ARMOR ELEVATOR COMPANY, INC.

OSHRC Docket No. 2204

Occupational Safety and Health Review Commission

June 2, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge Joseph Chodes, dated September 7, 1973, is before this Commission for review pursuant to 29 U.S.C. 661(i). At issue is whether the occupational safety standard codified at 29 C.F.R. 1926.28(a) is unenforceably vague. n1 The Commission has recently answered that question under substantially similar circumstances in Secretary v. General Bronze Architectural Products, 18 OSAHRC 224 (1975). That decision is dispositive in the instant case.

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n1 On December 16, 1972, the Secretary of Labor republished the standard changing the word "and" to "or." Inasmuch as the inspection in this case took place on December 11, 1972, the original version of the standard is applicable. However, the modified version of the standard is erroneously cited in the Judge's decision and the briefs of both the respondent and the complainant.

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Accordingly, having reviewed the entire record and finding no prejudicial error therein, [*2] the Judge's decision is affirmed in all respects.

[The Judge's decision referred to herein follows]

CHODES, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC et seq., hereafter called the Act), in which the Respondent is 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 Merrimack Plaza, French Street Extension, Lowell, Massachusetts, the Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation, which was issued on January 22, 1973, alleges that the violation resulted from a failure to comply with a standard promulgated by the Secretary namely, 29 CFR 1926.28(a) as adopted by 29 CFR 1910.12. The description of the alleged violation contained on said Citation states, in pertinent part, that the Respondent failed to require the [*3] wearing of personal protective equipment (safety belts) where there was an exposure to hazardous conditions while two employees were working on an open sided platform in an elevator shaft at the roof level of a 12 story building.

The standard as promulgated by the Secretary provides as follows:

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

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated January 22, 1973, from John V. Fiatarone, Area Director of the Boston, Massachusetts area, Occupational Safety and Health Administration, U.S. Department of Labor, of a proposed penalty for the violation alleged in the amount of $80.

After Respondent contested this enforcement action, and a Complaint and Answer had been filed by the parties, the case came on for hearing at Boston, Massachusetts on June 19, 1973.

FACTS STIPULATED

1. The Respondent is a Delaware corporation with its principal office located [*4] at 3533 North Point Center Street, Milwaukee, Wisconsin.

2. The Respondent is engaged in elevator installation and maintenance, and is an employer in a business affecting commerce within the meaning of Section 3(5) of the Act.

3. The Respondent is one of the smaller elevator companies in the Boston area, with an average daily number of employees of approximately 1500 to 1600, and total gross revenues of about $35,000,000, for the year preceding the year in which the alleged violation took place.

4. The Respondent was duly served with the Citation and Notification of Proposed Penalty of $80 and that in proposing the penalty due consideration was given to the gravity of the violation, the good faith of the Respondent, the size of the Respondent's business and the history of previous violations.

5. The date that the violation charged against the Respondent was to be abated as fixed in the Citation, to wit, immediately upon receipt of the Citation, was the earliest practical time that the Respondent could be expected to abate the violation.

6. On February 8, 1973, the Respondent filed with the Complainant a Notice of Contest of the Citation.

7. Notice of hearing [*5] was posted as required by law.

8. Two employees of the Respondent were affected by the alleged violation at the work site, Building B, Merrimack Plaza, French Street Extension, Lowell, Massachusetts, namely, Armand Arsenault, a foreman, and Joseph Morrissey, his assistant.

9. On December 11, 1972 the Respondent was engaged in installing a passenger elevator in the building referred to in paragraph (8) above which is a 12 floor apartment building.

10. The elevator shaft in the building referred to in paragraph (8) above extended approximately 9 feet 4 inches above the roof level of the building; the elevator shaft above the building was enclosed on three sides; the inside dimensions of the elevator shaft were 8 feet 11 inches long by 7 feet wide; a platform, approximately 4 feet wide, consisting of support beams and plywood floor extended from the unenclosed side of the elevator shaft at roof level across the length of the elevator shaft; the platform did not have hand rails, mid rails or toe board; and on either side of the platform there were floor openings of approximately 18 inches.

11. Armand Arsenault was working on the platform referred to in paragraph (10) [*6] above and Joseph Morrissey was working on a cement slab in the machine room above the 12th floor level and adjacent to the elevator shaft.

12. The Respondent has a company rule that all employees wear safety belts when working inside elevator shafts.

13. On December 11, 1972 Armand Arsenault and Joseph Morrissey were not wearing safety belts while performing their work of installing a passenger elevator in the building referred to in paragraph (8) above.

SUMMARY OF THE TESTIMONY

On December 11, 1972, Wesley P. Holbrook, a Compliance Officer of the Occupational Safety and Health Administration, conducted an inspection of the work place involved herein, a housing construction project about seventy-five percent completed, consisting of two buildings twelve stories high and one of twenty-one stories high. Mr. Holbrook observed Mr. Armand Arsenault, Respondent's foreman, in Building B, one of the twelve stories buildings, on a plywood platform in the elevator shaft of elevator No. 3 at the roof level. The platform was a standard plywood sheet four feet by eight feet on two construction planks. There was a nine inch opening at the rear of platform and eighteen inch openings on each [*7] side. The shaftway was enclosed on three sides.

In the middle of the shaft there were brackets coming off the sides of the shaft wall and extending ten inches. The brackets held vertically in place rails which extended from the basement to the top upon which the elevator would eventually ride. Consequently, the eighteen inch openings on each side of the platform became, for practical purposes, two openings of about 3-1/2 feet.

Mr. Arsenault was directing a mechanic (Joseph Morrissey), who was working overhead in the alignment of the elevator machinery to the elevator rails. A plumb drop from the center of the machine and a line across were used to find the center so as to align the machine from front to rear and from side to side.

To perform his task, Mr. Arsenault was required to move around on the platform so that he could observe what Mr. Morrissey was doing and he had to go up and down two steps on a ladder. Before taking a step he always looked down. The situation presented the hazard that he could fall through the eighteen inch openings on either side of the platform. The drop of the bottom of the elevator pit was 112 feet, but on the four floors below, where [*8] Mr. Arsenault was working, there were platforms in place similar to the platform on which Mr. Arsenault was working which could interrupt the fall. Mr. Holbrook was of the view that it was necessary for Mr. Arsenault to wear a safety belt to protect himself against falling down the shaft.

There were safety lines, that is, steel cables running from the top to the bottom of the building through the elevator shaft with a knob every five feet to which safety belts could be attached. The Respondent issued to its employees safety belts but the decision with respect to whether they should be used was left to Mr. Arsenault, and he would also decide whether Mr. Morrissey would wear safety equipment. Mr. Arsenault would use safety belts when "there is a necessary hazard." Mr. Arsenault testified that while it was possible to have used safety belts on this job, they would have been "very restrictive" and he decided not to use the safety belts under the facts and circumstances existing on the job. While it was possible to drop a safety line around one of the machine beams and hook onto it, this was not practical as it would impede his movements when he had to move the ladder from the front [*9] to the rear of the platform because the lanyard on the safety belt was only five feet.

Mr. Arsenault was a "foreman" in the sense that he was in charge of the job being performed by himself and Mr. Morrissey, but he was not a "foreman" under the terms of a labor agreement entered into by his union with the Respondent. Under the terms of this agreement a foreman was a person in charge of four or more men. On the job in question he was in charge of three men, besides himself.

Mr. Morrissey was working in the elevator machine room about nine feet above the platform where Mr. Arsenault was working. The elevator machine consisted of a base and a motor about three feet wide at the base, and was fastened to steel beams which ran from the front to the rear of the elevator shaft. To align the elevator machinery he had to walk onto the steel beams which were twelve inches wide, bend over the machinery, drop a plumb bob over the driver and tie it off at the back of the machine on the top. He then stood on the machine room floor and pried the machinery from side to side for short distances of about an inch, using a 2 by 4. He also had to adjust the beams on which the machinery [*10] was sitting. It took Mr. Morrissey from 45 minutes to an hour to complete his work.

The area where Mr. Morrissey worked had a precast cement platform on which he stood which was about 6 inches from the edge of the elevator machinery. On each side of the machinery there were openings of about 2 feet, but the openings were covered with planking so that there was not enough space for Mr. Morrissey to fall through. There was an opening of about 2 feet at the rear of the elevator machinery of about 2 feet but Mr. Morrissey had no occasion to go near this opening to perform his job.

Mr. John V. Fiatarone, Area Director of the Occupational Safety and Health Administration, testified that his experience included twenty years as a safety inspector, supervisor and assistant head of the safety division at the Boston Naval Shipyard. It was his opinion that it was possible for Mr. Arsenault and Mr. Morrissey to have fallen into and possibly through the openings in the area where they were working and if this happened they would suffer severe injury. The fact that Mr. Arsenault was 5 feet 6 inches, weight 190 pounds and wore winter clothing would diminish somewhat the probability of his [*11] falling through the opening but this would not eliminate the possbility of injury. In a work situation such as presented in this case where it is hazardous and impractical to install such safety devices as guardrails, Mr. Fiatarone was of the view that the use of safety belts was indicated. Moreover, the use of a safety belt was practical, as the rings of the safety belt could have been attached to some piece of cable with either beam clamps or "penants" with shackles and this would not inconvenience his work.

Mr. Holbrook testified that he recommended an unadjusted penalty of $320 due to the gravity of the violation because of the possibility that an employee could have dropped as much as 112 feet. The penalty was then adjusted downward 20 percent for good faith because the records of the Occupational Safety and Health Administration showed the Respondent had a good safety program; 10 percent for the size of the Respondent, who had only four employees on the work force; and 20 percent for the negative history of prior violations. An additional adjustment of 50 percent was made for abatement of the violation. The final penalty proposed was $80 (Exhibit C-4).

DISCUSSION [*12]

Respondent is charged with permitting two of its employees to work under hazardous conditions without wearing protective personal equipment, namely, safety belts, in connection with the installation of an elevator in a 12 story building. There is no basic conflict in the evidence which establishes that the person in charge of the job, Mr. Arsenault, was working on the 12th floor on a 4 feet by 8 feet platform to direct an employee under his supervision, Mr. Morrissey, in the alignment of the elevator machinery located at the top of the elevator shaft about nine feet above where Mr. Arsenault was working. To accomplish his task he had to step up two steps on a ladder and generally move around on the platform. On either side of the platform there were two openings of roughly 18 inches by 3 feet through which it was possible that he could fall and, if he did fall, serious injury could result. Mr. Arsenault did not use any safety equipment even though the Respondent supplied safety belts which were to be used when the work to be done was hazardous because he felt that the use of a safety belt would be too restrictive and would interfere with his work. Mr. Fiatarone, the [*13] Complainant's safety director, testified that the conditions under which Mr. Arsenault worked were hazardous and that a safety belt could have been utilized without unduly hampering the work that needed to be done. In any case, the fact that a safety belt would cause some restriction in free movement should not be used as an excuse for not using safety belts in a hazardous situation. The undersigned is of the opinion that the circumstances under which Mr. Arsenault worked exposed him to hazardous conditions and that personal protective equipment such as a safety belt should have been worn.

The Respondent has made the point that, since their employees have been furnished with safety belts and instructed them to use the equipment whenever they have to work under hazardous conditions, it is not responsible if the employees violate the instructions and do not avail themselves of the equipment supplied to them. It is not necessary to decide the validity of this proposition inasmuch as the work herein was being performed under the supervision of Respondent's foreman, Mr. Arsenault, who was in charge of the work. In Secretary of Labor v. J.T. Clark & Sons of Maryland, Inc., OSAHRC [*14] Docket No. 410, approved as a final decision of the Commission on December 5, 1972, Judge Brennan held that the violative acts of the Respondent's gang foreman are imputed to the Respondent. Similarly, in Secretary of Labor v. B & J Mechanical Contractors, Inc., which exposed him to hazardous conditions is chargeable to the Respondent.

With respect to Mr. Morrissey, the evidence does not establish that he was exposed to a hazardous condition in the performance of his assigned duties, that is, to place a plumb bob on the elevator machinery and make minor adjustments to the machinery and the steel beams on which the machinery rested. There was, at most, a 6 inch opening [*15] between the platform on which he stood and the front of the motor part of the elevator machinery, which was not a large enough opening for him to fall through. On the sides of the elevator machinery there were openings of about two feet wide, large enough for him to fall through, but the openings were covered with planking so that he could not fall through. At the back of the elevator machinery there was an opening large enough for Mr. Morrissey to fall through, but his work did not require him to go near this opening.

With respect to the penalty, the parties have stipulated that the Complainant in assessing a penalty of $80 gave due consideration to the gravity of the violation, the good faith of the Respondent, the size of the Respondent's business, n1 and the history of previous violations as required by Section 17(j) of the Act. The evidence shows the Respondent's employee could have fallen 12 stories. Consequently, it would appear at first blush that an $80 penalty is not severe enough. However, the probability of an accident occurring was low when the size of the openings through which the employee could fall vis-a-vis the size of the employee in winter clothes is considered. [*16] There was only one employee involved and the work took only about an hour. The other factors referred to in Section 17(j) have been considered and it is concluded that the proposed penalty of $80 is not inappropriate.

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n1 It is noted that in determining the size of the Respondent's business, the Complainant considered only the employees working at the work site. This is at variance with the criteria established in Secretary of Labor v. Jasper Construction, Inc.,

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The question has been raised with respect to whether the Respondent was afforded an opportunity to accompany the Compliance Officer during his inspection in compliance with Section 8(e) of the Act which provides:

Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity [*17] to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection.

Whether or not the Respondent was given the opportunity to accompany the Compliance Officer will not dispose of the issues raised in this case in the light of decision in Secretary of Labor v. Chicago Bridge and Iron Company,

FINDINGS OF FACT

On the basis of the Citation, Notice of Proposed Penalty, Notice of Contest, pleadings, admissions, stipulations, the testimony adduced at the hearing and the representations of the parties, it is concluded that on the record as a whole, substantial evidence supports the following findings of fact:

1. The stipulation of the parties referred to above are incorporated herein as findings of fact.

2. No injuries occurred at the worksite at the time the alleged violation took place.

3. There is no previous history of violations [*18] of the Occupational Safety and Health Act of 1970.

4. On December 11, 1972 an employee of the Respondent, Armand Arsenault, was working on a plywood platform, 4 feet by 8 feet, aligning elevator machinery in elevator shaft No. 3, on the 12th floor of Building B, Merrimack Plaza, French Street Extension, Lowell, Massachusetts.

5. At the rear of the platform referred to in paragraph (4) above, there was a 9 inch opening and on each side of the platform there was an 18 inch opening.

6. At about the middle of the platform referred to in paragraph (4) above there were brackets coming out of the sides of the shaft wall and extending 10 inches.

7. There were two openings on each side of the platform referred to in paragraph (4) of approximately 18 inches by 3-1/2 feet through which Respondent's employee, Armand Arsenault, could have in the performance of his duties fallen through and suffered bodily injury.

8. The work performed by the Respondent's employee, Armand Arsenault, referred to in paragraph (4), without safety equipment such as a safety belt, exposed him to hazardous conditions and this constituted a violation of 29 CFR 1926.28(a).

9. Armand Arsenault was [*19] the foreman on the job in charge of the work referred to in paragraph (4) and another employee of the Respondent, Joseph Morrissey was under Armand Arsenault's supervision.

10. Giving due consideration to the size of the Respondent's business, the gravity of the violation, the good faith of the Respondent and the negative history of previous violations, the appropriate penalty for serious violation of 29 CFR 1926.28(a) is $80.

11. On December 11, 1972, Joseph Morrissey was aligning the elevator machinery in the elevator machine room about 9 feet above the platform referred to in paragraph (4) on which Armand Arsenault was working.

12. In the elevator machine room referred to in paragraph (11) there was a precast cement platform with an opening of about 6 inches between the platform and elevator machinery; there were openings of approximately 2 feet on each side of the machinery which were covered by planking; and there was an opening of about 2 feet at the rear of the elevator machinery large enough for a worker to fall through.

13. The work Joseph Morrissey was performing referred to in paragraph (11) did not require him to expose himself to the hazard of falling [*20] through the opening at the rear of the elevator machinery referred to in paragraph (12) and the other openings referred to in paragraph (12) were not large enough to permit him to fall through.

14. The work performed by Joseph Morrissey referred to in paragraph (11) was not in violation of 29 CFR 1926.28(a).

CONCLUSIONS OF LAW

1. The Respondent is, and at all times material hereto was, engaged in business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2. The Respondent is, and at all times material hereto was, subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder, and the Commission has jurisdiction of the parties and the subject matter herein.

3. Armand Arsenault's knowledge that the work he was performing referred to in paragraph (4) of the Findings of Fact is imputable to the Respondent.

4. Respondent violated the Occupational Safety and Health Standard set forth at 29 CFR 1926.28(a) and is assessed a penalty of $80.

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is ORDERED that the Citation [*21] issued on January 22, 1973, for violation of 29 CFR 1926.28(a) and the penalty proposed by the Complainant of $80 are affirmed.