 11, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, USDOL

E. Stewart Justice, Safety Director, Howard P. Foley Co., for the employer

OPINION:

DECISION

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 [*2] of an unreviewed 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.

CONCURBY: MORAN

CONCUR:

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.

APPENDIX A

DECISION AND ORDER

Ken S. Welsch, Office of the Solicitor, U.S. Department of Labor, on behalf of complainant

Mr. E. Stewart Justice, Pro Se

STATEMENT OF THE CASE

BRADY, Judge: This proceeding is brought pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et. seq., 84 Stat. 1590 (hereinafter referred to as the Act) to contest a citation issued by the Secretary of Labor (hereinafter referred to as the Secretary) pursuant to section 9(a) of the Act. The citation, which was issued September 9, 1975, alleges that as a result of an inspection of the respondent's workplace [*3] at 17th Street and Indian River, Vero Beach, Florida, respondent violated section 5(a)(2) of the Act by failing to comply with specific occupational safety and health standards promulgated by the Secretary pursuant to section 6 thereof. A notice of proposed penalty was issued with the citation.

Howard P. Foley Company is a corporation having a place of business at 1400 34th Street, Tampa, Florida, as an electrical contractor. The hearing was held November 25, 1975, at Vero Beach, Florida, and no additional parties sought to intervene.

ALLEGED VIOLATION OF 29 C.F.R. 1926.25(a)

This standard, which relates to housekeeping, provides as follows:

"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."

It is alleged in the citation that respondent failed to assure that during the course of construction, alteration, or repairs, motorized valves and other debris were kept cleared from work areas exposing employees to tripping hazards in the boiler burner area of the power plant.

Mr. Bruce Hardin, [*4] compliance officer who conducted the inspection, testified that he observed seven motorized valves on the floor of the platform deck in the boiler burner area. He stated that the valves, which were irregularly shaped, created a hazardous condition for respondent's two employees walking in the area (Tr. 7). Mr. Carl Corum, electrician for the respondent, testified that the motorized valves were more or less scattered at random across the burner front area, taking up approximately one-half the space of the deck. He indicated that the valves were awaiting installation, and respondent's employees were members of a wire pulling crew working in the front of the platform area (Tr. 19, 20).

Mr. E. Stewart Justice, safety director for the respondent, testified that the motorized valves and other material, which had been placed on the burner platform, had been placed there by the contractor responsible for installation (Tr. 24).

Although the evidence shows the presence of the valves in the general area where respondent's employees were working, it has not been established that the material was of such a nature to constitute debris, or that respondent was in any way responsible for creating [*5] a hazardous condition, in violation of the standard as alleged.

The evidence indicates that the valves were present only for the purpose of being installed by another contractor, and it is reasonable that a period of time may exist between the placement of the valves for installation and actual installation. The presence of the valves for such purpose cannot be considered debris constituting a hazard for respondent's two employees who were working in the front of the platform on an unrelated project.

ALLEGED VIOLATION OF 29 C.F.R. 1926.401(a)(1) and.401(f)

These standars, which relate to grounding and bonding of electrical equipment, provide as follows:

"(a) Portable and/or cord and plug-connected equipment. (1) The noncurrent-carrying metal parts of portable and/or plug-connected equipment shall be grounded."

"(f) Extension cords. Extension cords used with portable electric tools and appliances shall be of three-wire type."

It is alleged in the citation that the respondent violated the above standards, in that it failed to provide an employee with a three-wire extension cord while using a portable electric drill exposing him to the hazard of electrical shock. [*6]

Mr. Hardin testified that he observed a motorized drill connected to a one hundred foot cord which in turn was connected to a three-foot extension cord with the third prong or ground prong missing (Tr. 9). Mr. Corum testified that the long cord belonged to the respondent and that he believed one of respondent's employees had been using the drill prior to the time of the inspection (Tr. 18). He stated he did not know who owned the short extension, but he did not believe it was respondent's equipment.

Mr. Justice testified that three-wire extension cords, which meet OSHA requirements, are provided for all jobs. He stated respondent's safety manual sets forth that three-wire extension cords are required, and such cords were in use at the jobsite. He stated that the three-wire adaptor cord, being used at the time of the inspection, was not a type used by or purchased for respondent, and it could not be determined where the device had been obtained. However, immediately after the inspection, a proper three-wire receptacle was immediately placed in use (Tr. 24, 25).

The evidence establishes that the defective cord was not the type of equipment provided employees for electrical work [*7] by respondent. It is also indicated that the required type of extension cord was present at the worksite.

It therefore is held that the employees' use of the defective three-foot extension with the one-hundred foot cord is an isolated instance and does not constitute a violation of the standard by respondent under the circumstances of this case.

ALLEGED VIOLATION OF 29 C.F.R. 1926.500(b)(8)

This standard, which pertains to the guarding of floor openings, states in pertinent part as follows:

"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 . . ."

It is alleged in the citation that respondent failed to assure that floor holes, into which persons can accidentally walk, were guarded either by a standard railing or floor hole cover, exposing employees to the hazard of falling.

Mr. Hardin stated that there were approximately fifteen floor holes in the boiler burner area in sizes ranging from approximately nineteen inches by nine inches (oblong) to eight inches round. The holes took up approximately half the area of the platform deck and were surrounded with [*8] stubups or castings about one-fourth inch thick with about a four-inch rise (Tr. 8). Mr. Corum indicated that for the employees to reach the area where they were pulling wires, it was necessary for them to step around the floor openings (Tr. 17).

Mr. Justice testified that the floor holes were made in the platform grating for the passage of pipe to the boiler front and was part of the permanent construction over which respondent had no control. He stated the holes were surrounded by welded-in-place steel toe plates, approximately six to eight inches high which would remain in that position when the plant is completed. He pointed out that an employee have to deliberately raise his foot above the toe plate in order to place it in a hole. Mr. Justice agreed that perhaps the rises could present a tripping hazard (Tr. 26, 20, 31).

The general provision under this subpart sets forth that the subpart shall apply to temporary or emergency conditions where there is danger of employees or materials falling through the floor.

The evidence does not show that a temporary or emergency condition existed in view of the permanent-type construction involved. Also, with the risers present, it [*9] is not indicated that an employee could accidentally walk into a hole in order to reach the point where the wires were being pulled.

Based upon the evidence of record, it cannot be held that respondent violated the standard as alleged.

ALLEGED VIOLATION OF 29 C.F.R. 1904.2(a) and.5(a)

Section 1904.2(a), which relates to the log of occupational injuries and illnesses, states as follows:

"(a) Each employer shall maintain in each establishment a log of all recordable occupational injuries and illnesses for that establishment . . ."

It is alleged that respondent failed to maintain the log of occupational injuries and illnesses, in violation of the standard.

Section 1904.5(a), states in partinent part as follows:

"(a) Each employer shall compile an annual summary of occupational injuries and illnesses for each establishment . . ."

It is alleged in the citation that respondent failed to compile and post the annual summary for occupational illnesses and injuries for 1974.

Mr. Hardin testified that during the opening conference he discussed the OSHA form 100 with Mr. McConkey, respondent's representative, at the construction site. Mr. McConkey stated that an employee sustained [*10] an injury resulting in lost time from the job in June of 1975. Although the form was located at the jobsite, it contained no entries.

Mr. Justice testified that the OSHA form 100 was placed on the jobsite with instructions to the superintendent for its proper maintenance (Tr. 26). Also, the proper entries have been made (Tr. 31). The evidence clearly shows a violation of the standard as alleged.

Mr. Hardin testified with reference to computation of the proposed penalty (Tr. 13). Upon full consideration of the factors for determining penalties, particularly respondent's good faith efforts, a penalty in the amount of $50 is deemed reasonable and appropriate.

The evidence does not indicate the occurrence of occupational injuries or illnesses which should have been recorded on the OSHA form 102, which was retained at the jobsite. Therefore, it cannot be held that respondent violated section 1904.5 as alleged, although no entries were made on the OSHA form.

FINDINGS OF FACT

1. Howard P. Foley Company is a corporation doing business among other places at 1400 34th Street, Tampa, Florida, as an electrical contractor.

2. On September 2, 1975, respondent was engaged in electrical [*11] work at 17th Street and Indian River, Vero Beach, Florida.

3. On September 2, 1975, an authorized representative of the Secretary conducted in inspection of respondent's aforementioned worksite. As a result of such inspection, a citation was issued with a notice of proposed penalty.

4. Motorized valves did not constitute debris at the worksite.

5. Respondent provided three-wire extension cords for portable electric equipment.

6. Employees at the worksite were not exposed to the hazard of accidentally falling into floor holes.

7. Respondent did not maintain the log of occupational injuries and illnesses (OSHA form 100).

8. Respondent satisfactorily compiled the summary of occupational injuries and illnesses (OSHA form 102).

CONCLUSIONS OF LAW

1. Howard P. Floey Company, at all times pertinent hereto, was an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and subject matter herein, pursuant to section 10(c) of the Act.

2. Respondent is, and at all times pertinent hereto, required to comply with safety and health regulations [*12] promulgated by the Secretary pursuant to section 6(a) of the Act.

3. On September 2, 1975, respondent was not in violation of the standard at 29 C.F.R. 1926.25(a).

4. On September 2, 1975, respondent was not in violation of the standard at 29 C.F.R. 1926.401(a)(1) and .401(f).

5. On September 2, 1975, respondent was not in violation of the standard at 29 C.F.R. 1926.500(b)(8).

6. On September 2, 1975, respondent was not in violation of the standard at 29 C.F.R. 1904.5.

7. On September 2, 1975, respondent was in violation of the standard at 29 C.F.R. 1904.2.

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record, it is ORDERED:

1. That part of the violation alleging violation of the standard at 29 C.F.R. 1904.2 is affirmed, and a penalty in the amount of $50 is hereby assessed.

2. That part of the citation alleging violation of the standards at 29 C.F.R. 1926.25(a), 1926.401(a)(1) and .401(f), 29 C.F.R. 1926.500(b)(8), and 1904.5, are vacated.

Dated this 8th day of July, 1976.

PAUL L. BRADY, Judge