K M ENGINEERING COMPANY

OSHRC Docket No. 15699

Occupational Safety and Health Review Commission

April 18, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Regional Solicitor, USDOL

G. B. Johnston Safety, Coordinator, K M Engineering 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 there 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.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

All of the contested charges should be vacated because the citations were not issued with reasonable promptness as required by 29 U.S.C. 658(a). Secretary v. Jack Conie & Sons Corp., OSAHRC Docket No. 6794, June 25, 1976. Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges.

Since this decision does not address any of the matters covered in Judge Blythe's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

APPENDIX A

DECISION AND ORDER

Douglas N. White, for the Department of Labor

Edward M. Morris, for the respondent

STATEMENT OF THE CASE

BLYTHE, Judge:

This is a proceeding brought pursuant to 10 of the Occupational Safety and Health Act [*3] of 1970, 29 U.S.C. 651 et seq. (the Act), contesting citations issued by complainant, the Secretary of Labor (the Secretary), to the respondent, K M Engineering Company, under the authority vested in the complainant by 9(a) of the Act. As a result of an inspection conducted on September 22 and 23, 1975, by the complainant's compliance officer, two citations were issued to respondent on October 9, 1975, alleging nonserious and serious violations of 5(a)2 of the Act by respondent's failing to comply with various standards promulgated by the Secretary. The respondent did not contest items 3, 4, 6, and 7 of citation 1 for nonserious violations, nor the reasonableness of the time for abatement of said items, nor the penalties proposed for said items, and as to such issues the citation for nonserious violations and notifications of proposed penalties have become final orders of the Commission by operation of 10(a) of the Act. Prior to the hearing, the parties entered into a settlement agreement under which complainant agreed to withdraw item 2 of the nonserious citation and respondent agreed to withdraw its notice of contest with respect to item 1 of the nonserious citation. [*4] The items of the citation remaining at issue are as follows:

Nonserious Citation 1

Item

Abatement

No.

Standard

Description of alleged violation

Date

5

29 CFR 1926.251

Wire rope was secured by a knot to

November 1, 1975

(d)(3)

the load attachment hook; i.e., The

(as amended)

hoist lines on the D-4 caterpillar

side boom, S/N 7U17847 and the D-6

caterpillar side boom, S/N No39694.

8

29 CFR 1926.550

The employer did not maintain a

Five Days

(a)(6)

record of the dates and results of

From Receipt

inspections for each hoisting

Of This

machine and piece of equipment;

Citation.

i.e., For the caterpillar D-4

sideboom S/N 7U17847, the cater-

pillar D-6 sideboom S/N NO39694,

and the caterpillar D-7 sideboom

S/N 3t8916.

Serious Citation

Item

Abatement

No.

Standard

Description of alleged violation

Date

1

29 CFR 1926.550

Equipment deficiencies were not

Immediately

(a)(5)

repaired or defective parts replaced,

Upon Receipt

before continued use; i.e., The boom

Of This

block shackle on the D-7 caterpillar

Citation

sideboom S/N 3t8916, that was

excessively worn.

The standards involved are:

29 CFR 1926.251(c)(3): "Wire rope [*5] shall not be secured by knots, except on haul back lines on scrapers."

29 CFR 1926.550(a)(6): "A thorough, annual inspection of the hoisting machinery shall be made by a competent person, or by a government or private agency recognized by the U.S. Department of Labor. The employer shall maintain a record of the dates and results of inspections for each hoisting machine and piece of equipment."

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 hearing was convened April 2, 1976, at Enid, Oklahoma. No affected employees or authorized employee representative appeared in the proceeding. The parties have submitted post-hearing briefs. The matter is now ripe for decision.

JURISDICTION

Respondent's answer admits the allegation of the complaint that it is engaged in the business of constructing pipelines in Oklahoma and that at all material times it was an employer engaged in a business affecting commerce, who has employees within the meaning [*6] of 3(5) of the Act. Its vice president, Mr. E. F. McCarty, testified that respondent does work outside the state of Oklahoma and utilizes equipment received from outside that state. Thus the requisite jurisdictional facts have been established.

ISSUES

The issues remaining to be determined are:

1. Whether respondent violated the provisions of 29 CFR 1926.251(c)(3), pertaining to knots in wire ropes.

2. Whether respondent violated the provisions of 29 CFR 1926.550(a)(6), by failing to maintain inspection records for three sideboom tractors.

3. Whether respondent violated the provisions of 29 CFR 1926.550(a)(5), by failing to replace a defective shackle on a sideboom tractor, and, if so, whether such failure was a "serious" violation within the meaning of the Act.

4. Whether the abatement dates fixed by complainant were reasonable and appropriate under the circumstances.

5. Whether the penalties proposed by complainant for violations of 29 CFR 1926.550(a)(6) and 29 CFR 1926.550(a)(5) were reasonable and appropriate under the circumstances.

DISCUSSION AND OPINION

I. The knots in wire ropes.

There is undisputed evidence that respondent used knots in the [*7] ends of wire ropes to secure them to "tail chains" on two Caterpillar tractors equipped with sidebooms used to lower pipe into trenches.

The standard here involved, 29 CFR 1926.251(c)(3), forbids this method of securing wire rope (with one exception not applicable here).

The compliance officer, James P. Johnson, testified, and respondent concedes on brief, that such use of knots weakens the rope at the knot. There is, however, disagreement regarding the degree of such weakening, respondent contending that it is considerably less than the 50 percent testified to by Mr. Johnson.

Respondent introduced the testimony of an expert, Junior Willis, who conducted experiments to test the breaking strength of wire rope secured by a knot as compared to similar rope secured by U-bolt clips as provided by Table H-20. The results of these tests are equivocal. However, it is not necessary to discuss these tests in detail. It is not for the Review Commission or its judges to determine the wisdom of a standard promulgated by the Secretary. Secretary v. The Budd Company, 7 OSHRC 160, 165, CCH OSHD P17, 387 (1974).

The compliance officer testified that three employees were exposed to this [*8] hazard -- the operator of the tractor and two men guiding the pipe into the trench. How the operator might be exposed was not made clear. and speculation would be improper. However, it is clear enough that the other two employees were within the danger zone. This is true even if, as respondent argues, the load could drop only straight down if the rope broke.

II. The inspection records.

Respondent was cited for failure to "maintain a record of the dates and results of inspection" of three sideboom Caterpillar tractors in violation of 29 CFR 1926.550(a)(6), which, after providing for "thorough, annual, inspection" of hoisting machinery, provides:

"The employer shall maintain a record of the dates and results of inspection for each hoisting machine and piece of equipment."

Presumably the quoted provision for maintenance of records pertains to the annual inspections required by the immediately preceding sentence of the same subsection. Respondent produced no annual inspection records, only check-off lists supposed to have been (but which were not) filled out monthly by equipment operators.

Admittedly, respondent maintained no inspection records at the jobsite; it contends [*9] that this would be impractical due to the likelihood that the equipment might be shifted from one job to another. It claims that, since the standard is silent as to where the records are to be maintained, it complied by keeping these records at its home office, which it asserts, dehors the record, was "within about one hour" of the jobsite (actually about 200 highway miles distant).

At the hearing, it produced (Exhibit R-3) six of the inspection reports, spanning a five year period, which its operators were supposed to have filled out monthly. They are for a piece of equipment identified as No. 249, which cannot be correlated with the serial numbers in the citation (although in some places it is identified as a D-7 and in one place, cryptically, "Old Killer"). These inspection records, six in number, contain "Good" and "Bad" checkoff columns for the items "Undercarriage," "Guards," "Dogs & Brakes," "Housekeeping,' "Cables," and "Sheaves." In three instances the undercarriage was checked as being "bad," but no other information was supplied regarding the precise condition or repairs needed or effected. Two of the inspection dates are partially illegible but appear to be 6-30-71 [*10] and 7-21-72; the other sare 6-8-72, 7-7-72, 4-7-73, and 12-3-75.

Exhibit R-2 is a record of repairs made on a D-6 and a D-4 "Cat Side Boome" (sic). The serial number on the latter does correspond to one of the machines listed in the citation. However, the exhibit does not purport to be an inspection record.

Respondent is not charged with failing to have annual inspections made; the question is whether it maintained records of such inspections. Implicit in the standard is the requirement that the records be adequate. By any standards, the records presented by respondent are inadequate. See Secretary v. Ed Miller and Sons, Inc., 10 OSHRC 409, 415 (1974).

Thus it may not be necessary to decide whether respondent was justified in keeping its records at ite home office rather than at the jobsite. However, this question was answered adversely to respondent by Judge Burroughs in Secretary v. Verne-Woodrow Company, 9 OSHRC 856, 865, 866 (1973), which decision was affirmed by the Commission and thus has some precedential value. See also Secretary v. Martin Iron Works, Inc., 15 OSAHRC 33 (1975) where the Commission reversed Judge Cronin's holding that 29 CFR 1926.550(a)(6) [*11] was unenforceably vague.

This case illustrates the reasons for requiring the inspection records to be kept at the workplace. The compliance officer testified that the superintendent on the job needs them so he will know the condition of the equipment. Likewise, if they are not at the workplace the compliance officer cannot readily determine if this standard has been obeyed. Here, the compliance officer was not told that inspection records were kept elsewhere; none was supplied until the time of the hearing, despite a general invitation from the compliance officer to submit any information respondent desired him to consider.

Respondent also contends that there is no evidence that a sideboom tractor is a crane so as to be subject to 29 CFR 1926.550(a)(6). There is no definition of "crane" under Subpart N, but 29 CFR 1926.550(a)(18) specifically applies to "[s]ideboom cranes mounted on wheel or crawler tractors." The argument is without merit.

III. The worn shackle.

Respondent was cited under 29 CFR 1926.550(a)(5) for failure to repair or replace an excessively worn "boom block shackle" n1 on one of the sideboom tractors, the breaking of which caused the death of an employee [*12] and triggered the inspection.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Respondent contends on brief that the correct nomenclature is "boom block yoke," but this is immaterial and not in the record.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The cited standard, after requiring inspection of cranes and derricks before each use, provides:

"Any deficiencies shall be repaired, or defective parts replaced, before continued use."

The gist of the complainant's case is that the shackle was worn 34 percent through before it fractured; that such extensive wear must have occurred over a long period of time; that the maximum acceptable wear before replacement is 20 percent; and that respondent knew or should have known through its inspections that the shackle was defective. The compliance officer testified to this effect. His expertise was based on four years as a compliance officer, including several courses in occupational safety and 250 construction inspections, and about 20 years as a construction worker, supervisor, and safety inspector. He has had experience with the type of equipment involved in [*13] the case. While conceivably a more expert witness might have been produced, none was, by either party. The compliance officer's training and experience certainly entitled him to express an opinion on the subject.

This case is distinguishable from Secretary v. Winslow Crane Service, Inc., 3 OSHRC 1023 (1973), where the Commission indicated that testimony more expert than that of the compliance officer should have been adduced to show that a brace missing from a crane constituted a "deficiency" under 29 CFR 1926.550(a)(5). There the respondent had made its own inspection, had called in an independent inspector, and had made a judgment that the missing brace was unnecessary to the safe operation of the crane. Here there is no evidence that respondent had inspected the worn shackle or made any determination as to its safety; the compliance officer's testimony is essentially unrefuted.

Respondent contends on brief (again outside the record) that the replacement part with which the compliance officer compared the fractured one, to determine the wear on the latter, was not comparable. No such evidence was adduced, and this contention cannot be considered.

It should be noted that [*14] this proceeding is not intended to place the blame for or to determine the cause of the fatal accident. Other factors, such as an overload or an invisible flaw in the metal, might have contributed to the shackle's failure. In effect, the proposition is that, even if the shackle had not broken, it was so extensively worn that it was dangerous to use, and that respondent in the exercise of reasonable diligence should have known that it was defective.

This condition was a "serious" violation, not because an employee was actually killed, but because the use of such a defective part subjected two to five employees to the hazard that equipment and materials weighing 150 to 200 pounds might be dropped on them from a height of 17 to 25 feet. This would be likely to cause death or serious injury.

"A serious violation is established if there is a possibility of an accident which, if it occurs, creates a substantial probability that death or serious injury will result [citations omitted]." Secretary v. McDevitt & Street Co., 8 OSHRC 8 (1974).

IV. The abatement dates.

Although respondent's answer to the complaint denies the reasonableness of the abatement dates, it introduced [*15] no evidence on this issue and does not argue it on brief. The compliance officer's testimony adequately supports the abatement dates in the citations, as amended.

V. The proposed penalties.

No penalty was proposed for the violation of 29 CFR 1926.251(c)(3). The penalty proposed for the violation of 29 CFR 1926.550(a)(6) was $45, and that for 29 CFR 1926.550(a)(5) was $550. The record establishes that the complaint took into consideration the criteria prescribed by 17(j) of the Act. Further, they appear reasonable and appropriate under the circumstances of the case.

FINDINGS OF FACT

1. The respondent, K M Engineering, Inc., is a corporation with its principal place of business at Enid, Oklahoma. It is engaged in the construction of pipeline in Oklahoma and other states and utilizes equipment received from outside Oklahoma. It is engaged in a business affecting commerce and has employees, within the meaning of 3(5) of the Act.

2. On September 22 and 23, 1975, an authorized representative of complainant inspected a workplace under respondent's operation and control six miles north of McAlester, Oklahoma, on U.S. Highway 69.

3. At said time and workplace, [*16] three sideboom tractors were being operated by respondent as pipelaying machines. Two of said tractors were equipped with wire ropes secured to tail chains by means of knots tied in the rope ends. The use of said knots materially reduced the strength of said ropes and created a hazard that they might break and cause a load to drop on employees, two of whom were exposed to the hazard. Since the loads being lifted were well below the breaking point of the wire, the probability of such an occurrence was slight, and no penalty should be assessed.

4. At said time and workplace, respondent did not maintain records of inspection for each of said tractors, and inspection records which it did maintain at its Enid office were inadequate to show the results of such inspections. A penalty of $45 is appropriate for this violation.

5. On or about September 17, 1975, at said workplace, respondent used a defective boom block shackle on a sideboom tractor, said shackle being excessively worn. This defect could have been discovered by respondent in the exercise of due diligence. The use of this defective equipment created a hazard that equipment and materials weighing 150 to 200 pounds might [*17] fall 17 to 25 feet on an employee, and such an occurrence would probably result in death or serious bodily injury. In view of the gravity of this violation, and respondent's size, good faith, and history of no previous violations, a penalty of $550 is deemed appropriate.

6. The abatement dates for the violations proposed by the complainant were reasonable.

CONCLUSIONS OF LAW

1. The Commission has jurisdiction of the parties and of the subject matter of this proceeding.

2. On September 22 and 23, 1975, respondent was in nonserious violation of 29 CFR 1926.251(c)(3).

3. On September 22 and 23, 1975, respondent was in nonserious violation of 29 CFR 1926.550(a)(6).

4. On September 17, 1975, respondent was in serious violation of 29 CFR 1926.550(a)(5).

ORDER

On the basis of the foregoing findings of fact and conclusions of law, it is ORDERED that:

1. Item 5 of citation 1 for nonserious violation of 29 CFR 1926.251(c)(3) be and it hereby is affirmed, and that no penalty be assessed therefor.

2. Item 8 of citation 1, as amended, for nonserious violation of 29 CFR 1926.550(a)(6) be and it hereby is affirmed, and that a penalty of $45 be and it hereby is assessed [*18] therefor.

3. Citation 2 for serious violation of 29 CFR 1926.550(a)(5) be and it hereby is affirmed, and that a penalty of $550 be and it hereby is assessed therefor.

4. Complainant's motion to withdraw item 2 of citation 1 be and it hereby is granted.

5. Respondent's motion to withdraw its notice of contest to item 1 of citation 1 be and it hereby is granted.

6. This proceeding be and it hereby is terminated.

DEE C. BLYTHE, ADMINISTRATIVE LAW JUDGE

July 13, 1976