United States of America

**

*OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION*

1244 North Speer Boulevard, Room 250

Denver, Colorado 80204-3582







Phone:  (303) 844-3409                                              Fax:   (303) 844-3759 



SECRETARY OF LABOR, 	
Complainant,

	
v.

	OSHRC DOCKET NO. 01-2028
HENSEL PHELPS CONSTRUCTION CO., and its successors,	
Respondent.

	



APPEARANCES:



For the Complainant:

Jason Vorderstrasse, Esq., Office of the Solicitor, U.S. Department of
Labor, Los Angeles, California



For the Respondent:

Robert R. Miller, Esq., Stettner, Miller and Cohn, PC, Denver, Colorado



Before: Administrative Law Judge: Benjamin R. Loye



*DECISION AND ORDER*



This proceeding arises under the Occupational Safety and Health Act of
1970 (29 U.S.C. Section 651 /et seq./; hereafter called the "Act").

Respondent, Hensel Phelps Construction Co., and its successors (Hensel
Phelps), at all times relevant to this action maintained a place of
business at the Barona Indian Reservation, Lakeside, California, where
it was engaged in construction. Respondent admits it is an employer
engaged in a business affecting commerce and is subject to the
requirements of the Act.

On August 7-8, 2001 the Occupational Safety and Health Administration
(OSHA) conducted an inspection of Hensel Phelps' work site on the Barona
Indian Reservation. As a result of that inspection, Hensel Phelps was
issued a citation alleging violations of §1926.501(b)(1) of the Act
together with a proposed penalty. By filing a timely notice of contest
Hensel Phelps brought this proceeding before the Occupational Safety and
Health Review Commission (Commission).

On May 7-8, 2002, a hearing was held in San Diego, California. On May
16, 2002, the Secretary withdrew citation 1, item 1(b). The parties have
submitted briefs on the remaining issue, /i.e./, citation 1, item 1(a),
and this matter is ready for disposition.

*Alleged Violations*

Citation 1, item 1(a) alleges:

Each employee on a walking/working surface (horizontal and vertical
surface) with an unprotected side or edge which is 6 feet (1.8 m) or
more above a lower level was not protected from falling by the use of
guardrail systems, safety net systems, or personal fall arrest systems:



On the second level of the hotel structure, there was no fall protection
along the south side as there was only one guardrail at 42-inches,
exposing employees to the hazard of falling from an elevation of 8-feet
to the ground and debris below.



/Facts/

On the afternoon of August 7, 2001, OSHA Compliance Officer (CO) Daniel
Mooney visited the Respondent's work site at the Barona Indian
Reservation (Tr. Vol. I, p.19). Mooney testified that, from his car,
which was in a parking lot next to a golf course, he saw and
photographed workers on the second story of a hotel structure. Mooney
determined the second story floor was 9'8" above ground level (Tr. Vol.
I, pp. 61-64; C-18 through C-23). A single guardrail, approximately 42"
high, had been installed on the edge of the floor (Tr. Vol. I, pp. 61,
95). Mooney testified that, because it was late in the day, and the work
site was a large multi-contractor site, he would return the following
day to conduct his inspection (Tr. Vol. I, p. 72).

Mooney returned on August 8, 2001, at which time he held an opening
conference with the employers on the site (Tr. Vol. I, p. 75). Mooney
did not observe any OSHA violations on August 8, 2001 (Tr. Vol. I, p.
77). Nonetheless, Mooney spoke with Hensel Phelps' project
superintendent, Tony Fombon, and with the on-site foreman, Bruce
Lambert, showing them his photographs from the preceding day (Tr. Vol.
I, pp. 76, 78-79). According to Mooney, Fombon and Lambert provided
Mooney with the names of Hensel Phelps' employees on the site but were
unable to identify any of the employees pictured working on the hotel
structure (Tr. Vol. I, pp. 78-79). Mooney testified that he pointed out
that one of the laborers pictured was a woman. Hensel Phelps had only
one female employee working on the site, Vicky Seidler, a field
engineer. According to Mooney, they deduced, therefore, that the
pictured laborer was Ms. Seidler (Tr. Vol. I, pp. 66, 79, 93, 95; Vol.
II, p. 51; Exh. C-21, C-22).

At the hearing, Tony Fombon testified that, to his knowledge, neither he
nor anyone else identified the laborer in Complainant's Exhs. C-21 and
C-22 as Ms. Seidler (Tr. Vol. II, pp. 158, 164-65). According to Fombon,
he did not instruct, or have anyone else instruct Ms. Seidler to work on
the second floor of the hotel structure on August 7, 2001 (Tr. Vol. II,
p. 160). Furthermore, Fombon stated, field engineers wear red hats; the
laborer pictured in Exhs. C-21 and C-22 is wearing a white hard hat (Tr.
Vol. II, p. 159). Fombon noted that there were approximately 140 other
subcontractor employees on the site, many of whom did wear white hard
hats (Tr. Vol II, pp. 159-60). Finally, Fombon testified, it was
unlikely that a field engineer would be performing manual labor such as
sweeping up (Tr. Vol. II, p. 169).

Mr. William Fritz, another Hensel Phelps superintendent, testified that
he participated in the August 8, 2001 OSHA inspection (Tr. Vol. II, p.
104). Mr. Fritz stated that he was unable to identify any of the workers
on the second floor for CO Mooney (Tr. Vol. II, p. 110). Mr. Fritz
further stated that on August 7 there would have been no work for Hensel
Phelps employees on the second floor because the concrete floor above
had not yet been poured (Tr. Vol II, p. 111).

/Discussion/

In order to prove a violation of section 5(a)(2) of the Act, the
Secretary must show, by a preponderance of the evidence, that (1) the
cited standard applies, (2) there was a failure to comply with the cited
standard, (3) employees had access to the violative condition and (4)
the cited employer either knew or could have known of the condition with
the exercise of reasonable diligence. /See, e.g., Walker Towing Corp./,
14 BNA OSHC 2072, 2074, 1991-93 CCH OSHD ¶29239, p. 39,157 (No. 87-1359,
1991). In this case, the Secretary has failed to show the third element,
access.

In order to show employee exposure, the Secretary must prove that
employees have been, are, or will be in zones of danger during either
their assigned working duties, their personal comfort activities while
on the job site, or their movement along normal routes of ingress to or
egress from their assigned workplaces. /Carpenter Contracting Corp./ 11
BNA OSHC 2027, 1984 CCH OSHD ¶29,950 (No. 81-838, 1984). Complainant
introduced no evidence establishing that Hensel Phelps employees had any
assigned work activities, or any other reason to be on the second floor
of the hotel structure on August 7, 2001. Hensel Phelps' superintendent
Fritz testified that, to the contrary, there was /no/ reason for any
Hensel Phelps employee to be on the second floor. Neither CO Mooney, nor
any of Hensel Phelps' witnesses were able to identify workers
photographed on the second floor as Hensel Phelps employees. The sole
basis for the citation in the above captioned action is Mooney's
inference that, because Hensel Phelps had only one woman working on the
site, Vicky Seidler, and because one of the workers on the second floor
was a woman, that woman must be Vicky Seidler. Said inference is not
logically sound. The face of the pictured employee is not shown. Both CO
Mooney and Mr. Fombon testified that there were a number of
subcontractors on the site, any of whom could have employed female
laborers. That the pictured employee was /not/ Vicky Seidler is
supported by Fombon's testimony that Seidler would have been wearing a
red hard hat, and would not have been doing broom work. Complainant's
identification of the worker in Exh. C-21 and C-22 as Vicky Seidler is
pure speculation, and does not establish the element of employee
exposure by a preponderance of the evidence. The sole citation is,
therefore, vacated.

*ORDER*

1. Citation 1, item 1, alleging violation of 29 CFR 1926.501(b)(1) is
VACATED.





/s/

Benjamin R. Loye

Judge, OSHRC



Dated: July 25, 2002