Docket No. 7359

GREEN CONSTRUCTION COMPANY, a corporation, and MASSMAN CONSTRUCTION COMPANY, a corporation, a Joint Venture

Occupational Safety and Health Review Commission

October 21, 1976

а [*1] а

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners. а

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Henry C. Mahlman, Assoc. Reg. Sol., USDOL

John J. Mullins, Jr., for the employer

Judge John A. Carlson, OSAHRC, for the employees

OPINIONBY: MORAN

OPINION:

а DECISION

MORAN, Commissioner: A decision of Review Commission Judge John A. Carlson, dated April 17, 1975, is before this Commission for review pursuant to 29 U.S.C. з а 661(i).

Having examined the record in its entirety, the Commission finds that the Judge properly decided the case and adopts his decision which is attached hereto as Appendix A. n1 Accordingly, the Judge's decision is hereby affirmed.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Chairman Barnako does not agree to this attachment.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

а APPENDIX A

а DECISION AND ORDER

Appearances:

Thomas E. Korson, Esq. of Denver, Colorado, for the complainant,

John J. Mullins, Jr., Esq. of Denver, Colorado, for the respondent.

STATEMENT OF THE CASE

Carlson, Judge, OSAHRC

This is a proceeding pursuant [*2] а to 29 U.S.C. 659(c) for an adjudication under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter called the Act) of a contest of an alleged violation of з а 654(a)(2).

а The joint venturers (hereinafter referred to simply as "respondent") contest a citation issued by complainant under authority vested in complainant under з а 658 of the Act. The citation, issued October 29, 1973, alleges that respondent seriously violated certain standards promulgated by the Secretary pursuant to з а 655 of the Act. The description of the alleged violation is as follows:

The employer required employees to work under conditions which were hazardous, did not provide for a program of frequent and regular inspection of materials which would disclose hazardous materials and affect [sic] correction, in that plywood decking used to cover a rail trestle built at a height in excess of 10 feet above the ground had deteriorated to such a degree that it would no longer support safely employees who were required to walk on the decking, on or about October 25, 1973.

The citation specifically charged [*3] а violation of 29 CFR 1926.500 (b)(1) and 29 CFR 1926.500(f)(5)(ii). Abatement was called for within 96 hours of receipt of the citation.

The specific standards alleged to have been violated provide as follows:

1926.500 Guardrails, handrails, and covers.

(b) Guarding of floor openings and floor holes. (1) Floor openings shall be guarded by a standard railing and toe boards or cover, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways.

(f) Standard specifications.

(5) Floor opening covers shall be of any material that meets the following strength requirements:

(ii) The floor opening cover shall be capable of supporting the maximum intended load and so installed as to prevent accidental displacement.

а In the notification of proposed penalty issued October 29, 1973 $ 700 was sought by complainant. A notice of contest was duly filed by respondent and, following the filing of further appropriate pleadings, the matter came on for hearing at Pueblo, Colorado on April 10, 1974. There were no appearances by any affected employees or the authorized representatives thereof. The parties [*4] а filed post-hearing briefs.

JURISDICTIONAL AND PROCEDURAL MATTERS

Respondent admitted that the scope of its operations brought it within the jurisdiction of the Commission as an employer engaged in a "business affecting commerce" within the meaning of the Act (Answer, para. 2).

By its answer, and in the earlier stages of hearing respondent did suggest that a jurisdictional defect existed owing to the alleged failure of the complainant's compliance officer, Mr. Harry C. Hutton, to present his credentials at the outset of inspection as required by 29 U.S.C. з а 657(a). By the end of trial it was clear that this claim was virtually abandoned (Tr. 194), as well it should have been, since the evidence clearly shows that the compliance officer presented his credentials at the gate, and was introduced to the various company officials by a State of Colorado safety official who was waiting for him. There was no real question as to his identity and no genuine issue as to substantial compliance with з а 657(a). From the beginning respondent's representatives knew who he was and the reason for his presence (Tr. 62-64, 118-121, 173-176).

а FINDINGS а [*5] аа OF FACT

Upon the entire record herein the following findings of material fact are made:

(1) The respondent is a joint venture consisting of Green Construction Company and Massman Construction Company, corporations, who were on October 25, and all other times pertinent hereto, engaged in the performance of a contract to construct a large earthen and concrete dam structure in the vicinity of Pueblo, Colorado where approximately 300 workers were employed (complaint and answer).

(2) To facilitate construction of the concrete or spillway portion of the dam, respondent had constructed a large trestle approximately 1480 feet in length and 38 feet in width, on the downstream side of the dam site. The trestle supports were of steel, whereas the cross members of the surface or platform area were lengths of 16 X 16 inch wooden ties. (Entire transcript; resp's. exs. 2 and 19.)

(3) The trestle accomodated large electrically powered "whirley cranes" which stood on high legs astride the trestle and rested and moved on "hot" rails located near each perimeter of the trestle top. These cranes were used to lift buckets of concrete mix for pouring into the dam structure. Two-parallel standard gauge [*6] а railroad tracks were laid toward the center of the trestle. Self propelled "dinky cars" operated on these rails, hauling the concrete to the cranes from a mixing plant located beyond the trestle. The cars were fitted with a series of bays holding the concrete buckets. (Entire transcript; photo, resp's. ex. 4; sketch-resp's. ex. 19).

а (4) Walkways several feet wide and constructed of substantial planking ran the length of the trestle on both the upstream and downstream sides thereof; and the perimeters were provided with standard guardrails (Tr. 103).

(5) Original plans did not call for a covering between the ties occupying the center portion of the trestle where the dinky tracks ran. In May of 1973, however, this entire area was decked with 1/2 inch plywood owing to requirements of inspecting personnel from the Bureau of Reclamation of the United States Department of Interior which by contract possessed both safety and performance supervisory control over the project. The covering was required to guard against the possibility that concrete mix spillage, particularly rocks up to 3 inches in diameter, would fall on persons below the trestle (Tr. 106, 136). A crew of some 60 [*7] а carpenters installed the plywood (Tr. 137).

(6) On August 22, 1973 respondent issued to all employees a safety notice (resp's. ex. 20) limiting use of the trestle to employees with legitimate work duties thereon, and instructing employees who had such duties to "walk only on the walkways provided." Signs to the same general effect were posted at access points (Tr. 86, 108-109).

(7) On October 25, 1973 Mr. Paul Bell, who was supervisor of the crane and dinky operations, informed Mr. Glenn Adkins, Bell's subordinant who was at that time in charge of the dinkies, that he wished to use a dinky to take a welding cart out onto the trestle in order to perform a repair on a whirley crane. The cart was loaded into an empty bucket bay on the car and Adkins and a mechanic proceeded to take the car out onto the trestle and Bell, who walked out on one of the а walkways, soon joined them. Adkins attempted to start the engine on the welding machine but was unable to handle both the starter pull and the throttle. Bell offered to help. He stepped up onto the bed of the dinky and held the throttle until the engine started, and then stepped off the dinky from a height of 3 feet 11 inches onto [*8] а the 1/2 inch plywood decking covering the ties between the walkways. The plywood sheared off under his weight and he fell some 50 feet to his death. (Tr. 11-15, 55-56, 113).

(8) Mr. Harry C. Hutton, a compliance officer for complainant, having been duly notified of the fatality, conducted an investigation later that day, viewing the general workplace, the specific accident site, and interviewing witnesses and various officials of respondent. The instant citation arose from his inspection.

(9) The plywood which gave way under Mr. Bell was a portion of a 4 X 8 foot sheet of 1/2 inch thickness. It showed no significant signs of prior weathering or deterioration. The segment which broke off had spanned the typical 16 inch opening between the two 16 inch ties. The plywood was nailed to the tope of the one tie, which it crossed over. The edge of the plywood sheet came only to the edge of the next tie. A substantial wooden cleat was secured to the underside of the free or unsupported end of the plywood, which was clearly intended to have been secured to the abutting tie. Investigation showed, however, that it had never been nailed or otherwise attached to the abutting tie; hence that end [*9] а remained unsupported. The recovered broken piece - which remained otherwise intact - had sheared evenly along the edge of the tie to which it was attached. (Tr. 14, 30-38, 44, 83, 110-113, 153; photos - resp's. exs. 14 and 16).

а (10) The failure to nail a cleat to an adjoining tie could not have been observed by inspections from above (Tr. 37, 113, 135).

(11) On the day following the accident Mr. Thomas J. Tanke, respondent's project safety officer, and an associate performed certain pragmatic strength tests or experiments using a sheet of plywood which had been removed from the trestle and which in all respects appeared to be identical in condition to that which broke under Mr. Bell. When the sheet was supported by a tie 16 inches from the edge, but not at the edge, Tanke (who at 215 pounds weighed approximately 35 pounds more than the decedent) found he could stand, walk or bounce on the free 16 inch end causing only some bending or flexing. When he jumped from the 3 foot 11 inch height of a dinky car bed, however, it sheared in the same fashion as it had under Bell. When supported at both ends, however, jumping from the same height produced cracking in some of the plies [*10] а but no breaking (Tr. 113-115). The compliance officer made no strength tests (Tr. 83).

(12) Respondent had a program of trestle inspections on a routine and constant basis (Tr. 133). The decedent, Bell, had such a responsibility, as did Mr. Adkins who succeeded to Bell's position following the former's death (Tr. 36, 107, 169-170). Safety engineer Tanke also made personal inspections daily (Tr. 133). Defective or deteriorated decking, guardrails, etc. were reported and regularly replaced; and during peak concrete pouring activity from the trestle a full time carpentry crew was kept at work at such tasks (Tr. 107). Bell and Adkins regarded an unsecured cleat as a hazard but at no time prior to or after the Bell accident had any other unsecured cleat been discovered (Tr. 36, 112-113).

а (13) Approximately 28 employees of respondent had duties to perform on the trestle. These included whirley operators, oilers and mechanics, bucket hookers, switchmen, and supervisory personnel (Tr. 109). Whereas certain of these employees could perform their duties by remaining on the perimeter walkways, others could and did not, and it was not uncommon for workers to stand on the non-walkway [*11] а areas covered only with the 1/2 inch plywood. (Tr. 47, 49, 51-53, 126, 164-165.)

(14) Respondent, at the time of hearing had no safety rule of which foreman Adkins was aware which forbade employees to dismount from dinkys to the non-walkway area in the same manner that Bell had (Tr. 168); and the practice was not uncommon prior to October 25, 1973 (Tr. 165). None but Bell, however, had ever fallen through the plywood (Tr. 169).

(15) At the time of inspection plywood sheeting in various areas of the non-walkway portion of the trestle showed signs of weathering including warping and cracking of exterior plies. The evidence did not show that weathering or deterioration was other than superficial or significantly affected structural strength. The area showing the most wear was a turnout from the main trestle where concrete spillage was prevalent, but where ties were close together. (Tr. 45, 66-67, 87-88, 92, 116-117, 125-126, 132, 162, 166-167).

(16) Standard railings prescribed by 29 CFR 1926.500(b) were never considered as an alternative means of guarding openings because, inter alia, they would have been knocked down by operation of whirley cranes and dinky cars (Tr. 103).

а [*12] а OPINION

At no time was any question raised concerning the applicability of the cited standard to the openings between the ties on the trestle. On the contrary, respondent's counsel affirmatively asserted (Tr. 185) that any openings over 12 inches were "floor holes". [The intended reference was obviously to floor openings - see 29 CFR 1926.502(b).]

By answer and oral motion at the commencement of the hearing respondent did, however, move for dismissal on what was contended to be a variance between the description of the violation contained in the citation and the complaint. Specific reference was had to the language in the initial document referring to "work under conditions which were hazardous" and also that alluding to failure to "provide for a program of frequent and regular inspection of materials." Respondent's counsel sought clarification as to whether any such failures were specifically charged, and complainant's counsel declared that the subsequent complaint, by way of amendment, deliberately abandoned such allegations and framed the violations solely in terms of the requirements in the specific standards which were identified in the citation (Tr. 5-6). Since the standards [*13] а remained the same from the beginning and since there was no indication that respondent was not fully prepared to go forward on that basis, the motion for dismissal was denied, with leave to renew during or after the taking of evidence should prejudice become apparent. The motion was not renewed.

The subdivisions of the standard in question require that openings in floors or platforms be guarded either (1) by standard railings, а or (2) by covers ". . . capable of supporting the maximum intended load and so unstalled as to prevent accidental displacement." The facts herein show that no guardrails were used or considered for the openings in question. Only covers have pertinence. Under the evidence developed the only relevant "maximum intended load[s]" would have been those imposed by the weight of employees walking, standing or working over or around the openings. Respondent maintains that consideration of the "displacement" factor was never shown to be involved, but I disagree. Covering materials must first be of a strength to sustain intended loads, and must further be secured or fastened in a way which effectively prevents dislodgment. Without the latter precaution the load [*14] а bearing capacity of a covering material means little.

A much-stressed legal issue herein concerned the burden of proof on the "knowledge" element under 29 U.S.C. з а 666(j), which provides:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. (Emphasis added.)

Complainant urged that once a violative condition is established, it is incumbent upon respondent to show by way of affirmative defense that the requisite knowledge was lacking. Respondent, of course, maintains that the burden resides with complainant under Commission Rule 73(a) [29 CFR 2200.73(a)] which provides:

а In all proceedings commenced by the filing of a notice of contest, the burden of proof shall rest with the Secretary.

This judge [*15] а has carefully considered the authorities cited by the parties, and must regard the law as being settled in respondent's favor. Any lingering doubts have likely been laid to rest by Brennan v. OSAHRC and Raymond Hendrix d/b/a Alsea Lumber Co., ааа F.2d ааа , No. 73-1938, (9th Cir., Feb. 24, 1975) wherein the same arguments were raised by complainant as were raised here. The Court held the burden of proving the knowledge element dwells with the Secretary as a matter of statute.

III

The "knowledge" question is presented at several differing levels in the instant case. Respondent insists that it had publicized rules or instructions requiring employees to stay to the heavily planked walkways on the trestle and that hence employee presence on the non-walkway plywood was unauthorized and unforseeable. The testimony of Mr. Adkins, a most credible and straightforward witness, persuades me that various of the tasks required of workers on the trestle caused them to be on the 1/2 inch plywood center portion, and Mr. Tanke expressly concaded as much at one point (Tr. 126). Further, the practice was frequent enough that it could scarcely have escaped Tanke's attention since he was upon [*16] а the trestle daily. Respondent, through its supervisory personnel thus either knew or should have known that employees were upon the plywood covered areas with reasonable frequency and, having taken no further direct steps to prevent such conduct, must be held to have known that the plywood covering had to be adequate to support men.

а IV

It is at this point appropriate to note that complainant obviously approached the presentation of his proofs in the belief that the plywood covering had become weakened and inadequate through exposure to the elements - thus resulting in Mr. Bell's fatal fall. There was, certainly, considerable evidence that some of the plywood sheets had become weathered and had deteriorated. But such evidence as is of record points in quite another direction as to the cause of Bell's fall. The clear purport of the testimony, supported by the photographs, is that any deterioration of the sheet which gave way was minimal; and that in fact the break occurred because the cleat had never been attached to the adjoining tie.

As mentioned, there was evidence that plywood areas other than where the accident took place showed, at the time of the compliance officer's [*17] а inspection, signs of deterioration owing to wear, exposure to the elements, and concrete spillage. Surface plies were cracked in places and warping was visible. The charges herein go beyond the accident. Complainant needed only to prove a nonconforming covering where employees were exposed. In my view, however, the evidence presented fell short of doing that - of proving that any other particular area or piece of plywood could not be relied upon to support a man. Respondent's testimony that a constant replacement program was maintained is uncontroverted, and credible. Any plywood, of whatever thickness, would doubtless have shown effects of exposure on surface plies. а The compliance officer did testify (Tr. 88) that Mr. Tanke's foot went through the plywood during the inspections, an assertion which the latter witness most vigorously denied. Tanke testified that there was only a little crackling noise; that his foot did not penetrate the wood; and that more importantly the incident took place on a turnout at the end of the main trestle (photo - respondent's ex. 5) where the standard had no application since the ties were far closer together there due to the curve; and the [*18] а opening was but 5 X 8 inches (Tr. 116-117, 125). n1 Mr. Adkins verified the testimony as to the small openings (Tr. 166).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Under 29 CFR 1926.502(b), relating to the whole of subpart M a "floor opening" is defined as "an opening measuring 12 inches or more in its least dimension in any floor, roof, or platform through which persons may fall".

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Mr. Bell's accident aside, then, if complainant were to show that the plywood was inadequate as a covering the proofs would necessarily be either that 1/2 inch sheets nailed across 16 inch openings were of insufficient strength originally; or that they had deteriorated to the place where insufficiency was apparent. His evidence failed in both respects. Compliance officer Hutton mentioned that he had "referenced" strength charts for plywood "at various times" (Tr. 83), but no attempt was made to show that 1/2 inch stock was per se inadequate. Respondent, despite its assertion that the sheeting was intended essentially to keep concrete from falling through trestle openings, а [*19] а did at least present evidence of some testing which tended to support its contention that the sheeting was also adequate to support workers. As to а the deterioration, the posture of the evidence would rather plainly have supported a charge aimed at a tripping hazard based on cracked plies and surface irregularities, but was not sufficient to demonstrate noncompliance with 29 CFR 1926.500(f)(5)(2). Thus, complainant failed in sustaining his general burden of proof with respect to any area of the trestle except for the piece of covering which broke under Mr. Bell.

Looking specifically to the Bell accident the failure to secure the cleat to the tie not only constituted a hazard but (absent consideration of the knowledge issue) a plain violation of the cited standard. A piece of sheeting nailed to one tie, but neither resting upon nor secured to the next tie, 16 inch distant, could not be relied upon to support a man. The issue then narrows to this: did complainant sustain his burden of showing by a preponderance of the credible evidence that respondent either knew, or with the exercise of reasonable diligence should have known of the defective condition? The state of the evidence [*20] а fails to reveal, directly or circumstantially, the existence of actual knowledge that the cleat had never been fastened. A viable question remains, however, as to whether respondent, with the exercise of reasonable diligence, should have known of the condition. In the view of this judge the requirements that a covering be sufficient to support the "maximum intended load" and "so installed as to prevent accidental displacement" carry with them by necessary implication a а duty to inspect in some fashion to insure that both goals are met. Further, where a covering must endure the weather and other forces over a period of time the duty does not end with the laying of the covering. In the present case the nature of the materials and the duration of the project would have meant dereliction on the part of the joint venture had it not maintained an ongoing program of inspection of the decking. The weight of the evidence, however, is that such a program was in effect, and that no accidents occurred owing to breaking or displacement of covers save for the Bell accident. That tragedy, of course, was due to the absent nails in the cleat. Respondent vigorously contends that to find liability [*21] а under the circumstances here would in effect impose upon it a standard of absolute liability unintended by the Act. Under the facts of record I must find respondent's arguments persuasive. In the many months before the accident no other instances of unfastened cleats came to light, (nor did any thereafter) despite the hundreds of pieces of sheeting which were used to cover ties. The carpenters' neglect in fastening the cleat on the one occasion was not one reasonably susceptible of discovery after the decking was laid since it was concealed from the top and was fifty some feet above the ground below. I conclude that when respondent came forward with the evidence demonstrating that the failure of the decking was due to the cleat, not any inherent inadequacy of the sheeting, the burden of going forward with the evidence reverted to complainant to establish in what affirmative way persons in positions of responsibility for respondent should have gained knowledge of the defect. This complainant did not attempt to do. I have no evidence before me upon which to а predicate a conclusion that when the decking was laid the circumstances were such that a reasonable and prudent employer [*22] а would have had either one-on-one supervision of carpenters entrusted with fastending the decking or an immediate post-construction inspection so thorough as to insure that each nail had been driven in. Reasonable diligence is something less than omniscient foresight. Complainant is thus held to have failed in sustaining the burden of proof as to respondent's knowledge.

Whereas the evidence fails to establish the "knowledge" element of a serious violation, all remaining elements of violation are well supported by the record. There is no real question about the defective condition of the sheet through which Mr. Bell fell, or that such a condition made serious injury or death likely. A question does remain, however, as to whether a nonserious violation was established. In Secretary v. Cam Industries, Inc., 7 OSAHRC 30, (1974) a majority of the Commission held that proof of employer knowledge under 29 U.S.C. 666 (j) is unnecessary to find violation of a nonserious character. The Court of Appeals for the Ninth Circuit, however, in the Alsea case, supra, arrived at what I take to be contrary result. The Court а [*23] а appears to declare that not only was the Commission correct in holding employer knowledge was essential to violation in Alsea (in which the Commission decision predated Cam), but that the Act itself mandates such a result. Predicated upon the assumption the Commission will follow the Court's determination, I hold that no nonserious violation occurred.

а CONCLUSIONS OF LAW AND ORDER

Pursuant to the foregoing it is concluded:

(1) That respondent, a joint venture, was at all material times subject to the jurisdiction of this Commission.

(2) That no violation of 29 CFR 1926.500(b)(1) relating to guard-rails occurred since respondent elected to cover openings between ties.

(3) That whereas the plywood sheet through which respondent's employee Paul Bell fell on October 25, 1973 did not meet the requirements for a covering as prescribed in 29 CFR 1926.500(b)(f)(5)(ii), in that the cleat was not fastened to the adjoining tie, complainant failed to sustain his burden of proving that respondent either knew, or with the exercise of reasonable diligence should have known, of the existence of such hazard.

Consequently, the citation, as amended by the complaint, and the accompanying [*24] а proposed penalty should be and the same are hereby ORDERED VACATED.

John A. Carlson

Judge, OSAHRC

Dated: April 17, 1975

CONCURBY: BARNAKO

CONCUR:

а BARNAKO, Chairman, Concurring:

I agree that the Judge properly decided this case, but think it appropriate to elaborate on my reasons for reaching this conclusion.

Respondent was engaged in constructing a dam. In order to facilitate construction, Respondent built a trestle 50 feet high, 480 feet long, and 38 feet wide. The trestle contained rails on which ran cranes and "dinky cars" used to carry concrete. The rails were laid on 16 X 16 inch cross ties. There was approximately a 16 inch space between adjacent ties. On each side of the trestle were walkways several feet wide. Between the walkways, the trestle was planked over with 1/2 inch thick sheets of 4 X 8 foot plywood. The principal purpose of the plywood was to prevent debris from being dropped through the trestle. It also, however, was sometimes used as a working surface by Respondent's employees.

In locations where a plywood sheet was laid with its end adjacent to a tie, a cleat would be nailed to the tie and the plywood sheet nailed to the cleat. The purpose wan to support the end а [*25] а of each plywood sheet. In one instance, however, although the end of the sheet was nailed to a cleat, the cleat was not nailed to the tie. The end of the sheet was therefore unsupported. When an employee jumped off a dinky car from a height of 3 feet 11 inches onto the unsupported end, it sheared off under his weight and he fell through the trestle, suffering fatal injuries.

Complainant thereupon issued to Respondent a citation alleging a serious violation of 29 C.F.R. з з а 1926.500(b)(1) and (f)(5)(ii). Although а the original allegations were broader in scope than the circumstances related to the accident, Complainant now urges only that a violation based on the facts of the accident should be found. The essence of the alleged violation is that the plywood sheet involved in the accident was of insufficient strength to support its maximum intended load.

Judge Carlson found that the plywood sheet did not conform to the standard because the cleat was not nailed to the tie. He also found, however, that Respondent did not and could not, with reasonable diligence, have known of this condition. He based this finding on evidence which established that the failure of the cleat to be [*26] а nailed to the tie was not visible either from the trestle or from the ground below, that no other instances of unfastened cleats had been discovered either before or after the accident, and that Respondent had maintained an ongoing program of inspection and replacement of plywood sheets which had visibly deteriorated. He therefore vacated the citation.

Complainant does not take exception to the Judge's finding that Respondent was without knowledge n2 of the violative condition. He therefore concedes that a serious violation did not occur. n3 He contends, however, а that the Judge erred by vacating the citation instead of finding a nonserious violation. He argues that knowledge or the ability to obtain knowledge is not part of a nonserious violation.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 As used in this opinion, "knowledge" means either actual knowledge or knowledge that would be gained by the exercise of reasonable diligence.

n3 29 U.S.C. 666(j) provides:

. . . a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result . . . unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*27] а

Two Courts of Appeals have rejected the position urged by Complainant. Dunlop v. Rockwell International, No. 75-1672, (6th Cir., Aug. 26, 1975); Brennan v. OSHRC (Alsea Lumber Co.), 511 F.2d 1139 (9th Cir. 1975). I agree with the decisions of those courts. We have consistently held that employers are not to be held to a standard of strict liability, and are responsible only for the existence of conditions they can reasonably be expected to prevent. Grossman Steel & Aluminum Corp., No. 12775, BNA 4 OSHC 1185, CCH OSHD para. 20,691 (May 12, 1976); B-G Maintenance Management, Inc., No. 4713, BNA 4 OSHC 1282, CCH OSHD para. 20,744 (June 1, 1976); Fry's Tank Service, Inc., No. 4447, BNA 4 OSHC 1515, CCH OSHD para. 20,999 (Aug. 13, 1976). Ocean Electric Corp., No. 5811, BNA 3 OSHC 1705, CCH OSHD para. 20,167 (1975). See also Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541 (3rd Cir., March 26, 1976); National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). [*28] а Clearly, an employer cannot reasonably be expected to prevent or eliminate a condition of which it has no knowledge. Accordingly, such a condition is unpreventable, and is not a violation of the Act.

Judge Carlson also held that the burden of proving employer knowledge lay with Complainant, relying in part on the holding to that effect in Brennan v. OSHRC (Alsea Lumber Co.), supra. Complainant argues that, if knowledge is relevant to the existence of a nonserious violation, the burden of proving lack of knowledge should be on Respondent.

а In my opinion, the Judge acted properly in placing the burden of proof on Complainant. In conducting inspections and investigations which lead to the issuance of citations, Complainant can reasonably be expected to acquire evidence relevant to employer knowledge. Often, he will be able to establish a prima facie n4 case of knowledge with the aid of a presumption. For example, when a compliance officer observes a violation in the course of a routine inspection, the fact that the violation is visible and occurs on a worksite which is under the employer's control is sufficient to give rise to such a presumption. а [*29] а

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 I use the term "prima facie case" to mean sufficient evidence to withstand a motion for involuntary dismissal made under Fed. R. Civ. P. 41(b) at the close of Complainant's case in chief.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The instant case illustrates another situation in which Complainant is aided by a presumption of knowledge. In his case in chief, Complainant established that the trestle was built and controlled by Respondent, and failed to comply with the standard. This evidence alone is sufficient, in my opinion, to give rise to a presumption of knowledge of the violation by Respondent. As the court stated in Brennan v. OSHRC (Alsea Lumber Co.), supra,

Proof of an employer's failure to provide guardrails, safety equipment, instructions, or the like, would establish a prima facie case of an employer's knowledge of its own acts of omission. (Emphasis by the Court). 511 F.2d at 1143, n. 5, quoted with approval in Weatherhead Co., Docket No. 8862, BNA 4 OSHC 1296, [*30] а CCH OSHD para. 20,784 (June 10, 1976).

In this case, however, Respondent overcame the presumption with evidence of its own. And, as Judge Carlson noted correctly, the burden of going forward shifted back to Complainant, he did not go forward, and therefore he did not carry his burden of proof.

а CLEARY, Commissioner, CONCURRING:

I concur in affirming the order of the Judge. As I said in my separate opinion in Knutson Constr. Co., No. 765 (October 12, 1976),

The overriding purpose of the Act's enforcement is the issuance of remedial orders to abate hazards. The Act is designed not to punish, but to achieve compliance with the Secretary's standards and the abatement of safety hazards.

Where, as here, the violation could not have been prevented, what then becomes the crucial test is whether an order can issue requiring an employer to do something more than what it has done. In this case, I conclude that the respondent employer has done all that could be reasonably expected of it. Because no useful abatement order can issue to the respondent employer, I agree that the citation should be vacated.

Because I believe that the aforementioned test best serves the essential [*31] а Congressional purpose of providing for the abatement of safety hazards that threaten employees, I decline to follow Brennan v. Alsea Lumber, 511 F.2d 1139 (9th Cir. 1975). I am also constrained to observe that the Chairman's reliance upon Dunlop v. Rockwell International, No. 75-1672 (6th Cir., August 26, 1976), is misplaced.

In Rockwell, the Court affirmed the Commission's action in vacating the citation and proposed penalty. The Commission majority agreed that there was no employer knowledge and agreed on the result, but for different reasons. Commissioner Moran held that employer knowledge is an element of a nonserious violation. Commissioner Van Namee, holding that employer knowledge is not an element of a nonserious violation, nonetheless concurred in vacating the а citation because he concluded that the violation was "technical." On appeal, the Secretary argued that the Commission did not follow its precedent. The Sixth Circuit Court of Appeals distinguished the authority cited by the Secretary and noted that the Commission precedent on the issue of whether employer knowledge is an element of an other than "serious" violation is [*32] а Mountain States Telephone & Telegraph Co., No. 355, BNA 2 OSHC 168, CCH OSHD para. 15,365 (1973). The Court noted that the Commission has the authority to change its precedent, but found that Mountain States is the only Commission interpretation of з а 666(c). The Court then held that the Commission's action in vacating the citation was not precluded by Mountain States.

The Court did not independently determine that employer knowledge is an element of a nonserious violation. The Court merely held that the Commission's action in Rockwell (and the Court's affirmance thereof) was not inconsistent with Commission precedent - a precedent that should be re-examined. а

KNUTSON CONSTRUCTION COMPANY

Occupational Safety and Health Review Commission

October 12, 1976

а [*1] а

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners. а

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor

Timothy O'Brien, Carlsen, Greiner & Law, for the employer

OPINIONBY: BARNAKO

OPINION:

BARNAKO, Chairman

DECISION

A May 15, 1974 decision of Administrative Law Judge Sidney J. Goldstein 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., hereinafter "the Act"). Judge Goldstein vacated a serious citation which alleged a violation of 29 C.F.R. 1926.451(a)(7) and (a)(8) as well as a nonserious citation which alleged a violation of 29 C.F.R. 1926.451(a)(4). For the reasons set forth herein, we adopt Judge Goldstein's findings regarding the serious citation but conclude that the Judge erred in holding that the nonserious citation be vacated.

The facts are these: Respondent was the general contractor on a large construction site, and employed laborers and bricklayers. A second tier subcontractor, All State Steel Erection, contracted to perform ornamental work on an outside wall of the building. In order to perform its work, All State rented [*2] а an alumnimum tubular welded scaffold from a scaffold company. The scaffold was erected on a plaza deck and the staging platform on which employees worked was 20 to 25 feet above ground level. The scaffold was not equipped with toeboards or a standard guardrail. Prior to the inspection, the scaffolding in question collapsed, injuring the four All State employees who were working on the staging at the time. The combined weight of the employees was between 700 and 750 pounds. The inspection revealed a pre-existing crack approximately one inch long in the underside of the platform. The pre-existing crack had oxidized, resulting in a dulling of the aluminum. An employee of All State testified that he did not observe oxidation or a crack upon his inspection. The crack contributed to the collapse by rendering the scaffold incapable of supporting the weight of the four employees.

Only employees of All State worked on the scaffold. The employees used tools and equipment while on the scaffold. None of Respondent's employees worked on the scaffold. However, several employees of All State testified that they saw laborers and bricklayers walking near to and underneath the scaffold. Granite used [*3] а by Respondent's bricklayers was stored within 10 to 30 feet of the scaffold, and Respondent's bricklayers were observed laying granite slabs on the plaza deck 25 to 30 feet from the scaffold. The area beneath and around the scaffold was not roped off or barricaded so as to restrict access.

Respondent's safety administrator had visually inspected the scaffold twice prior to the collapse by standing on the plaza deck approximately 20 feet away from the scaffold and looking up at the scaffold. The procedure at the construction site was that if the safety administrator observed an unsafe condition, he was to inform the project superintendent or foreman. The safety administrator admitted at the hearing that he observed that the scaffold was not equipped with toeboards and had only a rope guardrail. However, All State's job superintendent testified that Respondent did not communicate with All State about the condition of the scaffold and there is no evidence that the unsafe condition was communicated to the project superintendent or foreman. Respondent's safety administrator did not observe the crack in the staging during his inspections.

On these facts, Respondent was issued a serious а [*4] а citation which alleged a violation of 29 C.F.R. 1926.451(a)(7) and (a)(8) n1 in that Respondent failed to provide a scaffold capable of supporting four times the maximum intended load and failed to repair a scaffold which was damaged or weakened. A nonserious citation was also issued, alleging a violation of 29 C.F.R. 1926.451(a)(4) n2 in that the scaffold staging was not equipped with guardrails and toeboards. Penalties of $ 550 and $ 55 were proposed for the respective violations.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The standard at 1926.451(a)(7) requires that "scaffolds and their components shall be capable of supporting without failure at least 4 times the maximum intended load." The standard at 1926.451(a)(8) requires that "any scaffold including accessories such as braces, brackets, trusses, screw legs, ladders, etc. damaged or weakened from any cause shall be immediately repaired or replaced."

n2 The standard at 1926.451(a)(4) requires in pertinent part that "guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor. . . ."

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*5] а

Judge Goldstein vacated both of the citations on the basis that Respondent, as general contractor, was not responsible for the safety of All State's employees and that none of its employees were exposed to danger from the hazardous conditions. In support of his recommendation, Judge Goldstein cites the Commission decisions in Gilles & Cotting, Inc., 4 OSAHRC 1080, BNA 1 OSHC 1388, CCH OSHD para. 16,763 (1973) and J. E. Roupp & Co., Inc., 7 OSAHRC 919, BNA 1 OSHC 1680, CCH OSHD para. 17,660 (1974).

On review, the existence of the cited conditions is not disputed. The Secretary argues that the Judge's bases for recommending vacation are erroneous since Respondent as a general contractor should be responsible for the exposure of its subcontractors' employees to hazards and, alternatively, since Respondent's own employees were exposed to the hazards by virtue of their working underneath the scaffold. n3 Respondent urges that the Judge's bases are valid and that it could not have known of the crack in the staging prior to the collapse of the scaffolding. n4 Having considered [*6] а the Judge's report and the arguments advanced by the parties, we adopt Judge Goldstein's recommendation that the serious citation be vacated but conclude that the Judge's recommendation regarding the nonserious citation cannot be sustained.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 The Secretary also petitioned for review and argues before the Commission that the Judge's report was not in conformity with the Administrative Procedure Act (5 U.S.C. 551 et seq., hereinafter "APA") and the Commission Rule at 29 C.F.R. 2200.90(a) in that it did not contain specific findings of fact and conclusions of law. We have examined the Judge's report and find it to be sufficient to satisfy the requirements of the APA. The text of the report, while not as complete as desirable, includes a discussion of the facts relied upon by the Judge and a conclusion that the cited standards were not violated. The bases for the Judge's disposition are therefore evident.

n4 Respondent argues on review that the citations should be vacated since they were not issued with reasonable promptness as required by section 9(a) of the Act. This contention is based on the sole fact that there was a 70-day delay between the occurrence of the scaffold's collapse and the issuance of the citation. We note first that the issue was not timely raised. It was first raised following the hearing in a brief to the Judge, thereby failing to afford the Secretary the opportunity to adduce evidence on the point. Further, Respondent did not raise or prove prejudice or any other circumstances which would warrant vacation on reasonable promptness grounds. Coughlan Construction Co., Inc., Nos. 5303 and 5304, BNA 3 OSHC 1636, CCH OSHD para. 20,106 (1975); Jack Conle & Sons Corp., No. 6794 (June 25, 1976) (concurring opinion).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*7] а

In recommending vacation, Judge Goldstein relied on the proposition that a general contractor should not be held liable for hazards to which only employees of its subcontractors are exposed. The Commission, however, has recently modified, with respect only to multi-employer construction sites, its rule that an employer is responsible for the safety of only its own employees. Grossman Steel & Aluminum Corp., No. 12775 (May 12, 1976); Anning-Johnson Co., Nos. 3694 and 4409 (May 12, 1976). In those cases, we announced that we will hold a general contractor responsible for violations it could reasonably be expected to prevent or abate by reason of its supervisory capacity, even though none of its own employees are exposed. Such a rule serves to promote the interests of safety on multi-employer construction sites since the general contractor is normally in an appropriate position to discover hazards and obtain abatement either through its own resources or through its supervisory role with respect to other contractors. Therefore, we will not automatically absolve a general contractor from responsibility for violations to which only employees of its subcontractors are exposed.

Judge [*8] а Goldstein also based his recommendation on his finding that none of Respondent's employees were affected by the hazardous conditions. To the contrary, the preponderant evidence establishes that Respondent's own employees had access to the zone of danger underneath the scaffold. Gilles & Cotting, Inc., No. 504, BNA 3 OSHC 2002, CCH OSHD para. 20,448 (Feb. 20, 1976). Bricklayers and laborers were observed walking beneath and in the vicinity of the scaffold. Moreover, the workplaces for and supplies used by Respondent's employees were located in the vicinity of the scaffold. The area around and beneath the scaffold was not restricted to access in any way. Therefore, Respondent's employees had access to the zones of danger presented by the unsafe scaffold.

Nevertheless, the serious citation must be vacated. The duty we imposed upon a general contractor in Grossman Steel & Aluminum Corp., supra, and Anning-Johnson Co., supra, is a reasonable one; that is, we will not hold a general contractor liable for violations which it could not reasonably be expected to detect or prevent. We conclude that here it would be unreasonable to expect the Respondent [*9] а to have discovered the crack in the platform which contributed to the collapse of the scaffold. The crack was of very small size and the dulling of the finish caused by the oxidation was not obvious. Neither Respondent nor an employee of All State observed the crack or oxidation during inspections of the scaffolding conducted prior to the collapse. On this record, we find that Respondent could not have known of the crack or that the scaffold would not support its intended weight. Therefore, it follows that Respondent was not responsible for the exposure of its subcontractor's employees to the hazard.

Similarly, Respondent is not liable for the exposure of its employees to the hazard. While the preponderant evidence establishes that Respondent's own employees had access to the zone of danger underneath the scaffold, the question remains as to whether Respondent knew or with reasonable diligence could have known of the presence of the violation. See Gilles & Cotting, Inc., supra. For the reasons discussed above, we conclude that Respondent could not reasonably be expected to detect the crack and consequently was not placed on notice that the scaffold was defective and thus incapable [*10] а of supporting the weight of the employees. Accordingly, we vacate the serious citation.

An application of the rules to the nonserious citation compels a different result. As a general contractor, Respondent was responsible for the lack of guardrails and toeboards on the scaffolding to which employees of its subcontractor were exposed since it reasonably could be expected to detect the violation. Respondent conducted two inspections and the lack of guarding was open to view. Indeed, Respondent's safety administrator twice observed the lack of toeboards, but, contrary to company policy, did not communicate the unsafe condition to the subcontractor, the project superintendent, or the foreman. Therefore, Respondent failed in its duty as a general contractor to the employees of its subcontractor. Moreover, Respondent was in violation of the standard in that its own employees had access to the hazard by their presence under the scaffolding and the proximity of their workplaces to the scaffolding.

We turn now to the assessment of an appropriate penalty for the nonserious citation. Respondent is of moderate size, employing approximately 60 employees on the subject construction site. It had [*11] а no prior history under the Act and its good faith was not questioned. The gravity of the violation was moderate. Employees working on the scaffolding were not adequately protected from falls by the rope guardrail, and employees on the plaza were exposed to the hazard of falling tools, and equipment. On balance, we conclude that a penalty of $ 55 is appropriate for the nonserious citation and will serve the purposes of the Act.

Accordingly, we find that Respondent was not in violation of 29 C.F.R. 1926.451(a)(7) and (a)(8) and vacate the serious citation. We further find that Respondent was in nonserious violation of 29 C.F.R. 1926.451(a)(4) and assess a penalty of $ 55 therefor. It is so ORDERED.

DECISION

This matter arises under Section 10(c) of the Occupational Safety and Health Act of 1970, and involves the application of Section 5(a)(2) of this statute and regulations relating to construction scaffolding and guardrails and toeboards promulgated thereunder.

After an inspection of a work site of the Knutson Construction Company (sometimes hereinafter referred to as the Respondent) the Occupational Safety and Health Administration issued it one Citation for Serious Violation а [*12] а with a proposed penalty of $ 550 and another Citation for Non-Serious Violation with a proposed penalty of $ 55. The Company replied with a Notice of Contest to the Citations. Thereupon the Secretary of Labor filed his Complaint with this Commission to affirm the contested Citations and proposed penalties, and the Respondent submitted an Answer. Upon these pleadings a hearing was held in Minneapolis, Minnesota on January 16, 1974.

The alleged serious infraction is described in the Citation in the following terms:

"Failure to provide scaffolds & their components capable of supporting without failure 4 times the maximum intended load. Failure to repair or replace any scaffold, including accessories, damaged or weakened from any cause."

in violation of Regulations 29 CFR 1926.451(a)(7) and 29 CFR 1926.451(a)(8) which provide as follows:

(7) Scaffolds and their components shall be capable of supporting without failure at least 4 times the maximum intended load.

(8) Any scaffold including accessories such as braces, brackets, trusses, screw legs, ladders, etc. damaged or weakened from any cause shall be immediately repaired or replaced.

The Citation for the alleged Non-Serious [*13] а Violation is quoted below:

"Failure to provide guard rails, toeboards on all open sides & ends of platforms more than 6' above the ground floor."

contrary to the standard shown in Regulation 29 CFR 1926.451(a)(4) providing that:

"Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor, except needle beam seaffolds and floats (see paragraphs (p) and (w) of this section). Scaffolds 4 feet to 10 feet in height, having a minimum horizontal dimension in either direction of less than 45 inches, shall have standard guardrails installed on all open sides and ends of the platform."

The facts in this case are not in substantial dispute, and may be briefly summarized. The Respondent is engaged in the general construction business and during the period in question was building a new facility for the Federal Reserve Bank in Minneapolis. The Respondent subcontracted with Flour City Architectural Metals to install a curtain wall on the building. In turn Flour City subcontracted with All State Steel Erection, Inc. for specialty work. The latter Company rented scaffolding for use on the building from Waco Scaffolding [*14] а Co. Initial inspections did not reveal any defects of the scaffolding. Nevertheless on January 19, 1972, the scaffolding in question collapsed, resulting in injuries to employees of All State Steel Erection, Inc. No employee of the Respondent used the scaffold or was affected by its unsafe condition.

On the foregoing facts, the Secretary determined that the Respondent was in violation of the regulations heretofore mentioned. On the other hand the Respondent contended that as general contractor it was not responsible for the safety of the employees of a second tier subcontractor; that its employees were not exposed to the hazard; and that it could not have known of the existence of any violation.

а not guilty of a violation of the scaffolding regulations since there was no employment relationship between the general contractor and the subcontractor's employees. The reasons advanced were that Congress did not intend the Occupational Safety and Health Act to extend to a situation where the employer did not employ the workers in question, did not have them on its payroll, did not have direction or control over their activities, and did not have the right to discharge them.

Inasmuch as in this case the Respondent did not employ any of the workers who utilized the scaffolding and since none of the Respondent's employees were subject to any danger in this regard, the Gilles and Cotting case is authority for the conclusion that the Respondent was not in violation of the regulations relating to the scaffolding.

а [*16] а for the safety of a subcontractor's employees.

From the foregoing it is concluded that the Secretary has failed to establish that the Respondent was in violation of Section 5(a)(2) of the Occupational Safety and Health Act of 1970 as alleged in the Citation for Serious Violation and the Citation for Non-Serious Violation. Accordingly the two Citations and the proposed penalties therefor are VACATED.

Sidney J. Goldstein

Judge, OSHRC

Dated: May [ILLEGIBLE NUMBERS]

CONCURBY: MORAN (In Part); CLEARY (In Part)

DISSENTBY: MORAN (In Part); CLEARY (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part. Dissenting in Part:

Judge Goldstein properly vacated all citations in this case on the grounds that complainant failed to establish that respondent was responsible for the alleged hazards and that its employees were exposed thereto. Therefore, his decision, which is attached hereto as Appendix A, should be affirmed in all respects. Although I agree with the conclusion in the lead opinion that vacation of the 29 C.F.R. з а 1926.451(a)(7) and (8) charges is also warranted because of complainant's failure to establish that respondent possessed the requisite knowledge of the alleged violative conditions, I disagree with а [*17] а the reversal of the Judge's vacation of the 29 C.F.R. з а 1926.451(a)(4) charge.

Respondent, the general contractor, had its employees working at various locations on this multi-employer construction site. The lead opinion asserts that respondent's employees had access to the zone of danger because some laborers and bricklayers were seen near to and underneath the unguarded scaffold located on the northeast side of the plaza level of the building. The evidence, however, does not establish that these personnel were employed by respondent.

The testimony of only two witnesses tended to place respondent's employees in the vicinity of the defective scaffold. All State's job superintendent testified that he observed some of respondent's employees "in and around" the scaffold. However, he did not testify as to when this observation was made or how he identified them as respondent's employees. By "in and around" the scaffold he meant "within 20-30 feet." Complainant's inspector testified that he had concluded that respondent's employees were in an area where they would be affected by the collapse of the scaffold. He indicated that he had reached this conclusion by talking to employees [*18] а of respondent, but when asked whether these employees identified these 10 to 15 people as employees of respondent he answered "no, they did not." He did not specify who had told him that the employees worked for respondent, the type of work being performed by these employees, nor the location where they were allegedly working.

To the contrary, respondent's safety administrator testified that respondent's stoneworkers were not working on the day of the inspection because of inclement weather conditions. Prior to that day, these employees had been working in an enclosed heating shed on the west end of the plaza. He also testified that the employees' duties would not have required them to walk near the scaffolding because it was necessary to use a ramp, located away from the scaffold, in order to get to the shed. Although there was evidence that stone had been laid on the plaza underneath the scaffold, it was not established that the scaffold was in the same position when that work was done.

Three of the workers who had been working on the scaffold also testified. None of them could recall if they had ever observed respondent's employees picking up materials from the granite а [*19] а storage area.

The above-described evidence most certainly does not establish that any employee of respondent was "observed walking beneath or in the vicinity of the scaffold." More significantly, complainant has failed to establish by a preponderance of the evidence the requisite degree of employer exposure under either an actual exposure test or the so-called "accessibility" test adopted by my colleagues. n5

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

My colleagues also find that respondent as the general contractor was in violation of 29 C.F.R. з а 1926.451(a)(4) on the basis that the subcontractor's employees were exposed to the hazard which respondent could reasonably have been expected to prevent or abate. This finding is also contradicted by the evidence. Although respondent's [*20] а safety administrator knew that the scaffold had no guardrails or toeboards, he had no authority to order the subcontractor's employees to abate the hazard. His authority was to detect safety violations and inform the responsible subcontractor thereof. It was, then, the subcontractor's responsibility to abate the hazard to which its employees were exposed.

The majority holding on this charge is, in effect, punitive in nature and, therefore, contrary to the remedial purpose of the Act. n6 Congress never intended to hold both the general contractor and his subcontractor responsible for the safety of the subcontractor's employees. n7

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n6 See Anning-Johnson v. OSAHRC, 516 F.2d 1081, 1088 (7th Cir. 1975).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In this case, All State was primarily responsible for the hazard created by the unsafe scaffold and its employees were actually exposed to that [*21] а hazard. All State was also cited for this hazardous condition. Holding this respondent liable for the same violation is unnecessary and improper. As the United States Court of Appeals for the Seventh Circuit has so logically stated:

"We fail to see how requiring several different employers [to adhere to the requirements of a standard] fulfills the purposes of the Act any more effectively than requiring only one employer to do so. The Secretary's position is premised on the theory that the more people responsible for correcting any violation, the more likely it will get done. This is, of course, not necessarily true. Placing responsibility in more than one place is at least as likely to cause confusion and disruption in normal working relationships on a construction site. Such a policy might in effect prove to be counterproductive." n8

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n8 Anning-Johnson Company v. OSAHRC, supra at 1089.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Furthermore, vacation of all charges is required because the issuance of the citations did [*22] а not conform with the Act's mandatory requirement for issuing each citation "with reasonable promptness." 29 U.S.C. з а

CLEARY, Commissioner, CONCURRING IN PART AND DISSENTING [*23] а IN PART:

I concur with the Chairman that the conditions on the scaffold contravened section 1926.451(a)(4). Respondent as a general contractor had the power to abate or force abatement of this condition. Thus, the citation for the nonserious violation should be affirmed. I also agree with the Chairman's penalty assessment.

I dissent, however, from my colleagues' decision concerning the section 1926.451(a)(7) and (8).

Section 1926.451(a)(7) requires that scaffolds and their components be capable of supporting without failure at least four times the maximum intended load. Even under the respondent company policy initiated after the collapse of the scaffold in this case load-testing would be only for twice the intended maximum load. An order should be entered requiring future compliance with the standard's safety factor.

Similarly, regarding section 1926.451(a)(8) there should be an abatement order requiring in the future a closer inspection of scaffolds than occurred in this case. Knutson's safety administrator inspected the scaffold while it was suspended 25 feet in the air. He did so from a point on the ground about 20 feet from a perpendicular line running from the scaffold. Under [*24] а my calculation this would place the safety administrator about 32 feet from the scaffold. In my opinion, a reasonable application of the standard requires a closer inspection.

I reach this result because the overriding purpose of the Act's enforcement is the issuance of remedial orders to abate hazards. The Act is designed not to punish, but to achieve compliance with the Secretary's standards and the abatement of safety hazards. Anning-Johnson Company and Workinger Electrical, Inc. v. O.S.H.R.C. and Brennan, 516 F.2d 1081 (7th Cir. 1975). A remedial order of this kind without further penalty certainly does not lack precedent. See I.L.G.W.U. v. N.L.R.B., 366 U.S. 731, 738-740 (1961). In carrying out the design of the Act primary responsibility is placed among employers who have control of the worksite and who should therefore insure that it is safe and healthful. S. Rept. No. 91-1282, 91st Cong., 2d Sess. 9 (1970); H. R. Rept. No. 91-1291, 91st Cong., 2d Sess. 21 (1970). Knutson as general contractor controlled the worksite, and was therefore in a position to provide directly or indirectly for compliance with the standards. а [*25] а

In other words, even if an employer were unable to prevent past actions resulting in violations of standards in the creation of hazards, once the violations are revealed the essential design of the Act contemplates that steps be taken for prevention of any future hazards.

We should be mindful of the fact that we are not adjudicating tort cases. We are applying an Act that is intended to prevent job injuries and illnesses so far as possible.

The Commission should reexamine its decision in Mountain States Telephone & Telegraph Company, BNA 2 OSHC 168, 1 OSHRC 1077, CCH 1971-73 OSHD para. 15,365 (No. 355, 1973) and subsequent cases which give undue deference to issues of fault, and give too little attention to the matter of any need for remedial orders for the future abatement of hazards under a test of what is preventable. n9

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n9 I concur in the Chairman's disposition of the "reasonable promptness" issue in footnote 4 of his opinion because of cited precedent in Coughlan Construction Co., Inc. I also note that the "reasonable promptness" issue was neither timely raised nor proved. River Terminal Railway Co., BNA 3 OSHC 1808, 1811, CCH 1975-76 OSHD para. 20,215 (No. 4419, 1975).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*26] а

REPUBLIC GRANITE COMPANY, INC. а

OSHRC Docket No. 7359

Occupational Safety and Health Review Commission

September 30, 1976

а [*1] а

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners. а

COUNSEL:

Bobbye D. Spears, Regional Solicitor, USDOL

Clarence R. McLanahan, President, Republic Granite Company, Inc., for the employer

OPINION:

DECISION

MORAN, Commissioner: A November 5, 1974, decision of Review Commission Judge John S. Patton is before this Commission for review pursuant to 29 U.S.C. з а 661(i). а That decision dismissed a citation which alleged that the respondent had violated 29 U.S.C. з а 654(a)(2) by failing to comply with the occupational safety and health standard codified at 29 C.F.R. з а 1910.93. n1

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The pertinent parts of this standard provide:

"(c) Table G-3: An employee's exposure to any material listed in table G-3, in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average limit given for that material in the table."

* * *

"(e) To achieve compliance with paragraph (a) through (d) of this section, administrative or engineering controls must first be determined and implemented whenever feasible. When such controls are not feasible to achiere full compliance, protective equipment or any other protective measures shall be used to keep the exposure of employees to air contaminants within the limits prescribed in this section. а Any equipment and/or technical measures used for this purpose must be approved for each particular use by a competent industrial hygienist or other technically qualified person. а Whenever respirators are used, their use shall comply with з а 1910.134."

Subsequent to the trial of this case, the above provisions were recodified at 29 C.F.R. з а 1910.1000. а 40 Fed. Reg. 23072 (1975).

а [*2] а

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Judge vacated the citation because the evidence failed to show that any feasible engineering or administrative controls could be implemented to bring the worksite into compliance with the standard. а We affirm.

Respondent, a manufacturer of monumental granite, was cited because of the working conditions in the shaping room of its plant in Elberton, Georgia. "Shaping" is the process of carving designs and inscriptions on the momuments by blasting dust through a small nozzle onto the surface of the granite. The uncontradicted evidence showed that the silica dust levels in the shaping room exceeded the exposure levels allowed by з а 1910.93. а However, the shapers were adequately protected from the dust by respirators n2 approved by the Bureau of Mines.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 See 29 C.F.R. з а 1910.134(b)(11).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Complainant contends that the use of respirators to achieve compliance with the standard is permissible only if no feasible administrative or engineering [*3] а controls are available. n3 He also contends that the same engineering control that is being used at anothing plant, the Star Granite Company, could be installed in respondent's plant.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 That contention lacks merit. а In my opinion, complainant is required to establish that either administrative or engineering controls, or a combination thereof, would reduce the air contaminants in respondent's plant to the permissible levels specified in the standard. а

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The record shows that at Star Granite small monuments were placed a "shaping cabinet" which separated the shaper from the dust. The shaper put his hands through the slits in a rubber curtain on the side to do the work and could see what he was doing by looking through a window at the top. а The cabinet was equipped with a ventilating system which pulled the dust out of the cabinet away from the shaper. The cabinet prevented the shaper from being exposed to an impermissible [*4] а level of silica dust.

Respondent contends that, though this type of cabinet could be installed at its plant, its use is not feasible because the cabinet would inhibit the shapers' movements that are necessary to create a high quality product. а Use of the cabinet would make the product less marketable. а Respondent's evidence showed that shaping is a highly skilled craft and, in order to do it properly, the shaper must be able to get close to the stone and must have full freedom to turn and tilt the stone. The designe carved on the stones are very intricate and include designs of flowers, leaves, and rosettes. а The use of a shaping cabinet for shaping stones is "analogous to an artist trying to paint a picture through a curtain." Complainant submitted some testimony that Star Granite's product is either of equal quality or only slightly inferior to respondent's and that it is of marketable quality. а However, several witnesses testified that use of a cabinet would adversely affect the quality of respondent's product. а The testimony on this matter is summarized in detail in the Judge's decision, which is attached hereto as Appendix A. n4

- - - - - - - - - - - - - - - - - -Footnotes- а [*5] а - - - - - - - - - - - - - - - - -

n4 Chairman Barnako loes not agree with attaching the Judge's decision hereto.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Judge carefully considered the evidence and found that the shaping cabinet would significantly lower the quality of respondent's product. а He made that determination after having the opportunity to hear and see the witnesses testify. а His finding that use of the shaping cabinet would materially lower the quality of the product involved a credibility determination and is supported by the record. а We find no reason to upset that determination. n5

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 See Secretary v. Northeast Stevedoring Co., 13 OSAHRC 105 (1974). Secretary v. Paul L. Heath d/b/a Paul L. Heath Contracting Co., 20 OSAHRC 297 (1975).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Complainant contends further that even if the quality of the product is lowered by use of the shaping cabinet so as to affect the marketability of the product, the engineering control is nevertheless "feasible" since it а [*6] а does bring the amount of silica dust to which employees are exposed to a level allowed by the standard. а We disagree. а Economic considerations cannot be disregarded in determining feasibility.

In Industrial Union Department, AFL-CIO v. Hodgson, 499 F.2d 467, 477-478 (D.C. Cir. 1974), in considering whether Congress intended economic feasibility of a standard to be a consideration during promulgation proceedings, the Court concluded as follows:

"[I]t would comport with common usage to say that a standard that is prohibitively expensive is not 'feasible.' Senator Javits, author of the amendment that added the phrase in question to the Act, explained it in these terms:

'As a result of this amendment the Secretary, in setting standards, is expressly required to consider feasibility of proposed standards. а This is an improvement over the Daniels bill, which might to be interpreted to require absolute health and safety in all cases, regardless of feasibility, and the Administration bill, which contains no criteria for standards at all.' S. Rep. No. 91-1282, 91st Cong., 2d Sess., at 58; Legis. Hist. at 197.

The thrust of these remarks would seem to be that practical considerations [*7] а can temper protective requirements. а Congress does not appear to have intended to protect employees by putting their employers out of business - either by requiring protective devices unavailable under existing technology or by making financial viability generally impossible." (Footnote omitted).

The Court in that case, which is cited with favor in AFL v. Brennan, No. 75-1105 (3d Cir., December 31, 1975), did note that some loss of profits by employers would not render a standard needed to protect employees infeasible. а However, when the type of abatement required by the standard would cause a loss in marketability of the product without any greater protection to the employees than another means of abatement we conclude that a balancing of those interests is necessary to determine "feasibility."

We find that the Judge properly weighed the economic costs to respondent against the fact that employees were not exposed to impermissible levels of silica dust. He concluded as follows:

"[I]f employees are not being damaged by one present method of operation and the present method of operation so reduces the quality of the product as to make it inferior and makes the company unable [*8] а to be competitive with its competition, a serious question is raised as to whether the feasibility requirement has been met. а While the issue is not free from doubt this Judge is of the opinion that the weight of the evidence establishes that the adoption of the method suggested by the complainant would result in an inferior product. а The present method protects the employee and a change of operation to the method suggested by the complainant would place the respondent in an uncompetitive position and, therefore, would not be feasible. A violation has therefore not been established."

We agree.

Accordingly, the Judge's decision is affirmed. а

CONCURBY: BARNAKO

CONCUR:

BARNAKO, Chairman, concurring:

I accept the Judge's credibility finding that use of the shaping booth would result in lower quality of the tombstones manufactured by Respondent. а I also agree that economic considerations can enter into a determination of whether use of the shaping booth is feasible. See Continental Can Co., Docket No. 3973 et al (Aug. 24, 1976). а But while I agree with the Judge's ultimate finding that use of the booth is not feasible, I do not reach this conclusion out of concern that Respondent would be placed [*9] а at a competitive disadvantage compared to other companies in its industry.

Each employer in the country is required to comply with the standards issued pursuant to the Act. а 29 U.S.C. 654(a)(2). а If respondent is required by the standard to use a shaping room, its competitors must also do so. а Accordingly, Respondent will ultimately not be placed at a competitive disadvantage were we to find that it must use the booth.

But in my opinion, the fact that use of the booth will significantly affect the quality of the special product manufactured by this small Respondent is sufficient to find that it is not feasible. Complainant would have us "weigh the social utility of preserving the highest degree of quality in tombstone design . . . against the health of Respondent's employees." But the health of the employees is not threatened; the record shows they were fully protected by air-line respirators. In these special circumstances involving as they do a product which is akin to an art form I do not think we should require degradation in the quality of the product when the health of employees is not threatened. а

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

As did Chairman Barnako in Continental а [*10] аа Can Co., 4 BNA OSHC 1541, 1976-77 CCH OSHD para. 21,009 (Nos. 3972 et al., August 24, 1976), so has the majority in this case focused its analysis upon the term "feasible" as it appears in a standard, read economic considerations into the term, and ultimately reached an interpretation of the standard that is contrary to its clear import. а My views on the validity of such an analysis are set forth at length in my dissenting opinion in Continental Can Co., supra, and need not be restated here.

Like the noise standard at issue in Continental Can, n6 the standard at 29 CFR з а 1910.93(e) n7 sets forth a comprehensive "technology-forcing" approach to the abatement of health hazards existing in work environments. а Once excessive levels of noise or air contaminants such as silica dust are detected, an employer has an ongoing duty to develop and implement technologically feasible engineering or administrative controls to reduce the excessive levels to within acceptable limits. а This ongoing duty attaches regardless of whether at any given time the engineering controls actually in use would achieve full compliance. а More important to the instant case, however, both standards [*11] а indicate clearly that personal protective equipment alone is not an acceptable method of compliance. а Rather, such equipment may only be used ". . . as a form of supplemental protection during that limited period of time during which those engineering or administrative control which have been implemented cannot by themselves reduce . . ." n8 excessive levels to within limits prescribed in the respective standards.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n6 The noise standard appears at 29 CFR з а 1910.95(b)(1). а It reads as follows:

When employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized. а If such controls fail to reduce sound levels within the levels of Table G-16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.

Table G-16 -- Permissible Noise Exposure

Duration per day, hours	Sound level dBA slow response
8	90
6	92
4	95
3	97
2	100
1 1/2	102
1	105
1/2	110
1/4 or less	115

n7 For the text of this standard, see note 1, supra in the lead opinion. а Note in particular the second sentence of paragraph (e).

n8 Continental Can Co., supra (dissenting opinion).

а [*12] а

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Despite this clear abatement approach, the majority insists on interpreting з а 1910.93(e) so as to permit the use of personal protective equipment (air-line respirators) as an acceptable alternative to engineering control measures (shaping booths). а This is contrary to the plain wording of the standard. а In addition, the method by which my colleagues reach their strained interpretation is contrary to established Commission precedent.

This Commission lacks the authority to question the wisdom of standards. а Van Raalte Co., Inc., 4 BNA OSHC 1151, 1975-76 CCH OSHD para. 20,633 (No. 5007, April 19, 1976) and authorities cited therein. а By interpreting з а 1910.93(e)'s compliance requirements so as to include the use of personal protective equipment as an acceptable alternative to engineering or administrative control measures, my colleagues have rejected the standard's clear requirement that control measures are the primary method of compliance. n9 In so doing my colleagues are plainly questioning the wisdom of з а 1910.93(e), an act for which they lack the requisite authority.

- - - - - - - - - - - - а [*13] а - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n9 At this juncture it is important to note that only Commissioner Moran places any weight on Judge Patton's observation that compliance by means of a "shaping cabinet" would place the employer at a competitive disadvantage. а As noted by the Chairman in his concurring opinion, the competitive disadvantage argument ignores industry-wide compliance responsibilities implicit under the Act.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In addition, by allowing respondent to comply with з а 1910.93(e) solely by the use of air-line respirators, the majority is unlawfully usurping the Secretary's variance power. а Under section 6(d) of the Act, n10 the Secretary, not the Commission, is empowered to grant a variance from the literal application of a standard. а During enforcement proceedings, the Commission should leave case-by-case exceptions to standards to the Secretary under employer-instituted variance procedures.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n10 20 U.S.C. з а 655(d). а Section 6(d) provides as follows:

Any affected employer may apply to the Secretary for a rule or order for a variance from a standard promulgated under this section. а Affected employees shall be given notice of each such application and an opportunity to participate in a hearing. а The Secretary shall issue such rule or order if he determines on the record, after opportunity for an inspection where appropriate and a hearing, that the proponent of the variance has demonstrated by a preponderance of the evidence that the conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer will provide employment and places of employment to his employees which are as safe and healthful as those which would prevail if he complied with the standard. а The rule or order so issued shall prescribe the conditions the employer must maintain, and the practices, means, methods, operations, and processes which he must adopt and utilize to the extent they differ from the standard in question. а Such a rule or order may be modified or revoked upon application by an employer, employees, or by the Secretary on his own motion, in the manner prescribed for its issuance under this subsection at any time after six months from its issuance (emphasis added).

It should be noted that by wresting the variance power from the Secretary, the majority has apparently shifted the burden of proving equivalent protection of affected employees from the employer to the Secretary, who has the burden of proof in cases before the Commission.

а [*14] а

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The foregoing discussion has to an extent assumed for the sake of argument the correctness of the conclusion that implementation of shaping booths would reduce materially the quality of the finished product. а The support for this conclusion is fragile. а Indeed, even Judge Patton noted that this issue ". . . is not free from doubt . . . ." Nevertheless, the Judge resolved this issue in favor of the employer. а Chairman Barnako accepts the Judge's "credibility finding." I would not because there was no "credibility" issue to be resolved. а There was instead an evaluation of opinion testimony. а Further, I submit that my colleagues err in evaluating that testimony.

The plant superintendent of Star Granite Company, a competitor of respondent, Republic Granite Company, testified that the use of a shaping booth does not affect an employee's ability to shape a monument. Although there were several witnesses who offered contradictory testimony, none could testify to any significant experience in shaping by using a shaping booth. Indeed, all these witnesses' experience regarding shaping was gained while using [*15] а air-line respirators. Their opinions regarding the practicality of using a shaping booth were barely more than speculative. а Star Granite Company, however, had been using shaping booths for four months before the hearing. а In short, the only witness having any experience with shaping booths testified that they did not hinder the performance of shaping operations. а Absent any contradictory testimony grounded upon equal experience, I suggest that it was error for my colleagues and the Judge to eschew the testimony of Star Granite Company's plant superintendent. n11

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n11 It is somewhat interesting to note that Judge Patton stated that the probative value of such testimony was weakened by the fact that Star-Granite Company had been using the shaping booth for only four months. а Nevertheless, the Judge apparently accepted the speculation of several witnesses who had absolutely no experience with the use of shaping booths.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Accordingly, I dissent from the majority's disposition of this case. а I would affirm the citation. а [*16] а

Appendix A

DECISION AND ORDER

This case is before John S. Patton, the undersigned Judge, on the complaint of the Secretary of Labor, United States Department of Labor, hereinafter referred to as complainant, versus Republic Granite Company, Inc., hereinafter referred to as respondent, alleging that respondent has violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (84 Stat. 1604; 29 U.S.C. 651 et seq.), hereinafter referred to as the Act and Occupational Safety and Health standard 29 CFR 1910.93. а Hearing was held before the undersigned Judge on August 1 and 2, 1974, at Elberton, Georgia. а Mr. Carl B. Carruth and Mr. Joe D. Sparks appeared as attorneys for complainant. а Mr. Clarence R. McLonahan an attorney who is also president of the respondent, represented the respondent. а There was no motion made to intervene.

LAW AND ISSUES OF THE CASE

It was alleged that respondent violated standard 19 CFR 1910.93 in that in the shaping room of its plant at Middleton Road, Elberton, Georgia, respondent failed to reduce silica dust levels below the values of Table G-3 by use of feasible administrative or engineering controls exposing employees to the [*17] а hazard of excessive silica dust.

It was the position of the respondent that the respirators worn by the respondent prevented the respondent's employees from receiving any appreciable amount of silica dust. The complainant contended that a booth through which employees could engage in carving of the stone monuments should have been used by the respondent. а The respondent took the position that use of said booth would result in an inferior and unmarketable product and that, therefore, it was not feasible.

The respondent does not contest the fact that the dust surrounding the respondent's employee doing such shaping was in excess of that permitted by the standard. а It is the position of the respondent, however, that the method of operation suggested by the complainant was impractical as to would result in an inferior product and that it, therefore, was not a feasible method of operation.

The issues for determination are first whether the use of the booth proposed by the complainant does result in an appreciably inferior product and secondly if it does result in an inferior product, whether said fact means the proposed booth is not a feasible method of operation under the circumstances. а [*18] а

EVIDENCE IN THE CASE

The respondent, in its answer, admitted that it is engaged in the business of manufacturing granite monuments through the process of sawing, polishing and finishing memorials from granite and that the respondent is engaged in a business affecting interstate commerce.

The operations of the respondent entail sandblasting and also shaping. Shaping of the monuments includes carving of the design upon the monument and also carving inscriptions upon the monuments. Shaping involves blasting with dust (TR 12, 13). а The dust produces silica sand (TR 13). а The respondent employs a shaper named Ricky Timms (TR 13, 14). а It was admitted by Mr. McLonahan, president of respondent, that at times dust from blasting or shaping operations tends to swarm up into the room (TR 16). а There is an exhaust system which at time will exhaust the dust away from the employee (TR 16). а The exhaust, however, does not keep the room completely free of silicone. а How heavily the dust mounts up in the room depends on the work that the employee is doing (TR 16). а It is possible to leave the door cracked but at times the employee will close it (TR 24). а It does not interfere with the operations [*19] а for the door to be cracked (TR 24, 25). а Normally the employees kept the door closed to prevent dust clouds from escaping the room (TR 47). а Mr. M. E. Lemmings made tnspection for the complainant. а Mr. Lemmings has a bachelor of arts degree in chemistry and one year graduste school (TR 32). а He measured the dust with a MSA Gravimetric sampling device and MSA FBSB type filter (TR 33, 34). а He described the shaping area as approximately a 10 by 10 room fully enclosed. а The employees carry the work into the room and work behind close doors (TR 35). а He stated the employee would take several stones into the room, put on protective equipment, turn on the apparatus, and start making designs into the stone, using sand dust coming out of a nozzle (TR 36, 37). а He described the employee as engulfed by dust (TR 37). а There was one large duct in the corner of the room to pull the dust out (TR 37). а He stated that after the employee finished his work it took only a few minutes for the ventilation system to dissipate the dust and take it out (TR 38). а He stated personal protective equipment hung on a hook outside the shaping room. а The employee worked approximately four hours a day shaping (TR [*20] а 39). а This was confirmed by company management. а Mr. Lemmings took a sample lasting 27 minutes which covered the entire shaping period (TR 42). а He stated that after he took a sample, he put it in a dehumidifier. а The sample was mailed to Salt Lake City, being received back from Salt Lake City (TR 53).

Mr. Walter M. Neville who analyzed the sample in Salt Lake City and is an industrial hygene chemist employed by the complainant, testified on behalf of complainant. а He stated he has a PHD in physical chemistry and bio-chemistry mixtures. а He analyzed the sample for free silica (TR 116). а He testified that the test resulted is a finding of 24 percent silica. Mr. Lemmings stated this result was approximately 100 times the limit permitted by the standard based on an eight hour exposure. He stated that if an employee worked inside the shaper room for only one-half hour for every eight hours, it would still be five to seven times the limit (TR 56). а He stated that since the dust level was approximately 100 times the limit, there was in his opinion a high chance of serious illness (TR 64). а He stated it is possible for an employee to get emphysema. а He stated, however, that he did not [*21] а cite the respondent for a serious violation because of the protective clothing worn by the respondent's employee (TR 65).

The employee working in the shaping room wore a respirator and hood while performing the job (TR 17). а This was confirmed by Mr. Lemmings (TR 36, 37). а The respirator consisted of a hood and mask (TR 36, 37). а Mr. Lemmings stated that if a respirator was not tight dust would leak around it (TR 82). а He did not, however, check to see whether it was being tightly worn (TR 82, 83). а Mr. Lemmings conceded that if the operator was breathing through the respirator with it properly on his head and it was working properly and of the approved type, it was a very good personal protective equipment and the operator would not be breathing dust (TR 92, 94). а He stated that if it is approved by the Bureau of Mines and working properly that it would be a satisfactory respirator (TR 94). а He stated that if the men had no ill effects from working with it that it was indeed effective equipment (TR 98). а Mr. Lemmings conceded that it did have a Bureau of Mines approval seal on it (TR 101).

Mr. Albert S. Norman, international representative for Granite Cutters International Association, а [*22] а the union representing the employees involved, testified that a properly fitted respirator would allow no dust at all to reach the employee (TR 154, 155). а He described the respirator used by the respondent as the beat that the Bureau of Mines and manufacturers had been able to come up with because it seals up around the face and the employee only breathes air that is coming through the filter and in no way is getting the dust that is blowing and hitting his clothes (TR 163). а He stated the air comes in, then goes through the filter and then goes out (TR 164, 165). а He stated that it is used in coal mines and has been used in the granite industry since said type came out (TR 166). а He stated it is basically the same type of mask as an army gas mask (TR 166).

Mr. Willie Simmons, who is president of Elberton Granite Association, testified that a similar face mask is used in his business. а He described the respirator as effective (TR 180, 181). а He stated he had never hear of anyone suffering illness who had used the respirator (TR 192).

Mr. Leonard Turner, research engineer with engineering experimental station at Georgia Institute of Technology who was under contract to the Elberton [*23] а Granite Association of which respondent is a member, testified on behalf of respondent. а He testified that the respirator type used by respondent was within the standards insofar as volume of dust reaching the employee was concerned. а He further testified that it is the type approved by the Bureau of Mines (TR 272, 273).

Mr. McLonahan, president of the respondent, testified that respondent uses the best respirators that they can buy and affirmed the fact that it is approved by the Bureau of Mines (TR 299). а He stated that each time an improvement is devised the respondent buyes it (TR 299).

Mr. Lemmings testified that he had inspected the Star Granite Company and noticed that in a similar operation, the Star Granite Company used a shaping cabinet which he stated separated the employee from the dust. He saw this cabinet within two weeks from the time he inspected respondent (TR 68). а It was described as a dust cabinet with exhaust ventilation. а The stones were placed inside the cabinet, the shaper would reach through the cabinet and the exhaust ventilation was turned on. а The cabinet was under negligible pressure compared to the rest of the atmosphere and he would do his shaping [*24] а work through the cabinet. He has a glass to look through and no dust excaped through the cabinet. Mr. Lemmings stated that he took samples and the samples showed that the employee was not exposed to a large amount of dust and that the company was in compliance (TR 68). а He stated it was well below the minimum requirements (TR 68). а He stated the employee was very proficient and was able to do all of his work. а The work was the same as the work of respondent with the exception of the cabinet (TR 69). а Photographs were introduced into evidence as Complainant's Exhibits 4, 5, 6, 7, 8, 9, and 10, reflecting the cabinet used at Star. а Mr. Lemmings stated the roller conveyor inside the cabinet can be adjusted backwards or forwards to bring the work closer or further away from the operator (TR 71). а He stated the employee was also wearing a dust mask although he did not feel was necessary and described it as sort of an "emergency" measure (TR 71, 72). а He stated dust was not escaping (TR 71). а He stated he knew of no reason why a similar device could not be used by respondent (TR 72). а He stated that the employee was not shaping at the time the picture was taken (TR 76). а Mr. Lemmings а [*25] а stated he was not familiar with sandblasting granite and shaping of granite until he started inspecting the companies in Elberton (TR 76). а He stated he was in the Elberton area about one month. а When he inspected the respondent it was the first time he had seen an operation of this kind (TR 76, 77). а Star Granite had two such cabinets or booths (TR 104, 105). а One was used for sandblasting and one was used for shaping (TR 105, 107). а He stated that engineering controls are the same for sandblasting and shaping (TR 109).

Mr. Joe Maxwell, plant superintendent for Star Granite Company, testified that his company engaged in cutting, polishing, sandblasting monuments (TR 124). а He stated it is essentially the same operation as respondents (TR 125). а He stated they engage in blasting and shaping at his company. а He stated he has relied on respirators (TR 125). а They blast with silica and shape with silica dust (TR 125). а He stated he no longer uses the respirator to protect employees. а He stated he constructed said booth or cabinet to get the man out of the room in which the dust would exist (TR 126). а He stated the man was probably exposed to some dust by the respirator and hood that а [*26] а he would not be exposed to with the cabinet (TR 1926). а He stated that it has not created any problem or hinderance to the employee's ability to do the job (TR 127). а He stated the employees are satisfied and happy with the cabinets and that they do not affect production; that production has actually picked up (TR 127). а He stated the cabinet was the same for shaping and sandblasting. He stated there is a difference in the size of the nozzle which is much smaller for shaping (TR 128). а He described the cabinet stating that there is a rubber curtain which hangs down and keeps the dust from coming out. а The dust is sucked out by suction. а He testified that the platform which the blocks or slabs of granite are on can be adjusted so the operator can gain access for different types of shaping operations. а He stated it could be backed up (TR 130). а He stated they would cost about $3,000 but the cost would be reduced some if there was already a ventilating system which could be utilized. а He felt that over a period of year they would pay for themselves (TR 128, 130, 131). а He stated the employees just put their hands through the curtain. The space is about one foot wide. а They can make а [*27] а it wider if they want by raising and lowering the curtain. They can raise it enough to freely move their hands (TR 134, 135). а There is not nearly as much pressure to shape because the nozzle is so much smaller (TR 135). а Very little dust comes out of the curtain while sandblasting according to said witness (TR 135). а He stated he has never noticed when the curtain was open and someone stuck their hand through whether the dust comes out (TR 135, 136). а It is necessary to get closer to the granite for shaping than for blowing. а Shaping is a skilled operation (TR 137). а It is necessary for the employee to put his face where he can see it. а He stated the glass is right above the curtain (TR 138). а He never noticed whether the dust was coming out where the arm sticks through (TR 139). а He has not seen the dust coming out (TR 140). а He has been with said company approximately 12 years. а He had worked for six or seven months with Coggins Granite Company and had worked for two years for Victor Granite Company (TR 143). а He stated that where there is a large slab there are times when the employee does have to shape in the room rather than in the cabinet (TR 144). а He stated that it would а [*28] а not be practical to use the cabinet if the carving was done by hand work (TR 146, 147).

On the other hand, the respondent presented considerable evidence to the effect that quality of the product would be seriously affected if the cabinet was used. а Mr. McLonahan testified that the nature of the operation requires the employee to be near the stone. He stated it is like taking a pencil or pen and doing the work; that he had to be close to it and it is not feasible for them to take the employee away from the operation to do shaping. He described it as a highly skilled operation (TR 23). а He stated that the employee has to shape designs of flowers, leaves and so forth with a small sandblast nozzle (TR 271). а At times he will have to check the hose a little to slow it down and to a slow pressure (TR 27, 28). а Mr. McLonahan stated that quality of the workmanship, particularly in the carvings, is one of the things that they have to sell; that it is a highly skilled trade. а He stated that the dexterity of the worker has to be free to where he can do the fine type of shape carving. There is some carving that just have plain lines around the face of the monument, some don't have any, some [*29] а have flat carvings that are just cut out and blown and some have what are called shaped carvings and there is a different type of shaped carving. According to Mr. McLonahan it is very difficult for a layman to tell the difference in the type of shape carving -- the petals that are rolled over and how they are rolled over and whether or not the edges are shaped and whether they roll it over or blow it. а He stated there is another type of carving called double process carving which is undercut before the shaping. The leaves are taken off and when the shaping is done the undercutting is done. а According to Mr. McLonahan it is important for the quality of workmanship for a person trying to do any shaping perform it correctly. а If a person is shaping through a rubber curtain where the rubber is slit up and down and has small pieces and the hand is pushed through it would be practically impossible to do any kind of shaped carvings. Holding the nozzle at the waist he has to have it where he can move his hands in front of him and he has to be close enough to see it. а The stone also had to be up to him where he can work with it (TR 297, 298). а Mr. McLonahan stated that he had many years [*30] а of experience in the business, that he had graded the work of others, and judged the quality of the carvings on numerous occasions. а He stated the sandblasting nozzle is about 20 to 30 times the size of a shaping nozzle. The nozzle for shaping must have a small hole to shape and use dust (TR 298). а He stated that they have tried to shape through a curtain and have never been successful in doing it (TR 298, 299). а He stated that it is necessary for an employee to have freedom of movement and use his fingers, hands and wrists in doing the shaping work.

Mr. Norman, the international representative for the union testified that a man can shape through a sandblast curtain but cannot do as good a job. а He stated it is analogous to an artist trying to paint a picture through a curtain. Without the curtain he can see better. а The curtain gets in the way of his arms and movement where he can shape out the little fine edges to keep from rounding or blowing them off (TR 153). а He stated that the nozzle shaping is done with it about the size of a hole in a pencil with the point out of it. а The nozzle being very fine, the employee must get his hand where he can move it about freely. а He stated [*31] а that when an employee is blowing, shaping or carving he must get hold of those edges to keep it sharp where it will look right. а It is possible to to some kind of a job through a curtain but an employee cannot see and cannot get himself in position to do the type of job that he would do in the room with the respirator on. а He further stated that sand and dust come through the curtain (TR 153, 154). а He pointed out that an employer cannot stay in business with poor workmanship (TR 157). а It is hard through a curtain to round the edges off on a rose or rosette or anything else that shaping is being done on. а It can be done better if he does not have to look through his arms going through a curtain (TR 158). а He stated he was familiar with Star's operation; that the union has 52 contracts and that he is in the plants every week. а He does not think that Star's work is as good as other plants (TR 158, 159). а He felt it was not as good because the employees could not get in the room where they could hold the edges up (TR 159). а They cannot get as close to the work (TR 161). а Mr. Willie Simmons, president of Elberton Granite Association, expressed the opinion a man would get more dust outside [*32] а that he would with a respirator on inside. He said an employee cannot do as well through a curtain. The reason this is true is that an employee cannot get in with the stone where he can brace himself laying his hand on the stone and do the work that he can do if he can move around at different angles. а He stated there is no way a person can do first class work through a curtain because "he has got to get with it." He stated that an employee must, if he is right handed, reat his right arm on the stone and shape with his hands. а It is necessary to use both hands to do first class work. а A man can stick both hands through a curtain but he cannot rest himself like he can in the room. а He stated he had tried to used a booth but had found that he could not do a good job (TR 189, 190). а He tried for approximately five minutes (TR 190). а When a curtain is between the employee and the stone, there is no way for him to maneuver his body around to get to the fine work. а He has never heard of anyone suffering illness who has used a respirator such as the respondent uses (TR 192). а An employee can work better standing (TR 193).

Mr. Leonard Tesner the research engineer stated that he had worked [*33] а very diligently on the problem and doubted if there was any practical way to let an employee get close to his work and simultaneously protect him from rebound of dust. It is necessary for an employee to have dexterity to get around a round object so he will have 360 degrees of freedom (TR 199, 200). а Men usually get so close to the work shaping that the rebound of the abrasive material scratches the glass that they look through and these require replacing (TR 196 -198). а It would speed up the work not to wear masks but they cannot do so because from an artistic point of view an employee cannot physically separate himself from the work far enough to allow any particular material, air currents or other methods to intercede to protect him (TR 203). а Engineering cannot be devised which would permit the maintenance of quality and present work techniques (TR 207, 208). а He has sent off information for electronic beam etching of stone; for laser etching of stone and other techniques to alleviate the problem and so far has not been able to come up with anything (TR 208). а To follow the complainant's suggestion would "make crummy looking stone" (TR 208). а A company could go back to the hand [*34] а method, at astronomical cost and maintain quality (TR 209). а It is impossible to market poor quality (TR 211).

Mr. Ricky Timms is the shaper for respondent, and also engages in sandblasting and cutting (TR 213). а He was shaping at the time of the inspection. а In breathing through the respirator the air appears to be fresh (TR 214). а He has sandblasted for five years and shaped for one year. а He has had no ill effects (TR 215).

Mr. Joe Maxwell, plant superintendent for Monumental Works Clark Memorail Company, which is a division of Granite Industries stated, that said company has plants in Macon, Birmingham and one in Cordell. а They are the second largest company in this field in the south (TR 232). а They are the manufacturing end of Clark Memorial's retail outlet (TR 232). а He stated his company is the Star Granite Company, the above names being the correct corporate names. а He described the quality since the booth or cabinet was used in terms of moderately high, very high and so forth, as real good (TR 233). а He stated that by real good he meant very high (TR 233). а He stated they had no complaint about the quality of the work product and the use of the booth had no effect upon [*35] а their business (TR 233). а There were no complaints from customers. а There was not all that much difference in marketable quality (TR 233, 234). а The rubber flaps do not interfere (TR 235). а There is no complaint for misshapers (TR 235). а The company is engaged in a profitable business (TR 235). а He testified, however, that the industry at large had been very profitable the previous six months and that backlogs could have helped insofar as maintaining business. а He has been using the booths only about four months.

Mr. Alfred Anderson who is a granite manufacturer and has been engaged in the manufacture of granite about 12 years, with about four years experience in shaping stated that they had attempted to shape through the curtain but that it was impractical. а He stated that he did not have reference to the cost of installation in making the statement as to lack of practicability. а He stated he has tried everything (TR 252). а He is the co-owner of True Stone Granite Company, Inc. а If something was demonstrated that would protect the people working for him he would spend any amount of money, even $20,000 (TR 257). а His company gets every improvement (TR 256). а Employee safety is more [*36] а important to him than money (TR 258). а He is in good health notwithstanding the fact that he is engaged in shaping and was for a number of years the same way that the respondent does (TR 258). а A better product can be turned out working inside the room than out and production would be hurt if the cabinet or booth was used (TR 260, 261).

Mr. Pete Wheeler stated he has been in business of his own since 1960 and in the industry since 1936 (TR 261). а He was a granite cutter before he had his own business. а He has had sandblasting and shaping ever since he has been in business on his own (TR 262). а He never actually shaped himself but he has supervised shaping (TR 262). а He supervised very closely to see that it was done right because that if it was not done right the monument would be turned down. а Everyone pays special attention to flowers, carvings and the way lettering appears (TR 262). а He stated they shaped from inside the room (TR 263) and used respirators similar to the respondent although not identical (TR 263). а The men had always stated they had rather wear respirators than blow from the outside (TR 263). а No man has suffered any ill-effects. а He has never seen the shaping а [*37] а booth at Star (TR 265).

Mr. M. E. Lemmings who inspected for the complainant stated that he had carefully studied the design of shaping and could see no difference in what Star produced and what the others did (TR 281, 282). а The quality of workmanship appeared equal (TT 281, 282). а The carving he noticed had flowers and leaves (TR 282). а He does not, however, know the fine points about carving (TR 282, 283, 284).

EVALUATION OF THE EVIDENCE

This case is very difficult to decide. а The evidence is virtually unanimous that the respirator which has been used by the respondent is quite adequate to protect the respondent's employees from the possibility of physical harm. а This was testified to by Mr. McLonahan, Mr. Norman, Mr. Testner, Mr. Timms, Mr. Anderson and it was admitted by Mr. Lemmings who made the inspection, that dust would not reach the employee with the respirator properly worn and in proper condition. а There was no evidence that the respirator was at any time not properly worn or that it was not in proper condition. а This Judge must therefore find that the respirator does do the job and an employee's health is not impaired so long as the respirator is properly worn. а [*38] а

The standard, however, provides that personal clothing or equipment will be adequate protection only if there is no feasible way of using administrative or engineering controls. а It is not contested that the silica dust in the air substantially exceeded the standards. а The evidence which is not disputed is that it was 100 times as great and that for a period of half an hour's exposure would be five to seven times as great as that permitted by the standard. а If this amount of dust is reaching the lungs of the employee, it will certainly be a most serious concern. а The complainant, however, only alleged a non-serious violation because of the fact the respirator was being worn. No matter how much dust is in the air, if the dust is not being breathed by the employee, the employee is not being damaged.

To hold however that no violation has occurred because the employee is adequately protected by the respirator would be to second guess the Secretary and to pass upon the wisdom of the law rather than to interpret the law. а This is not a judicial function. а The question therefore is whether there is a feasible administrative or engineering control. а Evidence as above stated was introduced [*39] а to the effect that Star Granite Company is using what is described as a cabinet or booth which keeps the employee outside of the dust area. а There is proof that some dust escapes but in the light of the tests taken at Star Granite Company by the person making the inspection for the complainant, this Judge concludes that the weight of the evidence is to the effect that any dust escaping would be less than the minimum permitted by the standard. а The cabinet or booth therefore does effectively reduce the amount of silica dust to an acceptable standard.

It is insisted by the respondent, however, that the nature of the work performed is such that the quality of the product is so affected by adopting the method suggested by the complainant as to make the product non competitive and unmarketable. а There is an issue of fact on this question. а The man in charge of Star Granite Company's operation testified that the work is satisfactory and that he has not received any reduction in business as a result of using this device. а The affect of this testimony, however, is somewhat weakened by the fact that only four months have transpired since he began using the device which may not be an adequate [*40] а trial period to permit its acceptance to be determined. а Testimony is to the effect that the entire industry has been having a period of prosperity and has considerable backlogs of business and in view of these backlogs of business, customers may not be as particular as they would be otherwise and also there may not have been adequate exposure to the product by the public to permit a proper sampling of the public. а A further possible difference is the fact that practically all of the other companies maintaining their businesses in or around Elberton, Georgia, make wholesale sales rather than retail and Star sells at retail. а There is some evidence, however, to the effect that Star sells to another branch of the same business which is the retail outlet. а In light of the fact that officials of three or four granite companies, the union representative and the employee performing the shaping task all testified that the work cannot be as well performed with the curtain intervening between the employee and the stone, this Judge is of the opinion that there is some reduction in quality under the method suggested by the complainant. а Shaping entails carving of designs such as flowers, leaves, а [*41] а etc. а This would appear, as suggested by the union representative, to be analogous to painting by an artist. а This Judge seriously doubts that the work of an artist could be as effective if a curtain was put between the artist and the canvas that he was drawing. а According to the testimony it is necessary for an employee to rest his arm and hand on the stone and to have complete maneuverability anywhere around the stone, even to 360 degrees around the stone, for an employee to do his best work.

Although as above stated the fact that an employee is completely protected by the respirators used by the respondent is not a defense to this action this Judge feels that it does have some relevance to the question of feasibility of the proposed method of operation. а If greater efficiency is realized at the expense of the lives and health of employees performing work, the price is too high. а On the other hand, if employees are not being damaged by the present method of operation and the present method of operation so reduces the quality of the product as to make it inferior and makes the company unable to be competative with its competition, a serious question is raised as to whether the feasibility [*42] а requirement has been met. а While the issue is not free from doubt this Judge is of the opinion that the weight of the evidence establishes that the adoption of the method suggested by the complainant would result in an inferior product. а The present method protects the employee and a change of operation to the method suggested by the complainant would place the respondent in an uncompetitive position and, therefore, would not be feasible. A violation has therefore not been established.

FINDINGS OF FACT

1. а Respondent is a corporation having a place of business and doing business among other places at Middleton Road, Elberton, Georgia, where it is engaged in the manufacturing, shaping and carving of granite slabs.

2. а Respondent is and at all times relevant to this cause has been an employer engaged in a business affecting commerce within the meaning of the Act.

3. а The shaping of the granite including carving of designs and letters upon the granite causes a volume of silica dust many times that permitted by the standard.

4. а Respondent's employee who engages in said shaping wears a respirator which completely protects said employee from the breathing of silica dust.

5. а [*43] а The use of a cabinet or booth separating the shaper from the stone by a curtain does not prohibit the performance of a shaper's duties but does materially affect the quality of the product. а No feasible methods have been shown whereby the dust can be controlled through administrative and engineering methods.

CONCLUSIONS OF LAW

1. а Respondent is engaged in a business affecting interstate commerce and therefore is within the jurisdiction of the Occupational Safety and Health Act.

2. а It is incumbent upon the complainant to prove that an administrative or engineering method of control of the silica dust is feasible.

3. а No feasible administrative or engineering method having been established the complainant has not established a violation of section 5(a)(2) of the Act or standard 29 CFR 1910.93.

ORDER

It is therefore Ordered that:

Respondent has not violated section 5(a)(2) of the Act or standard 29 CFR 1910.93.

The citation and complaint filed in this cause be and the same hereby are dismissed.

Dated this 5th day of November, 1974.

JOHN S. PATTON, Judge, OSHRC