902 & 00-1903 (Consolidated) Complete General Construction Company,
Respondent.



Appearances:

Paul Spanos, Esq.			Michael S. Holman, Esq.
Office of the Solicitor			Bricker & Eckler, LLP
U. S. Department of Labor		Columbus, Ohio
Cleveland, Ohio					For Respondent
	For Complainant				

Before: Administrative Law Judge Nancy J. Spies



*DECISION AND ORDER*

Complete General Construction Company (CGCC) is a general contractor
with its main office in Columbus, Ohio. In August and September 2000,
CGCC was the general contractor for a highway renovation project. The
Occupational Safety and Health Administration (OSHA) inspected the
project at two different locations. On August 22, 2000, OSHA Compliance
Officer Stephen Medlock conducted an inspection of the highway project
at Interstate 75 between Edwin C. Moses and Stanley Avenue in Dayton,
Ohio. As a result of this inspection, OSHA issued CGCC one serious
citation (Docket No. 00-1903) on October 6, 2000. On September 19-20,
2000, OSHA Industrial Hygienist Deborah Wallace conducted an inspection
of CGCC's sidewalk project at Third Street under the I-75 overpass in
Dayton, Ohio. As a result of this inspection, OSHA issued CGCC one
serious citation and one other than serious citation (Docket No.
00-1902) on September 25, 2000.

Docket No. 00-1902: Citation No. 1 is classified as serious and relates
to silica exposure. Item 1 alleges a violation of § 1910.134(f)(2) for
failing to fit test respirators (in this case, dust masks). Item 2
alleges a violation of § 1910.134(g)(1)(i)(A) for allowing employees
wearing respirators to have facial hair which could interfere with the
facepiece seal. Item 3 alleges a violation of § 1910.1200(h)(1) for
failing to train employees on a hazardous chemical. Citation No. 2 is
classified as other than serious. Item 1 alleges a violation of §
1910.134(d)(1) for failing to provide a medical evaluation to determine
the employees' ability to wear a respirator. Item 2 alleges a violation
of § 1910.134(k) for failing to train employees who were required to
wear respirators. Docket No. 00-1903: Citation No. 1, item 1, alleges a
serious violation of § 1926.302(b)(7) for failing to have a
self-reducing pressure safety device for the Sullair air compressors.

CGCC timely contested the citations. The cases were consolidated on
November 27, 2000. A hearing on the consolidated cases was held in
Dayton, Ohio on February 22, 2001. The parties submitted post-hearing
briefs, and the case is ready for decision.

The Secretary contends that she established each of the alleged
violations. CGCC primarily argues in Docket No. 00-1902 that it was not
the employer and that it did not require the use of respirators. In
Docket No. 00-1903 it asserts that the valves on the compressor hoses
were acceptable. For the reasons that follow, in Docket No. 00-1902,
while the Secretary established the CGCC was the employer, she did not
prove that respirator use was required. In Docket No. 00-1903, the
Secretary established that CGCC's valve device did not meet the
requirements of the standard.

*DISCUSSION*

The Secretary has the burden of proving, by a preponderance of the
evidence:

(a) the applicability of the cited standard, (b) the employer's
noncompliance with the standard's terms, (c) employee access to the
violative conditions, and (d) the employer's actual or constructive
knowledge of the violations (/i.e.,/ the employer either knew, or with
the exercise of reasonable diligence could have known, of the violative
conditions).



/Atlantic Battery Co., /16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

*DOCKET NO. 00-1902*

*Background*

**

**When Wallace inspected the jobsite, five employees were engaged in
constructing a sidewalk under the I-75 overpass. On the first day of the
inspection she observed employees dry-cutting paver blocks, laying the
blocks, and tamping sand between the blocks. The dry-cutting and tamping
created a cloud of dust around the employees and dust collected on their
clothing (Tr. 10-12). Wallace conducted a 15-minute air sample test and
found silica in the air (Tr. 13). The next day when Wallace arrived at
the site, the employees were soaking the paver blocks in water. Wallace
asked them to dry-cut paver blocks in order to conduct a lengthier air
sample under the conditions she noted the day before.

Each crewmember wore the Moldex 2200 series dust masks (Tr. 19).
Employees Steven Lindsey and Richard Scott had beards (Tr. 28, 100-101).
These employees told Wallace that they had not been fit tested for the
face masks, they had not received a medical evaluation to wear the face
masks, and they had not been trained on the hazards of silica. Wallace
telephoned CGCC's Safety Director Al Tambini, who confirmed that none of
the employees had been fit tested (Tr. 19).

*CGCC was an Employer of the Exposed Employees*

The Secretary contends that CGCC was the employer of the five-member
sidewalk crew at the time of the inspection, or alternatively, that CGCC
controlled the crew's employment under the multi-employer worksite
doctrine. CGCC counters that Gene (or G.) Marchi & Son (Marchi) was the
actual employer of the crew because Marchi employed some of the original
crew, who returned to Marchi's employment after the project was
completed, and because the employees continued to use Marchi's equipment.

After work began on the project, issues arose which resulted in the
project's becoming a union job (Tr. 186). In order to continue working,
Marchi's employees were to become union members (Tr. 168). Marchi, a
non-union employer, made a "deal" with CGCC, the general contractor and
a union employer, that CGCC would be the crew's employer instead of
Marchi (Tr. 187, 190). Consequently, the crew was notified that they
were CGCC employees and CGCC would pay them (Tr. 92, 163, 171, 187). The
crew continued work on the project from August 2000 through November
2000, when the work was completed. All crewmembers, as well as its other
new hires, signed CGCC's application to work and its Safety Manual
Release Form (Tr. 92-94, 163-164, 168, 183). The release stated (Exh.
C-1, -13, -15):

It is the policy of Complete General Construction Company/Complete
Resources Company to take all practical steps to ensure employee safety
while maintaining an effective operation. We require each of our
employees to learn and follow the policies within this manual along with
any others which may be issued from time to time as part of our ongoing
safety program so that they may safeguard their own health and
well-being as well as that of their fellow employees. * * *



This released (/sic/) is to be signed by the employee and forwarded to
the Company Safety Director to be kept on file.



At some point before the inspection, CGCC requested the local union to
send them Scott (and perhaps another union employee). Scott signed the
release, received the manual, and worked with the sidewalk crew (Tr. 34,
100). At the time of the inspection CGCC did not indicate that the crew
was other than its bonafide employees.

"The key factor in determining whether a party is an employer under the
Act is whether it has the right to control the work involved."
/Abbonizio Constrctors, Inc., /16 BNA OSHC 2125, 2126 (No. 91-2929,
1994) [citing /Vergona Crane Co., /15 BNA OSHC 1782,1784 (No. 88-1745,
1992)]. That authority passed from Marchi to CGCC when the crew became
CGCC employees. As far as the employees were concerned, CGCC was their
employer. CGCC kept Goodrich in the position of foreman. Goodrich, as
well as Lindsey and the later-hired Scott, told Wallace that they worked
for CGCC. At the hearing the three confirmed their continuing belief
that CGCC had been their employer (Tr. 17, 92, 163, 183). Day-to-day,
Goodrich directed the sidewalk construction on behalf of CGCC (Tr. 172).
CGCC's Safety Director Tambini periodically visited the work site (Tr.
31). The signed releases implicitly gave Tambini authority to direct the
crew's activity in the safety arena and to discipline them if they
failed to follow the manual.

CGCC held itself out as the individuals' employer to various agencies
(/e.g.,/ OSHA) and organizations (/e.g./, the union). CGCC received
economic benefit as the employer of these employees. If CGCC is to be
believed on the issue, it created paper positions and made misleading
statements for business purposes. The standard of proof is a
preponderance of the evidence. The evidence establishes more than a
paper arrangement. At the time of the inspection CGCC had the authority
to control the employees constructing the sidewalk, and it was their
employer.^(1) <#N_1_>

**

*DOCKET NO. 00-1901: *

**

**

*§§ 1910.134(f)(2), 1910.134(g)(1)(i)(A), 1910.134(e)(1) and 1910.134(k)*

**

Each of the five crewmembers wore filtering dust masks while they cut
and laid the pavers. It is OSHA's position that non-voluntary use of
dust masks (disposable paper type dust respirators) trigger the
protections of the respiratory standards.^(2) <#N_2_> Citation No. 1,
item 1, alleges that CGCC failed to fit test the employees for the dust
masks. Section 1910.134(f)(2) provides:

The Employer shall ensure that an employee using a tight-fitting
facepiece respirator is fit tested prior to initial use of the
respirator, whenever a different respirator facepiece (size, style,
model or make) is used, and at least annually thereafter.



Citation No. 1, item 2, alleges that employees' facial hair could have
interfered with the sealing surface of the dust masks. Section
1910.134(g)(1)(i)(A) provides:

/(1) Facepiece seal protection./ (i) The employer shall not permit
respirators with tight-fitting facepieces to be worn by employees who
have: (A) Facial hair that comes between the sealing surface of the
facepiece and the face or that interferes with valve function.



Citation No. 2, item 1, alleges that CGCC did not provide medical
evaluations to the sidewalk construction crew who were exposed to silica
dust. Section 1910.134(e)(1) provides:

The employer shall provide a medical evaluation to determine the
employee's ability to use a respirator, before the employee is fit
tested or required to use the respirator in the workplace. The employer
may discontinue an employee's medical evaluations when the employee is
no longer required to use a respirator.

Citation No. 2, item 2, alleges that CGCC did not provide necessary
training to the employees required to wear dust masks. Section
1910.134(k) provides:

This paragraph requires the employer to provide effective training to
employees who are required to use respirators. The training must be
comprehensive, understandable, and recur annually, and more often if
necessary. This paragraph also requires the employer to provide the
basic information on respirators in Appendix D of this section to
employees who wear respirators when not required by this section or by
the employer to do so.



These provisions apply only if CGCC required employees to wear dust
masks while dry-cutting paver blocks containing silica or while working
in the resulting dusty environment.

*Did CGCC require its employees to use respirators? *

As the Secretary concedes, voluntary use of the dust masks does not
trigger application of these four respirator protection standards.
Wallace saw each of the employees wear dust masks as they cut and laid
the sidewalk pavers. She testified that foreman Goodrich told her that
the dust masks were required (Tr. 19). She also took a signed statement
from Lindsey which asserted, "I am required to wear dust mask anytime we
are creating dust such as tamping or cutting" (Exh. C-14).

At the hearing Goodrich convincingly explained that while he strongly
suggested to the employees that they wear dust masks, wearing dust masks
was voluntary with each employee (Tr. 191). Goodrich himself wore a
respirator while cutting pavers, and he brought face masks to the
worksite for everyone to wear (Tr. 192). Contradicting his statement to
Wallace, Lindsey testified to his understanding that the employees were
not required to wear a dust mask when cutting pavers (Tr. 165). He was
told by foreman Goodrich that he "should" wear one for his own health
but that the decision was his (Tr. 176). Lindsay testified that
sometimes he did not wear a dust mask when cutting the pavers (Tr. 180).
Lindsay agreed that he signed a statement taken by Wallace asserting
that he was required to wear the respirator. He explained that the
statement was correct because on the second day of the OSHA inspection
he was told to be sure to wear it. Lindsay assumed that this was because
OSHA was there (Tr. 181).

The demeanor of the witnesses and the fact that they have no continuing
employement relationship with CGCC was weighed in determining that, with
the possible exception of the second day of the OSHA inspection, the
sidewalk crew was encouraged, but not required, to wear the dust masks.
Given the longer-term planning needed to enforce the cited standards,
consideration is given to all factual circumstances of the employees'
respirator use. It is concluded that Goodrich allowed the employees to
make their own final decision on whether to wear the dust mask. The
aberration of telling an employee to be sure to wear one while OSHA was
there does not change the underlying voluntary nature of CGCC's policy
for those employees.

The Secretary failed to prove that the employer required employees to
wear dust masks, and accordingly, §§ 1910.134(f)(2),
1910.134(g)(1)(i)(A), 1910.134(e)(1), and 1910.134(k)^(3) <#N_3_> are
not applicable. The items are vacated.

*Alleged Serious Violation of § 1910.1200(h)(1)*

**

**The Secretary asserts at Citation No. 1, item 3, that employees were
exposed to the hazardous chemical of silica but were not provided the
requisite training. Section 1910.1200(h)(1) provides:

(h) /Employees information and training. /(1) Employers shall provide
employees with effective information and training on hazardous chemicals
in their work area at the time of their initial assignment, and whenever
a new physical or health hazard the employees have not previously been
trained about is introduced into their work area. Information and
training may be designed to cover categories of hazards (/e.g.,
/flammability, carcinogenicity) or specific chemicals. Chemical-specific
information must always be available through labels and material safety
data sheets.



Respirable silica is listed as a hazardous chemical in § 1910.1000,
Table Z-3 - Mineral Dusts. CGCC did not provide information or training
on the hazards of silica. CGCC argues, however, that "all exposures to
silica dust were well within the limits permitted and there was no
hazard" (R. brief, p.16). Evidence >of silica exposure above the
permissible exposure limit (PEL) is not necessary. The standard requires
training on hazardous chemicals in the work area regardless of the
amount of exposure. The existence of a standard presumes that a hazard
is present when the terms of the standard are not met. /See Wright &
Lopez/, 10 BNA OSHC 1108, (No. 76-256, 1981). Arguing that a hazard does
not exist despite a violation is an "impermissible challenge to the
wisdom of the standard." /Heath & Stich, Inc./, 8 BNA OSHC 1640, 1643
(No. 14188, 1980).

Wallace observed a cloud of dust around the employees and dust on the
employees' clothing resulting from the work of cutting and laying the
paver blocks. In order to build the sidewalk, CGCC employees dry-cut
paver blocks at least from August until the inspection in September.
Their exposure to the silica dust was not an isolated incident. /See
Holly Springs Brick & Tile Co., /16 BNA OSHC 1856, 1860 (No. 90-3312,
1994).

The sidewalk construction and accompanying dust was in plain sight, and
further foreman Goodrich worked with it. The actions and knowledge of
the supervisor is imputed to his employer. /Todd Shipyards Corp., /11
BNA OSHC 2177, 2179 (No. 77-1598, 1984). The Secretary established the
elements of the violation.

Seriousness of the Violation

Noting that the PEL for silica has remained unchanged since established
in 1969, the Secretary countered the argument that silica exposure must
exceed the PEL to be a serious health hazard. Both the American
Conference of Governmental Hygienists (ACGIH) and the National Institute
of Occupational Safety & Health (NIOSH) established more recent
threshold limits for silica exposure at 0.05 mg/m³. ACGIH and the
International Agency on Research on Cancer (IARC) designate silica as a
suspect human carcinogen.

Wallace's test results showed Goodrich was exposed to silica at 44% of
OSHA's PEL (.7123 mg/m³); one laborer was exposed at 33% of the PEL
(.4673 mg/m³); and another laborer was exposed at less than 10% of the
PEL (.1503 mg/m³) (Exh. R-1, Tr. 80, 86). These readings, however,
exceed the recommended 0.05 mg/m³ limits of the other organizations from
3 to 14 times.^(4) <#N_4_> Breathing silica dust causes silicosis, which
results in permanent lung damage and disability. CGCC's violation of §
1910.1200(h)(1) is affirmed as serious.

*DOCKET NO. 00-1903*

**

**

*Background*

On August 22, 2000, Medlock inspected the highway project on Interstate
75 between Edwin C. Moses and Stanley Avenue, accompanied by Tambini and
the job's union steward. Tambini informed Medlock that he made periodic
safety inspections of the jobsite roughly every week or so (Tr. 113).

Medlock observed employees jackhammering out the old concrete before
pouring new concrete to resurface the highway. The pneumatic jackhammers
were powered by two air compressors manufactured by Sullair. Employees
Seth Fuldoff and a Mr. Carr operated jackhammers powered by a Sullair
Model 185 air compressor. An employee Mr. Harris operated a jackhammer
powered by a Sullair Model 250 air compressor (Exhs. C-3, C-9; Tr. 109).
The connections to the air compressors were made with three hoses, each
having a ¾ inch inside diameter (Tr. 114). CGCC had installed
manually-operated gate valves (ball valves) to reduce air pressure in
event of a hose rupture or failure (Tr. 118).

*Alleged Serious Violation of § 1926.302(b)(7)*

**

**Citation No. 1, item 1, alleges that ¾ inch inside diameter air hoses,
connected to Sullair 185 and 250 air compressors used to power pneumatic
jackhammers, were not protected by appropriate pressure reducing
devices. The Secretary contends devices must be /automatic. / CGCC
asserts that its /manually-operated/ gate valve meets the standard's
requirement for a safety device to reduce air pressure. Section
1926.302(b)(7) provides:

/Pneumatic power tools. /(7) All hoses exceeding ½-inch inside diameter
shall have a safety device at the source of supply or branch line to
reduce pressure in case of hose failure.



The purpose of a safety device at the supply or branch line of an air
compressor is to reduce the air pressure in case of hose failure. If the
hose ruptured or came apart, the pressure on the hose would cause it to
whip around with great force and possibly hit employees or knock them
from heights. If a pressure reducing valve must be turned off manually,
employees are in danger of being hit by the whipping hose until someone
can come to turn down the valve. Also, depending upon where the break
occurs, a person turning off the valve may be hit by the whipping hose
while trying to reach it.

"It is well established that a statute or, in this case, a standard must
be construed so as to avoid an absurd result." /Unarco/ /Commercial
Properties/, 16 BNA OSHC 1499 (No. 89-1555, 1993), citing /Griffin v.
Oceanic/, 458 U.S. 564 (1982). Here, the Secretary's interpretation of
the term gives effect to the standard's safety objective while keeping
that interpretation within anticipated bounds. The manufacturer's
instructions lend support to the Secretary's interpretation. On the side
of the compressor is a warning label that states: "Connect air hoses
only in full compliance with OSHA standard 29 C. F. R. 1926.302(b)(7).
The required safety device should be tested in accordance with the
manufacturer's recommendations to verify that they reduce pressure in
case of failure and will not nuisance trip with the hose and tool
combinations in use" (Exh. C-8). As Medlock testified, "nuisance
tripping" occurs where a valve automatically shuts itself off because it
too easily senses a rush of air through the hose, as if the hose had
ruptured (Tr. 127). A manual valve cannot nuisance trip and was not
anticipated by the manufacturer.

The Secretary also points to the fact that a National Safety Council
data sheet on air-powered hand tools requires that such hoses
"immediately" shut off air from a broken hose and prevent whipping (Tr.
132). A flow-limiting or velocity valve automatically stops the air
pressure from coming into the hose whereas the manually-operated gate
valve does not (Tr. 125). CGCC's manually-operated gate valve does not
meet the requirements of the standard. CGCC was aware that it used the
manual shut off. The Secretary established the elements of the violation.

Seriousness of Violation

The hoses carried 120 pounds of pressure. Being hit by a ruptured hose
could result in serious bodily harm (causing concussion, eye injury,
broken bones, and/or lacerations) or possibly death (Tr. 133). The
violation is affirmed as serious.

***Penalty Assessment*

The Commission is the final arbiter of penalties in all contested cases.
Section 17(j) of the Act requires that when assessing penalties, the
Commission gives "due consideration" to: (1) the size of the employer's
business, (2) the gravity of the violation, (3) the good faith of the
employer, and (4) the prior history of violations. 29 U. S. C. § 666(j).
Generally, the gravity of the violation is the primary consideration in
assessing penalties. /Trinity Industries, Inc., /15 BNA OSHC 1481, 1483
(No. 88-2691, 1992). The gravity of a particular violation "depends upon
such matters as the number of employees exposed, the duration of the
exposure, the precautions taken against injury, and the likelihood that
any injury would result." /J. A. Jones Construction Co., /15 BNA OSHC
2201, 2214 (No. 87-2059, 1993).

CGCC is a large employer with 500 employees (Tr. 26). The recommended
penalty included a credit for good faith because CGCC had an ongoing
safety and health program. It allowed no credit for history because of
previous serious violations within a 3 year period (Tr.27, 141). CGCC
cooperated with the inspection (Tr. 146). The gravity of failing to
train and provide information on the health hazard of silica is at least
moderate. Five employees were exposed to dust containing respirable
crystalline quartz silica for at least 1 month. The degree of silica
exposure was also considered. Employees may take fewer or no precautions
if they have not been trained and do not understand the nature of the
hazard.

On the highway project three employees were exposed to injury by a
ruptured hose. The conditions under which the jackhammers were operated
increased the likelihood that a hose would rupture, and the gravity of
the violation is heightened (Exh C-4, -5; Tr. 133-134, 137).

Based on these factors, the assessed penalty for the violation of §
1910.1200(h)(1) is $2000.00 and for 1926.302(b)(7) is $2,500.00.

*FINDINGS OF FACT AND CONCLUSIONS OF LAW*

The foregoing decision constitutes the findings of fact and conclusions
of law in accordance with Rule 52(a) of the Federal Rules of Civil
Procedure.

*ORDER*

It is ORDERED that:

Docket No. 00-1902:

1. Citation No. 1, Item 1, alleging a serious violation of §
1910.134(g)(2), is vacated.

2. Citation No. 1, Item 2, alleging a serious violation of §
1910.134(g)(1)(i)(A), is vacated.

3. Citation No. 1, Item 3, alleging a serious violation of §
1910.1200(h)(1), is affirmed and a penalty of $2,000.00 is assessed.

4. Citation No. 2, Item 1, alleging an other than serious violation of
§ 1910.134(e)(1), is vacated.

5. Citation No. 2, Item 2, alleging an other than serious violation of
§ 1910.134(k), is vacated.

Docket No. 00-1903:

6. Citation 1, Item 1, alleging a serious violation of § 1926.302(b)(7),
is affirmed and a penalty of $2,500.00 is assessed.



/s/

NANCY J. SPIES

Judge





Dated: June 18, 2001







1. Had CGCC not been the employer, its responsibility under the
multi-employer worksite doctrine would be evaluated. A general
contractor may be held responsible for violations of other employers
where it could reasonably be expected to prevent or detect and abate the
violations due to its supervisory authority and control over the
worksite. /Centex-Rooney Construction Co., /16 BNA OSHC 2127, 2130 (No.
92-0851, 1994).

2. Employees wore only dust masks while cutting pavers. The Secretary
has not alleged that dust masks were inappropriate. Because of the
disposition on the "required use" issue, it is unnecessary to address
whether dust masks fit "tightly" within the meaning of the standards.

3. While the first two sentences of § 1910.134(k) govern the more
comprehensive training for required wearers, the third sentence mandates
that even voluntary wearers be given the information stated in Appendix
D. Although having found that the employees were voluntary wearers,
failure to provide Appendix D was not the cited violation. The record is
silent on whether CGCC's manual contained the Appendix D information.

4. As CGCC repeatedly points out, only the OSHA standard's threshold
limits govern the existence of violations. Nevertheless, evidence of
possible health effects at lesser limits are relevant to the degree of
injury for violations such as the instant one.