UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY
OF LABOR, |
|
Complainant, |
|
v. |
OSHRC
DOCKET NO. 76-2326 |
STEARNS-ROGER
INCORPORATED, |
|
Respondent. |
|
October 31, 1979
DECISION
Before: CLEARY, Chairman; BARNAKO and COTTINE,
Commissioners.
BY THE COMMISSION:
A
decision of Administrative Law Judge Dee Blythe is before the Commission for
review pursuant to § 12(j)[1] of the Occupational Safety
and Health Act of 1970, 29 U.S.C. §§ 651–678 [hereinafter ‘the Act’].
Respondent
is a large general construction firm that was in the process of building an
addition to the existing power plant facilities of the Public Service Company
of New Mexico, located in Fruitland, New Mexico. On April 28, 1976, a
representative of the Department of Labor inspected the worksite to ascertain
respondent’s compliance with the provisions of the Act. Thirteen citations were
issued as a result of the inspection, accompanied by a total proposed penalty
of $7,345. A majority of the items in all of the citations were contested. At
the hearing, the parties entered into a partial settlement agreement and
proceeded to try the remaining items. Judge Blythe issued a decision on January
6, 1977, as to the merits of the issues in contest.[2] Respondent subsequently
petitioned for review of four items that the judge affirmed on the merits and
of the judge’s characterization of three items as being repeated violations.
I
Alleged non-serious violation of 29 C.F.R.
§ 1926.102(a)(1)[3]
The
compliance officer observed an employee using a portable hand power saw to cut
various pieces of lumber. The employee was wearing what the compliance officer
described as ‘street glasses’ and what the employee acknowledged were not
industrial safety glasses. The compliance officer thought this situation
exposed the worker to the hazard of an eye injury from flying saw dust, from
metal particles should the saw blade strike and chip a nail, or from pieces of
the saw blade itself should the blade break during the operation of the
equipment.
Respondent’s
safety supervisor testified that a number of operations giving rise to eye
hazards existed on the jobsite, and that the employer provided various types of
eye protective equipment to its employees for use during these hazardous
operations. Although he did not consider this particular operation to be highly
dangerous, it was his opinion that safety glasses should be worn during the
operation of the saw. The safety supervisor testified that, when an employee
got sawdust in his eye, the irritant was generally washed out in a matter of
minutes and the employee immediately returned to work. The supervisor also
stated that he had never seen a saw blade break, and he did not think it was
possible for the saw blade to contact a nail because the company either used
new lumber or removed any nails from used lumber that it intended to re-use.
Judge
Blythe concluded that respondent violated the standard as alleged. He noted
that the standard was directed at protecting against potential injury, and
stated, ‘a power-driven saw may present this potential even without evidence that
the operator was pelted by flying particles.’
On
review, respondent disputes the judge’s finding that the operation of the saw
presented the potential for eye injury. We conclude that the judge properly
resolved this question. The record establishes prior instances in which sawdust
had become lodged in employees’ eyes. While on these occasions the sawdust was
successfully removed without damage to the employee’s eye, we note that the eye
is an especially delicate organ and that any foreign material in the eye
presents the potential for injury.[4] Indeed, while disclaiming
the danger presented by sawdust in the eye, respondent’s safety supervisor also
stated that most eye injuries on the job resulted from ‘blowing dust and
debris due to wind.’ (Emphasis added.) Thus, respondent’s own experience
demonstrates that material similar to sawdust can cause injury to the eye.
Moreover, even though it was respondent’s policy to remove all nails from used
lumber, the possibility of a hidden or missed nail cannot be entirely
eliminated, nor can the chance of a saw blade breaking during operation.
Finally, the fact that respondent’s own safety supervisor thought that safety
glasses should be worn during the sawing operation is further evidence of the
potential for injury.
Respondent
also contends that the Secretary failed to prove the glasses being worn by the
employee did not meet the requirements of the ANSI Z87.1–1968 standard that is
incorporated by reference at 29 C.F.R. § 1926.102(a)(2)[5] because the Secretary failed
to prove the type of eye protection that the ANSI standard requires when
employees are sawing wood. We reject the argument. Section 6.3.1 of the ANSI
standard provides that all lenses used in protective eyewear must be of the
impact-resisting type. Since the glasses worn by the employee were described by
the compliance officer as ‘street glasses,’ we infer that the lenses were not
impact-resisting. Moreover, section 6.1.2.1 of the ANSI standard provides as
follows: ‘Safety spectacles require frames. Therefore, combinations of
street-wear frames with safety lenses meeting this standard are definitely
not in compliance.’ (Emphasis in original.) Thus, we conclude that the
frames, as well as the lenses, of the glasses worn by the employee failed to
comply with ANSI Z87.1. Finally, we note that 29 C.F.R. § 1926.102 itself
clearly contemplates that ordinary eyeglasses cannot be considered adequate protection,
for § 1926.102(a)(3)[6] implicitly prohibits the
use of spectacles having only ordinary corrective lenses for eye protection. We
conclude that the judge properly affirmed this item.
II
Alleged non-serious violation of 29 C.F.R.
§ 1926.500(b)(8)[7]
At
the time of inspection, respondent was in the process of installing the
supports for the floor deck that was to cover the top of the precipitator (a
piece of equipment that is an integral part of the energy-producing system in
the power plant). While the testimony of record does not adequately describe
the physical structure in question, the photographic evidence clearly
illustrates the worksites. The supports that were in place were flat pieces of
steel approximately three feet wide and ten to twelve feet long. Every support
piece contained two holes, each nearly eleven inches in diameter, that were
designed to accommodate the placement of the posts of a high voltage frame that
would protrude from underneath the flooring. Four support planks were situated
end-to-end to span the width of the precipitator top and the rows were aligned
in a parallel manner approximately fifteen feet apart. Employees walked upon
the supports containing the holes. The citation alleged that these floor holes,
into which persons could accidentally walk, were not properly guarded by the
use of guardrails or standard floor hole covers. The judge affirmed the item.
He concluded that a hole eleven inches in diameter was sufficiently large to
admit an employee’s foot.[8]
Respondent
contends on review that size alone does not determine whether a floor hold is
one into which persons can accidentally walk; the location of the hole must
also be considered. Respondent contends that the holes in issue were in a
location where employees could not accidentally walk into them. Respondent does
not dispute that employees walked on the three-foot wide supports containing
the holes, but contends that the relative narrowness of the supports would
require an employee to look precisely where he was going, thereby negating the
possibility that an employee would place a foot in one of the holes. Indeed,
respondent contends that covering the holes would present more of a tripping
hazard to the employees since they would not ‘observe their footsteps as
carefully’ if the holes were covered.
Respondent’s
arguments amount to the assertion that the floor holes need not be covered
because they were in a location where employees should have watched where they
are walking. This argument clearly lacks merit as a defense to noncompliance
with the cited standard. The language of the standard is direct; it requires an
employer to guard floor holes into which persons can accidentally walk. There
is no doubt that the floor holes existed, and that they were not guarded. The
Secretary has established a prima facie violation. The standard, by its very
terms, contemplates a hazard when its terms are not met. Vecco Concrete
Construction, Inc., 77 OSAHRC 183/A2, 5 BNA OSHC 1960, 1976–77 CCH OSHD ¶ 22,247
(No. 15579, 1977). See also Van Raalte Company, 76 OSAHRC 48/B8, 4 BNA
OSHC 1151, 1975–76 CCH OSHD ¶ 20, 633 (No. 5007, 1976). We also note that the
standard is directed toward accidental situations when employees are not
looking precisely where they are walking. Moreover, this Commission has
repeatedly recognized that an employer cannot rely upon human behavior to
insure a safe working environment for its employees. Akron Brick and Block Company,
76 OSAHRC 2/E2, 3 BNA OSHC 1876, 1975–76 CCH OSHD ¶ 20, 302 (No. 4895, 1976).
We
also reject respondent’s argument that the citation should be vacated because covering
the holes would present a tripping hazard. Respondent’s assertion that covering
the floor holes would increase the tripping hazard is pure speculation. There
is nothing in the record to suggest that employees will be any less careful
when walking on a three foot wide structure containing holes that are covered
than one with holes that are not covered. Finally, we note that respondent has
shown that covers would necessarily present a tripping hazard. Accordingly, we
affirm the judge’s finding of a violation.
III
Alleged Violation of 29 C.F.R. §
1926.350(a)(1)[9]
This
item alleged that respondent failed to use valve protection caps on compressed
gas cylinders not in use or connected for use. The eight cylinders which were
the subject of the citation were located within the partially-constructed
structure during the inspection. The tanks were positioned throughout the
structure and used intermittently. Employees would hook up and use the tanks
during the workday for various intervals. Hoses, regulators, and torches were
removed by each welder to protect his own equipment from pilferage. When the
gas supply in the tanks was exhausted, the tanks were rotated back to the
storage area and replaced by a full cylinder of gas. Respondent stored both the
recently-filled and empty cylinders in a storage rack built expressly for that
purpose and maintained at least 100 feet from the west end of the plant.
Respondent
argues that the cited standard only applies to cylinders that are being
transported, moved, or stored, and that its cylinders were in intermittent use.
Although the judge noted that the issue in the case is whether the cylinders
were stored, he made no finding on this question. Rather he found the violation
to exist, stating that there was no practical reason for not replacing the
valve protection caps when the cylinders were disconnected and not in actual
use.
We
agree with respondent that the standard applies only to transporting, moving,
and storing compressed gas cylinders. The record clearly reflects that the
eight cylinders in question were being neither transported nor moved. The
question then becomes whether the cylinders were stored. This issue was first
addressed in United Engineers & Constructors, Inc., 75 OSAHRC 69/A2,
3 BNA OSHC 1313, 1974–75 CCH OSHD ¶ 19,780 (No. 2414, 1975). In that case, an
employer was cited for an alleged violation of 29 C.F.R. §
1910.252(a)(2)(iv)(c)[10] for failure to separate
oxygen and fuel-gas cylinders that were ‘in storage.’ Those cylinders were
located throughout the worksite and the hoses and regulators had been removed.
The employer also had a designated area for the storage of full cylinders and
regularly returned empty cylinders to that area. The Commission affirmed the
judge’s ruling that the tanks on the jobsite were located in an area where
burning would be done on an intermittent basis and therefore were not ‘in
storage.’ The citation was vacated. The same issue recently arose in Grossman
Steel & Aluminum Corporation, 78 OSAHRC 85/B5, 6 BNA OSHC 2020, 1978
CCH OSHD ¶23,097 (No. 76–2834, 1978). The case involved an alleged violation of
the same standard as was involved in the United Engineers case. Again, the
citation was vacated based upon a finding that the cylinders were not in
storage but were available for intermittent use by employees in the location
cited. The facts here are not distinguishable from the facts in the cases cited
above and the citation item is vacated.
IV
Alleged repeat violation of 29 C.F.R. §
1926.350(f)(7)[11]
The
final item in issue alleges that welding cables and hoses were not kept clear
of passageways, ladders, and stairs in five separate locations throughout the
work area.
Evidence
that the cited condition existed is undisputed, and is confirmed by
photographic evidence. No fewer than ten cables are pictured strewn about a
junction box at one point. In one specific area, a cable is laying on a
passageway floor while five or six other cables are clearly intertwined through
the network of railings that enclose the walkway. The latter-mentioned cables
are neatly placed and apparently conform to good housekeeping practices as
required by the standard.
Respondent
argued before the judge that there was no ‘practical alternative’ to locating
hoses and cables where they were because the worksite consisted largely of
catwalks, stairs, and other open steel. The judge rejected this contention,
stating: ‘From the photographs, however, it is apparent that in most, if not
all, instances, the hoses and cables could have been kept off the floor by various
means. Instead, they frequently were strung around on the floors like
spaghetti.’
On
review, respondent makes the same argument as it made before the judge. It
contends that it established there was no practical alternative to its manner
of locating the hoses and cables, and that the Secretary failed to present
contradictory evidence.
The
Commission has sustained the affirmative defense of impossibility of compliance
where an employer establishes that compliance with the requirements of the
cited standard would be functionally impossible and alternative means of
employee protection are unavailable. M. J. Lee Construction Company, 79
OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD ¶ 23,330 (No. 15094, 1979).
The record does not establish this defense. The photographic exhibits
demonstrate some instances in which hoses and cables were arranged so as to
comply with the standard, and, as the judge observed, it is apparent these
techniques could have been more widely used.
V
Determination of violations as ‘repeated’
The
final issue for determination in this case is whether the violations of 29
C.F.R. §§ 1926.25(a)[12] and 1926.350(f)(7) are
repeated as alleged and subsequently affirmed by the judge.[13] An inspection on February
27, 1973, evidenced a violation of § 1926.25(a). An inspection in March 1972
resulted in a citation for violation of § 1926.350(f)(7). Neither of these
citations was contested, the orders became final, and proposed penalties were
paid. Subsequent inspections of respondent’s worksite were conducted in January
1975 and September 1975. No citations for violation of §§ 1926.25(a) or
1926.350(f)(7) were issued as a result of these inspections. The citations
issued in March 1972 and February 1973 were the result of inspections of Unit
#2 of the project. The instant citations were the result of an inspection of
Unit #1.
At
the time this case was tried, the Commission had not yet developed definitive
guidelines for determining under what circumstances a violation was repeated.
The parties here have vigorously argued the question.[14] It is not necessary,
however, to discuss the matter in detail, for the Commission has recently
resolved the issue. Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061,
1979 CCH OSHD ¶ 23,294 (No. 16183, 1979). In Potlatch, we held that ‘[a]
violation is repeated under section 17(a) of the Act if, at the time of the
alleged repeated violation, there was a Commission final order against the same
employer for a substantially similar violation.’ Under this analysis, proof that
an employer has committed a prior violation of the same standard constitutes a
prima facie showing by the Secretary of substantially similar violations. The
employer may rebut this showing by offering evidence that the violations
occurred under disparate conditions or involved different hazards. Factors such
as the employer’s attitude, the commonality of supervisory control over the
violative conditions, the geographic proximity of the violations, the time
lapse between violations, and the number of prior violations are relevant only
to determining an appropriate penalty. FMC Corporation, 79 OSAHRC ——, 7
BNA OSHC 1419, 1979 CCH OSHD ¶ 23,631 (No. 12311, 1979).
In
this case, respondent argues that the lack of commonality of supervisory
control over the conditions presented in the prior violations and the
conditions presented here plus the length of time that expired between the two
violations are an adequate defense to the charge that the violation here is
repeated. As stated above, these factors are relevant only in the Commission’s
assessment of penalties, not in the determination of whether a violation is
repeated under the Commission’s Potlatch test.
The
violations of §§ 1926.25(a) and 1926.350(f)(7) both involved poor housekeeping.
It is obvious that the previous violations of these same standards involved
similar hazards, and that there are no possible dissimilarities of
circumstances that the respondent could prove that would rebut the Secretary’s
prima facie case.[15] Accordingly, we conclude
that the violations were repeated in nature.
VI
Penalties
The
judge assessed penalties of $200 for the nonserious violation of §
1926.500(b)(8), and $0 for the nonserious violation of § 1926.102(a)(1). He
assessed penalties of $85 and $100 for the repeated violations of §§ 1926.25(a)
and 1926.350(f)(7) respectively. In light of respondent’s size, good faith,
prior history, and the gravity of the violations, we conclude that the judge’s
penalty assessments are appropriate.
VII
Conclusion
The
judge’s decision is modified to vacate the alleged violation of 29 C.F.R. § 1926.350(a)(1).
As so modified, the judge’s decision is affirmed.
SO ORDERED.
FOR THE COMMISSION:
Ray H. Darling, Jr.
Executive Secretary
DATED: OCT 31, 1979
BARNAKO, Commissioner, Concurring:
I
agree with my colleagues for the reasons they state that Respondent violated
the standards at 29 C.F.R. §§ 1926.102(a)(1), 1926.500(b)(8), and
1926.350(f)(7) but did not violate § 1926.350(a)(1). I also conclude that the
violations of §§ 1926.25(a) and 350(f)(7) were repeated in nature, but I do so
for reasons substantially different from those of my colleagues.
My
colleagues properly conclude that evidence of at least two prior violations of
the same standard is not a prerequisite to finding a violation to be repeated
but that a violation, in order to be found repeated, must be substantially
similar to a prior violation established by a final order of the Commission.
However, as expressed in my separate opinion in Potlatch Corp., 79 OSAHRC
6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD ¶ 23,294 (No. 16183, 1979) (concurring and
dissenting opinion), I would not presume that a violation of the same standard
fulfills the substantial similarity requirement and shift the burden to the
employer to prove otherwise. Instead I would look to whether the second
violation is of such a nature that the employer, as a result of the notice
provided by the first citation, should have taken steps to eliminate from its
workplace the condition alleged to constitute the repeated violation. Where
such notice is not apparent from the face of the citation, I would require the
Secretary to prove substantial similarity. Where such a showing has been made,
I would permit the employer to defend by proving that it took reasonable, good
faith steps after entry of a prior final order to prevent the recurrence of a
substantially similar violation.
In
this case, the Secretary established that the prior citation for violation of
29 C.F.R. § 1926.25(a) alleged poor housekeeping in that a steel choker
was in a walkway. The citation now in issue alleges a violation of that
standard in that conduit, metal channel, and ‘miscellaneous material’ was on a
floor in a work area. Similarly, the prior citation for violation of §
1926.350(f)(7) was shown to allege oxygen and acetylene rubber hose lying on
the floor and not kept clear of passageways, ladders, and stairs in three
areas; the citation now before us charges that welding hoses and cables were
not kept clear of passageways, ladders, and stairs in five locations. It is
obvious from the face of the previous citations that the prior violations of §§ 1926.25(a)
and 1926.350(f)(7) involved conditions substantially similar to those on which
the subsequent violations of the same standards are based. Moreover, the hazard
and means of abatement are identical in each instance. See FMC Corp., 79
OSAHRC ___, 7 BNA OSHC 1419, 1423, 1979 CCH OSHD ¶ 23,631 at 28,658 (No. 12311,
1979) (concurring and dissenting opinion). For these reasons, I agree with the
majority that the Secretary established a substantial similarity between the
previous violations and those now before us.
As my
colleagues note, this case was tried and decided prior to the Commission
decision in Potlatch. Therefore, Respondent did not know at the hearing that it
could defend by proving it took reasonable good faith steps after the entry of
a prior final order to prevent the recurrence of a substantially similar
violation. As the majority properly indicate, in situations where there has been
a significant intervening change in the law between the hearing and our
decision on review of the case, our usual practice is to allow the parties an
opportunity to present additional evidence relevant to any new defense or legal
theory. See Triple ‘A’ South, Inc., 79 OSAHRC ___, 7 BNA OSHC 1352, 1979
CCH OSHD ¶23,555 (No. 15908, 1979) (concurring and dissenting opinion). In the
circumstances of this case, however, I would only afford Respondent such an
opportunity with respect to the citation for repeated violation of §
1926.25(a).
With
respect to the violation of § 1926.25(a), respondent’s safety supervisor
testified that the conditions on which the § 1926.25(a) violation is based
occurred in an area where employees of the electrical subcontractor were
fabricating and using conduit. He further testified that subcontractors were
responsible for proper housekeeping in their work areas, although Respondent
maintained supervision over subcontractors with respect to safety matters. If
he observed a subcontractor in violation of a safety regulation, he would
inform its supervisors and ask that the violation be corrected. Respondent also
provided trash barrels for use by subcontractors.
This
evidence does not establish the good faith defense I set forth in Potlatch.
Rather, Respondent’s evidence regarding the subcontractor’s responsibility for
the conditions as well as Respondent’s own evidence regarding its efforts to
insure compliance by subcontractors with safety regulations tends to establish
that Respondent did not make a good faith effort to obtain compliance with the
housekeeping standard. Nevertheless, Respondent may have additional evidence
with respect to its efforts to obtain subcontractor compliance after issuance
of the first citation for violation of § 1926.25(a). Accordingly, I would enter
a conditional order, finding Respondent in repeated violation of § 1926.25(a)
unless within 10 days from the issuance of this decision Respondent notifies
the Executive Secretary of the Commission that it wishes to adduce additional
evidence with respect to any efforts it took after entry of the prior final
order to prevent the recurrence of the housekeeping violation.
As to
the violation of § 1926.350(f)(7), Respondent presented evidence in support of
its contention that the hoses and cables could not have been positioned in any
different manner. In its brief before us on review, Respondent specifically
argues that no practical alternative existed for the location of the hoses and
cables. Since Respondent freely chose, in effect, to defend on the basis that
it could not have taken any further measures to comply with the standard, a
remand to allow Respondent the opportunity to show precisely the contrary, that
it could and did attempt to prevent the recurrence of the violation, would be
inappropriate.[16]
I would therefore conclude that Respondent’s violation of § 1926.350(f)(7) was
repeated in nature.
Accordingly,
I would enter a conditional order affirming the citation for repeated violation
of § 1926.25(a) unless within 10 days Respondent requests the opportunity to
present additional evidence as to the repeated nature of that violation. I
would unconditionally affirm the citation for repeated violation of §
1926.350(f)(7).
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY
OF LABOR, |
|
Complainant, |
|
v. |
OSHRC
DOCKET NO. 76-2326 |
STEARNS-ROGER
INCORPORATED, |
|
Respondent. |
|
January 6, 1977
DECISION
AND ORDER
Appearances:
James F. Gruben, Esq., of Dallas, Texas,
for Complainant.
John L. Reiter, Esq., of Glendale,
Colorado, for Respondent.
STATEMENT OF THE CASE
BLYTHE, Judge.
This
is a proceeding brought before the Occupational Safety and Health Review
Commission (‘the Commission’) pursuant to § 10 of the Occupational Safety and
Health Act of 1970, 29 U.S.C. § 651 et seq. (‘the Act’) contesting citations
issued by the complainant, the Secretary of Labor (‘the Secretary’) to the
respondent, Stearns-Roger, Inc., under the authority vested in the Secretary by
§ 9(a) of the Act.
As
the result of an inspection conducted from March 22 through March 26, 1976, by
the Secretary’s compliance officer of the San Juan Power Plant at Fruitland,
New Mexico, on which respondent was the general contractor, 13 citations were
issued to respondent April 28, 1976, alleging nonserious, serious, and repeated
violations of § 5(a)(2) of the Act by respondent’s failing to comply with the
various construction standards promulgated by the Secretary. Notification of
proposed penalty was issued April 28, 1976, proposing penalties aggregating
$7,345.00. By letter dated May 18, 1976, respondent contested most of the items
of the citations, although in some instances only the proposed penalty was
contested. A complaint and answer subsequently were filed with the Commission.
A hearing was convened September 30 and October 1, 1976, in Farmington, New
Mexico. Both parties have filed post hearing briefs, and respondent has
submitted proposed findings of fact and conclusions of law. No affected
employee or representative of an affected employee has participated as a party
in this proceeding although a union representative for the boiler maker craft,
Willie Gene Graham, testified at the hearing for respondent. The matter is now
ripe for decision.
JURISDICTION AND ISSUES
The
jurisdictional allegations of the complaint were not answered by respondent and
are deemed admitted under Rule 33(b)(2) of the Commission’s Rules of Procedure.
At
the hearing the parties stipulated to a partial settlement of the issues. This
stipulation, with some modifications, was reduced to writing after the hearing.
This partial settlement is approved.[17]
The
issues remaining to be determined are:
(a)
Whether respondent on March 22 26, 1976, was in nonserious violation of the
following standards, and, if so, the appropriate penalty therefor:
29 CFR Part 1926:
§ 25(b) [Item 1, citations 1[18]
§ 102(a)(1) [Item 3, citation 12
§ 150(a)(1) [Item 4A, citation 12
§ 250(a)(3) [Item 12, citation 12
§ 350(f)(6) [Item 18, citation 1]
§ 350(j) [Item 20, citation 1] § 500(b)(8)
[Item 31, citation 12
(b)
The appropriate penalty for respondent’s admitted nonserious violations of 29
CFR 1926.303(c)(3) [Items 16, citation 1].
(c)
Whether on said dates respondent was in serious violation of 29 CFR 1926.28(a),
and, if so, the appropriate penalty therefor [citation].
(d)
Whether on said dates respondent was in repeated violation of the following
standards, and, if so, the appropriate penalties therefor:
29 CFR Part 1926
§ 25(a) [Citation 6]
§ 150(c)(1)(viii) [Citation 7]
§ 350(a)(1) [Citation 8]
§ 350(f)(7) [Citation 10]
§ 500(b)(1) [Citation 12]
Abatement
dates were stipulated by the parties to be issues, but no evidence was
introduced on them and the parties do not mention them in their briefs.
Therefore, these issues are deemed abandoned.
DISCUSSION AND OPINION
1.
General
The
respondent, Stearns-Roger, Incorporated, at the time of the inspection was
constructing an addition to an existing facility, known as the San Juan Power
Plant, for the Public Service Company of New Mexico. Power generated in these
facilities is transmitted by high voltage lines to industrial and commercial
customers. Respondent has offices in Farmington, New Mexico, and Denver,
Colorado.
The
unit involved in this inspection was No. 1, but Unit No. 2 was constructed
earlier by another corporate entity, Stearns-Roger Corporation. The citations
upon which the Secretary relies to establish repeated violations were issued to
the latter corporation. The exact relationship of Stearns-Roger Corporation and
Stearns-Roger, Incorporated, was not established. Roger A. Dalke, Respondent’s
safety supervisor on Unit No. 1, testified that they were affiliated, and that
one is the parent of the other, although he was not certain of the
relationship:
Q. [By Mr. Gruben] Mr. Dalke, isn’t it a
fact that Stearns-Roger Corporation reorganized and changed its name to
Stearns-Roger, Inc. about 1973?
A. That’s not totally my understanding of
the situation.
As I understand, Stearns-Roger Corporation
does still exist as an affiliate or maybe a parent corporation, and
Stearns-Roger, Inc., is an affiliate.
(Tr. 267). The two corporations had the same
Farmington and Denver addresses, and sometimes the stationery of one
corporation was used to correspond with the Secretary about citations issued to
the other (Tr. 267 276). They had different separate supervisory staffs,
including safety supervisors, on the two units of the power plant. Another
affiliated corporation, Stearns-Roger Electrical Contractors, Inc., was a
subcontractor on Unit No. 1 (Tr. 276).
Although
the interlocking corporate relationships were not established as well as they
might have been, it appears to me that they were under common control and
should be treated as one entity for purposes of determining whether any of the
violations were repeated, insofar as they involved separate units of the same
power plant. To hold otherwise would be to allow form to triumph over substance
and to invite thwarting the provisions of § 17(a) of the Act regarding repeated
violations by frequent changes in corporate entities.
The
criteria for assessing civil penalties, under § 17(j) of the Act, include the
size of the employer’s business, its good faith and its history of previous
violations. Gravity of the violation, another criterion, will be discussed
under each item where a violation is found.
Respondent’s
size, although not fully established, obviously is large; it had 800 employees
on this job. Its history of previous violations is not extensive, considering
the magnitude of its operations. Its good faith is not questioned. An element
of good faith is its safety program, which was very good. At San Juan Unit No.
1 respondent employed two safety engineers and two nurses, provided a safety
and first aid trailer, and had two ambulances available. Its safety program
provided regular instruction of supervisory personnel and workers.
2.
The 29 CFR 1926.25(b) citation.
Item
1 of citation 1 alleges nonserious violation of 29 CFR 1926.25(b), for which no
penalty is proposed, as follows:
A large amount of combustible scrap had
accumulated on the roof of the tripper building.
The
cited regulation provides, in pertinent part:
Combustible scrap and debris shall be
removed at regular intervals during the course of construction. . . .
Respondent
does not contend that there was not an accumulation of combustible scrap at the
location alleged. Rather, it contends that there was no construction activity
in that vicinity.
The
compliance officer, Rodney G. Prows, testified that a large amount of cardboard
boxes and plastic sheeting was accumulated on the roof of the tripper building,
which was part of the access route of three employees working on the roof of
the deaerator building (Tr. 23 26; Exhibit C 8).
Respondent’s
safety supervisor, Roger A. Dalke, testified that the debris had been left by a
roofing subcontractor, that the nearest construction work was 50 feet south of
and 10 or 12 feet higher than the trash accumulation, and that the three men
working there needed not come closer than 30 feet to the trash in gaining
access to their workplace (Tr. 152).
Respondent,
it its supervisory capacity as general contractor, was as responsible as the
roofing subcontractor for the accumulation of combustible scrap and debris. Secretary
v. Grossman Steel & Aluminum Corp., No. 12,775, May 12, 1976, 1975 1976
CCH OSHD ¶ 20,691.
Employee
access to a zone of danger, such as going through it in ‘their normal means of
ingress-egress to their assigned workplaces,’ is sufficient proof of exposure. Secretary
v. Gilles & Cotting, Inc., No. 504, February 20, 1976, 1975 1976 CCH
OSHD ¶ 20,448, on remand from 504 F.2d 1255 (4th Cir. 1974). The
compliance officer did not say how close to the trash the normal access route
was; the safety supervisor said it was 30 feet, which testimony is
uncontradicted and in fact is supported by Exhibit C 8, a photograph which
shows the trash off to one side of the roof. Since there was no extreme fire
danger, an open-air route 30 feet from the trash accumulation posed no
substantial threat to employees passing by. The secretary has failed to
shoulder his burden of proof of this item.
3.
The 29 CFR 1926.102(a)(1) citation.
Item
3 of citation 1 alleges a non-serious violation of 29 CFR 1926.102(a)(1), for
which no penalty was proposed, as follows:
Carpenter using portable handsaw on east
side of saw shed was not wearing eye or face protective equipment meeting ANSI
287.1[19] requirements.
The
cited regulation provides:
Employees shall be provided with eye and
face protection equipment when machines or operations present potential eye or
face injury from physical, chemical, or radiation agents.
Subparagraph
(2) of this standard further provides:
Eye and face protection equipment required
by this Part shall meet the requirements specified in American National
Standards Institute, Z87.1 1968, Practice for Occupational and Educational Eye
and Face Protection.
Complainant
has not specified, either in the citation or at the hearing, the precise ANSI
standards respondent is accused of violating.
The
ANSI standard contains detailed specifications for goggles and safety
spectacles, but it is unnecessary to pinpoint the applicable provisions
because, the evidence shows, no protective eye equipment was worn by the
employee.
Compliance
Officer Prows testified that the employee was sawing wood with a portable
electric saw with a circular blade, and that there was a hazard to his eyes
from sawdust and possibly metallic particles if he should saw into a nail. The
employee was wearing glasses which he admitted were not industrial safety
glasses and which Prows characterized as street glasses (Tr. 27, 28, 55, 56.).
Respondent
contends that the evidence is insufficient to establish (1) that the glasses
did not meet ANSI standards or (2) that the operation of the saw presented a
potential eye or face injury, citing Secretary v. Tobacco River Lumber Co.,
17 OSAHRC 235 (1975). On the first point, it notes that Prows relied on the
employee’s statement that his glasses were not industrial safety glasses and
that there is nothing in the record to show that he knew what industrial safety
glasses were. However, safety Supervisor Dalke supplied this proof when he
testified about respondent’s eye safety program, including indoctrination of
new employees and the supplying of a wide range of eye protection equipment[20], which he estimated was
worn by half the 800 employees in the course of a day (Tr. 153, 154). He also
admitted that a few employees got sawdust in their eyes but said it had never
been necessary to send one to a doctor because of sawdust, which generally
could be washed out of the eye at the jobsite (Tr. 155). Further, he conceded,
‘I would say that as a general rule they [safety glasses] should be worn in
that particular situation’ (which, however, he didn’t consider highly
hazardous) (Tr. 180).
In Tobacco
River, supra, the Secretary first advanced, and then retreated from, a
position that the very fact that power-driven saws were used established a
‘reasonable probability’ of injury from sawdust. Apparently approving the
latter position, the Commission vacated a citation under § 1910.133(a)(1), the
general industry counterpart of § 1926.102(a)(1). However, the former requires
protective equipment where there is ‘reasonable probability of injury’ whereas
the latter requires it ‘where machines or operations present potential eye
injury.’ ‘Reasonable probability,’ it seems to me, requires a higher degree of
proof than ‘potential’ injury. Additionally, § 1926.102(a)(1) requires
protective equipment when a potential injury is presented by a ‘machine or
operation,’ hence a power-driven saw may present this potential even without
evidence that the operator was pelted by flying particles.
I find
the item proved. No penalty was proposed, and none is assessed.
4.
The 29 CFR 1926.150(a)(1) citation.
Item
4A of citation 1 alleges a non-serious violation of 29 CFR 1926.150(a)(1), for
which no penalty is proposed, as follows:
Fire extinguishers adequate for the hazard
were not provided in the cars on #24 and #3 personnel hoists where LPG gas
containers were located.
The
cited regulation provides
The employer shall be responsible for the
development of a fire protection program to be followed throughout all phases
of the construction and demolition work, and he shall provide for the
firefighting equipment as specified in this subpart. As fire hazards occur,
there shall be no delay in providing the necessary equipment.
Subpart
F further provides, in 29 CFR 1926.150(c)(1)(vi):
A fire extinguisher, rated not less than
10B, shall be provided within 50 feet of wherever more than 5 gallons of
flammable or combustible liquids or 5 pounds of flammable gas are being used on
the jobsite. This requirement does not apply to the integral fuel tanks of
motor vehicles.
There
is no dispute about the evidence. Personnel hoists Nos. 2[21] and 3 carried LPG (liquid
propane gas) containers in addition to personnel. There were fire extinguishers
on the landings at which the hoists stopped, but not on the hoist cars. The
compliance officer considered the fire protection inadequate to meet the danger
of a fire which might occur on the hoist cars when they were between landing
levels, especially if the electrical system should be disabled and the hoist
cars stranded between floors (Tr. 28, 29.) This seems to be a rather remote
possibility (Tr. 155, 156). More importantly for present purposes, there is no
specific requirement in the cited standard (or elsewhere in Subpart F)
requiring fire extinguishers under such circumstances. The applicable standard
appears to be § 150(c)(1)(vi), supra, which requires a fire extinguisher to be
provided within 50 feet of where 5 pounds of flammable gas is being used. There
is no evidence in this case that the requirements of this standard were not met
since there was a fire extinguisher on each landing.
It
should be noted that § 150(a)(1) requires the employer to ‘provide for the
firefighting equipment as specified in this subpart.’ (Emphasis supplied).
Since respondent did provide the fire extinguishers so specified, it was not in
violation. The general language about ‘development of a fire protection
program’ cannot be construed to impose equipment requirements more stringent
than the specific requirements of the standards simply because the compliance
officer considered the specific requirements inadequate to meet a particular
hazard as he perceived it.
5.
The 29 CFR 1926.250(a)(3) citation.
Item
12 of citation 1 alleges a non-serious violation of 29 CFR 1926.250(a)(3), for
which no penalty is proposed, as follows:
Scaffold planks and other material were
stored in the passageway used for access to the toilet facility on the south
side of the 191 level of the precipitator.
The
cited standard provides:
Aisles and passageways shall be kept clear
to provide for the free and safe movement of material handling equipment or
employees. Such areas shall be kept in good repair.
The
compliance officer testified that the passageway to toilet facilities on the
south side of the 191 level of the precipitator was restricted to ‘a foot or
so’ by stacks of lumber and angle iron (Tr. 33). However, there was another
route to the toilet facilities, and the width of that passageway was about two
feet (Tr. 159).
Respondent
contends that (1) the cited standard applies to storage areas, whereas the
materials here involved were in transit; (2) the free and safe movement of its
employees was not substantially impaired; and (3) the materials could not
practically have been placed elsewhere.
The
area served as a landing for building materials hoisted by a crane. Two
chemical toilets were located on the same landing because they had to be
lowered by crane for cleaning (Tr. 159).
While
the lumber and angle iron may have been intended for use in the near future,
they obviously were not in use at the time, nor were they actually in transit.
How long they had been there and when they were to be used was not established.
Therefore, they must be considered in temporary storage, and the cited standard
applies. It is the apparent object of the standard to require all such
construction materials to be kept in orderly array. However, on a landing where
such materials are being unloaded by crane there is bound to be some disarray.
In this instance the compliance officer contended that employees’ access to the
toilet facilities was restricted. One passageway was restricted to ‘a foot or
so’ at one point, but there was another passageway two feet wide. The
compliance officer was able to get through without difficulty, according to the
safety supervisor (Tr. 159). This is confirmed by photographs (Exhibits C 11, R
5, R 6). I find the item not proved.
6.
The 29 CFR 1926.303(c)(3) citation.
Item
16 of citation 1 alleges 13 violations of 29 CFR 1926.303(c)(3), for which a
penalty of $85 is proposed, and only the penalty is contested. Therefore, it is
unnecessary to set forth the violation or the cited regulation in full.
This
violation involves 13 portable grinding wheels, used to grind pipes, which had
no point-of-operation guards. The 13 operators were exposed to the possible
disintegration of the composition stone grinding wheels, fragments from which
might cause injuries requiring hospitalization (Tr. 35 37, 115; Exhibits C 7
through C 20). The method of penalty computation (Tr. 130) took into
consideration the probability of injury (rated as ‘fairly low’); the severity
of injuries which might result (possible hospitalization); and the extent of
the violation (100% of the portable grinders observed). These factors reduced
the ‘unadjusted’ penalty of $175 to an adjusted proposed penalty of $85.
The
method employed did not take into consideration three of the criteria
prescribed by § 17(k) of the Act: Size of the employer’s business, its
good faith, and its history of previous violations, which have been discussed
supra, p. 6. After considering these criteria, I find the $85 penalty to be
quite reasonable—probably too low, in fact. However, it will not be disturbed.
7.
The 29 CFR 1926.350(f)(6) citation.
Item
18 of citation 1 alleges non-serious violations of 29 CFR 1926.350(f)(6), for
which a penalty of $50 is proposed, as follows:
Welding torches and hoses were stored in
unventilated toolboxes in the following locations:
a. Electricians’ shack on 265 level of the
boiler;
b. Toolbox PF 69 on feeder floor,
generator building;
c. Toolbox PF 16 on D 2 line, turbine
floor, generator building.
The
cited standard provides:
Boxes used for the storage of gas hose
shall be ventilated.
Respondent
pleaded affirmatively that this standard is unconstitutionally vague and
unenforceable. However, the stipulation of the parties does not list this as
one of the issues to be tried, and respondent does not mention it on brief.
Therefore, this issue is deemed abandoned.
The
evidence is essentially undisputed. The toolboxes in question were metal, with
hinged metal lids fastened by hasps which sometimes were padlocked. Slots were
cut in the top edges of the toolboxes so that welding torches, with hoses
attached, could be stored in the toolboxes with all but a few inches of the
hoses remaining outside (extending through the slots). The hoses were left
attached to sources of oxygen and acetylene gas, and sometimes the pressure was
left on the hoses. No ventilation to the boxes was provided other than that
provided by the hose slots or the crevices around the overlapping lids. (Tr. 37
41, 56, 115 117, 130, 161; Exhibits C 14, C 21, R 8.)
Respondent
contends that the cited standard does not apply to the situation presented,
since the toolboxes were used primarily for the storage of torches, not hoses,
and that the Secretary has failed to prove that the toolboxes were not
ventilated.
Considering
these arguments in inverse order, I have no difficulty in finding that the
toolboxes were ‘unventilated’ within the meaning of the standard. The lids were
rather tight-fitting and had edges turned down over thE sides. The slots cut to
accommodate the trailing hoses were not large enough to be considered adequate
ventilation, especially when partially filled with hoses and partially covered
by the lid edges.
The
hazard presented, with the possibility of explosive gases, under pressure,
leaking into the confined spaces of the closed toolboxes, is even more
dangerous than the residual gases that might be present in hoses stored without
their being attached to sources of gas supply and to welding torches. However,
it is not realistic to say that the toolboxes were used to store gas hose
simply because a few inches of hose, attached to welding torches, extended into
the boxes. This simply is not a situation covered by the regulation, and it is
not the Commission’s function to stretch regulations to fit unforseen
situations.
8.
The 29 CFR 1926.350(j) citation.
Item
20 of citation 1 alleges a non-serious violation of 29 CFR 1926.350(j), for
which a penalty of $50 is proposed, as follows:
Welding and cutting operations in the
following areas did not conform to the requirements of American National
Standards Institute Z49.1 1967, Safety in Welding and Cutting:
a. Compressed gas cylinders containing
oxygen were not separated from acetylene cylinders or other combustible
material in storage by a minimum distance of 20 feet or by a noncombustible
barrier at least five feet high having a fire-resistance rating of at least 1/2
hour as required by Paragraph 3.2.4.3:
1. One acetylene and one oxygen cylinder
stored at base of stairs leading to fly ash hoppers;
2. One LP gas container, one acetylene
cylinder, and one oxygen cylinder, stored at line six, first floor of generator
building;
3. Two acetylene and two oxygen cylinders
stored in middle of first floor of precipitator;
4. One acetylene cylinder and four oxygen
cylinders stored in southwest corner of first floor precipitator;
5. Two acetylene cylinders, adjacent to
oxygen cylinders in use on south side of 191 level precipitator;
6. Three acetylene cylinders and two
oxygen cylinders stored on south side, first level of air preheater;
7. One acetylene cylinder and one oxygen
cylinder stored adjacent to a can of oil, near south door to electrical
warehouse.
b. Acetylene was being used or piped in
excess of 15 psi in the following locations (Paragraph 3.1.2):
1. Manifold on 247 level, northwest corner
of boiler, one acetylene gauge over 15 psi;
2. Manifold on west side 157 level of
boiler, two gauges over 15 psi.
The
cited standard provides:
For additional details not covered in this
subpart, applicable technical portions of American National Standards
Institute, Z49.1 1967, Safety in Welding and Cutting, shall apply.
Paragraphs
3.1.2 and 3.2.4.3 of the incorporated ANSI standard provide, in pertinent part:
3.1.2 Under no condition shall acetylene
be generated, piped (except in approved cylinder manifolds) or utilized at a
pressure in excess of 15 psi gauge pressure . . .
3.2.4.3 Oxygen cylinders in storage shall
be separated from fuel-gas cylinders or combustible materials (especially oil
or grease), a minimum distance of 20 feet or by a noncombustible barrier at
least 5 feet high having a fire-resistance rating of at least 1/2 hour.
Testimony
of Compliance Officer Prows supports items 20(a) and (b) in detail (Tr. 43 50
118, 119, 127, 131; Exhibits C 10, 22 29), and is essentially uncontradicted.
The
defense to item 20(a) is that the gas cylinders were not ‘in storage’. In each
instance they were secured in an upright position to structural supports with
ropes or wires. None was in use or connected to hoses or regulators, and all of
them had valve protection caps in place (others, which did not, were cited in
citation 8).
Safety
Supervisor Dalke testified that respondent had a storage area from which
cylinders were brought to the jobsite when needed, that there was a substantial
demand for oxygen and acetylene on this job by various crafts, that the
cylinders were used intermittently, that they were normally expended in a period
of a few days (not more than two weeks), that about 100 cylinders were in use
at all times, and that about half of the 800 employees would have occasion to
use a welding torch each day (Tr. 162 165, 196 208, 214 216).
Paragraph
2.6 of the 1973 revision of ANSI Z49.1 1967 definition of cylinder storage as
‘cylinders of compressed gas standing by on the site, not those in use or
attached ready for use’ (Tr. 204). The 1973 revision has not been adopted by
the OSHA standard, so it is not binding. It is necessary, then, to refer to
more general definitions.
‘Storage’ is defined by Webster’s New World
Dictionary, College Ed. (1972) as ‘a place or space for storing goods.’ This
definition is not helpful, being in terms of itself. Many definitions appear in
Words and Phrases, Permanent Ed., Vol. 40, pp. 336 338 and pocket part, p. 46,
including:
Term ‘storage’ connotes permanency and not
transient situation. State v. Gargiulo, 246 A.2d 738, 740, 103 N.J.Super. 140.
As a
practical matter, it would be extremely difficult to apply the ANSI standard
strictly to the present situation. Since erection of noncombustible barriers
all over the structure would be out of the question, the alternative would be
to separate the oxygen and acetylene cylinders 20 feet after each use. This
might be practical in some instances, but not when the cylinders are used
several times a day.
Apparently
the compliance officer’s tacitly recognized the practicalities of the
situation, for he did not cite respondent for gas cylinders which were kept in
portable racks for the same purpose as those here involved. Item 20(a) should
be vacated.
Respondent’s
defense to item 20(b) is that ¶ 3.1.2 of ANSI 249.1 (1967) is not applicable
where an approved manifold system is employed, and that the incidents of
excessive pressure were the result of unavoidable fluctuations due to the
nature of the manifold system.
Prows
testified that one pressure gauge on one manifold and two on another showed
pressure in excess of 15 psi, and that a hose was attached to one and regulator
was in the ‘on’ position (Tr. 48 50; Exhibits C 28, 29). Dalke testified that
respondent had 12 to 15 manifolds (bulk gas distribution systems) on this job,
and each had about 8 gauges. An employee sets the pressure at the regulator,
but there is some fluctuation due to variations in the amount of gas being
drawn from the manifold by other welders, he said (Tr. 166 168).
There
was, however, no proof that the excessive pressures for which the citations
were issued were caused by such fluctuations, and the ANSI standard says that
‘[u]nder no conditions shall acetylene be . . . utilized at a pressure in
excess of 15 psi gauge pressure’ (emphasis added). Thus there is a violation.
The
proposed penalty of $50 covers both portions of this item, and the major
portion (a) is being vacated. No penalty will be assessed for (b).
9.
The 29 CFR 1926.500(b)(8) citation.
Item
31 of citation 1 alleges non-serious violations of 29 CFR 1926.500(b)(8), for
which no penalty is proposed, as follows:
Floor holes in the walkway on top of the
precipitator were not covered by a floor hole cover.
The
cited regulation provides:
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. . . .
The
holes which prompted the citation were 11 inches in diameter. Their number was
not established by the testimony, but photographs Exhibits C 30, C 31, and C
32) show that there may have been 16 of them, in two rows of eight each,
several feet apart, in long, narrow steel plates forming part of a structure
designed to support the top of the precipitator. High voltage frames were to be
installed in the holes. Three to five employees were working in the area, and
at times they walked on the surfaces where the holes were located. Employees
worked in this area about a month. There were no guardrails or toeboards
around, or covers over, these holes (Tr. 50 53, 57, 120, 170, 172, 209 211).
Respondent
contends that the holes were not in a ‘floor’ and that persons could not
accidentally walk into them.
As
for the first point, the power plant structure is difficult to describe in terms
common to ordinary buildings. The precipitator is a large, box-like structure
containing partitions and steel ‘curtains’ for collecting fly ash. The surfaces
containing the holes were to become part of the top of the precipitator, but
respondent’s safety supervisor alternately called it a roof, a floor, a support
for the floor deck, and a roof support (Tr. 170, 209).
The
definition of ‘floor-hole’ in § 1926.502(a)[22] makes it clear that these
regulations apply to ‘any floor, roof, or platform’. However, this definition
raises more questions than it answers. It seems to be concerned with materials
falling onto persons beneath the holes rather than with injuries to persons
stepping into them. Indeed, whether persons may fall through them is the
primary distinction between a ‘floor hole’ and a ‘floor opening’ as defined in
§ 1926.502(b)[23].
Thus the language of § 1926.500(b)(8), supra, ‘into which persons can
accidentally walk,’ seems more consistent with a floor opening than with a
floor hole. This inconsistency was noted, but not resolved, by the Commission
in Secretary v. W. C. Sivers Company, 8 OSAHRC 480 (1974). The same
inconsistency is found in the comparable General Industry standards, 29 CFR
1910.21(a)(1) and 23(a)(8), and the Commission held in Secretary v. Buhls
laundry & Dry Cleaning, Inc., 5 OSAHRC 1 (1973),
‘The language of the standard controls,
and the definition cannot be used to enlarge the standard so as to bring floor
holes into which persons cannot accidentally walk [in this case 3‘ x 7‘] within
its scope.’ (Id. at p. 3).
Buhls Laundry
still does not answer the question of what constitutes ‘walking into’ a floor
hole, except to the limited extent that it holds that a person cannot walk into
a 3‘ x 7‘ hole. If any effect is to be given to the difference between ‘floor
holes’ and ‘floor openings,’ § 1926.500(b)(8) must be construed to apply
to a floor hole that is large enough to admit an employee’s foot (which easily
could cause a bone fracture). If it is construed to mean a hole large enough
for an employee to fall through, the distinction between a floor hole and a
floor opening vanishes. Buhl’s Laundry, on the other hand, indicates
that the hole must be more than a stumbling hazard to make § 1926.500(b)(8)
applicable.
On
the other hand (or foot), the size of the employee’s foot may be determinative
if § 1926.500(b)(8) applies only to holes into which an employee could
insert his foot. This would be the modern counterpart of the ‘chancellor’s
foot’[24] as a unit of measurement.
There
is no evidence in the record as to whether the employees could or could not
walk into, or put their feet through, the holes in question. In some cases such
testimony might be indispensable. However, it seems obvious to me, and I so
hold, that a hole 11 inches in diameter is large enough to make § 1926.500(b)(8)
applicable.
No
penalty was proposed for this violation, but this is not binding on the
Commission or its judges. Secretary v. Winzinger, Inc., Docket No. 6790,
July 22, 1976, 1976 1977 CCH OSHD ¶ 20,959. The statutory criteria, except the
gravity of the violation, have been discussed, supra, p. 6. The gravity is
moderate to high, considering the number of floor holes, the number of
employees exposed, and the duration of the hazard. I find a penalty of $200 to
be appropriate.
10.
The 29 CFR 1926.28(a) citation.
Citation
2 alleges several serious violations of 29 CFR 1926.28(a), for which a penalty
of $1,000 is proposed, as follows:
Employees in the following locations were
not wearing, or not utilizing, appropriate personal protective equipment such
as safety belts and lanyards, or the equivalent, when working in area where
they were exposed to potential falls:
a. Employee working on plenum on west side
of electronic precipitator;
b. Laborer walking beam, 211 level on
south side of boiler;
c. Employee sitting and walking on beam,
167 level on west side of boiler;
d. Electrician working on conduit on
feeder floor of generator building;
e. Two employees working on main steam
chest in generator building;
f. Employee working on cable tray,
mezzanine floor, D 6 grid, generator building;
g. Two employees working on main
transformer;
h. Employee working above second level on
west side of south air preheater;
i. Two employees working above second
level of north air preheater, on east side;
j. Three employees working on roof of
de-aerator.
The
cited standard provides:
The employer is responsible for requiring
the wearing of appropriate personal protective equipment in all operations
where there is an exposure to hazardous conditions or where this part indicates
the need for using such equipment to reduce the hazards to the employees.
Respondent
has pleaded the affirmative defenses of isolated occurrence and contends on
brief that the standard is impractical or impossible to enforce in view of
employee resistance to the use of safety belts. There is also a question of
whether some of the exposed employees were respondent’s.
The
compliance officer testified to each of the 10 situations alleged in the
citation in which employees were exposed to hazards of falls of varying
distances (7 to 110 feet) which probably would have resulted in death or
serious physical harm (Tr. 59 77; Exhibits C 7, C 33 through C 40). None of the
employees was using a safety belt, although some were wearing safety belts
which were not tied off. There were no standard guardrails, although in some
instances manila ropes provided some protection (Tr. 79).
The
compliance officer was accompanied by Safety Supervisor Dalke when he noted,
photographed and commented on these apparent violations. In some instances he
ascertained that the employees were respondent’s by asking Dalke, but in others
he assumed they were because he thought only respondent’s employees were in the
area involved and because Dalke did not tell him otherwise. Dalke, however,
testified that subcontractors’ employees were in the area and that the
employees involved in subitems (d), (f) and (g) were not respondent’s (Tr. 221,
222). While Dalke may have been under some duty to speak up during the
inspection, his direct testimony at the hearing is more convincing than his
silence during the inspection. Sub-items (d), (f), and (g) are found not
proved, in that respondent’s employees were not exposed to the hazard.
Otherwise,
the compliance officer’s testimony is essentially undisputed. He further
testified that it was feasible in each instance to tie off safety belts to the
structure, and that these would have provided the needed fall protection (Tr.
79, 80). Since the citation specifically pleaded that safety belts and lanyards
were appropriate personal protective equipment, the proof meets the
requirements of Secretary v. Frank Briscoe Company, Inc., Docket No.
7792, October 4, 1976, 1976 1977 CCH OSHD ¶ 21,162.
Respondent’s
defenses of ‘isolated incident’ and impossibility or impracticability of
enforcement of the standard due to employee resistance are inconsistent, but
inconsistent defenses are permissible under Rule 8(e)(2), F.R.C.P.[25] Therefore, they will be
considered independently.
With
regard to the ‘isolated incident’ defense, Dalke testified that respondent’s
safety program included a policy, which it regularly communicated to its
employees, of requiring use of safety belts where employees were more than 10
feet above the ground or other surface when guard rails were not provided, and
that two employees had been discharged for disobeying this rule (Tr. 216, 217).
He said that safety belts and lanyards were provided at the general tool room
(Tr. 217).
However,
Dalke testified that the power plant, with a top elevation of 324 feet, was to
a large degree an open steel structure, with numerous catwalks, and that every
day about half of the 800 employees were necessarily exposed to falls for very
brief periods of time, up to a few minutes (Tr. 218 220). In Secretary v.
Weatherhead Co., Docket No. 8862, June 10, 1976, 1976 1977 CCH OSHD ¶ 20,784
at p. 24,922, the Commission said,
The existence of an ‘isolated incident,’
or perhaps more accurately an unpreventable occurrence, is an affirmative
defense wherein the employer bears the burden of proving that the actions
constituting non-compliance with the standard were: (a) unknown to the employer
and (b) contrary to both the employer’s instructions and a company work rule
which the employer had uniformly enforced. [Citation omitted].
The
respondent has not shouldered this burden of proof. It certainly was aware of
numerous violations of its safety belt work rule, and its enforcement efforts
are far from convincing.
Respondent
contends on brief that many of its employees resisted the use of safety belts,
that it was not possible for foremen to observe them at all times, and that
‘Since constant supervision is not possible, it is not possible or practical to
enforce the standard.’
To
support this argument, it points to the rather remarkable testimony of Willie
Gene Graham, union representative on the job of the boilermaker craft (Tr. 236
250). Graham, a journeyman boilermaker, called as a witness by respondent,
testified in effect that whether an employee should use a safety belt and
lanyard should be determined by each employee for himself and that strict
enforcement of the standard was ‘a frightening monster’ and contrary to the Act
and to his constitutional right to the pursuit of happiness (Tr. 245).
Respondent argues, ‘The testimony of a man who is a leader of employees in his
craft and attitude toward compliance must not be discarded lightly.’ Whether or
not Graham’s attitude was typical of the employees, the introduction of his
testimony by respondent, when considered in the light of Dalke’s testimony that
perhaps 400 employees were exposed each day to fall hazards, is very revealing.
Granted that 800 employees cannot be watched constantly without requiring an
inordinate number of foremen, it seems odd that so many employees would expose
themselves to fall hazards in the presence or view of the compliance officer
and the safety supervisor.
Graham
himself testified that ‘a number of times’ Dalke had told him to tie off his
safety belt when he wasn’t tied off (Tr. 243), but there is no indication that
any sanctions were imposed.
It
is, of course, impossible to leave it up to employees whether or not they
should wear, or tie off, their safety belts. This case is to be distinguished
from those in which it has been held that the facts proved that it would be
more hazardous to tie off than to not tie off the safety belts, e.g., Secretary
v. Industrial Steel Erectors, Inc., 6 OSAHRC 154 (1974). While that may be
the general tenor of Dalke’s and Graham’s testimony, specific facts were not
proved to justify application of this exception.
A
penalty of $1,000 is proposed for these violations. This, of course, is the
maximum penalty for a single serious violation under § 17(b) of the Act. The
gravity of these violations is high, in view of the likelihood of an accidental
fall and the substantial probability that death or serious physical harm could
result therefrom. after considering all the statutory criteria of § 17(j),
including those discussed on p. 6, I find the proposed penalty appropriate.
11.
The 29 CFR 1926.25(a) citation.
Item
1 of citation 6 alleges repeated violations of 29 CFR 1926. 25(a), for which a
penalty of $85 is proposed, as follows:
Housekeeping was not maintained in the
following locations:
a. Inside boiler at 216 level, welding
hoses, electrical cable and miscellaneous material in the work area;
b. Mezzanine floor, generator building,
conduit, metal channel and miscellaneous material on the floor in the
electricians’ work area;
c. D 5 grid mezzanine floor, generator
building, electrical box, angle iron, hangers and miscellaneous material on the
floor in a passageway.
The
cited standard provides:
During the course of construction,
alteration, or repairs, form and scrap lumber with protruding nails, and all
other debris, shall be kept cleared from work areas, passageways, and stairs,
in and around buildings or other structures.
There
is no great dispute about the evidence, although respondent contends some of
the items complained of were not ‘debris’, that debris was removed on a regular
basis, and that in one cited instance there was no exposure of employees to a
hazard because passageways and work areas were not blocked.
Compliance
Officer Prows testified in line with the citation (Tr. 81 84). With regard to
sub-item (a), the only materials on the floor of the boiler which Prows
specifically identified were welding hoses and electrical cables, which safety
Suprevisor Dalke testified (Tr. 256) were used by boilermakers who were working
in the boiler. A photograph, Exhibit C 47, shows a welter of hoses and cables
on the floor. Respondent contends these items do not constitute ‘debris’ so as
to come within the ban of § 1926.25(a), since they obviously were not scrap
lumber with protruding nails.
‘Debris’
is defined by Webster’s New World Dictionary, 2d College ed., as
‘1. rough, broken bits and pieces of
stone, wood, glass, etc., as after destruction; rubble 2. bits and pieces of
rubbish; litter 3. a heap of rock fragments, as that deposited by a glacier.’
In Secretary
v. Shea-Ball, a Joint Venture, Docket No. 4892, October 15, 1976, 1976 1977
CCH OSHD ¶ 21,206, the Commission majority eschewed strict adherence to
dictionary definitions in favor of interpretations which will effectuate the
purpose of the statute and the safety standards.
However,
under the ejusdem generis rule general words, following an enumeration of
specific things, are not construed to their widest extent but are limited to
things of the same general class as those specifically mentioned. Black’s Law
Dictionary Rev. 4th Ed. (1968).
Thus
§ 1926.25(a) should be construed as applying to ‘form and scrap lumber with
protruding nails, and all other [similar] debris.’ As so construed, it does not
include welding hose and cables which are attached to equipment in use.
Such
items, incidentally, are required by § 1926.350(f)(7) to be kept clear of
‘passageways, ladders, and stairs’. Presumably item 1(a) was not cited under
that standard because the inside of a boiler was not a passageway, ladder, or
stair. This leaves us without a standard forbidding welding hoses and cables on
the floors of work areas, but that does not justify stretching the existing
standards out of shape.
With
regard to sub-item (b), Prows described ‘metal channel, conduit, pieces of
conduit, and miscellaneous material scattered around the horizontal band saw
and in the general work area where the electricians were working’ on the
mezzanine floor of the generator building (Tr. 82; Exhibits C 48, 49). Dalke
testified that the area was actually the feeder floor, that the materials on
the floor ‘consisted primarily of pieces of conduit and unistrut’ which ‘was
for installation of the electrical in the feeder floor area,’ that he didn’t
know how long it had been lying there, that trash barrels were generally
provided so that the area could be cleaned up periodically as the work
progressed (Tr. 256, 257). Respondent contends that this proves a systematic
housekeeping effort, such as was found sufficient in Secretary v. Wilmorite,
Inc., 17 OSAHRC 223 (1975). It does not. At most, it proves a general
policy. Item 1(b) is found proved.
With
regard to sub-item (c), Prows described ‘a large electrical box, some angle iron,
a can that held welding rods, other material adjacent to and extending into the
aisleway’ of D 5 grid to the mezzanine floor of the generator building (Tr. 84;
Exhibit C 50). Dalke testified that most of the materials were there to be
installed, that the area was 20 feet wide, and that there was plenty of room to
walk through it (Tr. 258). Dalke’s testimony appears to be borne out by the
photograph, C 50. This sub-item is found of proved.
Respondent
contends that one prior, uncontested citation for a violation of § 1926.25(a)
does not make the present one ‘repeated,’ and that ‘repeatedly’ as used in §
17(a) of the Act means more than twice and a ‘flouting’ of the standard’s
requirements, citing Bethlehem Steel Corporation v. OSHRC, 540 F. 2d 157
(3rd Cir. 1976), reversing in part Secretary v. Bethlehem Steel Corp, 20
OSAHRC 227 (1975). However, the latter, which holds that ‘repeatedly’ means
twice, is still Commission precedent and is binding on its judges. Secretary
v. Grossman Steel & Aluminum Corp., Docket No. 12,755, May 21, 1976,
1975 1976 CCH OSHD ¶20,611. Therefore, since respondent’s affiliated
corporation was cited for, and did not contest, a § 1926.25(a) violation
at the same location in 1973, as shown by Exhibit C 63, the present violation
was repeated.
A
penalty of $85 is proposed. This appears appropriate under the statutory
criteria, previously discussed, and the low gravity of this violation.
12.
The 29 CFR 1926.150(c)(1)(viii) citation.
Citation
7 alleges repeated violations of 29 CFR 1926.150(c)(1)(viii), for which a
penalty of $100 is proposed, as follows:
Fire extinguishers in the following
locations had not been maintained as required by NFPA 10A: Maintenance and Use
of Portable Fire Extinguishers, Paragraphs 2231 and 3510:
a. Kidde fire extinguisher on Pettibone
hydraulic crane C 12, no maintenance tag, no tamper seal;
b. Triplex fire extinguisher on 211 level
of boiler, no maintenance tag;
c. Triplex fire extinguisher, sheet metal
and insulator shop, no maintenance tag, no tamper seal;
d. Three Triplex fire extinguishers, on
top level of precipitator, no maintenance tags.
The
cited standard provides:
Portable fire extinguishers shall be
inspected periodically and maintained in accordance with Maintenance and Use of
Portable Fire Extinguishers, NFPA No. 10A 1970.
Paragraphs
2231 and 3510 of the incorporated NFPA standard provide:
2231. Tampering or extinguisher operation
is usually indicated by broken seals or tamper indicators. These may consist of
wire and lead seals, plastic indicators, paper strips, and the like, that
indicate operation of the extinguisher or its movement from its hanger,
bracket, or wall cabinet. Tamper indicators which seal an extinguisher to its
mounting may be fairly loosely affixed so that it is possible for an inspector
to ‘heft’ (lift slightly) the extinguisher to determine if it is full or empty
without breaking the seal.
3510. The date (month and year) of the
maintenance check and the initials or special mark of the examiner should be recorded.
The marking can be put on a tag which is tied or clipped to the extinguisher,
on a pressure-sensitive label affixed to the extinguisher, or on a space
provided on the permanent name-plate. They should not be metal-stamped on the
shell. This record should be capable of remaining legible for at least one
year.
All
of the fire extinguishers here involved were the stored-pressure type, with
pressure gauges (Tr. 89). These are specifically exempt from the maintenance
requirements by paragraph 1320 of NFPA No. 10A 1970, which contains a note:
Note: Stored-pressure extinguishers
equipped with pressure indicators or gauges are not required to be maintained
at annual intervals in accordance with the provisions of paragraphs 1320 and
3110.
See Secretary v. Robert E. McKee, Inc., Docket
No. 12130, 19 OSAHRC 550, 556 (1975), (1974 1975) CCH OSHD ¶ 19,807 (Kennedy,
J.)
While
the quoted note pertains to paragraphs of the NFPA standards not mentioned in
the citation, they are the ones requiring annual maintenance of fire
extinguishers, whereas ¶ 3510 is concerned with records of maintenance checks.
Obviously, if a stored-pressure, gauge-equipped extinguisher is exempt from the
annual maintenance check, the record requirement is likewise inapplicable.
Respondent
points out that all of the incorporated NFPA standard is couched in
non-mandatory language. Does the mandatory ‘shall’ in § 1926.150(c)(1)(viii)
convert the non-mandatory NFPA language to the mandatory? I think not. But it
really is unnecessary to rule on this point in this case. As already decided,
the extinguishers here involved were exempted from the provisions of ¶ 3510.
Paragraph 2231, pertaining to temper seals, does not even contain the precatory
‘should.’ It says, ‘Tampering or extinguisher operation is usually
indicated by broken seals or tamper indicators.’ (Emphasis supplied.) Thus
there is no requirement in this paragraph that tamper seals be provided.
The
citation should be vacated.
13.
The 29 CFR 1926.350(a)(1) citation.
Citation
8 alleges repeated violation of 29 CFR 1926.350(a)(1), for which a penalty of
$100 is proposed, as follows:
Valve protection caps were not in place on
the following compressed gas cylinders when they were not in use or connected
for use:
a. Argon cylinder on south side of boiler
on 187 level;
b. Argon cylinder on west side of boiler
on 157 level;
c. Two oxygen cylinders, located in the
center, on the first floor of the precipitator;
d. One oxygen cylinder in southwest corner
on first floor of the precipitator.
The cited standard provides:
§ 350(a) Transporting, moving, and storing
compressed gas cylinders
(1) Valve protection caps shall be in
place and secured.
Compliance
Officer Prows’ testimony (Tr. 85 92) and photographs (Exhibits C 24, C 25, C
52, C 53) paralleled the citation. Respondent’s defense is that the cylinders
were not being transported, moved, or stored, but were in intermittent use.[26] A similar argument was
made under item 20(a) of citation 1, involving § 1926.350(j). Since the cylinders
obviously were not being transported or moved, the question is narrowed to
whether they were stored.
The
first definition of the verb ‘store’ in Webster’s New World Dictionary, 2d
College Ed. (1972), is ‘to put aside, or accumulate, for use when needed.’ This
seems to fit the present situation. However, the third definition is ‘to put in
a warehouse, etc., for safekeeping,’ which is more in line with respondent’s
argument.
Consistency
might dictate the same result as in the § 1926.350(j) citation. However, the
latter was decided on a practical basis, that is, in view of the frequent use
of the cylinders it was not practical to require the oxygen and acetylene
cylinders to be separated 20 feet or by noncombustible barriers between uses.
However,
there appears to be no practical reason for not replacing the valve protection
caps when the cylinders are disconnected and not in actual use, and this is
consistent with the obvious purpose of the regulation.
On
March 29, 1972, respondent’s affiliate was issued a citation for 20 violations
of § 1926.350(a)(1), and the citation was not contested (C 63; Tr. 92).
Therefore, this is a repeated violation. The gravity is low, but a
consideration of the other statutory criteria, previously discussed, leads to
the conclusion that the proposed penalty of $100 is reasonable.
14.
The 29 CFR 1926.350(f)(7) citation.
Citation
10 alleges repeated violations of 29 CFR 1926.350(f)(7), for which a penalty of
$100 is proposed, as follows:
Welding hoses and cables were not kept
clear of passageways, ladders and stairs in the following locations:
a. Welding cable and hoses on the catwalk
leading to the bottom of the fly ash hopper;
b. Welding cables in passageway, on south
side of boiler on 219 level;
c. Welding cable and hose in passageway
and at bottom of stairway on south side of boiler at 165 level;
d. Welding cables and hoses in passageway
on south side and west side of boiler on 211 level;
e. Hoses in passageway, south side of
boiler on 177 level.
The cited standard provides:
Hoses, cables, and other equipment shall
be kept clear of passageways, ladders, and stairs.
The
testimony of Compliance Officer Prows supports the citation (Tr. 93 97;
Exhibits C 54 through 60). The defense is that respondent’s construction site
consists basically of catwalks, stairs and other open steel and that there is
no practical alternative to locating welding hoses and cables in passageways,
ladders, and stairs, and Safety Supervisor Dalke testified to this effect (Tr.
261, 262). From the photographs, however, it is apparent that in most, if not
all, instances the hoses and cables could have been kept off the floors by
various means. Instead, they frequently were strung around on the floors like
spaghetti. This presented a tripping hazard to which many employees were
exposed.
Respondent’s
affiliate was cited on March 29, 1972, on this same location for violating this
same standard, and did not contest the citation (Exhibit C 63; Tr. 92). As
previously discussed, this is a repeated violation. The gravity is low. Under
the statutory criteria, the proposed penalty of $100 is appropriate.
15.
The 29 CFR 1926.500(b)(1) citation.
Citation
12 alleges a repeated violation of 29 CFR 1926.500(b)(1), for which a penalty
of $125 is proposed, as follows:
The floor hole in the platform around the
turbine on the turbine floor of the generator building was not provided with a
cover or standard railing.
The cited standard provides:
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.
The
citation speaks of a ‘floor hole,’ while the cited standard is for ‘[f]loor
openings.’ Compliance Officer Prows gave the measurements as 2 x 3 “‘, which
makes it a ‘floor hole’ under the definition in § 1926.502(a), supra, p. 21.
Thus this item should have been cited under § 1926.500(b)(8).
As
noted at p. 23, the Commission held in Secretary v. Buhls Laundry & Dry
Cleaning, Inc., 5 OSAHRC 1 (1973) that persons could not accidentally walk
into a 3‘ x 7‘ hole, and the same should be true of the 3‘ wide hole here
involved, though it was 2 long. Thus § 1926.500(b)(8) was not violated.
The
citation will be vacated.
CONCLUSIONS OF LAW
1.
The respondent, Stearns-Roger, Inc., is an employer engaged in a business
affecting commerce who has employees. The Commission has jurisdiction of the
parties and of the subject matter of this proceeding.
2.
Between the dates of March 22 and March 26, 1976, inclusive, the respondent was
in nonserious violation of the following standards:
Citation Item |
Standard |
1
3 |
29
CFR 1926.102(a)(1) |
1
5B |
29
CFR 1926.152(f)(1) |
1
10[27] |
29
CFR 1926.153(j) |
1
15A11 |
29
CFR 1926.303(b) |
1
16A11 |
29
CFR 1926.303(c)(3) |
1
17 |
29
CFR 1926.304(f) |
1
20b |
29
CFR 1926.350(j) |
1
26c |
29
CFR 1926.402(a)(11) |
1
31 |
29
CFR 1926.500(b)(8) |
1
32 |
29
CFR 1926.550(a)(2) |
9
1 |
29
CFR 1926.350(a)(9) |
11
1 |
29
CFR 1926.451(a)(4) |
13
1b, 1c |
29
CFR 1926.500(d)(1) |
3. On
said dates the respondent was in serious violation of the following standards:
Citation
Item |
Standard |
2
1 |
29
CFR 1926.28(a) |
311
1 |
29
CFR 1926.451(d)(10) |
411
1 |
29
CFR 1926.500(d)(2) |
511
1 |
29
CFR 1926.500(f)(1)(vi)(b) |
13
1 |
29
CFR 1926.500(d)(1) |
4. On
said dates the respondent was in repeated violation of the following standards:
Citation
Item |
Standard |
6
1b |
29
CFR 1926.25(a) |
8
1 |
29
CFR 1926.350(a)(1) |
10
1 |
29
CFR 1926.350(f)(7) |
5. On
said dates the respondent was not in violation of the following standards:
Citation
Item |
Standard |
1
1 |
29
CFR 1926.25(b) |
1
2 |
29
CFR 1926.51(a)(5) |
1
4A |
29
CFR 1926.150(a)(1) |
1
4B |
29
CFR 1926.150(a)(2) |
1
4C |
29
CFR 1926.150(a)(4) |
1
5A |
29
CFR 1926.152(a)(1) |
1
7 |
29
CFR 1926.152(g)(4) |
1
9 |
29
CFR 1926.153(h)(11) |
1
12 |
29
CFR 1926.250(a)(3) |
1
13 |
29
CFR 1926.300(b)(1) |
1
14 |
29
CFR 1926.301(d) |
1
18 |
29
CFR 1926.350(f)(6) |
1
20a |
29
CFR 1926.350(i) |
1
21 |
29
CFR 1926.352(g) |
1
22b |
29
CFR 1926.400(a) |
1
23 |
29
CFR 1926.401(a)(1) |
1
24 |
29
CFR 1926.401(c) |
1
25A |
29
CFR 1926.401(j)(1) |
1
27 |
29
CFR 1926.402(a)(10) |
1
28a |
29
CFR 1926.402(a)(12) |
1
33 |
29
CFR 1926.550(a)(12) |
6
1a, 1c |
29
CFR 1926.25(a) |
7
1 |
29
CFR 1926.150(c)(1)(viii) |
12
1 |
29
CFR 1926.500(b)(1) |
ORDER
On
the basis of the findings of fact contained in the foregoing Discussion and
Opinion and the foregoing Conclusions of Law, it is ORDERED that:
1.
The following citations for non-serious violations be and they hereby are
affirmed and that the penalties shown be and they hereby are assessed:
Citation Item |
Standard |
Penalty |
1
3 |
29
CFR 1926.102(a)(1) |
$
0 |
1
5B |
29
CFR 1926.152(f)(1) |
25 |
1
10 |
29
CFR 1926.153(j) |
25 |
1
15a |
29
CFR 1926.303(b) |
0 |
1
16 |
29
CFR 1926.303(c)(3) |
85 |
1
17 |
29
CFR 1926.304(f) |
25 |
1
20b |
29
CFR 1926.350(j) |
0 |
1
26c |
29
CFR 1926.402(a)(11) |
25 |
1
31 |
29
CFR 1926.500(b)(8) |
200 |
1
32 |
29
CFR 1926.550(a)(2) |
25 |
9
1 |
29
CFR 1926.350(a)(9) |
0 |
11
1 |
29
CFR 1926.451(a)(4) |
0 |
13
1b, 1c |
29
CFR 1926.500(d)(1) |
0 |
2. The following citations for serious violations be
and they hereby are affirmed and that the penalties shown be and they hereby
are assessed:
Citation Item |
Standard |
Penalty |
2
1 |
29
CFR 1926.28(a) |
$1000 |
3
1 |
29
CFR 1926.451(d)(10) |
500 |
4
1 |
29
CFR 1926.500(d)(2) |
500 |
5
1 |
29
CFR 1926.500(f)(1)(vi)(b) |
500 |
13
1 |
29
CFR 1926.500(d)(1) |
750 |
3.
The following citations for repeated violations be and they hereby are
affirmed, and that the penalties shown be and they hereby are assessed:
Citation Item |
Standard |
Penalty |
6
1b |
29
CFR 1926.25(a) |
$85 |
8
1 |
29
CFR 1926.350(a)(1) |
100 |
10
|
29
CFR 1926.350(f)(7) |
100 |
4.
The following citations be and they hereby are vacated:
Citation Item |
Standard |
1
1 |
29
CFR 1926.25(b) |
1
2 |
29
CFR 1926.51(a)(5) |
1
4A |
29
CFR 1926.150(a)(1) |
1
4B |
29
CFR 1926.150(a)(2) |
1
4C |
29
CFR 1926.150(a)(4) |
1
5A |
29
CFR 1926.152(a)(1) |
1
7 |
29
CFR 1926.152(g)(4) |
1
9 |
29
CFR 1926.153(h)(1) |
1
12 |
29
CFR 1926.500(b)(1) |
1
13 |
29
CFR 1926.300(b)(1) |
1
14 |
29
CFR 1926.301(d) |
1
18 |
29
CFR 1926.350(f)(6) |
1
20a |
29
CFR 1926.350(j) |
1
21 |
29
CFR 1926.352(g) |
1
22b |
29
CFR 1926.400(a) |
1
23 |
29
CFR 1926.401(a)(1) |
1
24 |
29
CFR 1926.401(c) |
1
25A |
29
CFR 1926.401(j)(1) |
1
27 |
29
CFR 1926.402(a)(10) |
1
28a |
29
CFR 1926.402(a)(12) |
1
33 |
29
CFR 1926.550(a)(12) |
6
1a, 1c |
29
CFR 1926.25(a) |
7
1 |
29
CFR 1926.150(c)(1)(viii) |
12
1 |
29
CFR 1926.500(b)(1) |
5.
Respondent’s requested findings of fact and conclusions of law, to the extent
that they are inconsistent with this decision, be and they hereby are denied.
6.
This proceeding be and it hereby is terminated.
DEE C. BLYTHE,
Administrative Law Judge
Date: January 6, 1977
[1] 29 U.S.C. §
661(i).
[2] Commissioner
Barnako granted respondent’s petition for review, and former Commissioner Moran
issued a general direction for review. As neither party has taken exception to
the judge’s disposition of any items except those listed in respondent’s
petition for review, and in the absence of a compelling public interest in our
review of any other aspect of the judge’s decision, we will review only those
items encompassed within respondent’s petition for review. Water Works
Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976–77 CCH OSHD
¶ 20,780 (No 4136, 1976); Abbott-Sommer Inc., 76 OSAHRC 21/A2, 3
BNA OSHC 2032, 1976–77 CCH OSHD ¶ 20,428 (No. 9507, 1976).
[3] 29 C.F.R. §
1926.102(a)(1) provides:
Employees
shall be provided with eye and face protection equipment when machines or
operations present potential eye or face injury from physical, chemical, or
radiation agents.
[4] The absence of
injuries is not controlling in determining whether a potential for injury
exists. A hazard requiring abatement may exist in the absence of recorded
injuries. The Act is designed to prevent the first injury. Arkansas-Best
Freight, Inc. v. OSHRC, 529 F.2d 649, 654 (8th Cir. 1978).
[5] 29 C.F.R.
1926.102(a)(2) provides:
Eye
and face protection equipment required by this Part shall meet the requirements
specified in American National Standards Institute, Z87.1–1968, Practice for
Occupational and Educational Eye and Face Protection.
[6] 29 C.F.R.
1926.102(a)(3) provides:
Employees
whose vision requires the use of corrective lenses in spectacles, when required
by this regulation to wear eye protection, shall be protected by goggles or
spectacles of one of the following types:
(i)
Spectacles whose protective lenses provide optical correction;
(ii)
Goggles that can be worn over corrective spectacles without disturbing the
adjustment of the spectacles;
(iii)
Goggles that incorporate corrective lenses mounted behind the protective
lenses.
[7] 29 C.F.R. §
1926.500(b)(8) provides:
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.
‘Floor
hole’ is defined at 29 C.F.R. § 1926.502(a) as:
An
opening measuring less than 12 inches but more than 1 inch it its least
dimension in any floor, roof, or platform through which materials but not
persons may fall, such as a belt hold, pipe opening, or slot opening.
[8] We note that this
conclusion by the judge is not challenged by respondent on review and is
consistent with our recent decision in Bechtel Power Company, 79 OSAHRC
$03R, 7 BNA OSHC 1361, 1979 CCH OSHD ¶___ (No. 13832, 1979).
[9] 29 C.F.R. §
1926.350(a)(1) provides:
(a)
Transporting, moving, and storing compressed gas cylinders.
(1)
Valve protection caps shall be in place and secured.
[10] This standard
provides:
(c)
Oxygen cylinders in storage shall be separated from fuel-gas cylinders or
combustible materials (especially oil or grease), a minimum distance of 20 feet
or by a non-combustible barrier at least 5 feet high having a fire resistance
rating of at least one-half hour.
[11] 29 C.F.R. §
1926.350(f)(7) provides:
Hoses,
cables, and other equipment shall be kept clear of passageways, ladders and
stairs.
[12] 29 C.F.R. §
1926.25(a) provides:
During
the course of construction, alteration, or repairs, form and scrap lumber with
protruding nails, and all other debris, shall be kept cleared from work areas,
passageways, and stairs, in and around buildings or other structures.
[13] Respondent also
disputed the repeated characterization of the alleged violation of 29 C.F.R.
§ 1926.350(a)(1). Since we vacate that item, however, the repeated issue
need not be addressed.
[14] The National
Constructors Association also submitted an amicus curiae brief on the issue.
[15] This case was
tried and decided prior to our decision in Potlatch. Usually the Commission has
allowed parties an opportunity to present additional evidence relevant to a
newly-established defense or legal theory where there has been a significant
change or development in the law during the period between the hearing and our
decision on review of the case. See Truland-Elliot, 77 OSAHRC 163/A7, 4
BNA OSHC 1455, 1976–77 CCH OSHD ¶20, 908 (No. 11259, 1976). However, in view of
what we have said above, we need not offer respondent an opportunity for a
remand. Cf. Belger Cartage Service, Inc., 79 OSAHRC 16/B14, 7 BNA OSHC
1233, 1973 CCH OSHD ¶ 23,440 (No. 76–1480, 1979).
[16] Respondent also
argues generally that the violations cannot be found repeated in nature in view
of the lapse of several years between the previous and present violations
(approximately three years with respect to the § 1926.25(a) violation and four
years with respect to the § 1926.350(f)(7) violation) and because intervening
inspections did not result in citations for violation of either § 1926.25(a) or
§ 1926.350(f)(7). In Respondent’s view, it could not reasonably have
anticipated that violations would recur several years later, and it contends
that the absence of citations following the intervening inspections
demonstrates the effectiveness of its safety program.
Although it may be appropriate to
establish a per se rule that a repeated violation cannot be found because of
the lapse of years between the previous and present violations, I would not do
so at this time, preferring instead that the Secretary consider this issue and
formulate a policy with respect to a time period after which it would not be
appropriate to issue repeated citations. Accordingly in this case, absent
evidence that the employer took steps after occurrence of a violation to
prevent the recurrence of substantially similar violations, I would conclude
that the violations are repeated in nature. However, the period of time between
violations may be a relevant consideration in judging the adequacy of any
measures implemented by the employer to prevent the recurrence of similar
violations. Potlatch, supra, 79 OSAHRC 6/A2, p. 29, 7 BNA OSHC at 1068,
1979 CCH OSHD ¶23,294 at 28,177.
Similarly, since there may be any
number of reasons for the Secretary’s failure to issue citations after an
inspection, I would not presume simply from the absence of citations following
the intervening inspections that Respondent had in fact taken steps to prevent
the recurrence of the prior violations. Rather, if there were in fact evidence
that Respondent had adopted such measures, in considering the adequacy of those
measures I would take into account the fact that the Secretary did not allege
substantially similar violations as a result of intervening inspections.
[17] By stipulation,
the Secretary moved to withdraw items 2, 4B, 4C, 5A, 7, 9, 13, 14, 21, 22b, 23,
24, 25a, 27, 28a, and 33 of citation 1, and respondent moved to withdraw its
notice of contest to items 5B, 10, 15A, 17, 26C, and 32 of citation 1 and to
citations 3, 4, 5, 9, 11, and 13, as amended (only the penalties proposed for
citations 3, 4, and 5 having been contested). This stipulation is approved, and
the motions are granted.
[18] No penalty was
proposed for these items.
[19] This is a
typographical error; the ANSI standard involved is Z87.1.
[20] It should be
noted that, although respondent pleaded the affirmative defense of ‘isolated
occurrence’ to this item, it does not argue it on brief.
[21] Not 24, as stated
in the citation, a typographical error; Tr. 28.
[22] ‘Floor hole’—An
opening measuring less than 12 inches but more than 1 inch in its least
dimension in any floor, roof, or platform through which materials but not
persons may fall, such as a belt hold, pipe opening, or slot opening.
[23] ‘Floor
opening’—An opening measuring 12 inches or more in its least dimension in any
floor, roof, or platform through which persons may fall.
[24] Cox v. Burgess,
139 Ky. 699, 96 S.W. 577, 579, quoting from Table Talk, tit. Equity:
Equity
is according to the conscience of him that is chancellor; and, as that is
larger or narrower, so is equity. ‘Tis all one as if they should make his foot
the standard for the measure we call a chancellor’s foot. What an uncertain
measure would this be! One chancellor has a long foot, another a short foot, a
third an indifferent foot. ‘Tis the same thing as the chancellor’s conscience.
[25] Made applicable
here by Rule 2(b) of the Commission’s Rules of Procedure.
[26] Safety Supervisor
Dalke testified (Tr. 260) that they were positioned as they were for use by
crafts in cutting and welding operations and were not hooked up to regulators.
[27] Penalty only contested.