LARRY D. MACK, GENERAL CONTRACTOR

OSHRC Docket No. 3865

Occupational Safety and Health Review Commission

November 27, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Robert N. Burchmore, dated April 19, 1974, is before this Commission for review pursuant to 29 U.S.C. 661(i).

Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, the Judge's decision is hereby affirmed.

[The Judge's decision referred to herein follows]

BURCHMORE, JUDGE: By citation issued July 19, 1973, the Secretary of Labor charges that on May 18, 1973, respondent committed six, non-serious violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq ) in that respondent failed to comply with specified sections of the Safety and Health Regulations for Construction (29 C.F.R. 1926). Notification of proposed penalties was also issued, in which penalties were proposed in the amount of $50 for item 1, $25 for item 2, zero amount for items 3, 4 and 5, and $25 for item 6.

Timely notice of contest was filed and the proceeding was assigned to the undersigned judge for hearing and determination. Hearing was held at San Jose, California, on February 7, 1974. Opportunity [*2] was afforded for the filing of briefs but only the Secretary submitted one.

On the inspection date, respondent was engaged in construction work at a site in Redding, California. He had employees on the worksite and he was engaged in a business affecting commerce within the meaning of section 3(5) of the Act, in that materials, supplies and equipment used by respondent were obtained from states outside California.

Item 1 charges violation of 29 C.F.R. 1926.401(i), which provides under the caption "Electrical" and subcaption "Grounding and Bonding":

(i) Construction site. Precautions shall be taken to make any necessary open wiring inaccessible to unauthorized persons.

The facts are that an electrical distribution panel, located within easy reach of employees passing that way, was partially open, although two thirds of it were covered by corrugated boxboard on which was scrawled in large, plain letters, "HOT -- KEEP OUT." Some extension cords were spliced into the panel and ran from it to work areas where employees of the respondent were observed using them as a power source. On the other hand, respondent had provided a conventional, temporary power pole, and he [*3] thought all of his employees were using that as an exclusive power source.

The sole precaution taken to make the wiring inaccessible to respondent's employees was the partial cover and the sharply worded sign. It is the position of complainant that this was inadequate and it can hardly be disputed that the wiring was physically accessible even though the cover would interfere slightly with anyone approaching the wiring, and the sign was both an unmistakable command and a clear warning of the hazard involved in tampering therewith. Respondent's employees were clearly affected by the condition, as Mack should have known even if in fact he did not. I therefore conclude that the open wiring was in fact accessible, and that a technical violation existed. However, it should also be noted that the gravity of the violation was minimal. This is so because some precautions were taken to comply with the standard, and a proper power source was provided. An employee would have had to disobey instructions and pass up the conventional power source to subject himself to any hazard. The employer is an individual conducting a relatively small business with twenty employees, and there is no record [*4] of previous violations. In my opinion, a zero penalty is appropriate for this item under the circumstances of the case.

Item 2 charges violation of 29 C.F.R. 1926.304(f) and the Secretary introduced testimony establishing that there was a power table saw on the worksite, which was not equipped with the required blade guard, spreader and anti-kickback device. However, the witness did not observe any of respondent's employees using the saw although he did observe sawdust around the machine, indicating that it had been used. Against this circumstantial evidence is positive testimony by Mack that none of his employees did, in fact, use the saw, and that it was only on the jobsite because it had been borrowed from respondent for home use and was being returned to him at that point. Mack pointed out that there was redwood trim material at the base of the saw, that employees of subcontractors were fitting, cutting trim and cabinets and they might have used the saw. I find that from all the evidence that the complainant has failed to show that employees of respondent were exposed to the hazard complained of. It follows that the item must be vacated. Secretary of Labor [*5] vs. Humphreys & Harding, Inc., CCH, Occupational Safety and Health Decisions, 16,132.

In this connection, the Secretary argues that Larry Mack was the general contractor and had control over the worksite, that he was directly involved in the creation of the hazard caused by the improperly equipped saw and that somebody's employees were definitely exposed to the hazard. It is the position of the Secretary that respondent should therefor be held responsible for violation of the cited regulation even if the evidence does not establish that his employees were exposed to the hazard. This position is fallacious because it runs contrary to the holding of this Commission that the responsibility of an employer under this Act does not extend beyond his own employees. Secretary of Labor vs. Gilles & Cotting, Inc., 1 OSHRC 1388.

Complainant seeks to avoid the consequences of Gilles & Cotting by pointing to 29 C.F.R. 1926.16(a), wherein it is provided that the prime contractor shall in no case be relieved of overall responsibility for compliance with the requirements of the regulations for the construction industry for all work performed under the contract. However, this provision [*6] is illuminated by paragraph (b), which makes clear that the prime contractor obligation under section 16 is limited to contracts subject to section 107 of the Contract Work Hours and Safety Standards Act. See 29 C.F.R. 1926.1. There is no evidence that such a contract was involved in the case at bar. As for the pertinent obligation of the contractor under the Occupational Safety and Health Act of 1970, the Secretary's authority to adopt standards would hardly empower him to amend the Act so as to enlarge the statutory responsibility of an employer to extend beyond his own employees.

Item 3. The inspection revealed a stairway leading to a mezzanine floor, and the stair lacked the handrails required by 29 C.F.R. 1926.500(e)(1)(iv):

(iv) On stairways more than 44 inches wide but less than 88 inches wide, one handrail on each enclosed side and one stair railing on each open side.

Item 4. The inspector also found a temporary light consisting of a bare bulb in a socket suspended from the ceiling about six feet above the floor. It did not comply with 29 C.F.R. 1926.401(j)(1), which provides:

(j) Temporary lighting. Temporary lights shall be equipped with guards to [*7] prevent accidental contact with the bulb, except that guards are not required when the construction of the reflector is such that the bulb is deeply recessed.

Item 5. There was a mezzanine floor on the premises, and it was more than six feet above the ground. The inspector found one side of the floor was open with no railing and this condition was contrary to 29 C.F.R. 1926.500(d)(1).

The Secretary's witness did not actually observe any employees exposed to the conditions cited in items 2, 3 or 4, although there were footprints on the unguarded stair leading to the mezzanine, indicating that someone had been using the area. Accordingly, no penalty was proposed for any of the items; because, as the witness testified, the "exposure was minimal." Actually, there is no evidence, either direct or circumstantial, that any employee was exposed to the bare light bulb. Item 4 should therefore be vacated.

As to the stairway, respondent testified that it had just been completed at the time of the inspection, and that a subcontractor was to come on the job and install the railings. He also testified that the open side on the mezzanine floor was a service doorway and that his carpenters [*8] were at the time assembling the roll-up door to install it in the opening. "You could not have a railing in front of the opening at the same time you were installing the door." I conclude from this testimony that item 5 should be vacated because the work in progress prevented the use of the prescribed railing and it is not shown that any employees were affected other than those doing the work which required the absence of the railing. At the same time, it must be concluded from all the evidence that the carpenters were actually using the stairway to the mezzanine without first installing the required railings so that item 3 should be affirmed. Under the circumstances, the proposed zero penalty is clearly appropriate and I so find.

Item 6 charges that respondent failed to comply with 29 C.F.R. 1926.150(c)(1)(i):

(c) Portable firefighting equipment -- (1) Fire extinguishers and small hose lines. (i) A fire extinguisher, rated not less than 2A, shall be provided for each 3,000 square feet of the protected building area, or major fraction thereof. Travel distance from any point of the protected area to the nearest fire extinguisher shall not exceed 100 feet.

[*9]

The inspecting officer testified that he did not see any extinguishers at the worksite. When he asked respondent if there were any, the answer was in the affirmative; however, when asked where they were, respondent just walked away, ostensibly to supervise employees or otherwise attend to the construction progress. At the hearing, Mack testified that there were four extinguishers on the place at the time of the inspection and that they were all charged and activated. He said that two of them were in the lunchroom, one in the trailer office and he thought one was in the body shop. On cross examination, he indicated that the trailer office was 100 feet from the center of the building, and that it was 150 feet from the lunchroom to part of the building. I conclude that the cited regulation was not fully complied with, at least with respect to the maximum distances prescribed. However, the evidence shows that the building was all open to the outside, with no doors yet installed, so that the danger of anyone being trapped by a fire was small. There was no evidence as to any potential fire source other than the presence of people. Considering the statutory criteria in the light [*10] of all the evidence, I find that zero penalty is appropriate for item 6, which should be affirmed.

It is ORDERED that items 1, 3 and 6 of the citation be and the same are hereby affirmed, that items 2, 4 and 5 be and the same are hereby vacated, that no penalty be assessed and that this proceeding be and the same is hereby discontinued.