A. A. WILL SAND & GRAVEL CORP.

OSHRC Docket No. 5139

Occupational Safety and Health Review Commission

July 12, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Albert H. Ross, Regional Solicitor, U.S. Department of Labor

Timonthy H. Donahue and Robert H. Flynn, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

A November 18, 1974, decision of Judge Abraham Gold is before this Commission for review pursuant to 29 U.S.C. 661(i). Judge Gold vacated a citation for nonserious violation of the Act n1 alleging violations of four construction standards on the basis that Respondent was not engaged in construction work. We disagree with Judge Gold's finding that Respondent was not engaged in construction work, but for the reasons which follow, we agree with his conclusion that the citation be vacated.

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n1 The Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act").

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Respondent is engaged in the sale and delivery of sand and stone. On September 14, 1973, one of Complainant's compliance officers conducted an inspection of a worksite in Boston, Massachusetts, at which one of Respondent's [*2] employees (Jenness) was unloading over 30 tons of roofing gravel. Jenness unloaded the gravel by opening the scuttle chuts in the tailgate of his truck, thereby allowing the gravel to flow into a hopper. The hopper fed onto a conveyor belt which carried the gravel to the roof. Jenness opened and closed the chute upon signals from a worker on the roof. The conveyor was powered by a gasoline engine which had both an unguarded exhaust and shaft. Although not part of his normal duties, Jenness occasionally made adjustments to the conveyor belt so that a worker would not have to come down from the roof.

As a result of the inspection, Respondent was cited for, among other things, nonserious violation of 29 C.F.R. 1926.550(a)(8) for failure to guard a shaft on the engine powering the conveyor and 29 C.F.R. 1926.550(a)(10) for failure to guard or insulate the exhaust pipe. n2

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n2 Respondent was also cited for violation of 1926.100(a) for failure to provide protective helmets and 1926.102(a)(1) for failure to provide eye protection equipment. In his brief on review, the Secretary indicates that he does not take issue with the Judge's recommendation that these items should be vacated on the merits. Respondent's brief indicates that it does not consider these items to be in issue on review. Inasmuch as there is no dispute between the parties, we will not reach these items on review.

[*3]

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On these facts, Judge Gold found that Respondent was not engaged in construction work within the meaning of 29 C.F.R. 1910.12(b). n3 Accordingly, he recommended that the citation be vacated. On review, Respondent continues to urge that it is not subject to the construction standards. We disagree.

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n3 29 C.F.R. 1910.12(b) provides:

For purposes of this section, "construction work" means work for construction, alteration, and or repair, including painting and decorating. See discussion of these terms in 1926.13 of this title.

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While mere delivery to a construction site may not constitute construction work within the meaning of 1910.12(b), more than mere delivery was present in this case. Respondent's employee unloaded the gravel into the conveyor hopper only as it was needed on the roof. Moreover, he made adjustments to the conveyor itself. We find these activities to be an integral part of and cannot be separated from the construction [*4] activities. West Allis Lime & Cement Co., 14 OSAHRC 246, BNA 2 OSHC 1453, CCH OSHD para. 19,155 (1974); Cf. Heede International Inc., 14 OSAHRC 758, BNA 2 OSHC 1466, CCH OSHD para. 19,182 (1975). Accordingly, we conclude that in the facts of this case, Respondent was subject to the construction standards.

Respondent further contends that it did not have the expertise to either recognize the hazards presented by the unguarded shaft and exhaust or to correct the hazards. We agree. The Commission recently issued a series of decisions involving the liability of employers engaged in work on multi-employer construction sites. Grossman Steel & Aluminum Corporation, No. 12775, BNA 4 OSHC 1185, CCH OSHD para. 20,691 (R.C., May 12, 1976); Anning-Johnson Company, Nos. 3694 & 4409, BNA 4 OSHD 1193, CCH OSHD para. 20,690 (R.C., May 12, 1976); Otis Elevator Company, No. 8468, BNA 4 OSHC 1219, CCH OSHD para. 20,693 (R.C., May 14, 1976). In these cases we stated that an employer cannot ignore hazards to which its employees are exposed and of which it had or should have had actual knowledge, even though those hazards were created by, and were the responsibility of another [*5] employer. More specifically, in Otis, supra, we stressed the fact that the violations were specifically within Respondent's area of expertise or were hazards that did not require special expertise to recognize or correct. That is not the case here. We find the nature of the alleged hazards in this case to be such that Respondent could not have recognized them without expertise in working with the type of equipment involved. Inasmuch as there is no evidence that Respondent possessed the requisite expertise, we will vacate the citation for violations of 1926.500(a)(8) and 1926.550(a)(1). n4

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n4 We note that, inasmuch as these two standards appear in a section limited to cranes and derricks, Respondent could have, but did not, raise an issue as to the applicability of these standards to the facts of this case.

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Accordingly, the Judge's decision is adopted to the extent it is consistent herewith. It is so ORDERED.