WILLIAMS ENTERPRISES, INC.

OSHRC Docket No. 16184

Occupational Safety and Health Review Commission

December 23, 1981

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Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

James Brent Clarke, Jr., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Joseph Chodes is before the Commission for review pursuant to 29 U.S.C. 661(i). The judge found that Respondent ("Williams") committed nonserious violations of seven OSHA construction safety standards, and Williams seeks review of his decision with respect to five items. We conclude that the citation items alleging Williams violated 29 C.F.R. 1926.500(d)(1), 1926.550(a)(6), and 1926.400(a) should be vacated, and therefore reverse the judge's decision to affirm those items. We agree that the judge properly affirmed the alleged violations of 29 C.F.R. 1926.250(a)(3) and 1926.450(a)(1). n1

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n1 Former Commissioner Barnako granted Williams' petition for review to the extent that Williams took exception to the judge's disposition of the items involving 1926.500(d)(1) and 1926.400(a). Former Commissioner Moran directed review of the judge's decision "for error." Accordingly, the Commission will resolve the remaining three items contained in Williams' petition for review. Neither party has taken exception to the judge's disposition of three other items. In the absence of either party interest or a compelling public interest in Commission review of these items, we will not review them. See Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976); Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976).

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Alleged Violation of 29 C.F.R. 1926.500(d)(1) n2

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n2 This standard provides:

1926.500 Guardrails, handrails, and covers.

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(d) Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing was to be provided with a standard toeboard wherever bencath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

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Williams was the steel erection subcontractor for the construction of a multi-story building in Richmond, Virginia. At the time an OSHA inspection of the worksite occurred, all the structural steel earction work had been completed and the [*3] exterior of the building was almost entirely enclosed. Williams' employees were engaged in miscellaneous types of finishing work on the project.

A portion of one floor twenty feet above the southeast entrance to the building was open, and scrap material and tools were lying within three feet of the edge. None of Williams' employees were working on that floor at the time of the inspection or had been there for some time. Williams was cited, however, for the absence of a toeboard on the floor because material could have accidentally fallen off the edge and struck Illiams' employees as they used the southeast entrance.

Williams argues, among other things, that it should not be held responsible for the absence of a toeboard because the Secretary failed to prove it knew or should have known of the violation. We agree. Since the building was almost entirely enclosed, the possibitity of a hazard from material falling from open-sided floors was minimal, and a reasonably diligent employer would not necessarily have been alert to such a hazard. Furthermore, Williams had no work to do on the second floor and did not have actual knowledge of the lack of a toeboard and the presence of small [*4] material several feet from the edge of the floor. Moreover, the condition was not the type which would be readily visible from any place except on the floor itself, or which would be so hazardous that a reasonable employer would be alert for it even though it was not visible.

In order to prove that an employer committed a violation, the Secretary must establish that the employer knew or could have, with reasonable diligence, known of the violative condition. Prestressed Systems, Inc., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1981 CCH OSHD P25,358 (No. 16147, 1981); General Electric Co., 81 OSAHRC 42/A2, 9 BNA OSHC 1722, 1981 CCH OSHD P25,345 (No. 13732, 1981). The Secretary did not show that Williams either knew or could have known of the absence of the toeboard on the second floor. Accordingly, we conclude that Williams did not violate section 1926.500(d)(1). n3

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n3 Commissioner Cottine dissents from vacating this item. Although it is clear that the gravity of the violation is slight, the Secretary offerred unrebutted testimony of the compliance officer that the absence of the toeboard was visible from the ground. Thus, Williams could have known of the violative condition with the exercise of reasonable diligence. Inasmuch as Williams' employees used the southeast building entrance, located below the cited condition, Commissioner Cottine would affirm this citation item.

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Alleged Violation of 29 C.F.R. 1926.250(a)(3) n4

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n4 This standard provides:

1926.250 General requirements for storage.

(a) General.

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(3) Aisles and passageways shall be kept clear to provide for the free and safe movement of material handling equipment or employees. Such areas shall be kept in good repair.

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This alleged violation concerns conditions in and around a storage trailer maintained by Williams on the jobsite. Inside the trailer, material such as safety nets, tools, and cans were located at one end, and were piled in such a way that there was no aisle for an employee to use to gain access to the material. Therefore, an employee seeking to obtain some of the material would have to climb over other material. Outside the trailer, heavy piping owned by another contractor was located within several feet of the trailer and would have obstructed an employee seeking to approach the trailer.

Judge Chodes [*6] concluded that the conditions were hazardous to Williams' employees and that access to those conditions was reasonably predictable. He affirmed this item of the citation.

Williams maintains that the standard does not apply to the material inside the trailer because the trailer did not contain designated aisles or passageways. We reject this argument. It would be anomalous to hold that a standard intended to assure uncluttered aisles and passageways was not violated in an area so cluttered that aisles and passageways did not even exist.

Williams contends that it is not responsible for the hazard created by the material outside the trailer because it did not own that material. It relies on Anning-Johnson Co. v. OSHRC, 516 F.2d 1081 (7th Cir. 1975), in which the court held that a subcontractor on a multi-employer construction site who did not create or control a condition constituting a nonserious violation of a standard did not violate that standard.

The Commission has declined to follow all aspects of the Seventh Circuit's decision, but has instead recognized certain defenses available to subcontractors on multi-employer construction sites who did not create or control violative [*7] conditions. n5 In applying those rules to housekeepingtype violations, the Commission has held that, although any employer is capable of recognizing and eliminating such violations, subcontractors at multi-employer construction sites need not themselves clear up debris left by others. Otis Elevator Corp., 76 OSAHRC 57/E5, 4 BNA OSHC 1219, 1975-76 CCH OSHD P20,693 (No. 8468, 1976). At a minimum, however, if their employees are exposed to debris left by others, they must request that the responsible contractor clear up the debris in order to avoid being found liable. Wander Iron Works, Inc., 80 OSAHRC 40/A2, 8 BNA OSHC 1354, 1980 CCH OSHD P24,457 (No. 76-3105, 1980); Howard Electric Co., 78 OSAHRC 37/B9, 6 BNA OSHC 1518, 1978 CCH OSHD P22,672 (No. 15339, 1978). Williams did not establish that it took this minimum step. Accordingly, we reject Williams' argument that it is absolved of responsibility because it did not own the material outside its trailer. n6

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n5 See Grossman Steel and Alumimum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD P20,691 (No. 12775, 1976); Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD P20,690 (No. 3694, 1976).

n6 Chirman Rowland would affirm this item solely on the basis of the material inside the trailer.

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Williams also contends that a violation was not proven because there was no evidence that any of its employees used the trailer on the day of the inspection. Williams' employees, however, used the trailer on a regular basis during the course of the construction work, and its foreman testified he entered the storage area "a couple of days before the inspection," at which time he had to crawl and climb over material. Thus, the record establishes that Williams violated the standard.

Alleged Violation of Article 305-2, n7 National Electrical Code, NFPA 70-1971, as Adopted by 29 C.F.R. 1926.400(a).

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n7 This standard applies to temporary wiring and provides, in pertinent part: "no conductor shall be laid on the floor."

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A flexible, non-metallic cable was connected from a temporary electrical panel box on the ground floor to an outlet used by another contractor to energize a pipe threading machine. The cable lay across a passageway [*9] running between two of the four entrances to the ground floor. Williams' employees regularly used the passageway in gaining access to their work stations inside the building.

Williams' superintendent, Barker, did not know of the presence of the cable. Moreover, there is no evidence showing that any of Williams' other employees knew of the presence of the cable. The compliance officer did not know how long the cable had been in that location.

As with the alleged violation of section 1926.500(d)(1) discussed above, we agree with Williams' argument that it is not in violation because the Secretary failed to prove it knew or could have, with reasonable diligence, known of the violative condition. There is no evidence that any Williams' employee knew of the presence of the cable. Nor is there any evidence that the cable laid across the passageway for a long enough time that Williams' employees should have known of its presence. Moreover, Williams did not itself either place the cable in that position or use the cable. Therefore, the cable's presence was not due in any manner to Williams' failure to properly instruct its employees. Cf. Automatic Sprinkler Corp. of America, [*10] 80 OSAHRC 47/E4, 8 BNA OSHC 1384, 1980 CCH OSHD P24,495 (No. 76-5089, 1980) (when an employer can anticipate that its employees will use certain equipment, it must issue instructions to assure the equipment is used safely). Additionally, since Williams did not create or participate in creation of the hazard, it could not have known instantaneously of the hazardous condition, even through the exercise of reasonable diligence. Accordingly, in the absence of evidence that the cable lay in the passageway for a sufficient period of time that Williams should have discovered it, we conclude that the Secretary has failed to prove Williams had the requisite knowledge of the violation.

Alleged Violation of 29 C.F.R. 1926.450(a)(1) n8

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n8 This standard provides:

1926.450 Ladders.

(a) General requirements. (1) Except where either permanent or temporary stairways or suitable ramps or runways are provided, ladders described in this subpart shall be used to give safe access to all elevations.

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No steps, ramp, [*11] or ladder were provided for Williams' employees to use in entering or leaving the storage trailer. The height from the ground to the entrance level of the trailer was four feet, and employees would have to climb up or jump down this distance to enter or leave the trailer. The judge determined that such entry and exit would be hazardous, particularly to employees carrying material.

Williams contends that a violation was not proven because there was no evidence that any of its employees used the trailer on the day of the inspection. We rejected the same argument in the discussion of the alleged violation of 29 C.F.R. 1926.250(a)(3). Accordingly, we affirm the judge's finding of a violation. We conclude, however, that the violation was de minimis based on the negligible relationship of the violation to employee safety or health. See Continental Oil Co., 79 OSAHRC 42/C3, 7 BNA OSHC 1432, 1979 CCH OSHD P23,626 (No. 13750, 1979).

Alleged Violation of 29 C.F.R. 1926.550(a)(6) n9

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n9 This standard provides:

1926.550 Cranes and derricks.

(a) General requirements.

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(3) 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.

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Williams owned a 110 ton P & H crawler crane, which it had purchased from another company approximately six months before the inspection. Its employee was operating the crane at the time of the inspection and had operated the crane for three or four months prior thereto. The operator performed daily safety checks on certain components of the crane. When asked by the OSHA compliance officer to produce written records of safety inspections, he was unable to do so, as none were kept at the site. Furthermore, the operator did not know if Williams kept any such records at all. Based on this evidence, the judge concluded Williams violated the standard.

We reverse the judge's decision and vacate this item. The cited standard requires a thorough, annual inspection of hoisting machinery. The Secretary failed to prove that more than a year had elapsed since a thorough inspection of the hoisting machinery of this crane had been conducted and therefore failed to prove that Williams had a duty to conduct such an inspection during the six months it owned the crane.

Items 7, 9, and 10 of the citation, alleging [*13] violations of 29 C.F.R. 1926.400(a), 1926.500(d)(1) and 1926.550(a)(6) are vacated. Item 8, which alleges a violation of 29 C.F.R. 1926.450(a)(1), is affirmed as a de minimis violation. In all other respects, the judge's decision is affirmed. SO ORDERED.