B & J MECHANICAL CONTRACTORS, INC.  

OSHRC Docket No. 1670

Occupational Safety and Health Review Commission

June 8, 1973

 

Before MORAN, Chairman; VAN NAMEE, Commissioner.  

OPINIONBY: MORAN

OPINION:

  MORAN, CHAIRMAN: On April 3, 1973, Review Commission Judge John J. Larkin issued a decision in this case.   Thereafter, on April 24, 1973, pursuant to section 12(j) of the Act, that decision was ordered to be reviewed by the Commission.

Having examined the record in its entirety, the Commission finds no prejudicial error therein.   Accordingly, it is ordered that the Judge's decision is hereby affirmed in all respects.

[The Judge's decision referred to herein follows]

LARKIN, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. (referred to as the Act) to review a "Citation for Serious Violation" and "Notification of Proposed Penalty" in the amount of $500 and a "Citation" and "Notification of Proposed Penalty" in the amount of $25 issued by the Secretary of Labor (referred to as the Secretary) pursuant to Section 9(a) and 10(a) of the Act.

The proceeding grows out of issuance of a citation for serious violation and a citation on October 4, 1972, as a result of an inspection on September 28, 1972, citing an alleged violation of the Act for failure to conform with Sections 29 CFR 1926.105(a) and 29 CFR 1926.451(a)(4) respectively.   More specifically, the citations provide:

  An inspection of a workplace under your ownership, operation, or control located at Hamilton, Alabama (Jobsite Federal Mogul) and described as follows -- Mechanical Contractors-has been conducted.

CITATION FOR SERIOUS VIOLATION

Description of alleged violation: -- 29 CFR 1926.105(a) -- Failure to provide safety belts, lanyards and lifelines or other devices, for employees when working more than 25 feet above the ground or other surface. --

Abatement date: -- 3 days after receipt of citation.

CITATION

Description of alleged violation: -- 29 CFR 1926.45(a)(4) -- Failure to provide guard rails and toe boards around open sides and ends of platform more than six (6) feet above ground. --

Abatement date: -- 3 days after receipt of citation.

More specifically, the standards provide: -- 29 CFR 1926.105(a) -- Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces when the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.   29 CFR 1926.451(a)(4) -- Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 6 feet above the ground or floor . . .

On November 13, 1972, the Secretary filed a Complaint in response to respondent's notice of contest filed by letter on November 6, 1972.

The trial was held on March 8, 1973, in Jasper, Alabama.

FINDINGS OF FACT

1.   Respondent, B & J Mechanical Contractors, Inc., is a corporation doing business in Hamilton, Alabama, where it installs plumbing, heating, and air conditioning equipment (Complaint, Par. II; Tr. 5).   Respondent is engaged in a business affecting commerce within the meaning of the Act (Complaint, Par. II; Tr. 5).

2.   During September 1972, respondent was   engaged in work involving a contract for the Federal Mogul Building, Hamilton, Alabama (Complaint, Par. II; Tr. 5, 7, 8, 10).   The contract price was approximately $1,200,000 and respondent has 12 to 15 employees on the project (Tr. 10, 26, 27).

3.   On September 28, 1972, two of respondent's employees were installing a plastic or nylon temporary water pipe at the project (Ex. 1; Tr. 14, 15, 25).   One of the employees was working at a height of approximately 13 feet, and the other, approximately 30 feet above a clay-type soil at ground level (Tr. 12, 13; Ex. 1).   The employee at the upper height was sitting on a double bar joist approximately a foot-and-a-half to two feet wide and the employee at the lower level was standing on a temporary platform containing neither guardrails nor toeboards (Ex. 1; Tr. 16, 30, 31).

4.   Respondent's superintendent had instructed the employees to use the bed of a one-and-a-half ton truck as a working platform with a 24-foot extension ladder to reach the height necessary to install the pipe (Tr. 23).   This procedure was used until a place was reached where steel beams at a 12-foot height prevented use of the truck bed (Tr. 23, 26).   The superintendent had to leave the project and left one of the two employees in charge (Tr. 27).   Unbeknown to respondent's superintendent, the employees used the temporary platform at the 13-foot height as a base for the ladder (Tr. 22-24; Ex. 1).   The area contained no safety net or other safety devices except the platform (Tr. 22-44, 28, 29; Ex. 1).   The employees were not wearing safety belts (Ex. 1; Tr. 28, 29).

5.   The condition was corrected immediately upon being   called to respondent's attention (Tr. 20, 21).   The Secretary, in computing the proposed penalties, allowed respondent maximum credit for its safety history and good faith (Tr. 18, 19).

  OPINION

The issues for decision are whether respondent was in violation of Section 5(a)(2) of the Act for failure to conform with the requirements of 29 CFR 1926.105(a) and 29 CFR 1926.451(a)(4).

Respondent concedes that it did not have safety nets installed. 29 CFR 1926.105(a) requires safety nets ". . . where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines or safety belts is impractical." In other words, safety nets are required only if the other safety devices are impractical. The Secretary does not contend that one of the alternatives to a safety net specified in the standard would have been impractical. Under such circumstances, the respondent was not required to have had safety nets and was not in violation of the standard relied upon by the Secretary.   Hence, this issue must be decided for respondent.

29 CFR 1926.451(a)(4), in essence, requires guardrails and toeboards on open sides and ends of a platform over six feet above the ground or floor   level.

Respondent concedes and the record shows that the platform was approximately 13 feet above the ground and contained no guardrails or toeboards. Respondent contends that the employees deviated from original instructions and installed the platform without respondent's superintendent's knowledge.   The superintendent had to leave the project, but one of the employees involved in the violation was left in charge.   Under these circumstances, knowledge must be imputed to respondent as an employee designated to be in charge of the work had actual knowledge (cf.   Mountain States Telephone and Telegraph Company, OSHRC Docket 355).

This leaves for consideration the amount of penalty,   if any, that is appropriate under Section 17(j) of the Act.   It is concluded that the violation is the type that does justify the imposition of some penalty (see Hydroswift Corporation,

As to the gravity of the violation, the record shows that one employee was exposed from a height of 13 feet for approximately 30 minutes.   The extent of this employee's activity is not shown, but the Secretary does not contend that the violation was of a serious nature.

As to size,   the contract price of the work being done by respondent was approximately $1,200,000, and respondent had approximately 12 to 15 employees on the project.

The Secretary allowed the respondent maximum credit for safety history and good faith.

When the criteria of Section 17(j) are considered and for want of a more precise answer, the penalty of $25 proposed by the Secretary is affirmed.   (CF.   Baltz Brothers Packing Company,

CONCLUSIONS OF LAW AND DECISION

1.   Respondent was not in violation of Section 5(a)(2) of the Act for failure to conform with the provisions of 29 CFR 1926.105(a), and no penalty is assessed.

2.   Respondent was in violation of Section 5(a)(2) of the Act for failure to conform with the provisions of 29 CFR 1926.451(a)(4), and a penalty in the amount of $25 is appropriate.

WHEREFORE, IT IS ORDERED:

1.   The Citation issued on October 4, 1972, is vacated, and no penalty shall be assessed against respondent for alleged violation of Section 5(a)(2) of the Act for failure to conform with the provisions of 29 CFR 1926.105(a) and,

  2.   The Citation issued on October 4, 1972, is affirmed and a penalty of $25 shall be assessed against respondent for violation of Section 5(a)(2) of the Act for failure to conform with the provisions of 29 CFR 1926.451(a)(4).