KENNETH P. THOMPSON CO., INC.  

OSHRC Docket No. 76-2623

Occupational Safety and Health Review Commission

June 30, 1980

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Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Roy F. Miller, Jr., Miller & Associates, Ltd., for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   A decision of Administrative Law Judge Dee C. Blythe is before the Commission for review under section 12(j) of the Act, 29 U.S.C. §   661(i).   Judge Blythe concluded that Kenneth P. Thompson Co., Inc., Respondent, committed six nonserious and two serious violations of the Act.   Consequently, the judge affirmed items 1, 3, 5, 6, 7, and 8 in citation 1, as well as items 1(a) and 1(c) in citation 2.   He assessed a total penalty of $175 for some of those items.   Former Commissioner Moran directed review of the judge's decision "for error." n1

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n1 The judge vacated items 2 and 4 in citation 1 as well as item 1(b) in citation 2.   The Secretary, the party aggrieved by the judge's decision to vacate those items, has not filed any exceptions to those parts of the judge's decision and order.   Finding no compelling public interest that would warrant Commission consideration of the judge's order vacating those three items, we will not review those portions of the judge's decision.   Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976).   Such unreviewed dispositions are not precedent binding on the Commission.   Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976), appeal withdrawn, No. 76-4070 (2d Cir. May 17, 1976).

Respondent raised various arguments before the judge concerning the inspection procedure.   However, it presents only one of those contentions on review, i.e., it "was deprived of its right under the law to have the inspection conducted by inspectors who were professionals with years of training and experience in the occupational safety and health fields." We agree with that portion of Judge Blythe's decision in which he stated that the asserted lack of expertise only goes toward the weight accorded the testimony of the compliance officers, rather than to the validity of the entire inspection.

Respondent contended before the judge that the Act, the standards promulgated pursuant to it, and the citations at issue in this case deprive Respondent of its rights under the fourth, fifth, sixth and seventh amendments.   Respondent submitted no further arguments on these allegations since it considered neither the judge nor the Review Commission to have jurisdiction.   Judge Blythe addressed Respondent's fourth and seventh amendment claims in his decision, which was issued before the United States Supreme Court's decisions on those issues.   See Marshall v. Barlow's, Inc., 436 U.S. 307 (1978); Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977). Chairman Cleary and Commissioner Barnako conclude that those claims are not before us because neither party has raised the issues on review and there is no compelling public interest warranting further Commission review of them.   Water Works Installation Corp., supra; Abbott-Sommer, Inc., supra. See Hurlock Roofing Co., 79 OSAHRC 7/A2, 7 BNA OSHC 1108, 1979 CCH OSHD P23,358 (No. 76-357, 1979).   They accord Judge Blythe's decision on those claims the significance of an unreviewed judge's decision.   Leone Construction Co., supra.

Commissioner Cottine would resolve the constitutional claims in a manner consistent with the Supreme Court decisions in Marshall v. Barlow's, Inc., supra, and Atlas Roofing Co. v. OSHRC, supra, issued subsequent to the judge's decision in this case.   See Hurlock Roofing Co., supra (Cottine, concurring); Duane Meyer, d/b/a D.T. Construction Co., 79 OSAHRC 57/D4, 7 BNA OSHC 1560, 1562 n. 9, 1979 CCH OSHD P23,742 at p. 28,792 n.9 (No. 16029, 1979).

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Respondent was the masonry subcontractor at a motel under construction in Farmington, New Mexico, which was inspected on May 5 and 6, 1976, by compliance officers Forrester and Marple from the Occupational Safety and Health Administration (OSHA).   As a result of that inspection, two citations alleging nonserious (citation 1) and serious (citation 2) violations of the Act were issued to Respondent.   The total proposed penalty for the alleged violations was $630.   The Secretary of Labor ("Secretary") required immediate abatement of each condition described in the citations.   Respondent timely contested both citations.

Respondent contends on review that the judge erred in affirming items 3B, 5, 6, 7, and 8 in citation 1 and items 1(a) and 1(c) in citation 2.   Only those items are now before us on review. n2

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n2 Judge Blythe noted in his decision that Respondent stipulated at the hearing that it failed to comply with 29 C.F.R. §   1903.2(a), as alleged in item 1 of citation 1.   He also stated that Respondent conceded in its post-hearing brief that it did not comply with 29 C.F.R. §   1926.152(g)(9), as charged in item 3A of citation 1.   In addition, Judge Blythe concluded that the evidence established Respondent's noncompliance with §   1926.152(g)(9).   The judge therefore affirmed both of those citation items.

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I.   Citation 1 (Nonserious Violations)

A.   Item 3B

In item 3B, the Secretary alleged that Respondent failed to comply with 29 C.F.R. §   1926.152(g)(11) n3 in that no fire extinguisher was provided in the area where a forklift used by Respondent was refueled.   The Secretary proposed an aggregate penalty of $25 for items 3A n4 and 3B.

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n3 The standard provides:

Subpart F - Fire Protection and Prevention

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§   1926.152 Flammable and combustible liquids.

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(g) Service and refueling areas.

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(11) Each service or fueling area shall be provided with at least one fire extinguisher having a rating of not less than 20-B:C located so that an extinguisher will be within 75 feet of each pump, dispenser, underground fill pipe opening, and lubrication or service area.

n4 See note 2 supra.

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A fifty-five gallon drum of gasoline with a pump attached that was used to refuel Respondent's forklift was located   [*4]   behind the trailer in the refueling area.   Patterson, Respondent's masonry supervisor, testified at the hearing and Respondent in its post-hearing brief admitted that Respondent did not maintain for the exclusive use of the refueling area at least one fire extinguisher having the required rating.   Respondent argued before the judge that it complied with the cited standard in that, as Patterson testified at the hearing, the pickup truck belonging to Patterson and parked within 75 feet of the refueling area was equipped with a fire extinguisher as was Respondent's forklift. Patterson also testified at the hearing, however, that the truck and forklift were not always in the refueling area.

Judge Blythe affirmed the citation item.   He noted Respondent's admission that no fire extinguisher was provided exclusively for the refueling area.   The judge rejected Respondent's contention that the fire extinguishers in the truck and forklift met the requirements of the cited standard.   He stated that the standard intends that a fire extinguisher be readily available in a refueling area and that extinguishers on vehicles do not satisfy the standard.   He assessed the $25 penalty proposed by the [*5]   Secretary.

Respondent presents essentially the same arguments on review that it did before the judge.   We reject Respondent's contention that the Secretary has failed to sustain his burden of proof.   We conclude that the judge properly considered the evidence of record and both parties' arguments.   He also set forth his evaluation of the evidence and legal reasoning.   Accordingly, we adopt the judge's factual determinations and conclusions of law.   We thereby affirm this item alleging a nonserious violation based on noncompliance with section 1926.152(g)(11).   See Adrian Construction Co., 79 OSAHRC 16/A2, 7 BNA OSHC 1172, 1979 CCH OSHD P23,389 (No. 15414, 1979); Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14281, 1977).   In assessing the penalty for these items, and all other items that we affirm, we have considered the factors set forth in section 17(j) of the Act, 29 U.S.C. §   666(i).   We agree with the judge that $25 is an appropriate aggregate penalty for items 3A and 3B in citation 1 due in particular to the low gravity of the violations.

B.   Item 5

Item 5 alleged that Respondent did not comply with section 1926.153(1) n5 in that [*6]   the area in which one portable propane cylinder was in storage was not provided with at least one approved portable fire extinguisher having a rating of not less than 20-B:C.   No penalty was proposed.   The propane cylinder was located in the storage trailer in the refueling area.   In disposing of item 3B, we noted that Respondent admitted that there was no fire extinguisher for the exclusive use of the refueling area.

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n5 The standard reads as follows:

Subpart F - Fire Protection and Prevention

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§   1926.153 Liquefied petroleum gas (LP-Gas).

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(1) Fire protection. Storage locations shall be provided with at least one approved portable fire extinguisher having a rating of not less than 20-B:C.

"Liquefied petroleum gas" is defined as follows:

Subpart F - Fire Protection Prevention

* * *

§   1926.155 Definitions applicable to this subpart.

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(j) "Liquefied petroleum gases," "LPG" and "LP Gas" mean and include any material which is composed predominantly of any of the following hydrocarbons, or mixtures of them, such as propane, propylene, butane (normal butane or iso-butane), and butylenes.

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Compliance Officer Forrester testified that Patterson told him that the cylinder at issue contained propane used to fuel heaters on the project site in cold weather. n6 Forrester stated that, without picking up the cylinder, he moved it back and forth.   He felt liquid in the cylinder "swash" back and forth and determined that the cylinder was one-third to one-half full.   He testified that the cylinder was not in use at the time of the inspection. Forrester stated that he recalled Patterson telling him that the propane cylinder had been used, but he did not remember Patterson saying that the cylinder was empty. He further stated that Patterson told him that Respondent was waiting to transport the cylinder. Although Forrester did not observe any employees in the area, he was informed by Patterson that most of Respondent's employees came into the area "as needed" to store and retrieve items.   One or two employees entered the area on a daily basis.

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n6 Forrester admitted that he could have checked the number visible on the outside of the cylinder to determine if it had propane in it.   Instead, he accepted Patterson's statement that the cylinder contained propane.

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Patterson testified that he told Forrester that the cylinder had contained butane. n7 He stated that in order to determine if a cylinder contains any liquid, he usually moves his hand from the top to the bottom of the cylinder. If the cylinder is cold, it contains liquid.   He said that he used this method to test the cylinder and determined that it was empty. n8 Patterson testified that he did not see Forrester use this method.   He further stated that he did not observe Forrester move the cylinder. Patterson said that he did not try to ascertain whether the cylinder contained some liquid by moving the cylinder back and forth, and he did not know if the presence of a cylinder's contents could be determined by that method.   Patterson further testified that the cylinder was not in use and was awaiting shipment to Albuquerque.

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n7 Patterson then stated that he did not know the difference between propane and butane. We note that the cited standard, §   1926.153(1), is applicable to both butane and propane. See note 5 supra (text of §   1926.155(j)).

n8 Patterson stated that the method he used was the only one he had seen employed by construction workers.   When asked on cross-examination whether both butane and propane are LP-Gases, Patterson responded that he did not know.   He testified that he would use the same test when checking cylinders for the presence of butane as he would when checking for propane. When questioned whether it was true that a cylinder containing butane or propane would only become cold when the LPG is being used, i.e., when it is evaporating inside and being drawn out of the cylinder, Patterson replied that he did not know.

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In its post-hearing brief, Respondent contended that the cylinder had been used to store butane but was empty at the time of the inspection. Respondent stated that the container was not in use.   It argued, however, that the cylinder was not in storage, but rather it was awaiting transport by truck to Albuquerque.

Judge Blythe affirmed item 5 and assessed no penalty.   He found Forrester's testimony that the cylinder contained LP-Gas to be more convincing than Patterson's testimony that it was empty "since Patterson performed no test to determine whether it was empty or not." The judge stated that, regardless of whether the cylinder was awaiting transportation to Albuquerque, it was at least in temporary storage. The judge reasoned that since the container was not in use or in transit it must have been in storage. Judge Blythe noted that, because the violations described in this item and in item 3B both occurred in the refueling area, and the standards cited in each of these two items require that a fire extinguisher rated at 20-B:C be provided, the placement of one fire extinguisher in the refueling [*10]   area would effectuate abatement of both items.

In its brief on review, Respondent states that the cited standard applies only to cylinders that are not empty. It contends that the Secretary failed to sustain his burden of proving that the cylinder was not empty due to the conflict in testimony concerning the presence of any LP-Gas in the container.   Respondent further argues that, in light of the language in section 1926.153(k), n9 the cited standard applies to cylinders that are stored "awaiting use." Respondent contends that section 1926.153(1) does not apply to cylinders awaiting shipment such as the one at issue here.

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n9 The standard provides:

Subpart F - Fire Protection and Prevention

* * *

§   1926.153 Liquefied petroleum gas (LP-Gas).

* * *

(k) Storage outside of buildings. (1) Storage outside of buildings, for containers awaiting use, shall be located from the nearest building or group of buildings, in accordance with the following: . . .

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We conclude that the Secretary has proven that   [*11]   Respondent failed to comply with section 1926.153(1).   The Review Commission, not its administrative law judges, is ultimately responsible for findings of facts.   C. Kaugman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977-78 CCH OSHD P22,481 (No. 14249, 1978).   We find Forrester's testimony that the cylinder contained some LP-Gas to be more credible than Patterson's testimony that the cylinder was empty. n10 The method employed by Forrester for determining the presence of LP-Gas is more reliable than Patterson's method since Forrester actually felt the LP-Gas "swash" back and forth.   Patterson's method did not yield such immediate and uncontradictory results, for Patterson testified on cross-examination that he did not know whether LP-Gas only gets cold when it is used.   See note 8 supra.

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n10 We do not defer to the judge's finding that Forrester's testimony was more credible than Patterson's because the judge relied on an erroneous basis for his finding.   See C. Kaufman, Inc., supra. The judge stated that Patterson performed no test to determine whether the cylinder was empty, whereas Patterson testified that he did perform such a test, albeit a different test than that done by Forrester.

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The record establishes that Respondent regularly stored material other than propane in the refueling area.   The characterization of an area as a "storage location" is not affected by the length of time the material remains in that area.   With regard to Respondent's argument that the language in section 1926.153(k)(1) is applicable to this case, we note that the cited standard, section 1926.153(1), applies by its own terms to "(s)torage locations" without any qualification that containers in such areas must be "awaiting use." Moreover, the hazard is identical whether the cylinder is awaiting use or awaiting shipment.

Accordingly, we affirm this item alleging noncompliance with section 1926.153(1).   We assess no penalty in view of the low gravity of the violation. n11

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n11 We agree with Judge Blythe's statement noted above that Respondent can abate this violation as well as the violation described in item 3B by providing the refueling area with only one fire extinguisher rated at 20-B:C because the location of the violations and the abatement requirement of the cited standards are the same.   We note, however, that each of the two cited standards addresses a distinct hazard, i.e., section 1926.152(g)(11) -- gasoline drum on fire -- and section 1926.153(1) -- LP-Gas cylinder on fire.   Thus, if the violative conduct occurred in two different areas, Respondent would have to supply each area with a fire extinguisher.

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C.   Item 6

The Secretary alleged in item 6 that Respondent failed to comply with section 1926.250(b)(1) n12 in that:

Materials were stored within 10 feet of the exterior wall at the following location of the building under construction.   Wall did not extend above the top of the material stored: pallet with construction block stack on edge of open-sided floor in covered courtyard, south end, third level.

A penalty of $25 was proposed.

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n12 The standard reads as follows:

Subpart H - Materials Handling, Storage, Use, and Disposal

§   1926.250 General requirements for storage.

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(b) Material storage. (1) Material stored inside buildings under construction shall not be placed within 6 feet of any hoistway or inside floor openings, nor within 10 feet of an exterior wall which does not extend above the top of the material stored.

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According to Compliance Officer Forrester's testimony, a pallet of construction blocks [*14]   was stored on the edge of the roof covering the restaurant and office portion of the building under construction.   The building was split-level so the roof upon which the blocks were stored was located halfway between the second and third levels of the adjacent portion of the building.   The blocks were stacked above an access area used by trucks and employees of both Respondent and other contractors.   The dirt floor of the access area was approximately 17 feet below the pallet. An electrical outlet used by Respondent's employees and other workers for portable equipment was located in the access area.

Forrester further testified that Patterson told him that the pallet and blocks belonged to Respondent.   Forrester stated that each block at full size was 16 inches long, 6 inches wide, 6 to 8 inches thick, and weighed 10 to 20 pounds.   He testified that the pallet was placed at an angle to, and extended 3 to 4 inches over, the edge of the roof. He stated that the corner of one of the blocks also extended over the roof's edge. Forrester determined that the blocks were "skewed" and only loosely stacked on the pallet by observing the base of the pallet from the ground level, i.e., [*15]   the floor of the access area; he did not go up to the roof. Forrester testified that employees working behind the pallet or vibrations from construction processes could have dislodged the blocks causing them to fall on employees working in the area below.   He further stated that there was nothing along the edge of the roof to prevent the blocks from falling. Forrester speculated that the pallet was placed there by forklift and that the forklift could only "throw" the pallet 6 to 10 inches from the roof's edge without damaging the blocks on the pallet. His testimony was corroborated by the testimony of Patterson and Kenneth P. Thompson, Respondent's president.   Forrester stated that employees would have to carry the blocks by hand in order to move them farther from the edge of the roof.

Forrester testified that photographs marked as exhibits C-3 and C-13, which show side views of the pallet and surrounding area, depict Respondent preparing to complete construction of the wall located perpendicular and adjacent to the roof area at issue.   Forrester said the blocks were "stored" overnight on the roof awaiting use in constructing that nearby wall.   He admitted that the pallet of blocks [*16]   placed on the roof was not inside the building.   Forrester then stated that in interpreted section 1926.250(b)(1) as setting three different criteria for material storage: 1) material stored inside a building shall not be placed within 6 feet of any hoistway, 2) material stored inside a building shall not be placed within 6 feet of any inside floor opening, and 3) material stored inside or outside of the building shall not be placed within 10 feet of an exterior wall which does not extend above the top of the stored material.   He considered the instant case to involve noncompliance with only the third criterion.

Patterson testified that it was standard procedure to place pallets of blocks in approximately the same position as the pallet at issue here and then have hod carriers move the blocks to the scaffold.   Respondent's masonry supervisor said that about 50 to 60 pallets were placed in this manner during the six months preceding the inspection, but some of those pallets were put inside the building on the second level rather than on the roof. Patterson stated that the construction blocks were "half blocks" each measuring 8 inches X 8 inches X 8 inches instead of "full blocks"   [*17]   which each measure 8 inches X 8 inches X 16 inches.   Patterson denied that the blocks were "stored."

Thompson testified that he did not know that the pallet remained on the roof overnight.   However, he admitted that when blocks are awaiting use they are "temporarily stored" at the location where they are to be used for periods of time that vary with the speed and number of the masons on the job.

In its brief to the judge, Respondent contended that the cited standard does not apply to materials stored outside of buildings under construction.   It urged rejection of Forrester's "warped construction" of the standard.   Respondent also argued that Forrester's designation of the blocks as "stored" was without evidentiary basis. n13

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n13 In his post-hearing brief, the Secretary did not address the issues of whether the construction blocks were "stored" or whether the blocks placed on the roof were covered by the cited standard even though admittedly not "inside" the building.

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Judge Blythe rejected Respondent's contention [*18]   that the blocks were not "stored" within the meaning of section 1926.i50(b)(1) "especially since the pallet was left in its precarious position overnight." The judge noted that the photographs offered as exhibits confirm Forrester's testimony that the blocks were loosely stacked, and the judge determined that the positioning of the pallet presented the hazard of blocks falling on employees below.   He concluded that Respondent failed to comply with the standard with regard to exposed employees of other contractors as well as with respect to its own employees, citing Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD P20,691 (No. 12775, 1975).   Judge Blythe affirmed this item and assessed a penalty of $25.   He did not address Respondent's contention that the cited standard is inapplicable because the blocks were not located "inside" the building.

In its brief on review, Respondent again argues that section 1926.250(b)(1) is inapplicable to the facts of the case because instead of being "inside" the building, the blocks were on the roof. Respondent again indicates its disagreement with Forrester's testimony that the blocks were "stored" within the [*19]   meaning of the cited standard.

On March 6, 1979, pursuant to subparagraph D2 of the Commission's Policy Statement of December 1, 1976, published at 41 Fed. Reg. 53,015 (1976), the Commission issued a briefing order to the Secretary which afforded him the opportunity to file a brief on whether the cited standard is applicable and whether the pallet of blocks on the roof constituted "(m)aterial stored inside buildings under construction." In response, the Secretary submitted a letter stating that he would not file a supplemental brief and urging the Commission to affirm the judge's decision. n14

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n14 The supplemental briefing order afforded Respondent the opportunity to reply to any brief filed by the Secretary within 30 days of receipt of such brief.   Even though the Secretary indicated the intention not to file a supplemental brief, Respondent subsequently submitted a brief on the issues stated in the supplemental briefing order.

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We specifically reject Respondent's contention that the blocks were not stored. Based [*20]   on the presumption that any material placed on a construction site is for eventual use, the Commission has held that all material is considered "stored" under section 1926.250(b)(1) until it is in fact used.   Sierra Construction Corp., 78 OSAHRC 2/E6, 6 BNA OSHC 1278, 1978 CCH OSHD P22,506 (No. 13638, 1978).   Thus, on the basis of the testimony of Forrester and Respondent's president, the blocks were "stored" with respect to this standard.

However, we conclude that section 1926.250(b)(1) is inapplicable to the facts of the instant case because the pallet of blocks were not stored "inside" a building under construction.   The plain meaning of the language in the cited standard is that the phrase "within 10 feet of an exterior wall which does not extend above the top of the material stored" modifies the clause "Material stored inside buildings under construction shall not be placed" (emphasis added).   No other subject or clause that the phrase could modify is in the sentence comprising section 1926.250(b)(1).   Moreover, no applicable special definition of "inside" is provided in the standards.   Inasmuch as it is undisputed that the blocks were located on the roof, they were   [*21]   not "inside" the building within the common, dictionary meaning of the term.   To conclude that a roof is "inside" a building would not only be a strained interpretation of the standard, but would present problems concerning notice to employers.   See Central City Roofing Co., 76 OSAHRC 61/A2, 4 BNA OSHC 1286, 1976-77 CCH OSHD P20,761 (No. 8173, 1976) (section 1926.500(d)(1), which requires that "Every open-sided floor or platform 6 feet or more above adjacent floor or ground level" be guarded by a standard railing, held not applicable to flat roofs).   Due to the inapplicability of the cited standard to the blocks stored on the roof, we vacate item 6 and the proposed penalty.

C.   Item 7

Item 7 charged that Respondent did not comply with section 1926.450(a)(1) n15 because, "Safe access was not provided at the following location; i.e., no safe access in storage trailer, east entry." The Secretary proposed a penalty of $25.

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n15 The standard states:

Subpart L - Ladders and Scaffolding

§   1926.450 Ladders.

(a) General requirements. (1) Except where either permanent or temporary stairways or suitable ramps or runways are provided, ladders described in this subpart shall be used to give safe access to all elevations.

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At the hearing, Forrester testified that there was no safe access provided to the back of the storage trailer in the refueling area.   The trailer was 44 inches from the ground.   Forrester said that access could be gained only by stepping on a horizontal metal bar, located 22 inches above the ground attached underneath the back of the trailer under the license plate, and then climbing up to the bed of the trailer. He testified that Patterson told him that Respondent's employees used this method to enter the trailer. No ladder, ramp, runway, or stairway was provided.   Forrester testified that if an employee was wearing shoes with soles that were wet, muddy, or otherwise slick from some substance, the employee could slip off the metal bar and suffer minor injury.   Forrester stated that Patterson informed him that at least one unidentified employee of Respondent averaged daily use of the trailer and that other employees used the trailer as needed.   Forrester said that Patterson told him that equipment and material were stored in the trailer and that at least one employee was required to enter the trailer [*23]   to get this equipment.

Patterson testified that he along with the forklift operator and one other employee of Respondent had occasion to use the trailer. He stated that employees were not required to enter the trailer but that entry was necessary if employees wanted to use the material or equipment stored inside it.   Patterson said that any additional steps or stairs provided for access to the back of the van would have to be moved when the forklift came to the area for refueling because the forklift must be positioned very near the trailer for the refueling operation.

Respondent's president testified that there was no reason for an employee to enter the van to remove the material and equipment because it could be removed by forklift or possibly by employees standing outside the van and reaching in.   Thompson said that the front half of the van was empty.

Judge Blythe affirmed this item but assessed no penalty.   He concluded that, because the trailer was used for storage and employees needed to gain access to it at times, a ladder or stairs, portable so as to facilitate movement during forklift refueling, should have been provided for access.   The judge particularly noted that [*24]   the distance between steps should be much less than that provided by the one metal bar in this case.

Respondent contends in its brief on review that the judge's finding of employee access is not supported by the record.   It argues that Forrester's testimony concerning what Patterson told him, instead of Forrester's own personal observation of employees in the area was an insufficient basis for finding employee access.   Respondent refers to Patterson's testimony that employees were not required to enter the trailer and Thompson's testimony that employees had no reason to enter the van.

In the briefing order issued on March 6, 1979, and discussed with regard to item 6 above, the Commission afforded the Secretary the opportunity to argue why item 7 should not be affirmed as a de minimis violation.   The Commission's Policy Statement of December 1, 1976, supra, mandated issuance of the briefing order because the Secretary would be aggrieved if a de minimis violation, which requires no abatement, were found.   In response to the order, the Secretary filed a letter stating that he would not submit a brief, but instead he urges affirmance of the judge's decision. n16

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n16 Respondent submitted a brief in response to the Secretary's letter in which it argues, besides the lack of proof of employee access necessary to establish a violation, that if a violation is found it should be classified as de minimis.

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We reject Respondent's argument that Judge Blythe's finding that Respondent's employees had access to the violative condition is without foundation.   Although, as Respondent notes, the compliance officer did not observe employees enter the van, it is well established that actual observation is not necessary to establish a violation.   Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 CCH OSHD P23,135 (No. 16057, 1978); Circle Industries Corp., 76 OSAHRC 121/F4, 4 BNA OSHC 1724, 1976-77 CCH OSHD P21,119 (No. 4356, 1976).   Forrester testified that Patterson told him that at least one employee obtained material or equipment from the back of the van usually every day while other employees of Respondent entered the van when they needed the material or equipment stored inside. Furthermore,   [*26]   Patterson testified that three of Respondent's employees, including himself, had occasion to use the trailer. Although Thompson testified that there would be no reason for employees to enter the trailer, he did not state that no employees ever entered it.   Respondent presented no evidence of any workrule forbidding employees to retrieve materials from the trailer or of any barrier preventing use of the trailer. Judge Blythe's finding of employee access is thus supported by the evidence of record.   We agree with the judge that Respondent failed to comply with section 1926.450(a)(1).

We conclude, however, that the violation was de minimis because it posed merely a negligible relationship to safety or health.   Although the record in this case establishes that Respondent did not provide the ladder required by the cited standard, the safety of Respondent's employees when climbing up to the trailer was not appreciably diminished by the 22 inches between the one metal bar and the ground and between the bar and the bed of the trailer. See Charles H. Tompkins, 77 OSAHRC 197/D1, 6 BNA OSHC 1045, 1977-78 CCH OSHD P22,337 (No. 15428, 1977) (de minimis violation due to noncompliance [*27]   with section 1926.451(a)(13) where scaffold rungs were 18 to 20 inches apart); Rust Engineering Co., 77 OSAHRC 37/C8, 5 BNA OSHC 1183, 1977-78 CCH OSHD P21,693 (No. 12200, 1977) (de minimis violation based on failure to comply with section 1926.451(a)(13) in that scaffold rungs were 19 to 21 inches apart).   Accordingly, an abatement order is not appropriate in this case.   We thus affirm item 7 as a de minimis violation and assess no penalty.

E.   Item 8

The Secretary alleged in item 8 that Respondent failed to comply with section 1926.500(b)(8) n17 in that:

Floor holes at the following locations were not guarded by either standard railings with standard toeboards on all exposed sides or covers: 12 floor holes 10" by 10", third level, north end of clear story.

A penalty of $55 was proposed.

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n17 The standard provides:

Subpart M - Floor and Wall Openings, and Stairways

§   1926.500 Guardrails, handrails, and covers.

* * *

(b) Guarding of floor openings and floor holes.

* * *

(8) Floor holes, into which persons can accidentally walk, shall be guarded by either a standard railing with standard toeboard on all exposed sides, or a floor hole cover of standard strength and construction that is secured against accidental displacement.   While the cover is not in place, the floor hole shall be protected by a standard railing.

  [*28]  

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Forrester stated at the hearing that he observed twelve 10-inch by 10-inch holes on the roof that were not guarded by railings or coverings.   He testified that he saw one of Respondent's employees, who was dismantling scaffolding, pass within 12 to 18 inches of the floor holes. Forrester said that the hazard was that employees could walk into the holes and suffer broken bones or fractures.   Forrester testified that there was a moderate to high probability of injury.   Of the three photographs of the holes taken during the inspection and admitted into evidence, one photo, exhibit C-8, depicts Compliance Officer Marple's foot suspended over one of the floor holes and establishes that the hole was considerably larger than his foot.

The parties stipulated that Respondent did not create the floor holes. Moreover, it was undisputed that Respondent did not have contractual responsibility for guarding or covering the holes. Patterson testified that Respondent could not install guardails because the openings were in material that belonged to another union subcontractor.   He further stated that he had not requested [*29]   the general contractor to cover the floor holes before the inspection, but that when he did so after the inspection, the holes were covered immediately.   Both Patterson and Thompson testified that, at the time of the inspection, they did not know that the holes on the roof violated an OSHA standard.   Thompson testified that he had neither employees with the expertise nor the necessary equipment to put up guardrails and toeboards.

Judge Blythe concluded that Respondent failed to comply with section 1926.500(b)(8) and assessed a $25 penalty due to the low gravity of the violation.   The judge noted the stipulation that Respondent did not create the floor holes and Respondent's contentions that it did not have union jurisdiction or the materials and expertise to cover or guard the openings. He stated that Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD P20,690 (Nos. 3694 and 4409, 1976), allows a subcontractor who neither created nor controlled a condition hazardous to its employees to defend against an alleged violation by demonstrating that it applied, whenever possible, "realistic protective measures" to protect the health and safety of its employees.    [*30]   He further noted that, according to Grossman Steel & Aluminum Corp., supra, "realistic protective measures" are determined on the facts of each case, but include, at a minimum, trying to persuade the general contractor to abate the violation.   The judge then found that Respondent did not take any protective measures, so it did not meet the Anning-Johnson defense.   Judge Blythe also determined that it was possible for employees to walk into one of the 10-inch by 10-inch floor holes, as shown by exhibit C-8, and thereby suffer bruises and abrasions.   He noted that Buhls Laundry & Dry Cleaning, Inc., 73 OSAHRC 18/A3, 1 BNA OSHC 1215, 1971-73 CCH OSHD P15,693 (No. 583, 1973), appeal dismissed, No. 73-1418 (8th Cir. September 24, 1973), was distinguishable on its facts. n18

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n18 In Buhls Laundry, the Commission held that persons could not accidentally walk into a hole measuring 3 inches by 7 inches.   We expressly overruled Buhls Laundry, however, in Bechtel Power Corp., 79 OSAHRC 34/A2, 7 BNA OSHC 1361, 1979 CCH OSHD P23,575 (No. 13832, 1979), on the grounds that §   1926.500(b)(8) and another standard with identical language are aimed at preventing tripping hazards posed by smaller floor holes as well as preventing fall hazards posed by larger floor holes.

  [*31]  

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Respondent argues on review that it did meet the Anning-Johnson defense because Thompson and Patterson each testified that he was not aware that the unguarded, uncovered holes constituted an OSHA violation.   Respondent also contends that Forrester was confused when he tried to identify the holes and prove employee exposure to them.

In Anning-Johnson, supra, the Commission stated:

Once a cited construction subcontractor has established that it neither created nor controlled the hazardous condition, it may affirmatively defend against the Secretary's charge by showing either (a) that its employees who were or may have been exposed to the hazard were protected by means of realistic measures taken as an alternative to literal compliance with the cited standard, or (b) that it did not have nor with the exercise of reasonable diligence could have had notice that the condition was hazardous . . . . (footnotes omitted)

76 OSAHRC at 54/A14-B1, 4 BNA OSHC at 1198, 1975-76 CCH OSHD at pp. 24,783-24,784.

We reject Respondent's claims that it satisfied the requirements of the Anning-Johnson defense.   [*32]   We agree with Judge Blythe that Respondent cannot successfully rely on the Anning-Johnson defense because it did not take realistic, protective action to correct the condition.   We further conclude that Respondent had notice that the floor holes were hazardous and violative of the Act.   Respondent is presumed to have knowledge of the cited standard by virtue of its publication in the Federal Register.   See Shaw Construction, Inc., 78 OSAHRC 9/B6, 6 BNA OSHC 1341, 1978 CCH OSHD P22,524 (No. 3324, 1978).   Moreover, no particular expertise is required to discern that a person could walk into or trip over a floor hole measuring 10 inches by 10 inches.   Finally, Thompson never rebutted Forrester's testimony establishing employee exposure, i.e., one of Respondent's employees came within 12 to 18 inches of the hole.

We therefore affirm item 8 and assess a penalty of $25.

II.   Citation 2 (Serious Violation)

Items 1(a) and 1(c) n19

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n19 Judge Blythe vacated item 1(b) in citation 2 because "no employee exposure on the second level was shown." That item is not before us now.   See note 1 supra.

  [*33]  

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Citation 2 alleged that Respondent did not comply with section 1926.500(c)(1) n20 in that:

Three window wall openings more than four feet from the ground level and floor level with the bottom less than three [feet] from the working surface were not guarded by standard guardrails located: (a) west end, opening 10 feet 4 inches by 7 feet 2 inches, 17 feet 3 inches from ground; (b) middle opening 11 feet 2 inches by 7 feet 2 inches, 9 feet 5 inches from floor level; and (c) east end opening 10 feet 4 inches by 7 feet 2 inches, 17 feet 3 inches from ground.

The Secretary proposed a penalty of $500.

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n20 The standard provides:

Subpart M - Floor and Wall Openings, and Stairways

§   1926.500 Guardrails, handrails, and covers.

* * *

(c) Guarding of wall openings. (1) Wall openings, from which there is a drop of more than 4 feet, and the bottom of the opening is less than 3 feet above the working surface, shall be guarded as follows:

(i) When the height and placement of the opening in relation to the working surface is such that either a standard rail or intermediate rail will effectively reduce the danger of falling, one or both shall be provided;

(ii) The bottom of a wall opening, which is less than 4 inches above the working surface, regardless of width, shall be protected by a standard toeboard or an enclosing screen either of solid construction or as specified in paragraph (f)(7)(ii) of this section.

  [*34]  

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At issue are the openings provided for windows in the upward extension of the north wall of the courtyard, perpendicular to the roof level.   Respondent's employees had just completed building the extended north wall, running east to west, at the time the allegedly violative condition was noticed by Forrester on the first day of the inspection. Respondent's masons worked from a 73-foot long scaffold erected on the roof. Thus, both wall openings overlooked the courtyard, 17 feet 3 inches from the ground.   As the citation stated, opening "(a)" was on the west end while opening "(c)" was on the east end.   Forrester testified that he observed one of Respondent's employees come within two feet of one wall opening while working on the roof dismantling the scaffold.   He said that he saw that employee pass by the other two wall openings while carrying the disassembled scaffolding to the opposite side of the roof. Forrester stated that if an employee fell from either the east or west wall openings, serious physical injury or death could occur.   He testified that Patterson told him that the general contractor [*35]   was responsible for correcting the hazard posed by the unguarded wall openings. It was undisputed that guardrails installed by the general contractor were in place on the day after Forrester brought the condition to Respondent's attention. n21 Forrester stated that he made no determination whether Respondent had the materials or expertise to install the requisite guardrails.

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n21 According to Forrester, the general contractor installed some guardrails on the first day of the inspection. He later added that the remaining guardrails could have been put up on either the first day or the morning of the second day.

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Patterson admitted at the hearing that, after the lunch break following the completion of the wall by Respondent's masons, he directed one employee to dismantle the scaffolding and remove it from that area of the roof, a job usually requiring 1-1/2 to 2 hours.   He stated that Respondent communicated to its employees its policy that, once work was completed in an area, employees were not to remain there.   He [*36]   testified that he personally instructed Respondent's employees working on the roof area near the wall openings to "(u)se caution and don't fall in the hole." Patterson further noted that Respondent could not have put up the guardrails due to union contracts.   Patterson testified that the normal method of affixing guardrails, nailing them across the openings, could not be undertaken until the second day of the inspection because the newly-placed mortar on each side of the openings needed time to set.   Patterson asserted that attempting that procedure any sooner would result in dislodging the concrete blocks that formed the wall.

In its post-hearing brief, Respondent contended that its employees were not exposed to the hazard because Forrester never observed any of Respondent's employees, except the one he saw on the roof while Forrester himself was standing on the ground, any closer than 3 to 3-1/2 feet from the wall openings. It argued that no nail to support the guardrail could be driven into the mortar until it had set, which would require about a day.   Respondent also argued that Forrester's testimony revealed that he did not understand the definition of "serious" as applied   [*37]   to OSHA violations.

Judge Blythe concluded that Respondent committed a serious violation of the Act in failing to comply with section 1926.500(c)(1) at the two locations described in items 1(a) and 1(c).   The judge assessed a $100 penalty.   He noted Forrester's testimony that one of Respondent's employees was dismantling scaffolding within two feet of the openings and passed the other openings while carrying the material to the other side of the roof. He concluded that Forrester's testimony proved employee access to the hazard under Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD P20,448 (No. 504, 1976).   The judge further stated that Respondent had the primary duty to guard the wall openings since it created them.   The judge noted, however, that even if, as Respondent contended, the general contractor was responsible for correcting the condition, Respondent still was obligated under Anning-Johnson, supra, to take "realistic protective measures." Judge Blythe held that Respondent had taken no such measures.   The judge answered Patterson's contention that guardrails could not be installed until after the mortar had set by noting that guardrails [*38]   on uprights clamped or otherwise fastened to the concrete deck could have been used.

In its brief on review, Respondent argues that the Secretary failed to prove that Respondent knew, or could with the exercise of reasonable diligence have known, of the presence of a serious violation.   We conclude that Respondent's knowledge of the violative condition was proven.   In J.H. MacKay Electric Co. and U.S. Engineering Co., 78 OSAHRC 77/B10 at 77/C4, 6 BNA OSHC 1947 at 1950-1951, 1978 CCH OSHD P23,026 at p. 27,824 (No. 16110, 1978), we stated:

We do not agree that Respondents could not have known of the cited condition.   Even where only experienced employees are involved, employers have the duty to determine the hazards to which they may be exposed and to eliminate such hazards. Fry's Tank Service, Inc., 76 OSAHRC 105/A2, 4 BNA OSHC 1515, 1976-77 CCH OSHD para. 20,999 (No. 4447, 1976).   An employer cannot simply rely on instructions to employees to "work safely" or "avoid hazards." Packerland Packing Co. of Texas, 77 OSAHRC 203/A2, 6 BNA OSHC 1126, 1977-78 CCH OSHD para. 22,336 (No. 13315, 1977).   In this case, the lack of adequate perimeter protection on the fifth floor   [*39]   would have been readily apparent had the Respondents simply inspected that area before permitting their employees to work there.   Thus, had the Respondents exercised reasonable diligence, they would have known of the violation.   See Camden Drilling Co., 78 OSAHRC 33/A2, 6 BNA OSHC 1560, 1978 CCH OSHD para. 22,687 (No. 14306, 1978).

In the instant case, the lack of guarding at the wall openings would have been apparent had Respondent gone up to the roof and inspected the area before ordering the one employee to dismantle the scaffolding. See Southwestern Bell Telephone Co., 79 OSAHRC 4/G4, 7 BNA OSHC 1058, 1979 CCH OSHD P23,278 (No. 15841, 1979).   Moreover, the hazard of falling 17 feet 3 inches through the wall opening, which Respondent's employee confronted, would be obvious even to a person observing the roof area from the ground.   We find that an employee could suffer death or serious physical harm from a fall through the wall openings.

We therefore conclude that Respondent's noncompliance with section 1926.500(c)(1) was a serious violation, and we affirm items 1(a) and 1(c) in citation 2.   Applying the penalty criteria set out in section 17(j) of the Act, 29   [*40]   U.S.C. §   666(i), we assess a $100 penalty because the gravity of the violation was low.

III.   Order

Accordingly, we affirm items 3B, 5, 7 (as reduced to a de minimis violation), and 8 in citation 1.   A penalty of $25 is assessed for items 3A and 3B together, and a penalty of $25 is assessed for item 8.   We also affirm items 1(a) and 1(c) in citation 2 and assess an aggregate penalty of $100.   Immediate abatement is ordered for each item affirmed except item 7 (the de minimis violation) in citation 1.   We vacate item 6 in citation 1 along with its proposed penalty.

IT IS SO ORDERED.  

CONCURBY: CLEARY (In Part)

DISSENTBY: CLEARY (In Part)

DISSENT:

CLEARY, Chairman, concurring in part and dissenting in part:

I concur in this decision except with respect to those citations alleging violations of 29 C.F.R. §   1926.153(1) and 29 C.F.R. §   1926.250(b)(1).

Section 1926.153(1) concerned the failure to provide a fire extinguisher in an area in which liquid petroleum gas was stored. I concur in the result reached by the majority in finding a violation of this standard, but would do so for the reasons set out by the judge.   I would defer to his credibility findings as to whether the cylinders contained LP-gas.

I dissent [*41]   from the majority decision which would vacate the judge's finding of a violation of section 1926.250(b)(1).   The alleged violation in this case concerns masonry blocks stored on a pallet on the roof of a building under construction.   The pallet was either within inches of the edge of the building or extending to some extent over the edge. The standard alleged to be violated provides that material stored inside a building under construction must not be within 10 feet of an exterior wall unless there is a barrier which extends above the top of the material stored.

One of the most oft-quoted canons of statutory construction is that in the absence of persuasive contrary evidence of the drafter's intent, a standard should be construed to effectuate and not hinder the statutory purpose which, in this case, is employee protection; Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1978 CCH OSHD P22,909 (No. 12523, 1978); See Salah & Pecci Construction Company, 6 BNA OSHC 1688 (No. 17769, 1978); Marshall v. Western Electric, Inc., 565 F.2d 240 (2nd Cir. 1977), GAF Corporation v. OSHRC, 561 F.2d 913 (D.C. Cir. 1977). The Commission must also consider what the drafters [*42]   of the standard would have wanted had they focused on the precise problem.   Viewing the standard at issue in this light, the obvious intent is to protect against the occurrence of materials falling over the edge and injuring employees working below.   The majority would conclude that the use of the phrase "stored inside the building" in the standard precludes the application of this standard to materials stored on the roof of a building under construction.   To employ this reading, however, one would have to find that the framers of the standard concluded that materials stored on the first, second, or any floor but the roof constitute a hazard to employees working below, but that materials stored on the roof, which is usually the highest level, do not constitute such a hazard. If employees were subject to injury by objects falling from a lower level of the building a hazard would be recognized and a violation would be found by the majority, yet if these same employees were subject to injury from objects falling from the roof, by some arcane rule of the game this would not count.   I cannot, of course, subscribe to this interpretation.

The use of the phrase "inside the building" was [*43]   perhaps an unfortunate choice of words, but in my view it is error to focus on this phrase under these circumstances.   As set out in Boys Markets, Inc. v. Retail Clerk's Union, Local 770, 398 U.S. 235, at 249, 90 S. Ct. 1583, at 1592, "Statutory interpretation requires more than concentration upon isolated words; rather consideration must be given to the total corpus of pertinent law and the policies that inspired ostensibly inconsistent provisions." Applying this rule, the phrase cannot reasonably be construed as overriding the intent of the standard and a recognition of the hazard which exists in this situation.   The term "inside the building" in its application to a building under construction, can more readily be understood to refer to materials stored inside the periphery of the building, that is, "inside" or away from the edge of the building to obviate the danger of materials falling over the edge. It certainly does not command the interpretation that materials must be stored underneath a roof before they constitute a hazard. I would find a violation of the standard under the circumstances of this case.