Docket No. 383

W.J. LAZYNSKI, INC.

OSHRC Docket No. 383

Occupational Safety and Health Review Commission

April 27, 1973

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: BURCH

OPINION:

BURCH, COMMISSIONER: On August 17, 1972, Judge William E. Brennan issued his recommended decision and order in this case, affirming the Secretary's citation for serious violation and proposed $600 penalty and vacating the citation for non-serious violations.

On August 21, 1972, I directed that the proposed decision and order be reviewed by the Commission pursuant to Section 12(j) of the Occupational Safety and Health Act of 1970 (29 US.C.A. 651 et seq., hereinafter referred to as "the Act") in order to determine whether the Secretary considered the gravity of the serious violation when proposing a penalty. Having considered the entire record we adopt the Judge's decision insofar as it is consistent with the following.

Respondent was cited for a serious violation of 29 CFR 1926.550(a)(9), a standard promulgated by the Secretary, which states as follows:

Accessible areas within the swing radius of the rear of the rotating superstructure of the crane, either permanently or temporarily mounted, shall be barricaded in such a manner is to prevent an employee from being struck or crushed by the crane.

As stated and fully discussed by Judge Brennan in his decision, the violation of the standard, which resulted in the death of one of respondent's employees, was established. n1 However, we find that the extenuating circumstances of this case are relevant to the gravity of the violation and that the $600 proposed penalty is inappropriately high.

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n1 The violation of this specific safety standard is distinguishable from Secretary of Labor v. Hansen Brothers Logging, Whether, on these facts, 29 CFR 1926.550(a)(9) was violated was not in issue.

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The deceased employee was crushed between the counterweight of the crane and stacked liner plates which were so located as to constitute a barricade between the worksite, located on the median strip of a highway, and vehicular traffic. Evidence of record establishes that, despite respondent's efforts to secure a larger working area, it was permitted by local authorities to block only a portion of one lane of traffic behind the crane.

In Secretary of Labor v. National Realty and Construction Co., Inc. Although the duration of exposure to the hazard was considerable the number of employees exposed was low. In addition, the condition which was violative of the standard was itself intended, at least in part, to be a precaution against the hazards presented by highway traffic. On the basis of the foregoing we assess an initial penalty of $600 on the basis of gravity which is reduced by 40% for the good faith and past compliance adjustments.

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n2 The elements discussed were not intended to be exclusive for all cases.

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It is ORDERED that the citation for serious violation be affirmed and that respondent be assessed a penalty of $360.

CONCURBY: MORAN

CONCUR:

MORAN, CHAIRMAN, concurring: I concur in the result, but disagree with arriving at penalty assessments by applying discounts, mark-downs, or arbitrary reductions.

[The Judge's decision referred to herein follows]

BRENNAN, JUDGE, OSAHRC: This is an action arising under the provisions of Section 19(c) of the Occupational Safety and Health Act of 1970, Pub. Law 91-596; 29 U.S.C. 651 et seq. (hereinafter Act), to review one Citation for Serious Violation and one Citation for Non-Serious Violations issued by the Secretary of Labor, (hereinafter Secretary) pursuant to Section 9(a) of the Act, and to review penalties based upon the alleged violations proposed by the Secretary pursuant to Section 10(a) of the Act.

The record of this case reflects the following matters:

1. On December 14, 1971, the Secretary, pursuant to Section 9(a) of the Act, through the Occupational Safety and Health Administration, issued to W.J. Lazynski, Inc., 4445 North 12th Street, Brookfield, Wisconsin 35225 (hereinafter Respondent), the following:

a) A Citation for Serious Violation alleging a violation of Section 5(a)(2) of the Act in that Respondent failed to comply with the Occupational Safety and Health Standard promulgated under the Act as set forth at 29 C.F.R. 1518.550(a)(9) to wit: "Employer failed to barricade accessible areas within the swing radius of the rear of the rotating superstructure of the crane in a manner as to prevent an employee from being struck or crushed by the crane." This Citation set forth an "Immediate" date for correction of the alleged violation (R.p.1). n1

b) A Citation for Non-Serious Violations, alleging two violations of Section 5(a)(2) of the Act in that Respondent failed to comply with the Occupational Safety and Health Standards promulgated under the Act as set forth at 29 C.F.R. 1518.25(a) and 1518.250(b)(9) to wit,

Item 1 -- "Employer failed to keep debris cleared from work areas during the course of construction" (29 CFR 1518.25(a)).

Item 2 -- "Employer failed to stack and block structural steel pipe, so as to prevent spreading or tilting" (29 CFR 1518.250(b)(9)).

An "Immediate" date for correction of both of these alleged violations is set forth in this Citation (R.p.1a).

2. By his notification of Proposed Penalty also dated December 14, 1971, the Secretary, pursuant to Section 10(a) of the Act, notified the Respondent of his intention to propose penalties in the following amounts for the alleged violations:

Citation for Serious Violation -- $600.00

Citation for Non-Serious Violations

Item No. 1	$35.00
Item No. 2	$40.00

Total	$675.00
	(R.p.2).

3. The Respondent pursuant to Section 10(c) of the Act, through a letter from its Secretary-Treasurer dated December 30, 1971, gave notice of its intention to contest the Citations and penalties proposed thereon (R.p.3).

4. Pursuant to Section 10(c) of the Act, this case was thereafter referred to the Occupational Safety and Health Review Commission, (hereinafter Commission) for hearing, notice of receipt thereof being given to the parties of record by the Commission on January 6, 1972 (R.p.4).

5. On January 12, 1972, the Secretary filed his Complaint with the Commission and certified service thereof upon the Respondent and the Authorized Employee Representative (R.p.6).

6. Although this Docket file contains no formal pleading denominated an "Answer," the letter from Respondent to the Commission dated January 14, 1972, is hereby deemed to constitute Respondent's Answer as substantially complying with the Commissions Rule of Procedure set forth at 29 C.F.R. 2200.7 (R.p.7).

7. On February 11, 1972, this case was assigned to Commission Judge Leon J. Moran and was reassigned to the writer by the Commission on March 7, 1972, due to Judge Moran's unavailability (R.p.8, 9).

8. By notice to the parties dated February 15, 1972, the hearing was scheduled to commence on March 27, 1972, at Milwaukee, Wisconsin (R.p. H-1).

9. The hearing was held as scheduled, and after an extension of time upon the Secretary's request was granted (Rp. H-16, H-17), the Secretary on May 4, 1972, filed his Proposed Findings, Conclusions and Brief as did the Respondent, through its counsel, on April 28, 1972 (R.p. H-20, H-21). Both the Secretary and Respondent, on May 8, and May 12, 1972, respectively, filed Reply Briefs (R.p. H-23, H-24).

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n1 References are to pages in Commission Docket File No. 383 to the transcript of the hearing held herein (Tr. . . .) and to exhibits in evidence (Exh . . .).

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Having considered the entire record herein, the stipulations (Tr. 3, 4), representations and admissions of the parties, the transcript of testimony and exhibits, it is concluded that the substantial evidence on the record considered as a whole, supports the following:

FINDINGS OF FACT

1. No affected employees or authorized representative of affected employees expressed any desire at or before the hearing to participate in these proceedings as a party of record (Tr. 3).

2. The following stipulations were entered into by the parties of record at the commencement of the hearing:

a. Jurisdiction of this action under Section 10(c) of the Act has vested in the Commission;

b. Respondent is, and at all times hereinafter mentioned was a Wisconsin corporation with its principal office and place of business at 4445 North 124th Street, Waukesha County, Wisconsin;

c. The Respondent at all times hereinafter mentioned was an employer within the meaning of the Act.

d. On October 29, 1971, the Respondent was engaged in sewer construction, including tunneling, employing several employees at a workplace located at North 84th Street and West Bluemound Road, Wauwatosa and Milwaukee, Wisconsin;

c. Respondent received two Citations from the Secretary dated December 14, 1971, issued pursuant to Section 9(a) of the Act, alleging a total of three violations of Occupational Safety and Health Standards duly promulgated pursuant to Section 6 of the Act;

f. The Respondent received the Notification of Proposed Penalty also dated December 14, 1971, proposing a monetary penalty in the total amount of $675.00 based upon the alleged violations set forth in the two Citations (Tr. 3, 4).

3. On November 1, 1971, and for approximately one year preceeding, the Respondent was engaged in the excavation for and construction of a 96 inch diameter sewer line running approximately 7500 feet, beginning at a point just South of the intersection of Interstate Highway -- 94 (I-94) and North 84th Street, in Milwaukee, Wisconsin, running North in a tunnel under 84th Street to the intersection of 84th Street and West Bluemound Road, and continuing in a Northly direction terminating at Watertown Plank Road (See Resp. Exh. A). This project entailed excavating a 12 foot tunnel plus 7 access manholes (Tr. 76-78, 83).

4. On October 29, 1971, the Respondent was engaged in backfilling around access manhole No. 3 using a three quarter yard model 34 Lima crane. This crane had a 35 foot boom from which was suspended a clam shovel or bucket used in this operation. The body of the crane was approximately 20 feet in length; and in operation, rotated from a center pivot point (Tr. 79, Exh. G-3).

5. Manhole No. 3 was located on the medium strip of North 84th Street, a boulevard running roughly North and South, at a point approximately 160 feet south of the intersection of North 84th Street and Bluemound Road. From a point immediately to the North of manhole No. 3, (hereinafter excavation site), the medium strip of 84th Street narrows considerably to accommodate a turning lane for traffic turning West onto Bluemound Road. Both 84th Street and Bluemound Road, in the vicinity of the excavation site have an "extremely heavy" traffic load (Tr. 75) (Tr. 73-76, Resp. Exh. A, B).

6. The medium strip at the excavation site was measured by Respondent's President and found to be approximately 18 feet wide. The two north bound traffic lanes at this point were found upon measurement to be approximately 30 feet wide as were the southbound traffic lanes. The Respondent obtained permission from local authorities to close one north and one southbound lane of traffic adjacent to manhole No. 3 at this excavation site which resulted in an immediate work area approximately 45 feet in width (Tr. 78-82; 94; Resp Exhs. Cand D).

7. On October 29, 1971, Respondent's crane was situated at the excavation site facing north backfilling the excavation around manhole No. 3 located immediately in front of the crane. To the right or East of the crane, and stacked in close proximity thereto, were stacks of "liner plates," heavy steel bracing plates which had been removed from the excavation (Tr. 28). To the left or West of the crane, also in close proximity thereto, was a pile of sand or gravel being utilized in the backfilling operation. To the rear or South of the crane were located various types of construction equipment, i.e. forms, etc. On this date, one of Respondent's employees was fatally crushed between the swinging superstructure of this crane and the stacks of "liner plates" (Tr. 13, 28-30, 52; Exhs. G-1, 2, and 3).

8. On October 29, 1971, at this excavation site, there were no barricades blocking the accessible areas within the swing radius of the rear of the rotating superstructure of Respondent's crane so as to prevent an employee from being struck or crushed by the crane. This fact is conclusively established through the testimony of an employee of Respondent who was present at this site on this date, through the testimony of a Wisconsin State safety inspector, and an Occupational Safety and Health Compliance Officer, the latter two witnesses having inspected this excavation site on November 1, 1971. The Compliance Officer took photographs of this site during his inspection which were introduced into evidence as Exhibits G-1 through 5. Exhibits G-1 and 2, show the conditions present on October 29, 1971, with the exception of a barricade at the rear of the crane, which was put there on November 1, 1971, during the insepction. The Respondent, through the testimony of it's President, in effect conceded the absence of any barricade around the accessible swing radius of this crane (Tr. 15-17, 29-30, 33-35, 51-53, 62, 64-70, 89-93, Exhs. G-1, G-2, G-6, 29 C.F.R. 1518.550(a)(9)).

9. Respondent maintains that because of the restricted work area at this excavation site and the heavy traffic flow on either side thereof, it was faced with a decision as to how to provide a means for employees to walk to various points within this excavation site. Rather than have employees walk to either side of this immediate area which would necessitate going out into either the North or Southbound traffic lanes, Respondent decided not to barricade around the swing radius of the crane.

This decision, coupled with the stacking of the liner plates in close proximity to the swing radius of the crane on one side, and the stacking of the sand or gravel on the other side, created a condition where there was a substantial probability that death or serious physical harm could result to employees by being struck or crushed by the rotating superstructure of the crane (Tr. 39, 40). The restricted working conditions and traffic problems present at the excavation site here involved are not unusual for this Respondent. To the contrary, its President testified that these problems are present at most of its construction projects involving sewer construction and public highways. Additionally, this witness testified that the use of barricades as required by the Safety Standard at issue, (29 C.F.R. 1518.550(a)(9)) is a ". . . good safety practice," and that the Respondent, ". . . does follow it when we have a condition where we feel it is the thing to do" (Tr. 90).

This record clearly establishes that Respondent knew of the hazardous conditions at this excavation site (Tr. 80-81, 90-93).

10. Respondent further argues in its brief; "Somewhere, someplace, there must be a rule of reason. So-called safety regulations should not supersede common sense or sound judgment" (Resp. brief p. 8). Further that, ". . . the Respondent acted in a most reasonable manner and should not be penalized by a literal and unreasonable interpretation of an isolated rule" (Resp. brief pp. 9, 10).

Respondent's arguments are not persuasive. The Safety Standard here involved 29 C.F.R. 1518.550(a)(9), n2 promulgated by the Secretary pursuant to Section 6(a) of the Act, is a "mandatory" rule of conduct by the express provisions of Section 2(b)(3) of the Act. No employer is authorized under the Act, to comply with duly promulgated Safety and Health Standards at its option, i.e., when they "feel it is the thing to do." Respondent here was under the obligation to place barricades around the swing radius of the superstructure of its crane so as to prevent injury or death to its employees.

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n2 Redesignated as 29 C.F.R. 1926 by publication in the Federal Register of December 30, 1971.

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It had the responsibility of either not stacking construction material in such close proximity to the swinging radius of the crane so as to create a hazardous condition, or to provide some reasonably safe route for employees to move within the excavation site, if such movement was essential.

As to Respondent's argument concerning reasonableness, it is noted that Respondent has not on this record, denied the violation alleged in the Citation for Serious Violation. Rather its position is that it should not be "penalized by a literal and unreasonable interpretation" of the safety standard at issue.

No interpretation of this standard is necessary. It is clear and unequivocal in its terms, and mandatory in its command, ". . . shall be barricaded in such a manner as to prevent an employee from being struck or crushed by the crane" (29 C.F.R. 1518.550(a)(9)). The application of this standard to this Respondent, under all of the facts revealed in this record, is commanded by Section 9(a) of the Act as a means of accomplishing the express purpose or the Act, ". . .to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources . . ." (Sec.2(b)).

11. On November 1, 1971, approximately two blocks South of the excavation site the Respondent maintained a storage area. This area consisted of both North bound traffic lanes of North 84th Street for approximately 500 feet, which Respondent had obtained permission to block off, rerouting northbound traffic around this site into one of the South bound traffic lanes of this boulevard. Prior to this date this location has been used as a work site by Respondent, but on November 1, as well as October 29, 1971, no work was carried on there and it was utilized exclusively for the storage of equipment and supplies for this sewer construction project. It is at this location that the alleged two non-serious violations occurred (TR31, 35-36, 40, 83-86).

12. Item No. 1 of the Non-Serious Citation alleges a violation of that standard set forth at 29 C.F.R. 1518.25(a), and consequently a violation of Section 5(a)(2) of the Act, in that:

Employer failed to keep debris cleared from work areas during the course of construction (R.p. la, R.p. 6-Complaint, Exh.G-7).

This alleged violation was observed by Compliance Officer Bechtel on November 1, 1971, at the storage area described above and a photograph thereof was admitted into evidence as Exhibit G-4. This officer believed the conditions he observed constituted a violation of the above cited standard due to his good faith concern that, ". . .the entire area constitutes an area where employees would be required from time to time to either store other materials or remove stored materials from the area, and if they are required to do this and they have to step over and around the debris that is cluttering up the area, then there is a possibility that they could trip or fall and become injured, especially in removing the pipe from the stack that they have there (Tr. 40-41).

An examination of Exhibit G-4 reveals stored lengths of pipe, orderly stacked and banded. What wire or hose is visible also appears to be neatly coiled. There does also appear a rather small pile of heavy timbers of various lengths. On it's face, this exhibit does not show, ". . . the storage area cluttered with debris" (Tr. 31).

The unrebutted testimony of Respondent's President establishes that this pile of heavy timbers were a combination of blocking, ties and other materials which had been used in the tunnel, had just been removed therefrom probably on the preceeding work shift, and was to be cleaned, sorted and stored away for future use. The material was valuable "maple hearts." In the light of this evidence, the pile of timber depicted in Exhibit G-4 can not reasonably be labeled "debris." Additionally, this witness testified, that to the right of this pile of timber was an unobstructed 12 foot wide area, which provided uncluttered access through this storage area to any employees performing any tasks therein. This evidence is also unrebutted and Exhibit G-4 tends to confirm it. (It is also noted that this photograph, taken on November 1st shortly before noon (Tr. 51) shows no employees present, nor any work being performed at this site) (Tr. 82-86).

It is concluded that 29 C.F.R. 1518.25(a), by its terms, does not pertain to the storage area here involved as it is directed toward housekeeping conditions at "work areas." However, even if this standard, in the circumstances of this case, does apply, the offending pile of timber can not be reasonably classified as "debris" on the evidence of this record. The Secretary has not proven a violation by this Respondent of the standard set forth at 29 C.F.R. 1518.25(a) as alleged.

13. Item No. 2 of the Non-Serious citation alleges a violation of the standard set forth at 29 C.F.R. 1518.250(b)(9), and consequently a violation of Section 5(a)(2) of the Act in that:

Employer failed to stack and block structural steel pipe, so as to prevent spreading or tilting (R.p. 1a, R.p. 6 Complaint, Ex. G-8).

This alleged violation was also observed by the inspecting Compliance Officer on November 1, 1971, at the Respondent's storage area and a photograph thereof was admitted into evidence as Exhibit G-5. The condition observed was five very large, steel tunnel forms, ten feet in length weighing in excess of 3,000 pounds each, stored in the storage area resting on 2" X 6" wooden blocks with long 2" X 6" wooden stringers also appearing to be under them. The Compliance Officer believed this condition to be violative of the standard cited supra, because "this large heavy pipe wasn't blocked to prevent the crushing of an employee if one would be between the pipe" (Tr. 42), and "should an automobile accident occur at this point, or should a truck come by and hit one of these pipes, or should anything happen to cause these pipes to go together, an employee would be hurt" (Tr. 50, 31).

As to this violation the evidence is conflicting. Although the Compliance Officer testified that these forms were not blocked, the Respondent's President testified that they were blocked by the 2" X 6" stringers as depicted in Exhibit G-5 (Tr. 87, 88). In any event, Respondent's President, its safety man and the Compliance officer tried to roll these forms during the inspection, and were unable so to do (Tr. 87, 89).

These tunnel forms were located in the storage area where all North bound traffic had been blocked off. The record here does not reveal how an automobile or truck might strike these forms, and even if such were to occur, whether such an impact might result in moving one or more of these ton and one-half forms. The Compliance Officer's good faith reasons for concluding the existence of this violation are fatally conjectural.

In the light of this conflicting and conjectural evidence, it cannot be concluded that the substantial evidence of record establishes this violation. It is, therefore, concluded that the Secretary has not proven a violation by this Respondent of the standard set forth at 29 C.F.R. 1518.250(b)(9).

14. On October 29, 1971, the Respondent employed approximately 270 employees (Tr. 60, 96).

15. The statutory maximum penalty for the serious violation of $1,000 was reduced by the Secretary, 20% for good faith and an additional 20% for the lack of any history of past violations, resulting in a proposed penalty of $600.00 (Tr. 59-61).

16. The serious violation was abated during the inspection of November 1, 1971, by placing the barricades as required by the standard (Tr. 62).

CONCLUSIONS OF LAW

1. Jurisdiction of this action is conferred upon the Commission by Section 10(c) of the Act.

2. At all times involved in this case, Respondent herein was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.

3. At all times involved in this case, Respondent furnished employment to its employees at a workplace located in Milwaukee, Wisconsin and the Act is applicable to such employment within the meaning of Section 4(a) of the Act.

4. On December 14, 1971, the Secretary pursuant to the provisions of Sections 9(a) and 10(a) of the Act, issued to this Respondent one Citation for Serious Violation, one Citation for two Non-Serious Violations and a Notification of Proposed Penalty in the amounts of $600.00 for the Serious and a total of $75 for the Non-Serious violations.

5. On December 30, 1971, pursuant to the provisions of Section 10(c) of the Act, this Respondent timely filed with the Secretary its notification of intent to contest these citations and proposed penalties. The Secretary thereupon transmitted this case to the Commission which, pursuant to the provisions of Section 10(c) of the Act, has jurisdiction of the parties and of the subject matter herein.

6. On October 29, 1971, this Respondent violated Section 5(a)(2) of the Act by failing to comply with the Occupational Safety and Health Standard set forth at 29 C.F.R. 1518.550(a)(9) in that Respondent failed to barricade accessible areas within the swing radius of the rear of the rotating superstructure of one of its cranes at a work place located near the intersection of North 84th Street and Bluemound Road, Milwaukee, Wisconsin, in such a manner as to prevent an employee from being struck or crushed by this crane.

7. The violation herein found to exist at Respondent's work place on October 29, 1971, was a serious violation within the meaning of Section 17(k) of the Act in that there was a substantial probability that death or serious physical harm could result therefrom, and this Respondent knew or could have known of the presence of said violation with the exercise of reasonable diligence.

8. Due consideration having been given to the provisions of Section 17(j) of the Act as applicable to the evidence of record, and weighing particularly the gravity of the violation, it is concluded that the Secretary's proposed penalty in the amount of $600 for this Serious Violation is appropriate and obtains a just result.

9. The substantial evidence of record considered in its entirety does not support the Secretary's allegations of two non-serious violations as set forth in the Citation for Non-Serious Violations dated December 14, 1971, addressed to this Respondent.

Based upon the foregoing findings, and conclusions, and pursuant to the provisions of Section 10(c) of the Act, it is hereby,

ORDERED:

1. That the Citation for Serious Violation dated December 14, 1971, directed to the Respondent herein as issued by the Secretary be AFFIRMED.

2. That the Secretary's Proposed Penalty based upon this serious violation in the amount of $600.00 be AFFIRMED.

3. That the Citation for two Non-Serious Violations and penalties proposed thereon in the total amount of $75.00, dated December 14, 1971, directed to the Respondent herein as issued by the Secretary be DISMISSED.