BURK CONSTRUCTION CORPORATION

OSHRC Docket No. 16229

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

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

Dale G. Anderson, Executive Vice President, Burk Construction Corporation, 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 described no compelling public interest issue.

The [*2] Judge's decision is accorded the significance 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:

The contested citation should be vacated because it was 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. Moreover, Judge Patton erred in characterizing the violation alleged therein as "repeated." There is nothing in the record to indicate that respondent's actions constituted a "flaunting . . . of the Act" so as to justify the affirmance of a "repeated" violation. See Bethlehem Steel Corporation v. OSAHRC, 540 F.2d 157, 162 (3d Cir. 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 my colleagues do not address any of the matters [*3] covered in Judge Patton'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

Jack S. Wallach, Office of the Solicitor, U.S. Department of Labor, on behalf of complainant

Dale G. Anderson, on behalf of respondent

STATEMENT OF CASE

PATTON, Judge: This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., 84 Stat. 1590, hereinafter referred to as the "Act") contesting a citation issued by the complainant against the respondent under the authority vested in complainant by section 9(a) of the Act.

The citation alleges that as the result of the inspection of a workplace under the ownership, operation, or control of the respondent located at 9801 Collins Avenue, Bal Harbour, Florida, the respondent has violated section 5(a)(2) of the Act by failing to comply with Occupational Safety and Health Standards 29 C.F.R. 1926.402(a)(10), 29 C.F.R. 1926.28(a) and 29 C.F.R. 1926.105(a). Hearing was held in Miami, Florida, on March 29, 1976; both parties appeared and presented evidence. There was no motion to intervene. No briefs have been [*4] filed.

ISSUES OF THE CASE

It was alleged that the respondent violated standard 29 C.F.R. 1926.402(a)(10) in that respondent failed to replace frayed and broken electrical cords on its equipment, such as the electric cord on a ceiling grinder located on the south side of the tenth level. At the hearing the respondent stated that respondent no longer contests the allegations of said violation, and therefore it was not necessary for said violation to be proven by the introduction of evidence.

It was alleged that the respondent violated standard 29 C.F.R. 1926.28(a) and 29 C.F.R. 1926.105(a) in that respondent failed to assure that employees working at the perimeter of open-sided floors such as the 17th level were protected from fall injuries by safety belts attached to lifelines or equivalent fall protection. The issue for determination is whether safety belts should have been worn and whether a net should have been erected. It was admitted that safety belts were not worn and a net was not erected, but it was the position of the respondent that it was impractical to use safety belts because of the nature of the work and that safety belts enhanced the hazards. It was also the [*5] position of the respondent that it was not necessary for nets to be erected.

EVIDENCE IN THE CASE

Respondent admitted it is a corporation having a place of business and doing business, among other places, at Biscayne Boulevard at 187th Street, Miami, Florida, where it is engaged in form and concrete construction. It was admitted that respondent, at all times relevant to this cause, has been an employer engaged in a business affecting interstate commerce within the meaning of the Act. The evidence established that the respondent was erecting a form system. It was stated that when the table is in the outboard position ready to fly, a person standing on the floor above walks out onto the deck and rigs four lines, two just behind the mid-point of the form and two at the outboard end of the form (Tr. 42). Two to four jacks would be installed underneath the bottom to support members of the form or two truss which are raised together (Tr. 47-48). The form is initially landed on the forward position dollies when it lands on the deck. After the form is properly positioned there are four jacks placed underneath the form to bring it up to grade, and they are placed at four extreme [*6] corners underneath the form so that there are two at the rear and two at the outboard ends (Tr. 48, 49). Normally, there are two men who place the jacks underneath the form to level it. They have to remove the form from a hook that places the jacks underneath the form and holds it there (Tr. 49). It was stated that it is never required that the man be between the jack and the edge of the building (Tr. 49). They are required to go from side to side of the particular table on which they are working (Tr. 49).

Jack Ruggles, compliance officer for the respondent inspected the premises on November 17, 1975 (Tr. 17). Mr. Ruggles observed Mr. Featon, an employee of the respondent setting the jacks on the flying table within a couple of feet of the unguarded perimeter at a high elevation (Tr. 23). Mr. Featon was wearing no protective equipment. The foreman and two other employees were present (Tr. 24). The other two employees were standing on the 17th floor level. None of the persons present had on safety belts (Tr. 24). Mr. Turney, the foreman, was out on the edge without a safety belt (Tr. 25). Mr. Ruggles stated that when he made a return visit for inspection, the employees [*7] performing such work were wearing safety belts (Tr. 28). They were tied off to the D-ring secured to a column by a rope (Tr. 28). At the time of the first inspection, the employees were approximately two feet from the end (Tr. 29). Mr. Ruggles stated it would be possible to connect the lifeline to two columns on the forward edge, that they had ropes around them with the D-ring attached as a man approached the forward edge, which was the unguarded edge. He could snap on to the D-ring and do the job and then unsnap it when he left (Tr. 38). Brice Featon testified that he was not wearing any fall protection on the date of inspection (Tr. 11). He stated he was doing said work for about an hour each day as well as working other places (Tr. 12). Mr. Featon stated that he was wearing safety belts and using clips on ropes at the time of Mr. Ruggles' return (Tr. 12). No one else was doing the kind of work he was doing on November 13. Safety belts were available and he had one, but he never bothered to use it on the tables because he did not think it necessary. He did not consider the work hazardous compared to other work he had been doing. He was stripping some columns on the outside [*8] of the balcony at the time of inspection. He was a carpenter by trade. He was putting a jack on each table (Tr. 10). Usually two men worked the outside jacks while he was flying the tables (Tr. 14).

Mr. Don Holtgren, who had been employed by the respondent for three years as a construction engineer related to concrete form work, testified that safety lines are normally attached to the hooks of the crane. He stated, however, that this is not the only place to which the hooks could be attached. He said an employee might have to cover 40 feet, requiring a long line. The lifeline would probably be 12 feet above the level of the form and that was what it would be attached to (Tr. 42). He stated that he had never seen other contractors who used the flying form system similar to respondent's using lanyards or safety devices for installing jacks underneath (Tr. 47). He stated an employee would be required to go from side to side of the particular table on which he was working. Normally he just crawls through between the truss. He stated a man cannot crawl through the web of the truss with a six-foot line (Tr. 49). He testified that if it is longer than six feet it is possible [*9] for the employee to get hung up or trip over it (Tr. 50). He also said that when a person was placing the jack he was probably not at the edge more than a minute or two. There were two jacks at the edge. Two men normally did this work (Tr. 31). A man must crawl under the flying form to get from one side to the other. They have to do this to place the other jack (Tr. 51). He testified, however, that one man could do the outboard on one side and inboard on the same side, and the other man could do the other end making it unnecessary to crawl over. The only time under this circumstance when a man would have to crawl under the flying form would be if he might have to get to the inside of the form to take the jack down to put it underneath (Tr. 52). In his travels he has seen situations where one man worked one side and the other man worked on the other side. He did not know why this was not done by the respondent (Tr. 52). Fante, vice-president of respondent, testified, however, that the reason a man working with one outside jack does not work with the jack on the inside is because if the lifeline was running between two columns nearby he might fall over backwards (Tr. 65). [*10] The cable has been tied down and has to be guided down between the columns, and with the position of one man forward and one to the rear, they can keep it in position coming down from above (Tr. 66). He also said that the table is set so a man will have to go through a number of cross braces to go from front to rear (Tr. 68). Mr. Featon stated that on the job in question there was a block wall between the columns and there was no way to tie a line unless it was tied to the table itself (Tr. 77). He confirmed that it only takes a minute or two to place the jacks (Tr. 78-79). He stated that he could not remain close enough to use a six-foot line, and must use a longer line and that a rope can hang up in places, particularly in the material on the deck. He admitted, however, that there was no reason for the material to be there (Tr. 78-79). The respondent testified that the only reason for adding safety belts after the inspection was because the complainant wanted them to do so and that they thought that safety belts under the circumstances were impractical. Fante maintains belts, lines, and lanyards in a gang box, and the men can go to the box and secure them if they desire (Tr. [*11] 70-71).

The respondent did not contest the fact that nets or any other fall protection were not erected. Mr. Holtgren testified that he had never seen safety nets used on concrete form buildings (Tr. 40).

EVALUATION OF THE EVIDENCE

It is undisputed that the respondent's employees were working at a high elevation near the edge without the benefit of safety belts. It is also undisputed that neither nets nor any other fall protection were provided. It is the contention of the respondent that safety belts were impractical. It is above noted that Mr. Ruggles testified that the hooks could be placed on the columns and the employees could snap on to the D-hooks and then snap off. It was admitted that subsequent to the inspection, this was done. Mr. Featon testified that subsequent to the inspection he used safety belts and clips on ropes. Mr. Holtgren testified that safety belts are normally attached to the hooks of the crane but admitted this was not the only place to which they could be hooked. He did state, however, that a long line would be required.

There is some question as to whether the necessity of the employees going from one side to the other made it impractical [*12] for safety belts to be worn. It was testified that an employee normally crawls through the webs of the truss, and that this cannot be done with a six-foot line. He testified, however, that it was possible to run a lifeline from one column to the other. The evidence would indicate that it would not be possible to crawl through with a line attached. It was suggested, however, that one man could be on one side and one on the other, making it unnecessary for employees to cross over obstacles, which would make the use of a safety line impractical. Holtgren testified that the object has to be tied down and has to be guided down between the columns, and that one man must be positioned forward and one to the rear to keep the table in that position coming down from above (Tr. 66). This contention was not replied to by the complainant. The method of having one man on each side where he would not have to cross over therefore has not been established to be practical.

It would appear from the above that it is not practical in all situations to have the safety belt attached. It does not follow that it is not practical to have the safety belt attached during the time that part of the work [*13] is being performed. It would seem a simple matter to attach the safety belts to a D-hook on a lifeline. If it is necessary for an employee to cross over to the other side, and if it is impossible to do so with a safety line attached the employee could unhook the belt and then rehook on the other side. If necessary he could have a lanyard on each side. No safety belt was used at the time of inspection. It would therefore appear that a violation has occurred. It is insisted by the respondent that employees might trip over the rope. This might constitute some hazard, but in comparing the hazard of a man secured by a rope tripping and falling off and an unsecured man falling and plunging to the ground below, it would appear that the hazard of a fall after being tied off and properly secured is much less severe than the hazard of working without being tied off at all.

It is admitted that nets were not erected. There was testimony to the effect that it has not been done by other companies performing similar operations which the respondent may have seen. It is not established, however, that it is impossible or impractical to erect a net. The mere fact that others may not have [*14] done so does not excuse the respondent from an obligation to do so in those instances in which a safety belt may not be practical. The respondent therefore should be required to have its employees wear safety belts in all instances except those in which the employees must cross obstacles which they cannot adequately cross with a line attached. In an instance where such situations may arise, the respondent should be required to erect a safety net for the protection of the employee who might fall. In the opinion of this Judge, the respondent has therefore violated the Act, both in failure to have its employees wear safety belts at all times it may have been practical to do so and in failing to erect safety nets in those instances in which it would not have been practical to wear safety belts.

A penalty in the amount of $1900 is proposed. This penalty is proposed on the basis of the fact that the employees were subjected to substantial risk and it was a repeat violation. The prior citation was introduced into evidence, and the respondent was found on a prior occasion to have been in violation of the same standards. It would appear, however, under all the facts of this case that [*15] a penalty in the amount of $1900 is excessive. In view of the fact that it is a repeat violation and of the danger to employees, a penalty in the amount of $1,000, however, should be assessed.

FINDINGS OF FACT

1. Respondent is a corporation doing business in Miami, Florida, where it is engaged in form and concrete construction. Respondent, at all times relative to this cause, has been an employer engaged in a business affecting interstate commerce.

2. On November 17, 1975, the respondent was erecting forms at a high elevation on a project located at Biscayne Boulevard, Miami, Florida.

3. On said date, an employee of respondent setting jacks on a flying table was working approximately two feet from an unguarded perimeter at a high elevation without wearing a safety belt.

4. A foreman of the respondent and two other employees were working on the 17th level near an unguarded perimeter without safety belts.

5. It was possible for respondent's employees to tie off to a D-ring secured to a column by a rope.

6. It was possible for a lifeline for tying off of a lanyard to be erected between the columns.

7. The respondent did have its employees performing said work tied [*16] off subsequent to the inspection.

8. At times employees had to cross over from one side to the other, making it necessary to crawl through the web of a truss, which would have been difficult if not impossible to do with a lifeline attached.

9. The respondent did not have a safety net or other fall protection provided.

CONCLUSIONS OF LAW

1. Respondent is engaged in a business affecting interstate commerce and is within the jurisdiction of the Occupational Safety and Health Act.

2. The respondent, by permitting its employees to work without safety belts at high elevations near unguarded perimeters at such times as its employees could have worn and attached safety belts, is in violation of standard 29 C.F.R. 1926.28(a).

3. The respondent, by failing to erect safety nets for the protection of its employees from falls at such times as it may not have been practical to wear safety belts, was in violation of standard 29 C.F.R. 1926.105(a).

4. The respondent, by failing to replace frayed and broken electrical cords on its equipment such as the electric cord on the ceiling grinder, was in violation of standard 29 C.F.R. 1926.402(a)(10).

ORDER

It is therefore ORDERED [*17] that:

Respondent, by permitting its employees to work without safety belts at high elevations near unguarded preimeters when practical, and by not erecting nets when safety belts were impractical, is in violation of standards 29 C.F.R. 1926.28(a) and 29 C.F.R. 1926.105(a). A penalty in the amount of $1,000 is assessed for said violation. The requirement that said violation be immediately abated is sustained.

The respondent is in violation of standard 29 C.F.R. 1926.402(a)(10) by permitting its employees to work with an electric cord on the ceiling grinder which was frayed and had broken insulation. No penalty is assessed for said violation. The requirement that said violation be immediately abated is affirmed.

Dated this 19th day of July 1976.

JOHN S. PATTON, Judge