MORRISON-KNUDSEN & ASSOCIATES
OSHRC Docket No. 692
Occupational Safety and Health Review Commission
March 28, 1974
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: MORAN
OPINION:
MORAN, CHAIRMAN: A decision of Review Commission Judge Vernon G. Riehl, dated September 26, 1972, is before this Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § § 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act).
Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, the Judge's decision is hereby affirmed in all respects.
CONCURBY: CLEARY
CONCUR:
CLEARY, COMMISSIONER, concurring: I concur in the disposition of this case.
It should be noted, however, that when Chairman Moran directed this case for review by the full Commission, it was indicated that the issue to be discussed was whether the Secretary issued the citation with "reasonable promptness." This issue was not tried before the Administrative Law Judge, and it is not a jurisdictional issue to be raised at any stage of the proceedings or considered by the Commission, even though it is not raised by the parties. Chicago Bridge & Iron Co., No. 744 (January 24, 1974). Accordingly, in my view, review was improvidently directed [*2] in this case.
The Commission's disposition of the case is consonant with my views concerning the legal significance of the term "reasonable promptness" in section 9(a) of the Act. These are expressed in Chicago Bridge & Iron Co., supra (dissenting opinion).
[The Judge's decision referred to herein follows]
RIEHL, JUDGE, OSAHRC: This case * is properly before me upon assignment for hearing by the Occupational Safety and Health Review Commission.
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At a hearing in Langdon, North Dakota, on June 6, 1972, the Secretary and Respondents, through their respective counsel, moved that the Notice of Contest dated February 21, 1972, and filed by the Respondent, K. W. Smith, be dismissed; that the serious Citation issued herein be affirmed as the final order of the Commission.
Respondent asserts that the violation cited has been abated and affirms continuing compliance. The proposed penalty of $600.00 has been paid; that compliance with Commission rules concerning [*3] filing requirements of the Respondent's Notice of Contest and the rules concerning service of the instant motion on all the parties was properly effected.
A reasonable time having passed with no objection to said motion having been received from any other party, it is the judgment of the undersigned that settlement of the captioned cause pursuant to the Secretary and Respondent's motion is consistent with the provisions of the Act, and we accordingly find that the motion of the Respondent should be granted, the Respondent's Notice of Contest vacated, the Citations and Proposed Penalties affirmed in all respects, and it is so ORDERED.
There being no further contest in this case it is recommended that this order be made the order of the Commission.
STIPULATIONS
DOCKET NO. 578 [Became a final order without review on 10/30/72, see 1 OSAHRC 945]
By stipulation the Secretary and Respondents, through their respective counsel, move that the Notice of Contest dated February 12, 1972, and filed by the Respondent, K. W. Smith, be dismissed; that the serious Citation issued herein be affirmed by the final order of the Commission.
This request has been dealt affirmatively with [*4] by an order attached to the consolidated decision in connection with Docket No. 692 and 797.
DOCKET NOS. 692 and 797 [#797 became a final order without review on 10/30/72, see 1 OSAHRC 945]
The respective parties agree that Docket Nos. 692 and 797 would be consolidated for the purpose of the hearing held in Langdon, North Dakota, June 6, 1972 (T.5). In connection with the two Citations (1518.52(a)) in Case No. 797 (the specific cited OSHA regulation is 1518.500(b), also known as 1926.500(b)), Item No. 22, parts 2 and 3, and part VI of the Secretary's Complaint (allegations that a ventilation shaft at the fourth level of the MSR Building in Room 131 . . . were not provided with standard railings or permanent protection. Respondent had agreed to drop his Notice of Contest with regard to these particular violations and stipulated that he would not contest these particular violations.
The foregoing Stipulation leaves us with three items which are contested, namely, two on Citations, OSHA Docket No. 692, that includes 1518.152(a), 1518.52(d), and, OSHA Docket No. 797, the one remaining item being contested being 1518.52(a). All of the Citations being tried related to noise levels. [*5]
At the hearing the only items contested on Docket No. 797 were 1518.500(b) and 1518.52(a) of the construction standards (now 1926). On 1518.500(b) (Item 22 to Citation, parts 2 and 3; and paragraph 6 of the Complaint) Respondent orally requested to withdraw his Notice of Contest (T. 6). Accordingly, after consideration of the entire file and the evidence herein, said request was granted. Also at the hearing, the only Items contested on Docket No. 692, were 1518.52(a) and (d) and on Docket No. 797, 1518.52(a) (Item No. 2 of the Citation).
In regard to the two 1518.52(a) Citations, both relate to excessive noise levels as described by the standard.
In Docket No. 797, the other standard cited (1518.52(b)(1)) reads: "In all cases where the sound levels exceed the values shown herein, a continuing, effective (emphasis added) hearing conservative program shall be administered."
JURISDICTION
Docket No. 797 and 692 are before us upon assignment by the Occupational Safety and Health Review Commission involving the Citations issued in those cases, and followed by Notification of Proposed Penalties for the alleged Citations under the Occupational Safety and Health Act of [*6] 1970.
Notice of Contest was made by Respondent in both cases and thereafter a Complaint was filed by the Solicitor of Labor on behalf of the Secretary of Labor, alleging violation of certain provisions of 29 CFR 1926.52, (Item No. 2) 29 CFR 1926.500(d) (Item No. 22 parts 2 and 3).
In answer to Docket No. 797's Compliant Respondent alleged that each of the employees allegedly subjected to the instant noise exposure had available to him a set of the finest quality ear plugs manufactured and could make use of such ear plugs; that the employer had done everything possible to assure that protection against the instant noise exposure.
Respondent also asserted that the allegation that the ventilation shaft at the fourth level of the MSR Building and the hatchway in Room 131 of the MSR Building were in fact provided with standard railings and toe boards contrary to the violation stated in the Complaint; that said toe boards were, however, removed by individual craftsmen working in the area in direct contravention of safety directives issued by the employer. Respondent's Answer in Docket No. 692 was to the same effect that ear plugs were provided for their employees and a continuing [*7] effective safety program was being administered through (1) Safety briefings; (2) Availability of protective equipment; (3) Noise level measurement for such operations.
FINDINGS OF FACT
1. Respondent Morrison-Knudsen Commpany & Associates, is a corporation, with a place of business located near Langdon, North Dakota (Complaint -- Answer), testimony, Thomas A. Murry, Payroll Manager, (T. 40) Verlyn W. Wallace, Safety Supervisor, (T. 44). The site of the alleged violations is the first antiballistic missile complex being constructed in the United States which consists of a missile site, radar site, with its corresponding missile site, control buildings and power plant and a perimeter acquisition radar site some 30 or 40 miles away with its control building, entitled the perimeter acquisition radar building, and power plants and related facilities (T. 7, 8).
2. The PAR site referred to in the testimony is the radar complex near Cavalier, North Dakota, and, the alleged violation in issue at the PAR site would have taken place in the PAR Building, (the perimeter acquisition radar building) which is a large, four story structure at the site (T. 8).
3. The violation alleged [*8] to have taken place at the MSR site happened in the missile site control building, the four-story building of large proportions on that site.
4. The two sites in which the violations occurred are separated by a number of miles but are under the same management controls and overall supervision with separate personnel on each site to oversee actual construction. They were both overseen by the same safety supervisor, the same resident project manager and the same administrative personnel at the higher levels (T. 9).
5. Jack Torrey, Assistant Regional Administrator for Technical Support for the Occupational Safety and Health Administration, conducted noise level tests (T. 11-22) and found noise level sounds at exceeded allowable levels at the PAR site in the main building on the fifth level on the D wall, (T. 18) with a measurement of 102 DBA or decibels on the "A" scale. Also, on the third level they found a structural iron worker using an impact wrench, along with another structural iron worker using a holding wrench in the same operation which caused noise exposure to these men as measured at 102 DBA for the impact wrench operator and for the holder 110 DBA (T. 18).
6. At the [*9] MSR site approximately one month later, Mr. Torrey made the same kind of investigation at the third level of that building where there was an air arcing operation going on and found an iron worker named Eugene Meland was measured with a noise level at his ear level of 100 DBA; also another iron worker, George Granesky, in the vicinity of the air arcing operation had noise levels varying from 105 to 112 DBA.
7. The noise levels at the various samplings varied in intensity from a half hour's duration to two hours' duration exposure (T. 19, 20).
8. None of the four workmen observed during the aforementioned tests had ear protection on at the time of their exposure to the excessive noise levels.
9. Counsel for respective parties stipulated that Art Conerton and George Granesky did not have any kind of ear protection with them, during the time these two tests were run for which the Citations were issued (T. 20 and 21).
10. On January 18, 1972, Respondent had 816 craft employees at its PAR site.
11. Respondent had a total of 17 supervisors to supervise the 816 craft employees (T. 41).
12. On March 14, 1972, at the MSR site, the date of the second alleged violation, [*10] the Respondent employed 580 men with a total of 20 supervisors (T. 42).
13. The Morrison-Knudsen Company has had a safety supervisor supervising a safety program since 1947 and has furnished an accident prevention manual for their customers so that they would accept their program (T. 44, 45).
14. The Morrison-Knudsen safety program mentioned in the preceding paragraph has been revised since the Occupational Safety and Health Act to the point where they have a new manual for the use of the project managers, issued August 2, 1971 (T. 45). The Morrison-Knudsen Company has been operating by contract under the rules and regulations of the United States Corps of Engineers Safety Manual which has regulations covering noise exposure and hearing conservation.
15. A total of 7 million manhours have been put in on the Morrison project at Langdon, North Dakota with no reportable ear problems (T. 46). During the period in question the Morrison-Knudsen Company did have a continuing hearing conservation program but it was not sufficiently effective at the time of the inspections.
16. New employees of the Morrison-Knudsen Company at the time of their hiring go through an indoctrination [*11] on safety language, safety belts and ear plugs in any phase of their work. Also, they are handed out different brochures to inform them of safety equipment to be used in their field of work (T. 47).
17. Regular weekly meetings are held at the Morrison-Knudsen Company to discuss all phases of safety including ear conservation. Ear plugs or ear muffs are provided as well as safety belts and other safety equipment (T. 47, 48).
18. Safety meetings at the Morrison-Knudsen Company start at 8:00 in the morning and last for approximately ten minutes or longer if needed and are a continuing safety service (T. 48).
19. The Morrison-Knudsen Company provides safety equipment, including ear plugs and mufflers, posts signs at the job site such as "protect your ears," so forth (T. 48, 49). Morrison-Knudsen Company has posted on their job sites signs to the effect that any employee who is not in compliance with OSHA regulations for safety will be terminated for such failure and in some cases employees have been terminated for refusal to wear safety equipment.
20. Respondent has an accident frequency about one third as often as normally would be expected in construction work (T. 50). The [*12] Respondent maintains a physician and nurses on the job sites as part of his safety program, (T. 53) and are available for ear examinations and to assist with difficulties that might arise as a result of damage to hearing.
21. At the time of the inspection by the Occupational Safety and Health compliance personnel the Respondent's safety efforts were not enough to provide adequate hearing protection for their employees (T. 55).
22. On March 17, 1972, Respondent instituted a policy that individuals will be fired for violations of safety regulations, including failure to use ear muffs (T. 57). Respondent has operated for years under the supervision of the United States Corps of Engineers and has had a safety program acceptable to the Corps of Engineers during this period.
23. The noise levels Respondent's employees were subjected to during the time of the inspections which were followed by the Citations would be acceptable if the employees used ear plugs while working in such a noisy atmosphere (T. 64).
CONCLUSIONS OF LAW
The Respondent has violated Table D-2 of 29 CFR 1926.52(d) and 29 CFR 1926.52(a) by permitting their employees to work without ear plugs or proper [*13] protection on the fifth level of the PAR Building, using a grinding wheel, and an employee of the third level of the PAR Building, using an impact wrench, that they were not protected against sound levels in excess of those shown in Table D-2 of 29 CFR 1926.52(d). Respondent's employees were not afforded proper protection against the effects of noise exposure through the sufficient availability and provision of individual protective equipment by the employer-Respondent.
The Respondent, employer, at the time of the inspections were not effectively conducting a continuing hearing conservation program as set forth by the regulations in the preceding paragraph.
DOCKET NO. 692
The aggregated penalties proposed for the violations of the Act were reasonable and supported by a preponderance of the evidence. The Respondent-employer (Docket No. 797) on March 14, 1972, violated the provisions of the Occupational Safety and Health Act at 29 CFR 1926.52 by exposing their employees to noise level in excess of permissible readings permitted by the Act.
Penalties proposed against Respondent, employer, (Docket No. 797) are reasonable and sustained by a preponderance of the evidence. [*14]
The Respondent, employer, has not done all that it could reasonably expect that he do under the Act to maintain its employment and place of employment for its employees free from unprotected exposure to excessive noise levels.
The Respondent, employer (Docket No. 797) has not during the period in question conducted a continuing effective hearing conservation program for the protection of its employees from excessive noise levels.
The Respondent as alleged in the Citations issued 1- 31-72 violated Section 5(a)(2) of the Occupational Safety and Health Act and the Occupational Safety and Health Standards duly promulgated pursuant to Section 6 of the Act as alleged in the Citation (for nonserious violations, Items 1-19).
The standards violated are the following amended standards contained in part 1926, of Title 29 of the Code of Federal Regulations.
1. Subpart "C" 1518.25(a)
2. Subpart "C" 1518.28(a)
3. Subpart "E" 1518.102(a)
4. Subpart "F" 1518.150(c)
5. Subpart "F" 1518.151(d)
6. Subpart "F" 1518.152(f)
7. Subpart "I" 1518.302(b)
8. Subpart "I" 1518.303(c)
9. Subpart "J" 1518.350(a)
10. Subpart "J" 1518.350(h)
11. Subpart "K" 1518.400(a)
12. Subpart [*15] "K" 1518.402(a)
13. Subpart "K" 1518.403(a)
14. Subpart "L" 1518.450(a)
15. Subpart "L" 1518.451(a)
16. Subpart "L" 1518.451(d)
17. Subpart "L" 1518.451(e)
18. Subpart "M" 1518.500(d)
19. Subpart "O" 1518.602(c)
On the Citation issued April 5, 1972, the Respondent by the total evidence has been found to violate:
1. Subpart "C" 29 CFR 1926.25(c) (formerly 29 CFR 1518.25(c)) as adopted by 29 CFR 1910.10
2. Subpart "D" 29 CFR 1926.52(b) (formerly 29 CFR 1518.52(b)), as adopted by 29 CFR 1910.12
3. Subpart "D" 29 CFR 1926.55(b) (formerly 29 CFR 1518.55(b)), as adopted by 29 CFR 1910.12
4. Subpart "E" 29 CFR 1926.105(a) (formerly 29 CFR 1518.105(a)), as adopted by 29 CFR 1910.12
5. Subpart "F" 29 CFR 1926.150(c) (formerly 29 CFR 1518.150(c)), as adopted by 29 CFR 1910.12
6. Subpart "F" 29 CFR 1926.151(a) (formerly 29 CFR 1518.151(a)), as adopted by 29 CFR 1910.10
7. Subpart "F" 29 CFR 1926.152(a) (formerly 29 CFR 1518.152(a)), as adopted by 29 CFR 1910.12
8. Subpart "F" 29 CFR 1926.152(f) (formerly 29 CFR 1518.152(f)), as adopted by 29 CFR 1910.12
9. Subpart "H" 29 CFR 1926.252(a) (formerly 29 CFR 1518.252(a)), as adopted by 29 CFR 1910.12
10. Subpart [*16] "I" 29 CFR 1926.300(b) (formerly 29 CFR 1518.300(b)), as adopted by 29 CFR 1910.12
11. Subpart "I" 29 CFR 1926.303(b) (formerly 29 CFR 1518.303(b)), as adopted by 29 CFR 1910.12
12. Subpart "I" 29 CFR 1926.303(c) (formerly 29 CFR 1518.303(c)), as adopted by 29 CFR 1910.12
13. Subpart "I" 29 CFR 1926.303(d) (formerly 29 CFR 1518.303(d)), as adopted by 29 CFR 1910.12
14. Subpart "I" 29 CFR 1926.304(f) (formerly 29 CFR 1518.304(f)), as adopted by 29 CFR 1910.12
15. Subpart "J" 29 CFR 1926.350(a) (formerly 29 CFR 1518.350(a)), as adopted by 29 CFR 1910.12
16. Subpart "J" 29 CFR 1926.350(h) (formerly 29 CFR 1518.350(h)), as adopted by 29 CFR 1910.12
17. Subpart "K" 29 CFR 1926.400(a) (formerly 29 CFR 1518.400(a)), as adopted by 29 CFR 1910.12
18. Subpart "K" 29 CFR 1926.401(j) (formerly 29 CFR 1518.401(j)), as adopted by 29 CFR 1910.12
19. Subpart "K" 29 CFR 1926.402(a) (formerly 29 CFR 1518.402(a)), as adopted by 29 CFR 1910.12
20. Subpart "L" 29 CFR 1926.450(a) (formerly 29 CFR 1518.450(a)), as adopted by 29 CFR 1910.12
21. Subpart "L" 29 CFR 1926.451(e) (formerly 29 CFR 1518.451(e)), as adopted by 29 CFR 1910.12
22. Subpart "N" 29 CFR 1926.500(b) (formerly [*17] 29 CFR 1518.500(b)), as adopted by 29 CFR 1910.12
23. Subpart "O" 29 CFR 1910.212(a)
DISCUSSION
After considering the total probative evidence in this case we find there had been violations as alleged in the Complaints in Case 692, and 797 but also find that the violations are not entirely of the Respondent's own making.
The evidence establishes that there has been greatly increased efforts on the part of Respondent to correct the situation following the Citation. We find that the real purpose of the Act is being served following the Citation by the increase in total insistence by Respondent-employer that the employees use the safety devices available to protect them from injury to their person. We note that while there were safety meetings held regularly and the situation was discussed, and, also while there were ear plugs and other devices ready for the employees to use while working in increased noise areas that the employees did not use them. Management failed to totally follow through on their duty to insure compliance before the Citation. The part of the evidence that highlights the management's temporary failure to adequately follow through on safety is contained [*18] by the following testimony: "At the time these two gentlemen showed up we were not adequate though" . . . "I think we were just caught flatfooted" (T. 55).
This testimony alone would establish that there was not an effective continuing safety program insofar as noise control and protection of employees ears was concerned at the time in question.
The evidence establishes that the simple use of ear plugs in the instant case could prevent possible deafness from being exposed to sound levels for a period of time (T. 63, 64). These plugs were available as well as ear muffs. The evidence establishes that loss of hearing is a very subtle type of thing and does require constant enforcement program; also, the loss of hearing is something that does take a great deal of time to show up (T. 69).
Section 2(b) of the Occupational Safety and Health Act provides that employees and employers have separate but dependent responsibilities and rights with respect to achieving safe and healthy working conditions. This would mean, of course, that the employees have an obligation to cooperate in the creation of a healthy environment for their own safety and well-being. The record shows that over a [*19] period of years exposure to excessive noise can gradually wear on the ear drums before the loss of hearing becomes evident. Although the Respondent-employer has in the instant case been negligent in not pursuing actively the enforcement of the safety act, the employees have earned their quantum of fault in the instant case. The ear plugs and ear muffs were there to be used for the mere asking. The safety meetings have discussed the matter on various occasions. The ear plugs and muffs simply were not used.
In accordance with the provisions of the Act, giving due consideration to the size of the business, the gravity of the violation, the good faith of the employer and the history, we feel the total evidence establishes that the Citations and the Proposed Penalties are proper under the circumstances and we will so order.
DECISION
Based on the foregoing Findings of Fact, Conclusions of Law, and the entire record; having given due consideration to the size of the Respondent's business, the gravity of the violations, presence of absence of good faith of the Respondent, and its history, and good cause appearing therefor, it is ordered that:
(1) The Citation issued for [*20] serious violation be, and the same, is hereby affirmed.
(2) The Penalty in the sum of $600.00 proposed by the Complainant for the Citation referred to in the preceding paragraph above be, and the same, is hereby affirmed.
(3) It is hereby ordered that the Citations for non-serious violations previously issued in OSHA Docket Nos. 692 and 797 be affirmed as to said violations and abatement periods, and that the penalties proposed by the Secretary for each item of said Citation be assessed.