MCC OF FLORIDA, INC.  

OSHRC Docket No. 15757

Occupational Safety and Health Review Commission

May 28, 1981

  [*1]  

Before: CLEARY and COTTINE, Commissioners.  

COUNSEL:

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

Thomas A. Harris, for the employer

John R. Overturf, President, Southern Safety & Environmental Engineering, Inc., for the employer

Gilbert V. Simpkins, Michael Construction Co. of Florida, Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Paul L. Brady is before the Commission for review under section 12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   The Respondent, MCC of Florida, Inc. ("MCC"), was issued a citation alleging a serious violation of the Act and a citation alleging six other than serious violations. n1 The judge affirmed all charges.   Former Commissioner Moran directed that the judge's decision be reviewed "for error." The direction for review did not further specify issues to be considered by the Commission.   After issuance of the direction for review, MCC filed a petition for review objecting to the judge's decision, and it also resubmitted the post-hearing brief that it had filed with the judge.   The Secretary of Labor ("the Secretary") did not file [*2]   a brief on review.

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n1 The citation for serious violation alleged that MCC failed to comply with 29 C.F.R. §   1926.451(a)(12).   The citation for other than serious violations alleged that MCC failed to comply with the following regulations: Item (1) 29 C.F.R. §   1926.152(a)(1); (2) 29 C.F.R. §   1926.251(c)(5); (3) 29 C.F.R. §   1926.350(j) and ANSI Z49.1, section 3.2.4.3 -- 1967; (4) 29 C.F.R. §   1926.28(a); (5) 29 C.F.R. §   1926.550(a)(9); (6) 29 C.F.R. §   1926. 550(a)(6), 29 C.F.R. §   1926.605(a), and 29 C.F.R. §   1918.13(a).   All charges involved the alleged failure by MCC to comply with construction safety standards.   Although §   1918.13(a) is a longshoring standard, it is made applicable to construction work by §   1926.605(a).

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In its petition, MCC contends that the Secretary did not have jurisdiction to issue citations regarding the working conditions that were the subject of items 2, 3, 5, and 6 of the citation for other than serious violations.   It contends that those conditions were exclusively covered by the Longshoremen's [*3]   and Harbor Workers' Compensation Act, 33 U.S.C. § §   901-950 ("LHWCA").   It also contends that the judge's decision indicates that he did not fairly consider the contentions of MCC or evidence supportive of MCC's positions as to various items of the citations.   MCC argues that the record establishes that the judge "has evidenced lack of impartiality in that his decision credits each witness and contention made by the complainant on every charge and each and every witness and contention in favor of the respondent's position, upon numerous issues, has been rejected." MCC gives several "examples" of the judge's actions that assertedly indicate that he did not fairly consider the evidence and contentions before him.   Moreover, the petition asserts that the "whole decision and transcript should be reviewed for a reweighing of the evidence." In its petition and brief, the Respondent also makes various specific contentions with respect to each of the cited violations.

I

At the time of the inspection, MCC was engaged in constructing two bridges for a highway in Tice, Florida.   Part of the construction was performed by using cranes installed on barges located in the water below the bridges.   [*4]   In its answer, MCC admitted that it was engaged in construction work and its supervisor on the site testified at the hearing that construction work was being performed.   Nevertheless, MCC argued before the judge and it contends in its petition for review that only the Longshoremen's and Harbor Workers' Compensation Act and its implementing regulations apply to conditions on the barges. MCC argues that the barges are properly classified as "vessels" and are therefore subject to coverage only by the LHWCA.   It further argues that the Commission had no jurisdiction to hear this case because the United States District Courts have exclusive jurisdiction of enforcement proceedings under the LHWCA.   Moreover, MCC contends on review that the judge's failure to make a ruling on this jurisdictional issue demonstrates the judge's lack of impartiality.

There is no support for MCC's contention that the Act is inapplicable to the working conditions on the barges and that the conditions are covered exclusively under the LHWCA.   The jurisdictional requirements of the Act have been satisfied.   The working conditions are located within the boundaries of the state of Florida.   See 29 U.S.C. §   653(a).   [*5]   MCC is an employer as defined by section 3 of the Act.   See 29 U.S.C. §   652(5).   Accordingly, MCC is required to comply with the standards promulgated under the Act.   See 29 U.S.C. §   654(a)(2).   In addition, the construction standards promulgated under the Act apply to working conditions on barges. "Construction work performed from vessels is not exempt from the applicable construction standards of Part 1926." Perini Corp., 77 OSAHRC 136/A2, 5 BNA OSHC 1596, 1598, 1977-78 CCH OSHD P21,967 at p. 26,472 (No. 11007, 1977). n2

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n2 It is immaterial whether the working conditions were subject to regulation by the Secretary under the LHWCA, see 33 U.S.C. §   903(a) and §   941(a), because even if LHWCA standards are applicable to certain working conditions, those standards are enforceable under the Act in a Commission proceeding.   Section 4(b)(2) of the Act, 29 U.S.C. §   653(b)(2).   See Atlantic & Gulf Stevedores, Inc., et al., 75 OSAHRC 47/A2, 3 BNA OSHC 1003, 1974-75 CCH OSHD P19,526 (Nos. 2818, et al., 1975), aff'd, 534 F.2d 541 (3d Cir. 1976).

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By not ruling on the jurisdictional issue the judge implicitly rejected MCC's contention.   Inasmuch as we have rejected the contention, the judge's failure to rule on the issue constitutes harmless error.   Moreover, we find no additional support for MCC's claim that the judge's failure to rule on this issue indicates that he failed to impartially render his decision.

MCC's other claims of partiality concern the judge's disposition of the citation for a serious violation and items 3 and 4 of the citation for other than serious violations.   Regarding the alleged serious violation of the Act based on noncompliance with section 1926.451(a)(12), n3 MCC contends that the evidence does not support a finding that boards on a walkway were not overlapped at least 12 inches or nailed as required by the standard.   With respect to the section 1926.28(a) n4 charge (item 4), MCC argues that under the cited conditions compliance with the standard would have diminished, rather than enhanced, employee safety.   MCC maintains that the judge's rejection of these contentions demonstrates partiality. We have examined the record and conclude that [*7]   the judge properly considered the evidence and MCC's contentions regarding the section 1926.451(a)(12) and section 1926.28(a) charges.   Accordingly, we adopt the judge's determinations and affirm the violations.   See Adrian Construction Co., 79 OSAHRC 16/A2, 7 BNA OSHC 1172, 1979 CCH OSHD P23,389 (No. 15414, 1979); Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14281, 1977).   The basis for MCC's contention that the judge's rulings on these items demonstrated partiality was simply that the charges should have been vacated. Having found that the judge's affirmance of the charges was proper, we reject the claim that the judge was partial in his determinations.   Claims of partiality based on a judge's substantive rulings do not afford an independent ground for review.   Cf. United States v. Grinnel Corp., 384 U.S. 563, 583 (1966) (bias and prejudice are disqualifying only if they result in an opinion on the merits on some basis other than what the judge learned from his participation in the case).

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n3 §   1926.451 Scaffolding.

(a) General requirements.

* * *

(12) All planking of platforms shall be overlapped (minimum 12 inches), or secured from movement.

n4 §   1926.28 Personal protective equipment.

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

  [*8]  

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The final "example" of partiality that MCC cites is the judge's ruling on item 3 of the citation for other than serious violations.   Item 3 charged that MCC violated the requirements of American National Standards Institute Standard Z49.1, section 3.2.4.3 -- 1967 and C.F.R. §   1926.350(j) n5 by failing "to separate oxygen and fuel-gas (acetylene) cylinders in storage by a minimum distance of twenty feet." The compliance officer testified that he observed oxygen and acetylene cylinders "stored together" on a rack on one of the barges. A photograph submitted into evidence depicts the cylinders lashed together with their valve protection caps in place.   MCC's project engineer testified that the Respondent maintains a storage area for gas cylinders in its office compound.   He stated that during construction of the bridges oxygen and acetylene cylinders required for a day's work were removed from the storage area and transported to the barge. He testified that the cylinders observed by the compliance officer were "waiting to be placed in service on the barge." The judge found that the cylinders were "in   [*9]   storage" within the terms of the standard and accordingly affirmed that item of the citation.

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n5 Section 1926.350(j) incorporates the requirements of ANSI Z49.1-1967 "[f]or additional details not covered in this subpart. . . ."

The ANSI standard provides, "Oxygen cylinders in storage shall be separated from fuel-gas cylinders or combustible materials (especially oil or grease) a minimum distance of 20 feet or by a noncombustible barrier at least 5 feet high having a fire resistance rating of at least 1/2 hour."

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MCC asserts that the cylinders were not "in storage" and that the judge's finding to the contrary indicates partiality. Subsequent to the judge's decision in this case, the Commission reaffirmed its prior holding in United Eng sers and Constructors, Inc., 75 OSAHRC 69/A2, 3 BNA OSHC 1313, 1974-75 CCH OSHD P19,780 (No. 2414, 1975), appeal dismissed, No. 75-1946 (3d Cir. September 17, 1975), that cylinders are not "in storage" if they are located in an area where they are used intermittently.    [*10]   Grossman Steel & Aluminum Corp., 78 OSAHRC 85/A2, 6 BNA OSHC 2020, 1978 CCH OSHD P23,097 (No. 76-2834, 1978).   The evidence indicates that the cylinders on the barge were available for immediate use in the area where they were located.   We therefore conclude that they were not "in storage" within the meaning of the standard. n6 Accordingly, item 3 is vacated unless the Secretary moves for the opportunity to submit a brief on the disposition of the section 1926.350(j) charge within fifteen days from the issuance of this decision. n7

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n6 There is no basis for concluding that the judge's interpretation of the cited standard was predicated on a lack of impartiality in the performance of his adjudicatory function.   The term "storage" and similar terms in various standards have been strictly interpreted under other circumstances.   See, e.g., R. Zoppo Co., 81 OSAHRC    , 9 BNA OSHC 1392, 1981 CCH OSHD P25,230 (No. 14884, 1981) (term "stored" in 29 C.F.R. §   1926.904(b) means "not in use and . . . unnecessarily brought together, however temporarily"); Gerard Leone & Sons, 78 OSAHRC 27/A2, 6 BNA OSHC 1512 (No. 14157, 1978) (term "stored" in 29 C.F.R. §   1926.651(i)(1) means "held" or "placed" "without reference to the length of time the material is at the trench edge").

n7 When a "for error" direction for review has been issued and the Commission is considering reversing any part of the judge's decision in response to an objection by the aggrieved party, it has been the practice to allow the opposing party an opportunity to brief the issue.   See, e.g., Dick Corp., 79 OSAHRC 101/E8, 7 BNA OSHC 1951, 1956 n. 15, 1979 CCH OSHD P24,078 at p. 29,252 n. 15 (No. 16193, 1979).   In this case, we are allowing the Secretary this opportunity by the issuance of a conditional order.

  [*11]  

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II

In its brief MCC sets forth various contentions regarding the remaining items of the citation for other than serious violations.   MCC was cited for failure to comply with section 1926.152(a)(1) n8 because the compliance officer observed a can that contained gasoline but was not "approved" within the terms of the standard.   The compliance officer testified at the hearing that MCC's supervisor at the site told him that the can was used for supplying gasoline to a portable generator that was located nearby.   The supervisor testified that he informed the compliance officer that the can was "illegal." He also testified that he had never seen the gasoline can before the inspection and that he had it removed as soon as he observed it.   There was also conflicting testimony concerning whether the generator was in operation at the time of the inspection. The judge's decision concludes, "The evidence clearly establishes a violation of the standard as admittedly the gasoline can used to service the portable generator was not an approved type."

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n8 §   1926.152 Flammable and combustible liquids.

(a) General requirements. (1) Only approved containers and portable tanks shall be used for storage and handling of flammable and combustible liquids. . . .

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MCC's brief asserts that it had no knowledge, either actual or constructive, of the presence of the gasoline can.   In his decision, the judge found that the can was used to service the generator, but he did not include in his decision any explanation of why he discredited the supervisory's testimony.   A credibility determination must be explained.   See Asplundh Tree Expert Co., 78 OSAHRC 77/E12, 6 BNA OSHC 1951, 1978 CCH OSHD P23,033 (No. 16162, 1978).   Nevertheless, the record before us supports a conclusion that the judge's failure to make a credibility determination was harmless error.

In order to find an employer in violation of the Act due to noncompliance with a standard, the Secretary must prove, among other things, that the employer either knew or could have known with the exercise of reasonable diligence of the noncomplying condition.   Prestressed   [*13]    Systems, Inc., 81 OSAHRC    , 9 BNA OSHC    , 1981 CCH OSHD P25,358 (No. 16147, 1981); General Electric Company, 81 OSAHRC    , 9 BNA OSHC    , 1981 CCH OSHD P25,345 (No. 13732, 1981) (lead opinion and concurring and dissenting opinion).   Here we conclude, on the basis of the record in this case, that MCC possessed constructive knowledge of the violation.   Constructive knowledge is demonstrated with the record reveals that violative conditions are detectable through the exercise of reasonable diligence.   See Prestressed Systems, Inc., supra; R. Zoppo Co., 81 OSAHRC    , 9 BNA OSHC 1392, 1981 CCH OSHD P25,230 (No. 14884, 1981).   The testimony of the compliance officer and the supervisor establishes that the gasoline can was in plain view.   In addition, the supervisor's testimony establishes that MCC foremen were in the area.   Even accepting MCC's claim that it did not actually know of the violation, the foremen should have known of the presence of the gasoline can.   constructive knowledge was therefore established.   Moreover, the knowledge of a foreman is imputable to a corporate employer for the purpose of establishing employer knowledge of violative conditions.   [*14]   See, e.g., Wander Iron Works, Inc., 80 OSAHRC 40/A2, 8 BNA OSHC 1354, 1980 CCH OSHD P24,457 (No. 76-3105, 1980).

MCC also asserts in its brief that there was no evidence of exposure of its employees to the hazard. The contention is without merit.   The compliance officer testified that the can was located in an area where employees "had to pass." His evidence was not rebutted.   Accordingly, even if the can was not used to service the generator, the record establishes that employees had access to the hazard created by the violative condition.   See Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 CCH OSHD P23,135 (No. 16057, 1978).   Based on this record, the alleged violation must be affirmed.

MCC was also cited for improper spacing of U-bolt wire rope clips, a violation of the requirements of section 1926.251(c)(5). n9 The judge properly rejected MCC's contention that "wild eye" splicing is safer than using rope clips for the reason that there was no evidence that MCC was using "wild eye" splicing.   The judge's ruling is affirmed.

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n9 §   1926.251 Rigging equipment for material handling.

* * *

(c) Wire rope.

* * *

(5) When U-bolt wire rope clips are used to form eyes, Table H-20 shall be used to determine the number and spacing of clips. [Table omitted]

  [*15]  

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With respect to the alleged noncompliance with section 1926.550(a)(9), n10 MCC was cited for failing to barricade the rear of a crane, as required by the standard.   MCC defended on the basis that it provided flagmen rather than a barricade. The judge ruled:

The contention is without merit as a flagman positioned in front of the crane directing clearance of the boom and load cannot necessarily provide adequate protection for the rear thereof in contravention of the standard.

The judge's ruling is consistent with the Commission decision in Concrete Construction Co., 76 OSAHRC 139/A2, 4 BNA OSHC 1828, 1976-77 CCH OSHD P21,269 (Nos. 5692 & 7329, 1976), aff'd per curiam, 598 F.2d 1031 (6th Cir. 1979). In that case the Commission concluded that a "barricade" is a physical device and that an employee cannot be substituted for a barricade. n11

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n10 §   1926.550 Cranes and derricks.

(a) General requirements.

* * *

(9) Accessible areas within the swing radius of the rear of the rotating superstructure of the crane, either permanently or temporarily mounted, shall be barricaded in such a manner as to prevent an employee from being struck or crushed by the crane.

n11 MCC also contends that it was improperly cited under §   1926.550(a)(9) for storing a tool box within the swing radius of the crane. The citation states, "In addition [to the description of the conditions constituting the violation], a portable electric tool storage box was positioned beneath the superstructure of the American #599 crane increasing the probability that an employee might be struck or crushed by the crane." This statement was obviously included in the citation only to indicate that employees had access to the hazard.

  [*16]  

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Finally, MCC was alleged to have committed a single other than serious violation by failing to comply with sections 1926.550(a)(6), n12 1926.605(a) n13 and 1918.13(a). n14 The citation's description of the nature of the violation lists eight cranes, which are labelled (a) through (h).   The citation alleges that there were no records available at the worksite showing that cranes (a) through (c) had been inspected, as required by section 1926.550(a)(6), or that cranes (b) through (h) had been certificated at the time of the inspection, n15 as required by section 1918.13(a). n16

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n12 §   1926.550 Cranes and derricks.

(a) General requirements.

* * *

(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.

n13 Section 1926.605(a) requires "Operations fitting the definition of 'material handling' shall be performed in conformance with applicable requirements of Part 1918, 'Safety and Health Regulations for Longshoring' of this chapter . . . ."

n14 The standard at §   1918.13(a) is one of the applicable longshoring standards referred to in §   1926.605(a).   It relates to certification of shore-based material-handling devices and provides in pertinent part as follows:

"An employer shall not use in vessel-to-shore, shore-to-vessel, or in vessel-to-vessel cargo handling any crane. . .

* * *

"until he has ascertained that the device has been certificated as evidenced by current and valid documents attesting to compliance with the requirements. . .

". . . by persons then currently accredited by the Occupational Safety and Health Administration. . . ."

n15 The transcript mistakenly and repeatedly uses "b" when it is apparent that the compliance officer actually said "d" when referring to the list of cranes on the citation.   The judge's decision perpetuates the error.

n16 The compliance officer testified that no proof of certification was required for crane (a) because it was a land-based crane and §   1918.13(a) was therefore not applicable to that crane. The other cranes were located on barges.

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The compliance officer testified that he was informed that there were eight cranes on the worksite, but that he observed only three of them (two of the barge cranes and the land-based crane).   He did not inspect the cranes for any records because the supervisor indicated to him that the records were in the company office.   He went to the company office with the supervisory, where he examined the available records on the cranes. As reflected by the citation, there were no certification papers in the office for any of the barge cranes and no annual inspection records for three of the cranes. The inspection records for the remaining cranes were not signed by an accredited person.   The supervisor testified that he thought the records would be in the office, and that he and the office manager looked for them.   He also testified that he promised the compliance officer that he would provide further records when he found them.   No records were provided to the compliance officer and MCC did not produce any records at the hearing.   Several employees of MCC testified that it was the practice of MCC to keep records [*18]   on the cranes in the cabs of the cranes.

MCC contends in its brief that the evidence establishes the presence of the records in the cranes. The judge rejected that contention, stating, [T]here is every reason to believe that Respondent's [MCC's] supervisor of the job would know where the appropriate records are maintained.   Also, the record indicates such reports were never produced." In our view, the supervisor's testimony indicates that at the time of the inspection he was uncertain where the records were kept.   However, we agree with the judge that the supervisor's failure to produce the records after the inspection and MCC's failure to produce them at the hearing strongly indicate that the required records were not maintained.   We therefore conclude that MCC failed to comply with the standards as alleged.

III

Accordingly, it is ORDERED that the citation for serious violation and items 1, 2, 4, 5, and 6 of the citation for other than serious violations be affirmed.   The judge's penalty assessments with respect to those items are appropriate and therefore are affirmed.   It is further ordered that item 3 of the other than serious citation be vacated unless the Secretary moves [*19]   for the opportunity to submit a brief on the disposition of this charge within fifteen days from the issuance of this decision.