WRIGHT-SCHUCHART-HARBOR CONTRACTORS

OSHRC Docket No. 559

Occupational Safety and Health Review Commission

February 15, 1973

 

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: BURCH

OPINION:

  BURCH, COMMISSIONER: On June 21, 1972, Judge James A. Cronin, Jr. issued his recommended decision and order in the instant case, vacating items no. four and six of the Secretary's citation and the penalties proposed for these alleged non-serious violations.

On July 5, 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 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act").

The Commission has reviewed the briefs filed by the parties and has considered the entire record. We do not adopt the Judge's recommended decision and order.

Review was directed and submissions were invited with respect to the issues raised in the Secretary's petition for discretionary review, i.e., whether the Judge made an erroneous finding of fact and an erroneous conclusion of law regarding the "walkaround" and whether knowledge of a violation, as used in section 17(k) of the Act, is applicable to other than serious violations.   In addition, I directed review to determine whether respondent was in control of the hazard cited in item no. four.   After considering the record in its entirety, we find that a decision can be reached without resolution of the latter two issues.

  Respondent, one of many contractors engaged in the construction of the Trojan Nuclear Power Plant, a site of approximately 100 acres, was cited for 13 non-serious violations of standards promulgated pursuant to section 6 of the Act.   Respondent timely contested items no. four and six of the citation, which were described in the citation as follows:

Item No. 4 29 CFR 1926.500(b)(2)

East of the reactor containment vessel is a pumping pit. A ladder is in the pumping pit and this pit opening is approximately 4' square and approximately 30' deep.   Beside this pit opening is a well traveled walkway 2 1/2' wide.   This pit opening is not protected with a standard handrailing.

Item No. 6 29 CFR 1926.106(a)

Two workmen were observed in area #21 standing on a float-over water hooking up a water tank to a set of slings; slings were hanging from a crane hook.   This float had ice and snow on it and workmen were not wearing life jackets.

Prior to the inspection of the premises, two of the Secretary's compliance officers addressed representatives of the various contractors engaged on the project, apprising them of the impending investigation and informing them that each contractor would be inspected separately and would be allowed to have a representative accompany the inspector.

During the inspection of another contractor, the compliance officer observed what he asserted to be a violation by respondent of 29 CFR 1926.106(a), which subsequently became item no. six of the citation.   At this time, the inspector was not accompanied by a representative of respondent but was accompanied by the project safety coordinator. Respondent was not cited for this violation during its subsequent formal inspection, at which time its representative accompanied the compliance officer, because the asserted violation was not continuing in nature and had been abated.

  Judge Cronin, finding that section 8(e) of the Act imposes a mandatory jurisdictional requirement that an employer representative be afforded the opportunity to accompany the inspector at the time a violation is observed, vacated item no. six because of the Secretary's failure to abide by this requirement.   We find the Judge's ruling to be erroneous.   Evidence establishes that the project safety director, accompanying the inspector at the time the violation was observed, immediately informed one of respondent's representatives of the violation.   In view of the non-continuing nature of the violation, which had been abated by the time of respondent's formal inspection, we believe the Judge's ruling is contrary to the purpose of the Act, unnecessarily retards the enforcement porcedure, and renders absolute a right not so intended by Congress in framing the Act.   In addition, respondent was in no way prejudiced by not having a representative present, the Secretary's burden of proving the violation being unaffected by this circumstance.   See discussion in Secretary of Labor v. Chicago Bridge and Iron Company,

As stated in the majority opinions in Chicago Bridge and Iron Company, supra, the legislative history clearly demonstrates that Congress intended the provisions of section 8(e) of the Act to be directory in nature rather than mandatory.   It should be clearly understood however, that this interpretation in no way diminishes the force of that direction.   Quite obviously, Congress expects the Secretary to make every effort to afford accompaniment opportunities to authorized representatives of both employees and employers.   In point of fact the Secretary has done so except where circumstances were such as to render observance of the provisions of section 8(e) overly burdensome or impossible.   For   the Secretary to fail to inspect in such circumstances would be contrary to the purposes of the Act, and not responsive to his responsibilities thereunder.

In this case, we find that the evidence of record establishes the existence of the violation, i.e., "employees working over or near water, where the danger of drowning exists. . .," n1 were not provided with life jackets.   The inspector and the project safety coordinator observed employees of respondent working on the raft in question.   Although the depth of the river has not been determined, the record establishes that the danger of drowning existed.   The raft was covered with snow, and ample opportunity existed for an employee to slip or to be injured and fall into the river or onto the steep rocky bank.   Any ensuing injury, coupled with the current of the river and the heavy clothing being worn by the employees, creates a danger of drowning.

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n1 29 CFR 1926.106(a).

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With respect to item no. four, the record shows that the compliance officer initially observed the unguarded open hole while in the company of the project safety coordinator. They subsequently notified one of respondent's foremen.   Also, later the same day, while conducting the formal inspection of respondent, accompanied by respondent's timekeeper, the designated employer representative, the compliance officer again observed the unguarded hole. No evidence has been presented to convince us that the inspector's observation of a violation of the standard in question is not entitled to be credited.   The control over the situs of the hazard at the time the violation was observed need not be established.   Evidence establishes that, at the closing conference with the inspector, and during the formal inspection, respondent's representatives admitted   that it had had workers at the site. In addition, respondent's superintendent asserts that, "I don't know that some of our people couldn't have walked across this area." More importantly, he admits that he himself was in vicinity of the hole. Exposure having been demonstrated, we find respondent to be in violation of the standard.   Where there has been exposure over a long period of time, by employees and supervisory personnel, an employer had or should have had knowledge of the hazard.

We find the penalties proposed by the Secretary ($80 for item no. four; $40 for item no. six) for these violations are not inappropriate.

IT IS ORDERED, That the Judge's decision and order be set aside, that the citations and penalties proposed by the Secretary be affirmed, and that respondent be assessed a penalty of $120.  

DISSENTBY: MORAN

DISSENT:

  MORAN, CHAIRMAN, dissenting: This case involves two separate issues: the walk-around rights granted under Section 8(e) of the Act and the burden of proof. The Judge decided against complainant on each of these issues.   In my opinion, the Judge decided this case correctly and his decision should be sustained.

The Judge dismissed one of the two charges involved in this case because respondent was denied his right under Section 8(e) to accompany the inspector.   In reversing the Judge, the Commission has studiously copied the language embodied in Secretary v. Chicago Bridge and Iron Company,   I dissent for the reasons given therein which will not be repeated here.

On the other of the two charges, the Judge decided for respondent because complainant failed to sustain its burden of proving that respondent was in violation   of an occupational safety and health standard requiring handrails around pit openings. The Commission has now reversed this decision.

In reaching this conclusion, the Commission decision states at page 5:

No evidence has been presented to convince us that the inspector's observation of a violation of the standard in question is not entitled to be credited.

This alters the Commission burden of proof rules n2 and implies that the inspector has some type of adjudicatory authority.   It is the role of this Commission -- a role which until now was not shared with Labor Department inspectors -- to decide whether there is a violation when, as here, an employer questions a particular charge made by the Secretary of Labor.   To speak of "an inspector's observation of a violation"   and to note the absence of "evidence . . . to convince us that the inspector's observation . . . is not entitled to be credited," is just another way of saying that if the inspector alleges a violation, the employer must convince the Commission that the inspector is wrong.   Another plausible paraphrase would be that the employer is quilty until proven innocent.

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n2 Rule 73(a).   In all proceedings commenced by the filing of a Notice of Contest, the burden of proof shall rest with the Secretary.

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It is both inconsistent and unstable for this Commission to adopt a rule that A has the burden of proof and then decide a case for A because B didn't prove that A didn't carry his burden of proof.

[The Judge's decision referred to herein follows]

CRONIN, JUDGE, OSAHRC: This is a proceeding under section 10(c) of the Occupational Safety and   Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter called the Act) to review items number 4 and 6 of a citation, and proposed assessment of penalties based thereon, issued by the Secretary of Labor against the Respondent, Wright-Schuchart-Harbor of Rainier, Oregon.

The citation issued on February 17, 1972 alleged that Respondent had violated seven safety regulations of 29 CFR 1926 (formerly Part 1518); five violations of 29 CFR 1910; and one violation of 29 CFR 1904.   All of these violations were alleged to be other than serious.   Notification of Proposed Penalty, also issued on February 17, 1972, proposed to assess total penalties of $360.00 for all alleged violations:

In its letter of February 22, 1972, the Respondent through its Resident Project Manager, R. B. Ryder, advised that it wished to challenge only items No. 4 and 6 which alleged violations of 29 CFR 1926.500(b)(2) and 29 CFR 1926.106(a).   As a result of Respondent's failure to contest, items numbered 1, 2, 3, 5, 7, 8, 9, 10, 11, 12, and 13 of the citation, and the proposed penalties for each, became the final order of the Commission.

The alleged violation of 1926.500(b)(2), which was to be abated immediately, was described in the citation as follows:

Item

Date to be

No.

Standard Violated

Description

Corrected

4

1926.500(b)(2)

East of the reactor containment vessel

is a pumping pit.   A ladder is in the

pumping pit and this pit opening is

approximately 4' square and approxi-

mately 30' deep.   Beside this pit open-

ing is a well traveled walkway 2 1/2'

wide.   This pit opening is not pro-

tected with a standard handrailing.

Immediately

 

Item No. 6 of the citation alleging a violation of 1926.106(a) reads as follows:  

Item

Date to be

No.

Standard Violated

Description

Corrected

6

1926.106(a)

Two workmen were observed in area

#21 standing on a float-over water

hooking up a water tank to a set of

slings, slings were hanging from a

crane hook.   This float had ice & snow

on it & the workmen were not wearing

life jackets.

Immediately

 

The Secretary's complaint was filed on March 1, 1972 with the Commission and Respondent's answer on March 13, 1972.

After due notice, a hearing was held at Portland, Oregon on May 9, 1972.   Both the Secretary and Respondent were represented by counsel and no affected employee or employee representative sought to participate in the proceeding.

Proposed Findings of Fact were submitted by Respondent and a memorandum by the Secretary.

Upon the entire record, I make the following:

FINDINGS AND CONCLUSIONS

I.   JURISDICTION

The Respondent admitted the complaint's assertions that it is a joint venture engaged in "construction" work as that term is defined at 29 CFR 1910.12(b) and in a business affecting commerce.   Therefore, it is found that Respondent is an employer within the meaning of Section 3(5) of the Act and that assertion of jurisdiction by the Commission is warranted.

II.   THF ALLEGED VIOLATIONS

A.   Issues Presented

The complaint alleges that on February 1 and 2, 1972, the Respondent violated 29 CFR 1926.500(b)(2)   by failing to provide a standard railing at a ladderway opening alongiside of a well traveled passageway, and 29 CFR 1926.106(a) by not requiring employees working over or near water, where the danger of drowning existed, to wear approved life jackets or buoyant work vests.   Finally, the complaint prays for affirmation of the citation and respective proposed penalties of $80.00 and $40.00.

Respondent's answer denies that it violated the regulations in question because the ladderway floor opening was not within the control, nor in any way the work, of Respondent and that its workmen were not working over water but were at least 10 feet from the water's edge.

The issues to be resolved and determined are:

1.   Does the record establish that Respondent violated the cited standards?

2.   Whether the proposed penalties are appropriate under the Act?

B.   The Evidence

On February 1 and 2, 1972, Compliance Officer Richard Jackson made an inspection of the Trojan Nuclear Power plant site located between Rainier and Prescott, Oregon on the Columbia River. This is a large construction site of approximately 100 acres where many contractors and sub-contractors are engaged in building a nuclear power plant for the Portland General Electric Company.

On February 1, 1972, before his inspection of the power plant site began, Officer Jackson and another Compliance Officer, Paul Thomas, entered the work site and went to the main office of the Bechtel Corporation, the project management and engineering representative for Portland General Electric (Tr. 8).   At an   opening conference, he addressed about 30 representatives of the various contractors and sub-contractors working at the site explaining that he would be inspecting all contractors at the construction site at different times and that they could have an employer representative accompany the Compliance Officers on their inspections (Tr. 9).

On the afternoon of February 1, 1972, Officer Jackson commenced his investigation of Hoffman Construction Company.   While inspecting the cofferdam area, he observed at a distance of approximately 200 feet, at an angle of 45 degrees, and 60 feet above, two men without life vests working on a "float" or "raft" measuring 12 by 18 feet and "floating on the water".   They were hooking up cable slings on a tank to permit removal by a mobile crane (Tr. 10-13, 46, 49, Secretary's Exhibit 1).   At this time, a "fairly strong" river current was rippling on the edge of the raft (Tr. 13).   Officer Jackson did not know the depth of water at that point, but knows the water was receding (Tr. 48).   An employer representative of the Respondent was not present or accompanying Officer Jackson during the time he made these observations.

Mr. Leo J. Liebold, testified that he is employed by Respondent under a sub-contract to provide electrical support at the nuclear job site and was in charge of the removal of the electrical installation, tank and pumps from the "footing" on February 1, 1972.   The "footing", according to his testimony, was a "platform" measuring "around" 16 feet by 16 feet and was wholly resting on the "rib of wood" and the rock of the river bank on February 1, 1972.   Its back edge was about a foot from the water. In his opinion, the river was about 5 feet lower on February 1, 1972 than that pictured in Respondent's Exhibit 6 (Tr. 90-91) and he expressed   the view the men working on the platform on February 1, 1972 were not in danger of drowning (Tr. 90, 91, 95).

On the morning of February 2, 1972, between 10 and 11 A.M., while inspecting Tri-M Erectors Company in the area of the "containment vessel", Officer Jackson observed an unguarded open hole, 30 inches square, located in the middle and to one side of a well traveled walkway measuring 12 feet long and 2 feet wide.   Two metallic units, approximately "30 inches around" also were sitting on the walkway (Tr. 16-17, Secretary's Exhibit 2).   The hole, itself, was approximately 30 feet deep and had a rope, tubing, and an electrical lead going down into it.   At that time, there were no men working in the hole (Tr. 19, 42).   Upon observing this unguarded hole, he pointed it out to Mr. Pat Sims, the Project Safety Coordinator of Bechtel Corporation who then left, returning shortly with a person introduced to Officer Jackson as a foreman of the Respondent.   This man, whose name is not now recalled, stated to Officer Jackson that, "Well, its pretty obvious to us that we have a situation here" because "this is our barricade here and our equipment" (Tr. 20).   Barricades with the initials "WSH" stenciled on them paralleled the walkway but were not positioned to protect people from falling into the hole (Tr. 21, 40-41). n1 No representative of the Respondent was present, or accompanying Officer Jackson when he first noticed the unguarded hole.

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n1 Barricade's purpose was to prevent workers from falling into excavated area (Tr. 86).

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The "formal inspection" of Respondent was made following the closing conference with Tri-M Erectors.   On this inspection, Officer Jackson was accompanied by a timekeeper of Respondent, named "Mickey",   who had been appointed as Respondent's representative by Mr. Tom Clause, the Respondent's superintendent. Officer Jackson testified that, during his inspection of Respondent's workplaces, he did not return to the site where he observed the men on the float but did go by the walkway and point out the unguarded hole to Respondent's representative (Tr. 54-55).   At the closing conference on February 2, 1972, Respondent's representative acknowledged that the barricades were the Respondent's and that Respondent had workmen in the hole (Tr. 32, 56, 57).

Robert B. Riedel, a superintendent of Respondent, testified that late in the afternoon of February 1, 1972, while working in the capacity of general foreman for the Respondent, he passed by the "dilution structure" area but did not notice that the "access" hole was uncovered.   According to his testimony, there were no employees of Respondent working in the pumping pit on February 1 and 2, 1972 and the first time a Respondent's employee went into the pit occurred in the middle of February, 1972 when he, himself, inspected the pit.

He related that the dilution structure had been constructed by Hoffman Construction Company and that the Respondent received a Bechtel work order to construct one of the ramps leading to it; the other being provided by Hoffman.   At the time Respondent constructed this ramp, about two weeks prior to the inspection, the access hole was covered.   Some time after February 2, 1972, Respondent, at the request of Bechtel, replaced the Hoffman ramp with one constructed by Respondent and put safety railings around the access hole.

Respondent's employees, on February 2, 1972, were working in the excavation area adjacent to the dissolution   structure but their primary access route back to the company office was by means of a path cut into the rock (Tr. 80, 81).

Respondent is responsible to accomplish any necessary safety requirements upon moving into an area where its employees are to work and under a standard directive to provide other safety construction tasks when requested by Bechtel Company's work orders (Tr. 83-86).

III.   THE PROPOSED PENALTIES

Compliance Officer Jackson and Area Director Eugene Harrower testified how the respective penalties for items 6 and 4 were determined (Tr. 25-29, 65-66).   The unadjusted penalty for item 6 was $300.00 and $150.00 for item 4.   These penalties were reduced by 20% for "good faith", 20% for the company's past history of no violations, and 5% for the size of the company which has 100 employees.   According to the testimony, a further reduction of 50% for anticipated abatement brought the respective unadjusted penalties to $80.00 for item 6 and $40.00 for item 4 (Tr. 28, 65). n2

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n2 Notification of Proposed Penalty, however, has $80.00 for item 4 and $40.00 for item 6.

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IV.   DISCUSSION

The authority of the Secretary to inspect and investigate construction sites where work is performed by an employee of an employer is derived from section 8(a) of the Act and, subject to regulations issued by the Secretary, section 8(e) of the Act provides, among other things, that a representative of the employer shall be given an opportunity to accompany the Secretary's authorized representative during the physical inspection   of any workplace for the purpose of aiding such inspection. Section 29 CFR 1903.8, a regulation duly promulgated by the Secretary, contains an identical provision.

Because this requirement is mandatory on the Secretary, the failure of the Compliance Officer on February 1, 1972 to provide the Respondent an opportunity to have a representative accompany him during his inspection of a Respondent workplace vitiates that portion of the citation based on that inspection (item 6) and requires it to be vacated.

The same ruling is not applicable to item 4 of the citation because, although the alleged violation was first observed by the Compliance Officer prior to his formal inspection of Respondent on February 2, 1972, he again observed the same continuing violation on the afternoon of the same day while accompanied by Respondent's representative.

However, item 4 of the citation also must be vacated because of the Secretary's failure to sustain his burden of proof with respect to the alleged violation by Respondent of 29 CFR 1926.500(b)(2).   The evidence fails to establish that Respondent had control over either the walkway or access hole, or the responsibility for safeguarding them, on February, 2, 1972.   None of Respondent's employees were assigned the task of working at, or in the immediate vicinity of, this location and those employees of Respondent working in the adjacent excavation area were provided and utilized a means of traveling to and from Respondent's office different than that of the walkway in question. n3 Therefore, in order to hold the Respondent liable under   these circumstances, evidence sufficient to establish that Respondent knew or should have known of the uncovered access hole on February 2, 1972, and that its employees were using this walkway, is required.   No such evidence was presented in this case.

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n3 The sworn testimony of Respondent's superintendent relating to work assignments of employees is preferred over the untested statements of Respondent's timekeeper.

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CONCLUSIONS OF LAW

1.   Respondent is an "employer" engaged in a business affecting commerce within the meaning of Section 3 of the Act.

2.   Jurisdiction of this proceeding is conferred on the Commission by Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ).

3.   The Secretary's authorized representative had no authority to inspect a workplace of Respondent on February 1, 1972 without giving the Respondent an opportunity to have its representative accompany the Secretary's representative.

4.   The unauthorized investigation of Respondent's workplace on February 1, 1972 can not serve as a basis for the issuance of a citation to the Respondent.

5.   On February 2, 1972, Respondent was not in violation of 29 CFR 1926.500(b)(2).

ORDER

Based on the foregoing findings, conclusions of law and the entire record, it is ORDERED that items numbered 4 and 6 of the citation issued on February 17, 1972, and the proposed penalties based thereon be, and the same are, VACATED.