KAYWOOD CONSTRUCTION COMPANY

OSHRC Docket No. 3068

Occupational Safety and Health Review Commission

June 24, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge Joseph L. Chalk, dated December 7, 1973, is before the Commission for review pursuant to 29 U.S.C. 661(i). That decision affirmed the violation set out in item 2 of the citation, assessed a $25.00 penalty therefor, and vacated the remaining five items enumerated in the citation.

The respondent duly filed a notice of contest which contested only the penalties proposed by the complainant. Since the respondent did not contest the citation within 15 working days after receipt of the penalty notification, the citation became "a final order of the Commission" under 29 U.S.C. 659(a), and the Judge lacked authority to vacate any portion of the citation. Brennan v. OSAHRC and Bill Echols Trucking Co., 487 F.2d 230 (5th Cir., 1973); Secretary v. Allstate Trailer Sales, Inc., 17 OSAHRC 823; Secretary v. Florida East Coast Properties, Inc., 6 OSAHRC 404 (1974).

The gravity of the violation is not severe. The respondent displayed safety consciousness and made a good faith attempt to insure a safe working environment. It employed 36 employees and had no previous [*2] history of violations. Considering the entire record and giving due consideration to the factors enumerated in 29 U.S.C. 666(i), a total penalty of $200.00 is deemed appropriate.

The Judge's vacation of items 1, 3, 4, 5, and 6 of the citation is set aside. A total penalty of $200.00 is assessed.

[The Judge's decision referred to herein follows]

CHALK, JUDGE: Respondent's construction worksite at the Cleveland State University, East 21st Street and Chester Avenue, Cleveland, Ohio, was inspected on February 28, 1973 by a Department of Labor compliance officer. As a result of this inspection, a Citation containing six alleged nonserious violations of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq. ) and a Notification of Proposed Penalty were issued on May 18, 1973. n1 Respondent filed a Notice of Contest on May 21, 1973. n2

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n1 The compliance officer explained that the delay in issuing the Citation and Notification of Proposed Penalty was caused by a shortage of personnel, as well as a backlog of work.

n2 The Notice of Contest indicated a contest of the penalties only. However, Mr. Joseph V. Allen, Respondent's president, stated at the hearing that Respondent's intent was to contest the Citation as well as the penalties and that the wording of the Notice of Contest was intended to convey a full rather than partial contest of the entire enforcement proceeding. I construe Respondent's Notice of Contest as placing the Citation as well as the penalties in issue.

[*3]

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The charges, and other relevant information, are as follows:

Item No.-Standard-Description of Violation-1.-29 CFR 1903.2(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 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.-Failed to post the Notice of the Occupational Safety and Health Act of 1970.

2.-29 CFR 1904.2(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 [*4] 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. 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.-Failed to maintain the Log of Occupational Injuries and Illnesses, OSHA Form 100, or its equivalent.

3.-29 CFR 1904.5-(a) Each employer shall compile an annual summary of occupational injuries and illnesses for each establishment. Each annual summary shall be based on the information contained in the log of occupational [*5] injuries and illnesses for the particular establishment. Form OSHA No. 102 shall be used for this purpose and shall be completed in the form and detail as provided in the instructions contained therein-Failed to compile and post the Summary of Occupational Injuries and Illnesses, OSHA Form 102.

(d)-(1) Each employer shall post a copy of the establishment's summary in each establishment in the same manner that notices are required to be posted under 1903.2(a) of this chapter. The summary covering the previous calendar year shall be posted no later than February 1, and shall remain in place until March 1. For employees who do not primarily report or work at a single establishment, or who do not report to any fixed establishment on a regular basis, employers shall satisfy this posting requirement by presenting or mailing a copy of the summary during the month of February of the following year to each such employee who receives pay during that month. For multi-establishment employers where operations have closed down in some establishments during the calendar year, it will not be necessary to post summaries for those establishments.

4.-29 CFR 1926.750(b)(1)(iii)-Floor periphery [*6] -- safety railing. A safety railing of 1/2-inch wire rope or equal shall be installed, approximately 42 inches high, around the periphery of all temporary-planked or temporary metal-decked floors of tier buildings and other multifloored structures during structural steel assembly.-Failed to adequately maintain periphery safety railing at the forty-inch level where the rope was allowed to slack to within one foot of the floor level on the north and west sides.

5.-29 CFR 1926.450(a)(9)-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.-Failed to provide adequate hand hold by extending the ladders thirty-six inches above point of landing at the north and south side of the building.

6.-29 CFR 1926.28(a)-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.-Failed to require the wearing of protective [*7] equipment (safety belts and life lines) where employees were exposed to the hazards of falling while standing outside of the periphery of the rope guard rail, walking structural steel at the south side of the building and working at the ladder and incomplete scaffold at the northwest corner column.

The Secretary proposed the following penalties for the charges:

Item 1

$50.00

Item 2

$100.00

Item 3

$100.00

Item 4

$75.00

Item 5

$55.00

Item 6

$110.00

The issues presented by these proceedings are whether 29 CFR 1926.28(a) can form a valid basis for a charge, whether the evidence is sufficient to support the charges, and whether penalties are appropriate for the charges affirmed.

I

At the formal hearing in Cleveland, Ohio on August 30, 1973, the parties stipulated that Respondent was an Ohio based corporation that maintained the worksite in question, that it had about thirty-six employees in and about the worksite, and that it used supplies received from out of state.

After appropriately identifying himself to Respondent's job superintendent on the date in question, the compliance officer proceeded to inspect the operation, accompanied by the superintendent and an employee-representative [*8] of the carpenter's union. During the course of the inspection, the compliance officer took five photographs depicting what he considered to be various violations of the Act (Exs. C1, C2, C3, C4, C5, C6).

As the compliance officer did not observe the Occupational Safety and Health Administration poster posted, he inquired and was informed that there was none at the site. He thereupon gave the superintendent a copy of the poster. He also determined that a log of occupational injuries and illnesses (OSHA Form No. 100) was not maintained at the site and that an annual summary of occupational injuries and illnesses (OSHA Form No. 102) was not "posted." He observed that Respondent properly used "nylon lines" fastened to steel columns as safety railings on the floor above the ground level, where employees were working (Exs. C1, C2). However, in some places, the line had not been maintained at the required height of forty-two inches, but instead, had sagged to about one inch from the floor (Exs. C1, C2). Upon further questioning, he testified that the line sagged to within one foot of the floor. n3 He "believe[d]" the superintendent indicated to him at the time that the line [*9] had been lowered in order "to get materials over the side." The compliance officer next observed that the side rails of two ladders on the site did not extend at least thirty-six inches above the landings (Exs. C3, C4, C5). Also, several employees should have been wearing safety belts attached to life lines, but were not (Exs. C1, C6).

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n3 The Citation alleged "within one foot of the floor."

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The job superintendent testified that he never had an Occupational Safety and Health Administration poster until the compliance officer gave him one. It was posted immediately. While there was no log of occupational injuries and illnesses at the site, there had been only one accident that year; and the record of this accident was located at the main office. As there had been no occupational injuries (and apparently illnesses) the previous year, a summary of such injuries and illnesses was not posted at the site. The safety railing lines "constantly" had to be disconnected or lowered where tied to the steel columns in order [*10] to build forms around the columns and then to strip the forms from the columns, once the concrete had been poured and hardened, and also in order "to move material in." The side rails of the ladder on the floor above ground level could not be extended three feet above the landing because it would impede the work being done at the time (Exs. C3, C5). However, "safety was there" because of "steel hanger[s]" or "metal anchors" located above the top of the ladder that employees could grab in lieu of the side rails of the ladder (Exs. C3, C5). The other ladder involved in the charge, located on the ground and leaning against a column at the higher floor level, "was not intended to be used" (Ex. C4). This ladder appears to have been "slid . . . off of the deck and down," after its use on that level, and had not as yet been taken away (Ex. C4). Moreover, it was located near Respondent's "normal usage ladder," used to gain access to the higher level, that was in use and was so placed that its side rails extended thirty-six inches above the landing (Ex. C4). Finally, there was no way that life lines for safety belts could be installed above the two men in question without endangering [*11] the safety of another employee who would have to climb beams above the points where the employees were working in order to attach lines.

Respondent presented evidence of six prior inspections of the worksite by the State of Ohio safety officials. In four of these inspections, no safety violations were found. In the remaining two, several vioaltions were found and were immediately corrected.

The compliance officer proposed the penalties in this case after considering the size of Respondent's business, its history of no prior vioaltions, its good faith, and the gravity of the violations (Ex. C7). He awarded no credit for good faith because Respondent had not maintained accident and illness records. However, he allowed Respondent full credit for both size and prior history. He apparently considered the gravity of the safety violations in the low to moderate range (Ex. C7).

II

While 29 CFR 1903.2 requires each employer to post the Occupational Safety and Health Administration poster at each worksite, there is no obligation to comply with this standard until the poster has been furnished the employer by the Department of Labor ( Secretary of Labor v. Oak Lane Diner, Docket [*12] No. 398, July 20, 1973, Secretary of Labor v. Colonial Craft Reproductions, Inc., Docket No. 881, January 15, 1973; Secretary of Labor v. La Sala Contracting Co., Inc., Docket No. 1207, February 23, 1973). As the Secretary's evidence establishes no more than the fact that the poster was not posted, and Respondent's witness testified that Respondent never had one until it was furnished the day of the inspection, Item Number 1 of the Citation is not sustained by the evidence and must be vacated.

29 CFR 1904.2(a) requires each employer to maintain the log of occupational injuries and illness at each establishment, including a construction site. Subparagraph (b) thereof further provides that if such log is maintained elsewhere, a copy will nevertheless be maintained at the worksite in question. As the Secretary's proof in this case establishes that the log or a copy thereof was not maintained at the site, and that an injury had occurred during the current year prior to the inspection, Item Number 2 of the Citation will be affirmed.

While 29 CFR 1904.5 requires the summary of occupational injuries and illnesses to be posted at the worksite where they occurred, [*13] Respondent's unrebutted evidence establishes that there had been no such injuries or illnesses for the preceding year the summary was intended to cover. Accordingly, Respondent was not obligated to comply with the standard and Item Number 3 of the Citation must be vacated (see Secretary of Labor v. Intermountain Block and Pipe Corp., Docket No. 298, May 19, 1973).

29 CFR 1926.750(b)(1)(iii) requires that safety railings be maintained approximately forty-two inches above the floor. However, justification may exist on a temporary basis in a given case for non-compliance with this requirement where the railing would impede the work in progress or the flow of materials to and from the area ( Secretary of Labor v. DeLuca Construction Co., Docket No. 1225, January 10, 1973; Secretary of Labor v. La Sala Construction Co., Inc., Docket No. 1207, February 23, 1973). After considering the job superintendent's explanation relating to this charge and studying the photographs offered in evidence by the Secretary, I am not satisfied that the Secretary has carried his burden of proving that the railing was not lowered so as to permit work to be done or materials [*14] to be moved to or from the level in question. Accordingly, item number 4 of the Citation will be vacated.

29 CFR 1926.450(a)(9) requires that ladder side rails extend not less than thirty-six inches above the landing. It further provides that when this requirement is not practical, grab rails, which provide a secure grip for an employee moving to and from the point of access, shall be installed. With regard to the ladder on the floor above ground level, to which the Secretary's evidence partly addressed itself (Exs. C3, C5), I agree with the job superintendent's explanation that the required extensions would impede the work in progress and were thus impractical (Exs. C3, C5). Moreover, I find that the numerous "steel hanger[s]" or "metal anchors" located on the landing above the ladder served as an adequate substitute for either the extensions or grab rails (Exs. C3, C5). Turning to the remaining ladder involved in the charge, I am convinced from the totality of the evidence that it was not intended to be used and was not in fact used by any of the employees. I reach this conclusion primarily upon the job superintendent's plausible explanation of how this ladder possibly was [*15] placed where found, as well as the evidence establishing to my satisfaction not only that the ladder would be difficult to use because of its placement at the ground level among piles of lumber but that its use was highly unlikely because of its location in close proximity to another ladder properly placed against the building that was actually in use at the time (Ex. C4). Accordingly, Item Number 5 of the Citation will be vacated.

The remaining charge involving 29 CFR 1926.28(a) cannot be sustained as a matter of law, for that standard, in combination with 29 CFR 1926.104 to which it refers, is too vague with regard to the use of safety belts to be enforceable (see Secretary of Labor v. Carpenter Rigging and Contracting Corp., Docket No. 1399, March 8, 1973, presently under review by the Commission). n4 Accordingly, Item Number 6 of the Citation will be vacated.

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n4 In Secretary of Labor v. Eichleay Corporation, Docket Number 2610, October 16, 1973, Judge Burroughs affirmed a violation of 29 CFR 1926.28(a) concerning safety belts. However, Chairman Moran directed review of the decision on the question of whether the standard was too vague to be unenforceable. Commissioner Van Namee also directed review of the decision on the question of whether the standard was unenforceable for having been amended substantially without resort to the rulemaking procedures set forth in the Act.

[*16]

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I have considered all of the criteria set forth in Section 17(j) of the Act as well as the evidence in the case in assessing a penalty for Item Number 2 of the Citation.

III

Based upon the entire record, I reach the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. That Respondent, an Ohio based corporation, utilized supplies received from out of state.

2. That at the time and place in question, Respondent did not have the Occupational Safety and Health Administration poster posted because said poster had not been furnished by Complainant.

3. That at the time and place in question, Respondent failed to maintain at the worksite a log, or copy thereof, of occupational injuries or illnesses (OSHA Form 100).

4. That at the time and place in question, Respondent had no occupational injuries or illnesses to record in an annual summary (OSHA Form 102), and no annual summary was posted.

5. That at the time and place in question, some of the safety railings had been lowered below the required forty-two inch level on the level above ground level to permit the work to progress [*17] and to permit the flow of materials to and from that level.

6. That at the time and place in question, the ladder at the ground level was not used and was not intended to be used; an extention of the rails of the ladder on the level above ground level could not be placed thirty-six inches above the landing without impeding the work in progress, but "steel hanger[s]" or "metal anchors" installed above the top of the ladder adequately served as a substitute for the extension or grab rail.

7. No employee working above the ground level was wearing safety belts attached to life lines.

CONCLUSIONS OF LAW

1. That this Commission has jurisdiction over the cause.

2. That Respondent did not violate Section 5(a)(2) of the Act by not complying with 29 CFR 1903.2(a), 29 CFR 1904.5, 29 CFR 1926.750(b)(1)(iii), and 29 CFR 1926.450(a)(9).

3. That Respondent did violate Section 5(a)(2) of the Act by not complying with 29 CFR 1904.2(a).

4. That 29 CFR 1926.28(a) is unenforceably vague.

5. That in light of Section 17(j) of the Act and the entire record, the penalty herein assessed is appropriate.

Item Numbers 1, 3, 4, 5, and 6 of the Citation are vacated. Item Number 2 of the [*18] Citation is affirmed. A penalty of $25.00 is assessed for Item Number 2 of the Citation.

It is so ORDERED.