COX BROTHERS, INCORPORATED

OSHRC Docket No. 2763

Occupational Safety and Health Review Commission

June 9, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge Robert N. Burchmore, dated October 10, 1973, has been before the Commission for review pursuant to 29 U.S.C. 661(i) for more than one year. Rather than further delaying the disposition of this case until a third member is appointed to the Commission, the Commission as presently constituted agrees to dispose of the case at this time.

The members of the Commission are equally divided on the Judge's disposition of all three charges in this case. Accordingly, the Judge's decision is affirmed by an equally divided Commission. This decision, therefore, has no precedential weight. Neil v. Biggers, 409 U.S. 188 (1972). The views of Commissioner Cleary are appended hereto.

CLEARY, COMMISSIONER: I agree with the reasoning in Judge Burchmore's decision in finding that the respondent was an employer engaged in a business affecting commerce. See my dissenting views in Les Mares Enterprises, Inc., No. 2455 (April 11, 1975). I also agree with the holding of the Judge that respondent was in serious violation of 29 C.F.R. 1926.400(c) and his assessment of penalties [*2] therefor. The Judge properly concluded that the supervisor's conduct was imputable to respondent.

I most emphatically disagree, however, with the Judge's finding that the respondent complied with 29 C.F.R. 1926.50(c), the "first-aid" standard. This disposition frustrates the regulatory objective of meeting the need for prompt medical attention for injured employees. See Santa Fe Trail Transport Co., No. 331 (August 16, 1972), rev'd 505 F.2d 869 (10th Cir., 1974) (concerning 29 C.F.R. 1910.151(b), virtually identical to 29 C.F.R. 1926.50(c).

The facts of this case are simple enough. Respondent was a subcontractor engaged in masonry work in a desert area near Tucson, Arizona. Due to a violation of the Act by respondent, one of its workmen suffered fatal injuries. An ambulance was called at once and arrived about thirty minutes later. By that time the employee was dead.

The Judge rested his conclusion that there was a hospital within 12 to 15 minutes driving time solely on the opinion of Mr. Thomas Cox, one of respondent's officers.

Taking Mr. Cox's testimony at face value, it is quite clear that a violation of the Act has occurred. The 12 to 15 minute [*3] interval was calculated for a one way trip. Thus, assuming that an ambulance could be called at once, an injured employee would suffer from lack of first-aid for about 15 minutes, and then receive for another quarter hour whatever treatment the ambulance personnel could provide. Only then would an injured employee have received reliable medical care; and this conclusion is based on the assumption that the ambulance would not be delayed by heavy traffic, nor encumbered by confusion at the worksite sufficient to hinder loading and departure. How this renders medical facilities "reasonably accessible in terms of time and distance" is beyond my ken.

Remedial social legislation such as the Act must be construed both liberally and broadly to protect the workers whom it was designed to protect. In immediate terms this means meeting the plain need for prompt treatment of ill or injured workmen. See my dissent in Santa Fe Trail Transport. Co., supra, and cases cited therein.

Here, the respondent did not even know if any of its employees were trained in first-aid. If supervisory personnel of an employer are ignorant of whatever first-aid exists, the requirement of availability [*4] remains unfulfilled.

Another error implicit in the Judge's disposition is his failure to construe properly the standard's simple requirement that first-aid be available in the absence of a reasonably accessible medical facility. These two elements of the standard must be considered with regard to each other. Any expense of training an employee in first-aid and providing him with a first-aid kit is small in proportion to the harm to employees resulting from even a moderate delay of medical attention. The test of reasonableness must include consideration of such harm.

I have nevertheless agreed to decide the case at this time. The citation was issued on May 11, 1973, and the construction involved is more likely than not completed. The affirmance of the Judge will serve little or no purpose in the immediate case and, as indicated above, the decision has no precedential value.

[The Judge's decision referred to herein follows]

BURCHMORE, JUDGE: By citations issued April 10, 1973, the Secretary of Labor charges that on February 13, 1973, the Respondent violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq ) in that Respondent [*5] failed to comply with certain regulations promulgated for the construction industry. Three citations were issued: (1) A non-serious citation for violation of 29 C.F.R. 1926.50(c), proposed penalty, zero; (2) a citation for serious violation of 28 C.F.R. 1926.400(c)(1-2), proposed penalty $550; and (3) a citation for serious violation of 29 C.F.R. 1926.700(b)(1), proposed penalty $550.

Timely notice of contest was filed and the proceeding was assigned to the undersigned judge for hearing and mitial decision. Hearing was held at Tucson, Arizona, on July 26, 1973. The parties have submitted briefs to the Judge.

Respondent is a corporation which employs from 20 to 35 employees. At the time of the alleged violations it was engaged as a subcontractor doing masonry work and erecting the concrete block walls of a building that was being built for the Tucson Gas and Electric Company near Tucson, Arizona. Respondent contends that it was not subject to the act since it was working wholly within the state, using local materials; the job was a small one with a total contract price of about $4,000. and only two men were employed for a few days in the operation. However, the evidence shows [*6] that the building was intended to be used by T.G. & E. in the interstate distribution of liquefied petroleum gas. It can hardly be disputed that the building of a building for such use affect commerce, albeit indirectly. I therefore conclude from all the facts that the Respondent is an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Act. For explication of this extended application of the power to regulate commerce, see section 2 of the Act wherein Congress has made a finding that injuries and illnesses generally impose a burden on commerce, and has declared its purpose to be to assure safe and healthful working conditions so far as possible to every working person in the Nation; and compare Perez vs. United States, 402 U.S. 146; 28 L. Ed. 2nd 686.

The facts concerning the alleged violations are virtually undisputed. On the day that work began on the job, Mr. Cox, an officer of the Respondent, visited the worksite with the two employees, one of whom Dogoli, was designated as foreman; Respondent's attorney stipulated that Dogoli was the person to whom was delegated the responsibility to act for the corporation on the job. [*7] Mr. Cox attended to the material requirements of the job, but did not notice that there was an electric power line running overhead and directly above one wall of the building to be constructed. No warning signs were posted and no specific safety instructions were given at the time. By February 13, 1973, the wall had been erected to a height of about 14 feet, which was a little more than 9 feet below the power line. At that time Dogoli climbed up on top of the wall and began raising up some reinforcing bars, which were about 13 feet in length, and inserting them downward into the open spaces in the concrete blocks, preparatory to pouring grout therein. Dogoli wore no safety belt, although he had caused the scaffolding to be removed at the point where he was working and there was a 14 foot drop to the ground on both sides of the wall. Also, the reinforcing bar which Dogoli was handling extended up in the air where it finally touched the electric power line. At that juncture Dogoli fell down, rolled off the wall and down to the ground. An ambulance was summoned and arrived in about 25 minutes to a half hour, although according to one witness the hospital was within [*8] 12 to 15 minutes driving time of the jobsite. Dogoli died as a result of his injuries.

Following an after-the-fact investigation made on March 15, the Secretary issued the three citations. In the non-serious citation, the charge is violation of section 50(c), which provides with respect to medical services and first aid:

In the absence of an infirmary, clinic, hospital or physician, that is reasonably accessible in terms of time and distance to the worksite, which is available for the treatment of injured employees, a person who has a valid certificate in first-aid training from the U.S. Bureau of Mines, the American Red Gross, or equivalent training that can be vertified by documentary evidence, shall be available at the worksite to render first aid.

The question presented by this citation is twofold; whether there was a hospital "reasonably accessible in terms of time and distance to the worksite"; and, if not, whether a person was available who was trained in first aid. In the absence of any precise measurable standard as to what is reasonably accessible, it is my opinion that the standard was met here, where there was a hospital within 12 to 15 minutes driving time. I [*9] conclude, therefor, that the requirement for a person trained in first aid did not apply. The non-serious citation should accordingly be vacated even though the witness did not know for sure whether Dogoli was treated in first aid.

Turning now to the two citations for serious violation, section 400(c) provides:

(c) Protection of employees. (1) No employer shall permit an employee to work in such proximity to any part of an electric power circuit that he may contact the same in the course of his work unless the employee is protected against electric shock by deenergizing the circuit and grounding it or by guarding it by effective insulation or other means. In work areas where the exact location of underground electric power lines is unknown, workmen using jackhammers, bars, or other hand tools which may contact a line shall be provided with insulated protective gloves.

(2) Before work is begun the employer shall ascertain by inquiry or direct observation, or by instruments, whether any part of an electric power circuit, exposed or concealed, is so located that the performance of the work may bring any person, tool, or machine into physical or electrical contact therewith. [*10] The employer shall post and maintain proper warning signs where such a circuit exists. He shall advise his employees of the location of such lines, the hazards involved and the protective measures to be taken.

It is undisputed that prior to beginning work no inquiry or observation was made as to the location of electric power lines, although they were in plain sight. No warning signs were posted, and nothing was done to prevent an employee from working in such proximity to the electric circuit that contact could be made. Nor was the circuit deenergized or insulated or grounded so as to protect the employee. Respondent argues that deenergizing was impossible and that relocation of the line would have cost $500 to $1000, which would have been prohibitive on such a small job. Those facts do not constitute a defense; moreover, the regulation permits alternative measure which were not followed although they could have been. For example, warning signs could easily have been put up, and the work could have been so supervised and conducted as to assure that there was no contact between the reinforcing bars and the power line. There is no evidence that such an effort was made or that, [*11] if it had been made, it would have been unduly burdensome or impossible.

Nor is it a sufficient defense to argue, as does the Respondent, that it was the responsibility of the prime contractor or of the T.G. & E. company to handle the power line matter. Section 5 of the Act places upon Respondent, as an employer the responsibility for complying with the regulations with respect to its own employees, and that responsibility cannot be avoided by delegating it to a general contractor or property owner. For the same reason, the fact that the affected employee was the company's supervisor does not excuse the failure to comply. On the contrary, as supervisor Dogoli stood in the shoes of the Respondent so that his violation of the regulations constitutes a violation by the Respondent. This conclusion is not invalidated by the fact that, as Mr. Cox testified, Dogoli was an experienced workman who probably knew better than to climb up on the wall and act as he did; it is undoubtedly true that Respondent would not have approved of Dogoli's conduct, although the evidence does not show that any specific instructions were given to him on the matter. It is evidenct that Dogoli decided [*12] to hurry the job along because it was starting to rain, so he had the scaffold removed as he worked atop the wall. In any case, he was still the company's supervisor and representative on the job, so that his violation of the regulations is imputed to the Respondent as a matter of law.

Respondent points out that the electric line cleared the finished building by a distance sufficient to comply with a National Electric Safety Code. That may be so, but such compliance cannot excuse a violation of section 400(c) of the Safety and Health Regulations for Construction where a workman is permitted to work within such proximity of a line as to come into contact with it in the manner we have seen here.

Section 700(b)(1) provides with respect to Concrete, Concrete Forms, and Shoring, that:

(b) Reinforcing steel. (1) Employees working more than 6 feet above any adjacent working surfaces, placing and tying reinforcing steel in walls, piers, columns, etc., shall be provided with a safety belt, or equivalent device, in accordance with Subpart E of this part.

Respondent does not deny that Dogoli worked more than 6 feet above the adjacent working surface without a safety belt, as he inserted [*13] the reinforcing steel. But Respondent argues that there was nothing to which a safety belt could have been fastened and therefor it could not be expected to require the use of one. The complete answer to that line of argument is to point out that the regulation allows the alternative of a safety belt or a working surface not over six feet below the employee. In this case the evidence shows that there had been a scaffold within six feet of the top of the wall and no reason appears why Dogoli could not have stood on the scaffold to insert the steel instead of having the scaffold removed while he was still working. To have done so would not have necessitated a scaffold on both sides of the wall, as a single scaffold on one side of the wall would have served the purpose of complying with the cited regulation if Dogoli had actually used it as his working platform.

The evidence shows that death or serious physical harm could be the probable result of either of the violations involved. A fall from a height of 14 feet would be likely to result in serious injury whether attended by contact with the electric power line or not. Moreover, the employer knew, or should have [*14] known of the hazard, either through the visit by the corporate officer or through the agency of its supervisor, Dogoli. Hence the violations were serious in nature and the citations must be affirmed.

Considering the evidence as to the size, history and good faith of the employer and the gravity of the violations, I find that the proposed penalties of $550 for each of the two serious violations are appropriate and should be assessed.

It is ORDERED that the non-serious citation herein be and the same is hereby vacated, that the two citations for serious violation be and the same are hereby affirmed, that a penalty of $550 each for the two latter citations be and the same is hereby assessed, total $1100, and that this proceeding be and the same is hereby discontinued.