MARTIN IRON WORKS, INC.

OSHRC Docket No. 1690

Occupational Safety and Health Review Commission

January 17, 1975

[*1]

Before MORAN, Chairman: VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order and Chairman Moran's separate order directing review of a decision rendered by Judge James A. Cronin. I requested submissions on a procedural question n1 and on whether the judge erred in dismissing a citation for an alleged non-serious violation of 29 C.F.R. 1926.550(a)(6) on the ground that the standard was vague, and, if not vague, whether a violation had been proven. Chairman Moran asked for submissions on whether contrary to the judge Respondent was not in serious violation of 29 C.F.R. 1926.550(a)(1) for having exceeded the rated lifting capacity of a crane. n2 In addition, the parties have raised a number of other issues. Of these we find Complainant's arguments relative to Respondent's failure to designate a competent person to inspect machinery before use contrary to the requirements of 29 C.F.R. 1926.550(a)(5) to be persuasive.

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n1 We do not reach the procedural question on review. The question was directed to the judge's decision to not allow an amendment of the citation by the complaint as to an allegation that Respondent violated 29 C.F.R. 1926.351(c)(6). The judge determined in the alternative that the substance of the violation was as originally alleged and that it had not been proven. On review, we find his disposition on the alternative ground to be proper.

n2 The Chairman requested submissions on two questions not raised before the hearing judge. Specifically, he asked whether the cited standard was vague and whether it contained an improper delegation. We think it inappropriate to decide issues of this kind when first raised on review. They do not relate to jurisdiction, i.e., our power to hear a case.

[*2]

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Having reviewed the record we affirm Judge Cronin's disposition of the case for the reasons assigned by him except as to his disposition concerning the alleged violations of 29 C.F.R. 1926.550(a)(5) and (a)(6). As to these last named we reverse for the following reasons.

Respondent was engaged in structural steel erection work for the construction of a casino in Stateline, Nevada. It used a 30 ton P and H crane in the performance of the work. In accordance with recognized industry practice the crane was inspected by its operating crew before each use. In addition, the crane was inspected when it was in the yard and not in use. Defective parts were replaced on these occasions, and cables were replaced at least twice a year. Records of yard inspections were not kept.

On these facts Respondent was cited for not having designated a competent person to make inspections before use contrary to the requirements of 29 C.F.R. 1926.550(a)(5) n3 and for not making an annual inspection and maintaining records thereof contrary to the requirements of 29 C.F.R. 1926.550(a)(6). n4

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n3 The standard provides as follows:

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.

n4 The standard provides as follows:

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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THE DESIGNATION ISSUE

In vacating, the judge relied on our decision in Gerosa, Inc., Dkt. No. 190, BNA 1 O.S.H.C. 1105, CCH E.S.H.G. para. 15,446 (1973). We had held that conduct like Respondent's in this case was enough to meet the requirements of the standard. Thereafter, Complainant appealed to the Court of Appeals for the Second Circuit. The court rendered its decision reversing ours after [*4] Judge Cronin decided this matter. The court held that designation under the standard means that an employer must explicitly designate an inspector and inform him of his duties (491 F.2d 1340, 1345).

We acquiese in the court's decision. Accordingly, since Respondent did not officially designate an inspector, it violated the standard.

No penalty was proposed and none is appropriate. As the facts of record indicate, daily inspections were made, thus the violation is technical at best.

THE ANNUAL INSPECTION ISSUE

The judge vacated this allegation because he found the standard vague. Specifically, he was of the view that an employer was not informed as to what constitutes a "thorough annual inspection."

As we subsequently said a standard employing broad terms may be defined by resort to other regulations or codes. Modern Automotive Service, Dkt. No. 1541, BNA 1 O.S.H.C. 1544, CCH E.S.H.G. para. 17,369 (1974). That is this case. 29 C.F.R. 1926.550(b)(2) requires that cranes of the type used here be inspected in accordance with the American National Standard Institute's Code B30.5-1968, entitled, "Safety Code for Crawler, Locomotive and Truck Cranes." Section 5-2.1.3 [*5] of the Code specifies the requirements for periodic inspections. Accordingly, the cited standard is sufficiently precise, and it was error to vacate on vagueness grounds.

On the facts, Respondent conducted inspections like those required by the Code but it did not maintain records. The standard was violated.

Complainant proposed a penalty of $185. We do not think a penalty is appropriate. The crane was inspected when it was in the yard, and repairs were made.

Except for the recordkeeping matter the standard was substantially complied with.

Accordingly, the judge's decision is modified to affirm the citations for non-serious violations of 29 C.F.R. 1926.550(a)(5) and (a)(6) and is affirmed as modified. It is so ORDERED.

CONCURBY: CLEARY; MORAN (In Part)

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in the vacating of the alleged violation of 29 CFR 1926.351(c)(6). Although denying complainant's amendment in his decision, the Administrative Law Judge correctly ruled that the theory of proof proffered on that item, either as cited or as sought to be amended, failed to establish a violation. Thus, any error in failing to grant the amendment is not reversible.

I agree [*6] that the standard set forth at 29 CFR 1926.550(a)(6) has been violated. The Administrative Law Judge had no authority to rule the standard "impermissibly vague and, therefore, unenforceable." See Santa Fe Trail Transportation Co., No. 331 (December 18, 1973) (Cleary, Commissioner, dissenting). Assuming that such authority does rest with the Commission, the standard, as my colleague finds, is not vague. However, resort to "other regulations or codes" in order to avoid a finding of vagueness is not required. What is required by a standard is a reasonable warning of the conduct required in light of common understanding and practices. See Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974). 29 CFR 1926.550(a)(6) satisfies this requirement.

With respect to the other issues on review, I concur in my colleague's decision.

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, CHAIRMAN, concurring in part, dissenting in part: I would vacate the citation for noncompliance with 29 C.F.R. 1926.550(a)(1) and affirm the remainder of the Judge's decision.

The above-cited standard provides in pertinent part that:

The employer shall comply with the manufacturer's specifications [*7] and limitations applicable to the operation of any and all cranes and derricks.

The citation avers that the violation occurred in the following manner:

[T]he manufacturer's specification and limitations applicable to [truck] crane #99 . . . were exceeded, by lifting an 'I' beam weighing 5824 pounds at a radius of 75 feet. This exceeds the maximum load capacity and maximum lifting radius.

Standing alone, 29 C.F.R. 1926.550(a)(1) appears to delegate to crane and derrick manufacturers the authority to prescribe occupational safety standards. If an agency of the United States goes beyond the powers conferred on it by Congress in promulgating regulations, the regulations so promulgated are void. Utah Power & Light Company v. United States, 243 U.S. 389, 410 (1917); Federal Maritime Commission v. Anglo-Canadian Shipping Company, 335 F.2d 255 (9th Cir. 1964). Congress has not authorized the Secretary of Labor to delegate his rulemaking powers to manufacturers. Accordingly, if there has in fact been such a delegation by the Secretary, the standard is invalid.

In determining whether the standard under review illegally delegates to manufacturers the authority to [*8] promulgate safety standards, it is necessary to consider 29 C.F.R. 1926.550(b)(2) which provides that:

All crawler, truck, or locomotive cranes in use shall meet the applicable requirements for design, inspection, construction, testing, maintenance and operation as prescribed in the ANSI [American National Standards Institute] B30.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes. (Emphasis added.)

ANSI standard B30.5-1968 provides safety critieria for establishing maximum load ratings during the development and manufacture of cranes. It also directs the manufacturer to conduct operational tests to insure compliance with these requirements and to affix load rating charts to each vehicle.

Both of the aforementioned Federal standards were initially promulgated in identical language under the Contract Work Hours and Safety Standards Act, 40 U.S.C. 333, as standards applicable to contractors performing Federal and federally assisted contracts. 36 Fed. Reg. 7340 (1971). On April 28, 1971, they became standards under the Occupational Safety and Health Act as provided in 29 U.S.C. 653(b)(2). Subsequently, under 29 U.S.C. 655(a) which gave the Secretary of [*9] Labor authority to adopt any established Federal standard for a period of two years from the effective date of the Act without public scrutiny and without observing the procedural safeguards afforded by the Administrative Procedure Act, 5 U.S.C. 553, the scope of these standards was increased to encompass all construction work. 29 C.F.R. 1910.12, 36 Fed. Reg. 10469 (1971).

Neither the Contract Work Hours and Safety Standards Act nor the Occupational Safety and Health Act empowers the Secretary to establish minimum safety requirements for the performance of industrial trucks which must be followed in their development and manufacture. See 29 U.S.C. 654(a) and 40 U.S.C. 333. n5 Furthermore, except where it has been properly adopted as a law which is not the case here, an ANSI standard is merely advisory in nature. n6 In apparent recognition of these limitations, 29 C.F.R. 1926.550(b)(2) and its predecessor were written as directives to crane users.

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n5 Compare with the National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. 1381, et seq., which authorizes the Secretary of Transportation to establish standards for motor vehicles, that is, vehicles "manufactured primarily for use on the public streets, roads, and highways." 15 U.S.C. 1391(3).

n6 See my separate opinion in Secretary v. Modern Automotive Services, Inc., 6 OSAHRC 738 (1974). In addition, it is noted that currently, and for many years past, each publication of a standard by the American National Standards Institute (and its predecessor organization) is preceded by the following or a similar cautionary statement:

"An American National Standard implies a consensus of those substantially concerned with its scope and provisions. An American National Standard is intended as a guide to aid the manufacturer, the consumer, and the general public. The existence of an American National Standard does not in any respect preclude anyone, whether he has approved the standard or not, from manufacturing, marketing, purchasing, or using products, processes or procedures not conforming to the standard. American National Standards are subject to periodic review and users are cautioned to obtain the latest editions."

[*10]

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Of course, it is an impossibility for a user to know whether the load limitations published by a manufacturer were developed in strict compliance with the criteria specified in ANSI standard B30.5-1968. n7 More importantly, the Secretary has no mechanism for evaluating whether or not the manufacturer has complied with B30.5-1968. Congress obviously did not contemplate this result for it has established in 29 U.S.C. 655(a) and (b) and in 40 U.S.C. 333 detailed procedures for the adoption of standards requiring as part of these procedures a determination by the Secretary that the adoption of such a standard would result in improved safety and health. Since the effect of 29 C.F.R. 1926.550(a)(1) is to exclude the Secretary from making that determination and to delegate it to manufacturers of cranes, it is void.

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n7 An unscrupulous manufacturer might underrate the capabilities of a smaller vehicle in order to promote the sale of larger and more expensive vehicles. In the instant case, there is testimony that indicates that practical experience has shown that the manufacturer's limitations can be exceeded on some occasions without creating an unsafe condition.

[*11]

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The assertion in footnote 2 of the lead opinion that this is not a jurisdictional question is erroneous. When an issue exists as to whether the Secretary exceeded the limits of his delegated authority in promulgating a standard, a question of subject matter jurisdiction is raised. See Secretary v. Stevens Equipment Co., 2 OSAHRC 1501 (1973). Jurisdictional issues may be raised by the Commission at any time and on its own motion. See Clark v. Paul Gray, Inc., 306 U.S. 583, 588 (1939); Hackner v. Guaranty Trust Company of New York, 117 F.2d 95 (2d Cir. 1941); Fed. R. Civ. P. 12(h)(3). My views on the duty of the Commission to review issues not specifically raised in the proceedings below are expressed in greater detail in Secretary v. Puterbaugh Enterprises, Inc., 9 OSAHRC 718, 723 (1974).

Even if 29 U.S.C. 1926.550(a)(1) had been properly promulgated, the failure to comply therewith could not be affirmed because the respondent did not possess the requisite knowledge of the violation. The evidence shows that a few days before the incident on which the citation is based the respondent's [*12] foreman advised the respondent's president that their crane was inadequate for setting two large beams in place. The foreman requested permission to rent a larger crane for the job. The president granted the permission and instructed the foreman not to "take a chance and try to pick up these beams with our crane if you can't get close enough" to the beams to make the lift within the lifting capacity of the crane. Several days thereafter, without advising the president of the change in plans, the foreman directed that the beams be lifted with respondent's crane. An accident resulted.

Knowledge of the existence of a violation, either actual or constructive, is an essential element of any violation of the Act. Secretary v. Mountain States Telephone & Telegraph Co., 2 OSAHRC 168 (1973); Secretary v. Cam Industries, Inc., 7 OSAHRC 30 (1974) (Moran, Chairman). Therefore, the complainant's case must establish that the respondent knew or, with the exercise of reasonable diligence, should have known of the existence of the condition or practice upon which the alleged violation is based.

In the instant case, the alleged violation occurred as a result of the foreman's [*13] disobedience of the express orders of the highest official of the respondent's organization. The president did not have actual knowledge of the disobedience, nor does the evidence establish that he reasonably could be presumed to know of the disobedience of the foreman who had been employed by the respondent for 16 years. The president could have known of the disobedience only if he had kept the foreman under observation for more than two working days. An employer cannot be expected to provide such constant, one-on-one supervision to insure that his orders are obeyed. As the Commission has previously held, the Act is not intended to make insurers of employers. Secretary v. Standard Glass, 1 OSAHRC 594 (1972). It is now well-settled that the Act does not impose such strict liability on employers. See, e.g., National Realty and Construction Co. v. OSAHRC, 498 F.2d 1257, 1265-1266 (D.C. Cir. 1973); REA Express, Inc. v. Brennan, 495 F.2d 822, 826 (2d Cir. 1974); Brennan v. OSAHRC and Hanovia Lamp Division, Canrad Precision Industries, 502 F.2d 946, 951 (3d Cir. 1974).

Although the Commission refuses to address the question of the validity of 29 C.F.R. 1926.550(a)(1), [*14] an issue that was directed for review, it has no difficulty with reversing the Judge's vacation of the 29 C.F.R. 1926.550(a)(5) charge, the propriety of which was not raised in either direction for review. Obviously, it is wrong and unjust to reverse the Judge on that charge without affording the respondent an opportunity to submit a brief thereon.

The Commission also errs in reversing the Judge's vacation of the citation alleging noncompliance with 29 C.F.R. 1926.550(a)(6). That citation did not allege that the respondent failed to maintain annual inspection records. The complainant attempted in his complaint to amend the citation to allege such a failure. By implication, the Judge rejected the proposed amendment. The primary reason for the Judge's denial of the amendment was that the complainant had failed to set forth reasons for the proposed amendment as required by Rule 33(a)(3) of the Commission's procedural rules. I find no abuse of discretion in that ruling.

As the Judge notes in his decision, the Secretary's own expert witness "testified that employers, as well as U.S. Department of Labor compliance officers, would differ as to the meaning of" the term [*15] "thorough annual inspection." In view of this testimony I am unable to understand how the standard provides "a reasonable warning of the conduct required in light of common understanding and practices."

I have previously registered my disagreement with requiring employers to refer to other publications in order to understand what a standard requires them to do. Secretary v. Modern Automotive Services, Inc., supra. In this case, however, reference to ANSI standard B30.5-1968, does not clarify the meaning of "thorough annual inspection." Chapter 5-2 of the ANSI standard refers to initial, regular, frequent, and periodic inspections, but I am unable to find any reference to a "thorough annual inspection" anywhere in that standard. Thus, reference thereto creates confusion rather than clarification.

Finally, it should be noted that the contention in the concurring opinion that the Commission lacks authority to determine whether a standard is unduly vague is no longer a viable position. Several appellate decisions have dealt with the question of whether the Commission correctly held that a standard was unenforceably vague. Brennan v. OSAHRC & Santa Fe Trail Transport Co., [*16] 505 F.2d 869 (10th Cir. 1974); McLean Trucking Co. v. OSAHRC, 503 F.2d 8 (4th Cir. 1974); Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974). However, none of these decisions doubted the Commission's authority to so hold.

[The Judge's decision referred to herein follows]

CRONIN, JUDGE: This is a proceeding under section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter called the Act) contesting three Citations and Notifications of Proposed Penalty issued by the Complainant against the Respondent.

On October 17, 1972, a Citation for Serious Violation was issued to Respondent charging a violation of 29 CFR 1926.550(a)(1). Two days later, on October 19, 1972, two Citations for non-serious violations were issued alleging 12 non-serious violations of the Act, namely, 29 CFR 1926.350(a)(7); 29 CFR 1926.350(a)(9); 29 CFR 1926.351(c)(6); 29 CFR 1926.351(b)(2); 29 CFR 1903.2(a); 29 CFR 1904.2(a); 29 CFR 1926.450(a)(9) 29 CFR 1926.550(a)(14)(i); 29 CFR 1926.601(b)(5); 29 CFR 1926. 150(c)(1)(vi); 29 CFR 1926.550(a)(5); and 29 CFR 1926.550(a)(6). These Citations were the result of an investigation, and two inspections, [*17] of Respondent's worksites at Stateline, Nevada on October 2 and 3, 1972.

Respondent filed a Notice of Contest to the alleged "serious" violation and to nine of the alleged non-serious violations, the proposed penalties based thereon, and the proposed abatement dates. n1 No contest was filed to alleged violations, or penalties for, violations of 1926.550(a)(14)(i), 1926.601(b)(5), and 1926.150(c)(1)(vi). The proposed penalties for the disputed violations are $850 for 1926.550(a)(1); $55 for 1926.450(a)(9); $35 for 1926.550(a)(5); $185 for 1926.550(a)(6); $35 for 1926.350(a)(7); none for 1926.350(a)(9); $90 for 1926.351(c)(6); $35 for 1926.351(b)(2); and none for 1903.2(a) and 1904.2(a).

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n1 Respondent stipulated at hearing that the abatement dates for 6 of the 9 alleged non-serious violations were not in issue. Contested abatement dates relate to 29 CFR 1926.550(a)(1); 29 CFR 1926.450(a)(9) and 29 CFR 1926.550(a)(5).

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The alleged violation of 1926.550(a)(1), to be abated "immediately upon receipt of this citation," [*18] was described in the Citation for Serious Violation as follows:

The employer failed to furnish his employees working at the Harrah's Restaurant addition construction site (Martin Iron Works Job #355) a place of employment which was free from recognized hazards that were causing or likely to cause death or serious physical harm to his employees in that the manufacturer's specification and limitations applicable to crane #99 (P and H Model #455 BTC) were exceeded, by lifting an "I" beam weighing 5824 pounds at a radius of 75 feet. This exceeds the maximum load capacity and the maximum lifting radius.

The standard as promulgated by the Secretary provides:

(a) General requirements.

(1) The employer shall comply with the manufacturer's specifications and limitations applicable to the operation of any and all cranes and derricks. Where manufacturer's specifications are not available, the limitations assigned to the equipment shall be based on the determinations of a qualified engineer competent in this field and such determinations will be appropriately documented and recorded. Attachments used with cranes shall not exceed the capacity, rating or scope recommended [*19] by the manufacturer.

The alleged violation of 1926.450(a)(9) to be abated "immediately upon receipt of this citation" was described as follows:

Failure to provide a portable ladder of adequate length to extend at least 36 inches above work surface north side of restaurant. Wood ladder in use 18 inches below work surface of floor second floor (sic).

The standard as promulgated by the Secretary provides:

(a) The side rails shall extend not less than 36 inches above the landing. When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point of access, shall be installed.

The alleged violation of 1926.550(a)(5), to be abated "immediately upon receipt of this citation," was described in Citation No. 1 as follows:

Failure of employer to designate a competent person who shall inspect crane 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. Crane log does not indicate these inspections are being accomplished. Only two entries in log since 1969.

The standard as promulgated by the Secretary provides: [*20]

(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 alleged violation of 1926.550(a)(6) was described in Citation No. 1 as follows:

Failure to provide an annual inspection on P & H Crane model 455-BTC Company #99. No evidence that crane has been inspected since purchase in 1955. A thorough, annual inspection of 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.

The complaint alleges a violation of 1926.550(a)(6) in the following language:

Failure to provide a thorough, annual inspection on P & H Crane model 455-BTC Company #99 of hoisting machinery by a competent person, or by a government or private agency recognized by the U.S. Department of Labor, or to maintain a record of the dates and results of inspections for each hoisting machine [*21] and piece of equipment, contrary to 29 CFR 1926.550(a)(6).

The standard as promulgated by the Secretary provides:

(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.

The alleged violation of 1926.350(a)(7) in Citation No. 2 was described in the citation as follows:

Failure to provide a suitable cylinder truck, chain, or other steadying device to prevent oxygen and acetylene cylinders from being knocked over while in use. Cylinders located west side center wall of casino area.

The standard as promulgated by the Secretary provides:

(7) A suitable cylinder truck, chain, or other steadying device shall be used to keep cylinders from being knocked over while in use.

The alleged violation of 1926.350(a)(9) in Citation No. 2 was described as follows:

Failure to secure acetylene cylinder in an upright position at all times except, if necessary, for short periods of time while cylinders are actually being hoisted or carried. Cylinder [*22] located n.w. corner 1st floor casino area.

The Standard as promulgated by the Secretary provides:

(9) Compressed gas cylinders shall be secured in an upright position at all times except, if necessary, for short periods of time while cylinders are actually being hoisted or carried.

The alleged violation of 1926.351(c)(6) in Citation No. 2 was described in the citation as follows:

Failure to provide adequate mechanical ground on Hobart Arch Welder located on n.w. corner 1st floor casino area. Clamp on ground cable broken off.

The standard as promulgated by the Secretary provides:

All ground connections shall be inspected to ensure that they are mechanically strong and electrically adequate for the required current.

The complaint charges a violation of 1926.351(c)(6) in the following language:

Failure to inspect ground connection on Hobart Arch Welder located on n.w. corner 1st floor casino area to insure it was mechanically strong and electrically adequate for required current, contrary to 29 CFR 1926.351(c)(6).

The alleged violation of 1926.351(b)(2) is described in Citation No. 2 as follows:

Failure to provide an acceptable electrode holder cable without splices [*23] within 10 feet of electrode holder on lincoln are welder #250. Cable located at 6th floor east side of building at stairway, cable spliced five feet from electrode with electrician's friction tape.

The standard as promulgated by the Secretary provides:

Only cable free from repair or splices for a minimum distance of 10 feet from the cable end to which the electrode holder is connected shall be used, except that cables with standard insulated connectors or with splices whose insulating quality is equal to that of the cable are permitted.

The alleged violation of 1903.2(a) in Citation No. 2 was described in the citation as follows:

Failure to post Occupational Safety and Health Notice at job site. Notice has been mailed to employer.

The standard as promulgated by the Secretary provides:

(a) Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer [*24] or the nearest office of the Department of Labor. Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to insure that such notices are not altered, defaced, or covered by other material.

The alleged violation of 1904.2(a) is described in Citation No. 2 as follows:

Failure to keep records of occupational injuries at job site -- OSHA Form 100.

Forms has been provided to employer.

The standard as promulgated by the Secretary provides:

(a) Each employer shall maintain in each establishment a log of all recordable occupational injuries and illnesses for that establishment, except that under the circumstances described in paragraph (b) of this section an employer may maintain the log of occupational injuries and illnesses at a place other than the establishment. Each employer shall enter each recordable occupational injury and illness on the log as early as practicable but no later than 6 working days after receiving information that a recordable case has occurred. For this purpose, Occupational Safety and Health Administration OSHA Form No. [*25] 100 or any private equivalent may be used. OSHA Form. No. 100 or its equivalent shall be completed in the detail provided in the form and the instruction contained in OSHA Form No, 100. If an equivalent to OSHA Form No. 100 is used, such as a printout from data-processing equipment, the information shall be as readable and comprehensible to a person not familiar with the data-processing equipment as the OSHA Form No. 100 itself.

(b) Any employer may maintain the log of occupational injuries and illnesses at a place other than the establishment or by means of data-processing equipment, or both, under the following circumstances:

(1) There is available at the place where the log is maintained sufficient information to complete the log to a date within 6 working days after receiving information that a recordable case has occurred, as required by paragraph (a) of this section.

(2) At each of the employer's establishments, there is available a copy of the log which reflects separately the injury and illness experience of that establishment complete and current to a date within 45-calendar days.

The hearing in this case took place on March 5 and 6, 1973, at Reno, Nevada, with both [*26] parties subsequently filing briefs.

JURISDICTION AND ISSUES

Respondent, a Nevada corporation, maintains its principal place of business at Reno, Nevada, and is engaged in "construction work" as defined at 29 CFR 1910.12(b). By its answer Respondent admits that Respondent is an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Act. On these facts, jurisdiction over the Respondent is conferred on the Commission.

The Secretary's complaint differs from the citations in two major respects. Citation No. 2 alleges a violation of 1926.351(c)(6) by reason of Respondent's failure to provide an adequate mechanical ground on an electric welder while the complaint alleges a violation of this standard because of Respondent's failure to inspect ground connection on this equipment to insure it was mechanically strong and electrically adequate for required current. The Secretary contends that the complaint amends the citation in this regard but Respondent resists, contending not only that the Secretary has not complied with Commission Rule 33(a)(3) but that the Commission is without authority to promulgate Rule 33. The Complaint also differs [*27] from the citation in that it alleges a failure to maintain records of inspections, contrary to 1926.550(a)(6), the citation does not.

The Respondent in its answer asserts the affirmative defense that the representatives of the Secretary of Labor failed to conduct their investigation and inspections in accordance with the applicable rules and regulations promulgated by the Secretary pursuant to the Act thereby making the citations and complaints void.

The issues to be resolved and determined are:

1. Whether the Secretary's complaint achieved an amendment of Item 3 of Citation No. 2 and an amendment of Item No. 6 of Citation No. 1?

2. Whether the inspections were in compliance with section 8(e) of the Act?

3. Whether the record evidence establishes that Respondent violated the standards as alleged?

4. If the violations were committed, what penalties are appropriate?

SUMMARY OF EVIDENCE

On October 2, 1972, a steel beam weighing 5800 pounds was lifted completely off the ground by Respondent's crane #99, a P & H, Model 455 B-TC, 30-ton truck crane. At the time of this lift, the lifting radius, in feet, of the crane was at least seventy-five feet. The crane boom measured [*28] 80 feet and had a jib attachment 30 feet in length. The manufacturer's permissible lifting radius in feet does not go higher than 70 feet and with a 70-foot lifting radius the maximum permissible weight to be lifted is 3,700 pounds. The manufacturer's ratings provide that with all outriggers extended and with a fifty foot lifting radius the maximum lifting capacity is 6000 pounds. At the 55-foot lifting radius, the suggested maximum lifting capacity is 5700 pounds. These manufacturer's specifications were printed on a metal plate attached inside the crane's cab.

Respondent's foreman, Emmett Tolleson, who decided to make the lift on October 2, 1972, knew the weight of the beam and did not consult the manufacturer's limitations beforehand. Although he sometimes checks these specifications he testified he would have gone ahead with the lift even if he was aware that the lift exceeded the manufacturer's limitations, because he "wanted to see what the crane would do at the time."

Respondent's crane operator, Henry Schultz, a crane operator for seven years, an oiler for 16 years, and a Respondent employee for 20 years, did not know the weight of the beam or the lifting radius of [*29] the crane on October 2, 1972 and made no inquiry to find out. Prior to the lift he did not refer to the manufacturer's limitations posted in the crane cab. Although he knows that, according to the manufacturer, the maximum lifting radius in feet of Respondent's crane is 70 feet, his understanding, based on experience, is that the crane can lift even if out over 70 feet but, in that event, you should make a "test run." Sometimes he has been authorized by Respondent's foremen to lift beyond capacity. He considers that part of his duties as an operator, and standard operating procedure, is "to go by the charts . . . go by it as close as possible." No one from Martin Iron Works ever actually told crane operator Schultz or foreman Tolleson to check the chart indicating the working ranges of the crane.

Several days before the lift, Respondent's president, William Granata, was advised on the telephone by foreman Tolleson that two of the "big beams" could not be set with Respondent's crane because "it couldn't get close enough to them." Foreman Tolleson requested permission to rent the "big crane" from Continental-Heller Corporation (a Manetowoc 140 or 160-ton crane with a 270-foot [*30] boom).

President Granata told Respondent's foreman to go ahead and rent the crane and: "Do not take a chance and try to pick up those beams with our crane if you can't get close enough to do the job." When foreman Tolleson said the crane couldn't get close enough to make the "pick" of these two beams, president Granata was of the impression, based on 33 years experience "in the business," that the crane couldn't get close enough to be within the crane's safe working radius. president Granata never was informed that an effort would be made to use Respondent's crane to lift the beams in question.

On October 3, 1972, for at least two hours, the Respondent had a ladder of approximately 16 feet in height going up to an elevated work area. The side rails of the ladder ended approximately 18 inches below the second floor landing and there were no grab rails. In the adjacent area around the base of the ladder, steel was stacked. This ladder was located in order to work on the "connection" on the end of beam and not to gain access to the second floor. Officer Lawrence and foreman Smith used this ladder to get to the second floor level. Foreman Smith testified that he suggested to officer [*31] Lawrence that they go around to the elevator and stairway on the side but officer Lawrence said, "No, we can use that. I seen a guy go up it." In response to this statement foreman Smith claims he said, "It's safe to go up it as far as it goes, but it doesn't extend three feet above, so you're not supposed to use it for access."

Officer Lawrence denied that foreman Smith ever suggested that a different access way be used.

Foreman Smith was in charge of people working in the second floor level and he saw one employee start up the ladder but does't know whether the employee went to the second floor level or only to the connection area on the beam. Officer Lawrence testified that prior to going into the area he noticed workmen utilizing the ladder to go up and down to the second floor level. He ascertained that three persons observed using the ladder, besides himself and foreman Smith, were Martin Iron Works employees.

Both crane operator Schultz and oiler Galau testified that they consider that a daily inspection before using crane #99 is part of their respective duties as operator and oiler. The normal daily inspection by oiler Galau of crane #99 took place on October [*32] 2, 1972. This customary inspection includes a visual inspection of all running gear, cables, oil check, hydraulic controls, and continuing observation while crane is operating. The crane rig is greased every 40 hours by oiler accompanied by an "actual physical inspection." On the average of once a month the boom is inspected. When in the company's yard the cables, running gear, rollers, boom and housing are checked.

Any malfunctions discovered on these inspections are reported to supervisory personnel. In 1970 the "draw works" were removed and new gears, bushings and bands were installed.

Since 1965 the sum of $10,335 has been spent in man hours with respect to repair work on crane #99 and $27,505.78 for purchase of replacement parts.

Respondent does not conduct an inspection which it characterizes as an "annual inspection." Rather, it conducts a daily visual inspection prior to using the crane and "yard" inspections which Respondent considers are more extensive than the daily inspections, and changes the cables twice a year. On October 3, 1972 and prior thereto, the Respondent never kept a record of the dates when inspections were made or the results of those inspections. [*33]

On October 3, 1972, two cylinders, oxygen and acetylene, were located on the ground level, on the east wall of the northwest corner of the casino area, and hooked up to a gas welding unit. They were "free standing," not secured, and were supplying Respondent's welders then working on an overhead cat walk.

Near the extreme northwest corner of the casino, at ground level, at the top of a ramp, two empty compressed gas cylinders were located "almost adjacent to a column" Respondent's foreman, Samuel McCombs, does not recall whether they were secured.

Officer Lawrence testified that he cited Respondent for violation of 1926.351(c)(6) because of the failure to have an adequate ground and not because of a failure to inspect.

On October 3, 1972 officer Lawrence observed that no "alligator clamp" was on the grounding cable of the Hobart electrical arc welder and the end of the cable had 3 or 4 inches of exposed wire laying between a "two by four" and a steel beam, not touching it. The welder was in operation when officer Lawrence came upon the scene, and in his opinion the welder was not grounded. According to foreman McCombs the wire was laying up against the steel column [*34] and was "wedged in" by a "two by four." The Hobart electric arc welder cannot strike an arc unless it is grounded to the structure being welded. Foreman McCombs put a "C" clamp on the grounding cable and attached it to the flange on the column. In order to remove the wedged "two by four" he had to use an eight pound hammer and strike it 10 or 12 times. In his opinion, wedging with the two by four was a more adequate mechanical ground than the "C" clamp which someone could "kick out" accidentally.

On the day of inspection a heavy duty rubber cable contained a temporary splice within 5 to 6 feet of an electrode holder. The welding machine to which this cable was attached was in use. The splice consisted of a bolted connection wrapped with three or four or four layers of electrician's tape. According to officer Lawrence the bolted connection in question was not a standard insulator connector and the insulating quality of the tape wrap was not equal to that of the cable.

At the Stateline, Nevada worksite no notice relating to the protections and obligations of the Act was posted and no log of recordable occupational injuries and illnesses was maintained. Martin Iron Works employees [*35] are paid monthly by check, which they pick up at the Reno office of the company, Employees are dispatched to worksites from the Reno facility and each day the foreman who is assigned a truck for the transportation of workers, and the majority of workers, report to the main office at Reno. If an employee desires to use his own private car he may report directly to a worksite.

On October 3, 1972 during the inspections of Respondent's two worksites at Stateline, Nevada, officer Lawrence was accompanied by Respondent's foremen, Cecil Smith and Samuel McCombs. Respondent prior to these inspections had given specific instructions to its foremen and others that they are not authorized employer representatives on Department of Labor inspections of Respondent worksites. Respondent has designated only Mr. Guevin, its Vice-President, as its authorized employer representative.

The Department of Labor never has been notified by the Respondent that Respondent's foremen were not authorized to represent the Respondent and accompany compliance officers on inspections.

In October of 1972 Respondent employed approximately 80 persons, 12 of which were employed at the Stateline, Nevada [*36] jobsite. Respondent is the largest steel erection firm in the Reno area and does an annual volume of business of about $2-1/2 million.

As to Respondent's history of prior violations under the Act, there has been one prior citation and notification of Proposed Penalty which has become a final order of the Commission pursuant to Section 10(a) of the Act. Respondent has received seven safety awards from the American Institute of Steel since 1964 and is currently rated fourth for safety by the Nevada Industrical Commission out of eleven firms in the same category.

DISCUSSION

A. Did Complaint Amend the Citation?

The Respondent has raised two contentions with respect to the Secretary's attempt to modify and amend the citation by way of the complaint. The first argument is that the Act does not authorize the Commission to promulgate a rule (such as Rule 33) which requires a complaint and answer. The Act (section 12(g)) authorizes the Commission to "make such rules as are necessary for the orderly transaction of its proceedings" and this judge is without authority to determine the extent or scope of the Commission's power under the Act in adopting rules of procedure; only [*37] the Federal courts are empowered to make that determination.

The Respondent's second contention is that the Secretary failed to achieve any amendment of the citation because the Secretary failed to set forth the reasons for amending the citation and failed to state with particularity the change sought, both as required by Rule 33. The Secretary's position, as outlined in his brief, is that "particularization of the charge" with respect to the alleged violation of 1926.351(c)(6) was effected by the "new" charge set out in the complaint, and the "showing of reason" for the change is accomplished by Section XII of the complaint. The Secretary further contends that there has been no showing of prejudice by the Respondent.

Section 9(a) of the Act requires that each citation "shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation or order alleged to have been violated."

Commission Rule 33(a)(2) provides that the complaint shall set forth all alleged contested violations "stating with particularity . . . the time, location, place, and circumstances of each such alleged violation."

Commission Rule [*38] 33(a)(3) provides that:

3) Where the Secretary seeks in his complaint to amend his citation or proposed penalty, he shall set forth the reasons for amendment and shall state with particularity the change sought.

The Commission Interim Rules of Procedure contained no provision relating to the amendment of pleadings and when these rules were operative (September 30, 1971 through September 27, 1972) the Commission consistently held that differences or variances between the complaint and citation constitute an amendment of the citation. Secretary of Labor v. American Agencies Co., Inc., J.R. Steel Subsidiary, Secretary of Labor v. Cook Ford Sales, Inc., See also Secretary of Labor v. Otis Elevator Company,

These holdings suggest that the Commission during that period viewed an amendment of the citation by the complaint as an absolute right, unfettered by any precedent requirements. The adoption of Rule 33(a)(3), however, [*39] represents an obvious change in the Commission's approach. Unlike Rule 15 of the Federal Rules of Civil Procedure, which grants a party the right to amend his pleading once without leave of court, if done before a responsive pleading has been served, and thereafter, with leave of court when "justice so requires," Rule 33 grants no absolute right of amendment and imposes no requirement that the Secretary seek Commission permission to amend the citation by the complaint. However, Rule 33 does require the Secretary to advise of the precise nature of the pleading amendment sought and the reasons for the change; a procedure similar to that prescribed for any motion for obtaining leave to amend under Rule 15(a) of the Federal Rules of Civil Procedure (see Rule 7(b) FRCP).

The reason for establishing these requirements appears obvious. Their objective is to put an adverse party on notice of the specific nature and purpose of the changes sought by the Secretary, thereby providing the party with the opportunity to direct objections to the amendment and prepare defenses. The Secretary's complaint here does not notify the Respondent of the precise differences between the complaint and the [*40] citation; instead, by use of Section XII of the complaint, the Secretary attempts to impose the burden of ascertaining these differences on the Respondent.

Section XII reads as follows:

To the extent that the violations of the Act as charged in the complaint differ from the description of the alleged violations in the aforesaid citations, and said differences merely reflect more specific allegations without changing or otherwise affecting the standards cited or facts found on investigation, said citations are hereby amended.

Section XII constitutes only a general warning to the Respondent that there might be differences between the citation and complaint, not that there are. Further, it declares that an amendment is intended only if existing differences between the complaint and citation are of a particular type. This section obviously does not set out the reasons for the particular changes sought because the complaint fails to indicate what these changes are.

The critical question to be resolved, however, is what effect does the Secretary's failure to comply with the requirements of Rule 33(a)(3) have. The Secretary's position, apparently, is that, even if [*41] Secretary does not comply with Rule 33, Respondent must show resulting prejudice. We do not agree. Recognizing the desirability of minimizing pleading formalities, a more restrictive attitute toward the Secretary's failure to proceed in the manner prescribed by Rule 33(a)(3) is clearly justified in order to achieve compliance with requirements which provide for the orderly presentation and resolution of issues before the Commission.

We believe the failure on the part of the Secretary may be analogized to the situation in the Federal Courts where a pleading amendment which cannot be made as of right under Rule 15 of the Federal Rules of Civil Procedure is served without obtaining leave of court. In general, the Federal Courts have held that such an amendment is without legal effect and any new matter it contains will not be considered. Martin v. Hunt, D.C. Mass. 1961, 29 F.R.D. 14; Mormand v. Paramount Pictures Distrib. Co., D.C. Mass. 1946, 6 F.R.D. 222. Applying this same principle to a failure to comply with Rule 33, we find that the amendment of the citation sought by the Secretary has not been achieved and any differences between the complaint and citation [*42] will not be considered.

B. Were Secretary's Inspections in Compliance with Section 8(e) of the Act?

Respondent contends that all citations issued to Respondent are void "AB Initio" because Respondent's rights under section 8(e) of the Act and 29 C.F.R. 1903.8(a) were denied. The claim is made that Respondent's foremen, Cecil Smith and Samuel McCombs, who accompanied the compliance officers on their inspections, were not employer representatives and that Respondent has only authorized its Vice President, Mr. Guevin, to accompany U.S. Department of Labor compliance officers on inspections conducted under the Act.

Section 9(e) of the Act states only that "a representative of the employer . . . shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace . . . for the purpose of aiding such inspection."

The Act does not require compliance officers to see out particular individuals or office holders in an employer's chain of command. See Secretary of Labor v. Hawkins Construction Co.,

Both foremen Smith and McCombs were in charge of the specific worksites [*43] inspected and accompanied the Secretary's compliance officer throughout his inspection. Therefore, the requirements of Section 8(e) of the Act were satisfied.

C. As to Violations

The evidence of record clearly establishes that on October 2, 1972, Respondent's foreman committed a "serious" violation of 29 CFR 1926.550(a).

The so-called "test" lift by Respondent's Crane #99 on October 2, 1972 did not comply with the manufacturer's limitations applicable to that crane. The evidence was unrebutted that the lifting radius in feet of the crane, during the lift in question, was at least 75 feet, the weight of beam, 5800 pounds, and the length of the boom and jib, 110 feet. In making a lift under these circumstances, the manufacturer's specifications and working ranges of Crane #99, and the limitations appearing on the chart attached inside the crane's cab entitled "Lifting Capacity in Pounds, PH 455B, Truck Crane," were exceeded.

The record also permits a finding that there was a substantial probability that serious physical injury could have resulted to Respondent's employees on October 2, 1972 if the crane had tipped over or heavy crane parts collapsed due to excessive stress. [*44]

Failure to lift within crane's capacity was not the contributing cause of the accident to foreman Tolleson and the record fails to establish that the occurrence of an accident was substantially probable because of the lift. But that is not the test of a "serious" violation. Recent Commission decisions have made clear that the Secretary must establish only that an accident is "simply possible" and prove a substantial probability that the consequences of an accident resulting from a violative condition will be death or serious physical harm. Secretary of Labor v. Crescent Wharf and Warehouse Company, Secretary of Labor v. Natkin & Company, Mechanical Contractors, Secretary of Labor v. Standard Glass & Supply Company, Based on the expert opinion testimony of Mr. Jones, it is reasonable to conclude that exceeding manufacturer's limitations, based on 85% of tipping load, does present a possibility of a crane tipping over or crane parts collapsing.

The more difficult question to be answered is whether Respondent knew of the violative condition or with the exercise of reasonable diligence [*45] could have known. Obviously, Respondent's foreman, who directed and supervised the lift, knew or should have known that the lift exceeded the manufacturer's limitations; he was familiar with the crane's capacity and knew the weight of the beam (he checked the plan to find out). However, a finding that Respondent's president lacked actual knowledge that the foreman would lift beyond the manufacturer's limitations also is warranted. Does this lack of actual knowledge absolve the Respondent of liability? We think not.

A corporate employer can only operate through its agents and therefore, its absolute and continuing duty to "comply with occupational safety and health standards, promulgated under this Act" (Section 5(a)(2) of the Act) necessarily has to be delegated to supervisory personnel. This delegation, however, cannot be permitted to relieve the corporate employer of its duty to comply with a particular standard; otherwise, the effectiveness of safety standards would be nullified and the manifest legislative intent of the Act defeated. If a corporate employer entrusts supervisory personnel with the performance of activities which involve compliance with safety and health [*46] standards, the employer continues to be responsible for the failure of its supervisiors to comply with the standards. This principle is clearly consistent with the Congressional intent to impose on employers "final responsibility" for compliance with the Act (See S. Report No. 91-1282, 91st Cong. 2d Session, pp 10-11).

The Respondent had assigned the task of setting the two heavy steel beams which required the use of a crane to its foreman. Thereafter, whatever action the foreman took in furtherance of carrying out this work assignment, even action resulting in violation of the crane standard, must be deemed to have been done within the scope of his employment and imputed to the Respondent. Also, just as the foreman's actions on October 2, 1972 must be attributed to the Respondent, so must the foreman's knowledge be imputed to the Respondent.

Moreover, the record reflects that an established practice of ignoring the manufacturer's limitations had been adopted by the foreman in question and Respondent's crane operator, and was in use, prior to October 2, 1972. Also, neither man had ever been instructed by Respondent's management to inspect and comply with the crane's [*47] working ranges. On these facts alone, the conclusion is justified that Respondent could have, with the exercise of reasonable diligence, known of this hazardous practice. See Secretary of Labor vs. Wright-Schuchart Harbor, OSAHRC, Docket No. 559, where the Commission stated: "Where there has been exposure over a long period of time by employees and supervisory personnel, an employer had or should have had knowledge of the hazard."

Respondent apparently disputes the immediate abatement period of this violation; on what basis is not clear. There is absolutely no reason why this standard cannot be complied with at once; all of the necessary information relating to the manufacturer's limitations is available to Respondent.

A violation of Section 1926.450(a)(9) was proven by substantial evidence. The compliance officer testified unequivocally that three of the workmen he observed going up and down the ladder were Respondent employees and this evidence remained unrebutted, although presumably the testimony of foreman Smith's crew was available for contradiction purposes. While the ladder was not intended as a means of access to the elevated work area, it was located in a position [*48] where the Respondent's foreman should have anticipated that it might be so used by his crew. Also, there is no indication that preventive measures were ever taken by foreman Smith to prevent the prohibited use. Because the ladder was not intended to gain access to the elevated work area, and other means of access were available, an immediate abatement of the hazard is a reasonable requirement.

In determining whether a violation was committed by Respondent, the compliance officer's unsafe utilization of the ladder has not been considered, because there was no showing that his action tended to influence the ladder's use by Respondent employees.

The Secretary failed in his burden of proving a violation of 1926.550(a)(5). The complaint and citation allege that Respondent failed to designate a competent person to inspect crane machinery prior to each use and during use. Although the standard in question also prescribes that any deficiencies shall be repaired and defective parts replaced before continued use, neither the citation nor complaint charged Respondent with a failure to comply with this portion of the standard. n1

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n1 Citation No. 1 did charge a violation of 1926.601(b)(5) which was not contested by Respondent.

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The case of Secretary of Labor vs. Gerosa, Inc., OSHRC No. 190, appears dispositive of the issue concerning designation of competent persons. The Commission unanimously ruled that the employment and assignment of a crane operator and oiler to operate crane equipment is presumed to be a designation of competent persons to inspect such machinery prior to, and during, its use. Also, the record is devoid of evidence that Respondent's crane operator and oiler, whose job duties require inspections, are not competent to perform pre-use, and during use, inspections of crane #99.

Standard 1926.550(a)(6) requires an employer to provide "a thorough, annual inspection by a competent person" of hoisting machinery, and to keep records of such inspections and clearly, Respondent failed to conduct any inspections of Crane #99 which were designated "annual," and consequently, also failed to maintain a record of the dates and results of any such "annual" crane inspections. [*50] n2

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n2 The Secretary's brief (p. 10) appears to concede that daily inspection records need not be maintained, only annual inspection records.

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The standard, however, is considered impermissibly vague and, therefore, unenforceable. Although an employer is entitled to notice of what is required of him, the Secretary's standards nowhere provide a definition of "a thorough annual inspection." Also, there is no indication in the record that this phrase conveys a meaning generally acceptable throughout the construction industry. Quite to the contrary, the Secretary's expert witness, Mr. Jones, testified that employers, as well as U.S. Department of Labor compliance officers, would differ as to the meaning of this phrase. It was his suggestion that an employer "probably could contact the manufacturer of his crane to determine how to comply with this requirement of "a thorough annual inspection." But the responsibility to notify an employer precisely of what he must do to comply with a particular standard rests with [*51] the Secretary of Labor, not the manufacturer, and because the standard itself does not provide this notice, the alleged violation of 1926.550(a)(6) must be vacated.

Unquestionably, the record establishes a violation of 1926.350(a)(7). Both officer Lawrence and foreman McCombs observed the gas cylinders in use while completely unsecured. Respondent's theory that another subcontractor unsecured them is based on sheer speculation and does not overcome the reasonable inference that Respondent's employees and foreman knew, or with the exercise of reasonable diligence could have known, of the condition of the cylinders.

An insubstantial evidentiary record exists, however, with respect to the alleged violation of failing to secure an acetylene cylinder in an upright position, contrary to 1926. 350(a)(9). While presumably the Secretary was referring to one of the empty, or near empty, cylinders located at the top of a ramp, "adjacent to a column," there is no testimony in the record that either of these cylinders were unsecured. The Secretary, therefore, has not carried his burden of proof and the alleged violation of 1926.350(a)(9) must be vacated.

The Secretary also failed to prove [*52] a violation of 1926.351(c)(6). According to officer Lawrence the citation was based on the alleged failure of Respondent to provide an adequate mechanical ground on the Hobart welding machine and not on any alleged failure to inspect the ground connection in question to insure it was mechanically strong and electrically adequate, as alleged in the complaint.

Officer Lawrence's testimony was directed to establishing only that the so-called "ground" cable connected to the welder and laying in the vicinity of the steel beam was unattached and, therefore, not providing an "adequate ground." The purpose of this cable, however, was to provide a ground for the beam being welded and because the Hobart welder was operating and striking an arc, presumably the cable in question must have been providing a "ground" sufficiently adequate to accomplish its purpose. Not only does this record fail to establish that the only "ground" in issue was inadequate but the gravamen of a violation of 1926.351(c)(6) is the failure to inspect ground connections, not the inadequacy of a mechanical ground. Perhaps there is a standard that requires an "adequate mechanical ground" (and gives a definition [*53] of these terms) but it is not 1926.351(c)(6), and, therefore, item 3 of Citation No. 2 must be vacated.

Even assuming arguendo that item 3 was amended to factually allege a violation of 1926.351(c)(6), the Secretary's evidence viewed in its most favorable light falls far short of proving a failure by Respondent to inspect ground connections. There is an absence of any evidence relating to inspection of ground connections or evidence sufficient to establish that the ground observed by officer Lawrence was not mechanically strong and electrically adequate for the required current. Certainly, the lack of a clamp on the end of the ground cable does not prove either one of these essential elements.

In order to establish a violation of 1926.351(b)(2), the Secretary bears the burden of proving that the situation observed (splices in a cable, within ten feet of an electrode holder) was contrary to the requirements imposed by the standard. The standard requires that splices within ten feet must have standard insulated connectors or have an insulating quality equal to that of the cable. Therefore, in order to establish a violation the Secretary must prove that Respondent's splices [*54] were not in compliance. There was uncontroverted evidence elicited to establish that a standard insulated connector was not used by the Respondent in its splice. Also there was testimony that the three or four layers of electrician's tape did not have the same insulating quality as the cable. Officer Lawrence's unrebutted opinion with respect to the insulating quality of the electrician's tape appears to have been based both upon personal experience and an internal instruction memorandum of the U.S. Department of Labor. Without evidence to the contrary, there is no reason to question the reasonableness of officer Lawrence's opinion based on prior experience, and therefore, the Secretary has carried his burden.

Violations of 1903.2(a) and 1904.2(a) are not established by this record.

29 CFR 1903.2(a) requires that employers shall post and keep posted in each establishment, notices furnished by the U.S. Department of Labor and 29 CFR 1904.2 requires that a log of occupational injuries and illnesses be kept in each establishment.

The term "establishment" is defined in 29 CFR 1903.2(b) as follows:

(b) Establishment means a single physical location where business is conducted [*55] or where services or industrial operations are performed. (For example: A factory, mill, store, hotel, restaurant, movie theater, farm, ranch, bank, sales office, warehouse, or central administrative office.) Where distinctly separate activities are performed at a single physical location (such as contract construction, activities from the same physical location as a lumber yard), each activity shall be treated as a separate physical establishment, and a separate notice or notices shall be posted in each such establishment, to the extent that such notices have been furnished by the Occupational Safety and Health Administration, U.S. Department of Labor. Where employers are engaged in activities which are physically dispersed, such as agriculture, construction, transportation, communications, and electric, gas and sanitary services, the notice or notices required by this section shall be posted at the location to which employees report each day. Where employees do not usually work at, or report to, a single establishment, such as longshoremen, traveling salesmen, technicians, engineers, etc., such notice or notices shall be posted at the location from which the employees operate [*56] to carry out their activities. In all cases, such notice or notices shall be posted in accordance with the requirements of paragraph (a) of this section.

Subsection 1904.12(g)(1) contains a similar definition and subsection 1904.12(g)(2) further provides in pertinent part:

For firms engaged in activities such as . . . construction . . . which may be physically dispersed, records may be maintained at a place to which employees report each day.

Finally, subsection 1904.12(g)(3) covers the situation where employees do not generally report to a single establishment and there it is provided that records may be maintained:

. . . at the location from which they are paid or the base from which personnel operate to carry out their activities.

The position of Secretary's counsel in regard to both of these alleged violations apparently is that because some of Respondent's employees reported directly to the Stateline, Nevada, jobsite, a finding of violation is required. We disagree and consider such an interpretation of the standards to be unnecessarily narrow and unduly burdensome. The evidence shows that all employees must report to the Reno main office for their pay and a [*57] majority of them also report daily to Reno in order to receive transportation to the various physically dispersed jobsites. To require, under these circumstances, that records and posters maintained at Reno also be kept at other Respondent construction jobsites would be duplicative and inconsistent with the objectives of the standards.

D. As to Penalty

All four factors prescribed by section (17)(j) of the Act, the size of employer's business, gravity of the violations, the good faith of the employers, and history of previous violations have been duly considered.

In determining the gravity of any violation, serious or nonserious, several elements not intended to be exclusive, must be considered: (1) the number of employees exposed to the risk of injury, (2) the duration of the exposure, (3) the precautions taken against injury, if any, and (4) the degree of probability of occurrence of an injury. Secretary of Labor v. National Realty and Construction Co.,

The gravity of the non-serious violations involving 1926.450(a)(9) and 1926.350(a)(7) are considered similar, thereby warranting an identical penalty; the number of employees exposed to [*58] the hazards and duration of exposure were comparable, and the probability of occurrence of an injury was relatively high based on common experience. Because of the paucity of evidence introduced, however, concerning the hazard presented by the violation of 1926.351(h)(2) its gravity cannot be determined and, therefore, no penalty can be assessed.

The Secretary's analysis of the three factors involving Respondent's size, prior history and good faith which appears in his brief is generally supported by the record and considered reasonable. n3

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n3 No consideration, however, was given to the issuance of a prior citation which has not become a final order of the Commission.

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Based on the foregoing considerations, penalties of $55 each for violations of 1926.450(a)(9) and 350(a)(7), are appropriate and will tend, in combination, to deter repeat violations and encourage compliance with the Act.

A penalty assessment of $850 for the "serious" violation of 1926.550(a)(1) is appropriate and clearly warranted. While obviously [*59] an accident from this violative condition is not a certainty, the probability that a crane lifting in excess of manufacturer's limitations, based on 85% tipping movement, will cause an accident is high. Four or five of Respondent's employees were working in the immediate area of danger and subject to serious injury should the overloaded crane tip and or suffer a collapse. The background of this violation, however, is the primary factor dictating this relatively high penalty. Respondent's management has never instructed its foremen or crane people to operate the crane within the manufacturer's lifting limitations, an obvious abdication of responsibility. By relying solely on generalized job requirements, the Respondent has permitted its employees to operate crane #99 in an unsafe and dangerous manner.

FINDINGS OF FACT

Upon the entire record, the following facts are found:

1. Martin Iron Works, Inc., a corporation maintaining a place of business and of employment at Reno, Nevada, is engaged in construction work.

2. On October 2, 1972, Respondent's crane #99 lifted completely off the ground a 5800-pound steel beam at a lifting radius measuring at least 75 feet. This [*60] condition did not comply with the manufacturer's limitations applicable to the operation of crane #99.

3. On October 2, 1972, the Respondent knew, or could have known with the exercise of reasonable diligence, of the conditions set forth in Finding 2 above.

4. There was a substantial probability that death or serious physical harm could result from the conditions set forth in Finding 2 above.

5. On October 3, 1972, a ladder, utilized by Respondent's employees as an access to an elevated working area, did not extend to the height of the landing and there were no grab rails.

6. On October 2, 1972, and prior thereto, the Respondent had designated competent persons to inspect crane #99 prior to each use and during use.

7. On October 3, 1972, an oxygen and an acetylene cylinder were being used by Respondent's employees without any steadying device to prevent their being knocked over.

8. The evidence does not permit a finding that on October 3, 1972 an empty or near empty compressed gas cylinder was in an unsecured, upright position.

9. On October 3, 1973, the Hobart welder had a ground sufficiently adequate to permit its operation and did ground the beam being welded.

10. [*61] The evidence does not permit a finding that on October 3, 1972, Respondent had not inspected all ground connections to insure their being mechanically strong and electrically adequate.

11. On October 3, 1972, a Respondent electrode holder was attached to a cable which had a splice within ten feet of the holder. The splice was not joined with a standard insulated connector and its insulating quality was not equal to that of the cable.

12. Respondent on October 3, 1972, and prior thereto, had posted a notice informing employees of the protections and obligations provided for in the Act, and maintained an occupational injury or illness log, at its Reno main office.

13. Respondent's employees must report to the main office at Reno, Nevada monthly. All foremen and most employees report to the Reno office daily for transportation to physically dispersed job sites.

14. Respondent employed approximately 80 persons and does an annual business volume of about $2-1/2 million.

15. Respondent has been issued one previous Citation and Notification of Proposed Penalty which has become a final order of the Commission.

CONCLUSIONS OF LAW

1. The Respondent is an employer engaged [*62] in a business affecting commerce within the meaning of Section 3(5) of the Act and obliged to comply with those standards promulgated under Part 1926, Title 29, of the Code of Federal Regulations.

2. On October 2, 1972 Respondent was in violation of 29 CFR 1926.550(a)(1) and this violation was "serious" within the meaning of Section 17(k) of the Act.

3. On October 3, 1972, the Respondent was in violation of 29 CFR 1926.450(a)(9), 29 CFR 1926.350(a)(7), and 29 CFR 1926.351(b)(2).

4. A penalty of $850 for Respondent's violation of 29 CFR 1926.550(a)(1) is appropriate.

5. A penalty of $55 for Respondent's violation of 29 CFR 1926.450(a)(9) and a penalty of $55 for Respondent's violation of 29 CFR 1926.350(a)(7) are appropriate.

6. No penalty for Respondent's violation of 29 CFR 1926.351(b)(2) is warranted.

7. On October 3, 1972, the Respondent was not in violation of 29 CFR 1926.550(a)(5), 1926.550(a)(6), 1926.350(a)(9), 1926.351(c)(6), 1903.2(a) and 1904.2(a).

ORDER

Based on the foregoing findings, conclusions of law and the entire record, it is ORDERED that:

1. Violations of 29 CFR 1926.550(a)(1); 29 CFR 1926.450(a)(9); 29 CFR 1926.350(a)(7) [*63] and 29 CFR 1926.351(b)(2) are hereby AFFIRMED.

2. A penalty of $850 for violation of 29 CFR 1926.550(a)(1) is hereby ASSESSED.

3. A penalty of $55 for violation of 29 CFR 1926.450(a)(9) and a penalty of $55 for violation of 29 CFR 1926.350(a)(7) are hereby ASSESSED.

4. No penalty for violation of 29 CFR 1926.351(b)(2) is ASSESSED.

5. The alleged violations of 29 CFR 1926.550(a)5, 1926.550(a)(6), 1926.350(a)(9), 1926.351(c)(6), 1903.2(a) and 1904.2(a), and any proposed penalties based thereon, are hereby VACATED.