“Docket No. 87-0198 \u00a0SECRETARY OF LABOR, Complainant, v. MOSSER CONSTRUCTION, Inc., Respondent.OSHRC Docket No. 87-0198ORDER The parties’ Stipulation and SettlementAgreement is approved.\u00a0 This order is issued pursuant to a delegation of authority tothe Executive Secretary.\u00a0 41 Fed. Reg. 37173 (1976), amended at 44 Fed. Reg. 7255(1979).FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDated:\u00a0 November 8, 1988ANN McLAUGHLIN, SECRETARY OF LABOR, Complainant, v. MOSSER CONSTRUCTION, INC., Respondent.OSHRC Docket No. 87-0198CERTIFICATE OF POSTINGOn October 17, 1988, a copy of the SettlementAgreement in this matter was posted by Respondent Mosser Construction, Inc.,\u00a0 andwill remain posted through October 27, 1998.ARTER & HADDENDouglas M. Bricker One Columbus CERTIFICATE OF SERVICEThe undersigned hereby certifies that a truecopy of the foregoing Certificate of Posting has been served upon Antony F. Gil, U.S.Department of Labor, Office of the Solicitor, Washington, D.C. 20210, by first classUnited States Mail this 19th day of October, 1988.Of Counsel ANN McLAUGHLIN, SECRETARY OF LABOR, Complainant, v. MOSSER CONSTRUCTION, INC. Respondent.OSHRC Docket No. 87-0198STIPULATION AND SETTLEMENT AGREEMENTIThe parties have reached agreement on a full andcomplete settlement of the instant matter which is presently pending before theCommission.IIThe parties stipulate as follows:(a) The Occupational Safety and Health ReviewCommission (hereafter \”the Commission\”) has jurisdiction of this matter pursuantto Section 10(c) of the Occupational Safety and Health Act of 1970 (84 Sat, 1590; 29U.S.C. 651 et seq.) (hereafter \”the Act\”).(b) Respondent, Mosser Construction, Inc. is acorporation with its principal place of business in Fremont, Ohio.\u00a0 It is engaged inthe construction business and during the course of its business respondent uses materialsand equipment which it receives from places located outside Fremont, Ohio.\u00a0 Respondent, as a result of the aforesaid activities, is an employer engaged in abusiness affecting commerce as defined by Section 3(3) and 3(5) of the Act and is subjectto the requirements of the Act.(c) As a result of an inspection conducted onNovember 20 and 21, 1986 at respondent’s workplace at 3518 St. Lawrence Drive in Toledo,Ohio, a citation for three serious violations,[[1]] a citation for one repeated violationand a citation for one other-than-serious violation were issued to respondent on January13, 1987 pursuant to Section 9(a) of the Act.\u00a0 A total penalty of $2,300 was proposedfor the violations.(d) Respondent contested the citations andproposed penalties.On December 18, 1987, Commission AdministrativeLaw Judge Edwin G. Salyers issued his Decision and Order in which he dismissed the tworemaining serious citations alleging violations of 29 C.F.R. 1926.152(a)(2) and 29 C.F.R.1926.152(b)(2)(iv), and the repeat violation of 29 C.F.R. 1926.350(j).\u00a0 The judgeaffirmed the citation for the other-than-serious violation of 29 C.F.R. 1926.404(f)(6).\u00a0Thereafter, the Secretary filed a timely Petition for Review on the serious andrepeat violations which was granted by the Commission on February 16, 1988.IIINow, the Secretary of Labor and Mosser Construction, Inc., in order to conclude thismatter without the necessity of further litigation or review, stipulate and agree asfollows:(a) The Secretary hereby agrees to withdraw Item1 of serious citation No. 1 for violation of 29 C.F.R. 1926.152(a)(2) and Item 2 of repeatcitation No. 2 for violation of 29 C.F.R. 1926.350(j).(b) The Secretary hereby agrees to reduce theclassification for Item 2 of serious citation No. 1 for violation of 29 C.F.R.1926.556(b)(2)(iv) from serious to other-than-serious with no penalty.(c) Respondent hereby agrees to withdraw itsnotice of contest to the violation of 29 C.F.R. 1926.556(b)(2)(iv) and states that theviolation has been abated and shall remain abated.(d) Respondent hereby withdraws its Notice ofContest to the citations and to the Notification of Proposed Penalty so as to come inharmony with the terms of this agreement.(e) None of the foregoing agreements,statements, stipulations and actions taken by the Respondent shall be deemed an admissionby it of any of the allegations contained in the citations.\u00a0 Respondent specificallydenies each such allegation.\u00a0 The agreements, statements, stipulations and actionsherein are made solely for the purpose of settling this matter economically and amicablywithout further litigation in order to conserve the resources of both OSHA and Respondent.\u00a0They shall not be used by anyone for any other purpose, except by the Secretary ofLabor for subsequent enforcement proceedings filed against the Respondent under theOccupational Safety and Health Act of 1970.(f) Respondent and Complainant agree that eachparty shall bear its own costs.Antony F. GilCounsel for theSecretary of Labor Douglas M. Bricker On Behalf ofMosser Construction CERTIFICATE OF SERVICEThe undersigned hereby certifies that a truecopy of the foregoing Stipulation and Settlement Agreement has been served upon Antony F.Gil, U.S. Department of Labor, Office of the Solicitor, Washington, D.C. 20210, byfirst-class United States mail this 18th day of October, 1988.Of Counsel SECRETARY OF LABOR, Complainant, v. MOSSER CONSTRUCTION, INC., RespondentOSHRC Docket No. 87-0198APPEARANCES:Christopher J. Carney, Esquire, Office of theSolicitor, U. S. Department of Labor , Cleveland, Ohio, on behalf of complainant Douglas M. Bricker, Esquire, Columbus, Ohio, on behalf of respondentDECISION AND ORDERSALYERS, Judge:\u00a0 Respondent, MosserConstruction, Inc., is a construction contractor (Tr. 21).\u00a0 At the time relevant tothis proceeding, respondent was engaged as a subcontractor, erecting the iron work on aproject known as the Toledo Distribution Center (Tr. 23, 153).\u00a0 OSHA ComplianceOfficer Paul Brown inspected the worksite on November 20 and 21, 1986, pursuant to areport that a piece of equipment had been overturned (Tr. 21).Brown began the opening conference on November 20 but, due to inclement weather and peopleleaving, he had to postpone the opening conference until November 21 (Tr. 22).\u00a0 Brownconducted the actual walkaround on November 21 (Tr. 24).\u00a0 Respondent’s job officetrailer was located at the south side of the worksite, approximately 100 feet from thebuilding under construction (Tr. 29, 31).\u00a0 The trailer was approximately 25 feet longand 8 feet wide (Tr. 30).\u00a0 Brown was inside the trailer at least once on November 20and was in and out of the trailer several times on November 21 (Tr. 32).\u00a0 At the timeof his inspection, Brown believed that the door he used was the only passageway to thetrailer (Tr. 32).\u00a0 It was established at the hearing, however, that there was a largeoverhead door at one end of the trailer with wooden steps leading up to it from theoutside (Tr. 203; Respondent’s Ex. 5).Located near the steps leading to the small doorwere three propane cylinders, one oxygen cylinder, and a five-gallon can (Tr. 33, 36).\u00a0Brown believed the five-gallon can contained diesel fuel, but it was established atthe hearing that the can contained form oil (Tr. 209).\u00a0 There is a dispute as to theexact location of the four cylinders and the five-gallon can.\u00a0 Brown asserts that thethree propane cylinders were directly to the right of the wooden stairway, with the oxygencylinder on the left (Tr. 33).\u00a0 Brown testified that he measured the distance betweenthe oxygen cylinder and the propane cylinders as being 50 inches (Tr. 35) and that thefive-gallon can was sitting with the propane cylinders (Tr. 36).\u00a0 In contrast,Raymond Ackerman, assistant to respondent’s safety officer, testified that the propanecylinders were six to eight feet from the stairway’s left rail, with the five-gallon canbetween the propane cylinders and the stairway (Tr. 207-208).\u00a0 To bolster hisargument, Ackerman pointed out a copper line to which the propane cylinders were hookedwhen in use.\u00a0 The copper line was approximately six feet from the stairway (Tr. 215,219).\u00a0 It is unnecessary to resolve this conflict in the testimony in view of thedecision reached.The location of the cylinders and thefive-gallon can was the basis for two citations for violations of two different standards.\u00a0 Item 1 of Citation No. 1 charged a serious violation of 29 C.F.R. ? 1926.152(a)(2)which provides:(2) Flammable or combustible liquids shall notbe stored in areas used for exits, stairways, or normally used for the safe passage ofpeople.Item 2 of Citation No. 2 charged a repeatviolation of 29 C.F.R. ? 1926.350(j) which provides:(j) For additional details not covered in thissubpart, applicable technical portions of American National Standards Institute,Z49.1-1967, Safety in Welding and Cutting, shall apply.Section 3.2.4.3[[1\/]] of ANSI standard Z-49.1-1967 provides: Oxygen cylinders in storage shall be separated from fuel gas cylinders or combustiblematerials (especially oil or grease), a minimum distance of 20 feet or by a noncombustiblebarrier at least 5 feet high having a fire-resistance rating of at least 1\/2 hour.Section 1926.152(a)(2) specifies that thecylinders must \”be stored\”; section 1926.350(j) specifies that the cylindersmust be \”in storage.\”\u00a0 The Review Commission has held that \”cylindersare not ‘in storage’ if they are located in an area where they are usedintermittently.\”\u00a0 M.C.C. of Florida, Inc., 81 OSAHRC 57\/C10, 9 BNA OSHC1895, 1981 CCH OSHD ? 25,420, p. 31,681 (No. 15757, 1981).\u00a0 In the present case,neither party presented evidence as to whether the cylinders were being stored or usedintermittently.\u00a0 It was the Secretary’s burden to prove that the cylinders were instorage.A similar situation occurred in GrossmanSteel & Aluminum Corp., 78 OSAHRC 85\/A2, 6 BNA OSHC 2020, 1978 CCH OSHD ? 21,567(No. 76-2834, 1978).During his inspection, the compliance officerobserved one oxygen tank and one acetylene tank standing upright and tied together infront of the Respondent’s trailer.\u00a0 Neither hoses nor gauges were attached to thetanks.\u00a0 The compliance officer testified he was informed by Respondent’srepresentative that the tanks were in storage and were fully charged.\u00a0 On the otherhand, the Respondent’s Chairman testified that the tanks were not in storage, but wereready for use in that location.\u00a0 According to the witness, gauges and hoses wereremoved to avoid theft and were kept in the trailer.Judge Fier found that the tanks were not\”hooked up\” and that there was no evidence to show that they were not inactiveand stored.In United Engineers and Construction, Inc.,75 OSAHRC 69\/A2, 1974-1975 CCH OSHD ? 19,780 (No. 2414, 1975), appeal dismissed, No.75-1946 (3d Cir., September 17, 1975), the Commission affirmed the Judge’s conclusion that? 1910.252 (a)(2)(iv)(c) was not violated because the cylinders were not in storagewithin meaning of the standard.\u00a0 In that case, oxygen and acetylene cylinders, foundtogether on the site, did not have regulators and hoses attached but were located in anarea where burning would be done on an intermittent basis.\u00a0 The regulators and hoseswere removed nightly to prevent leaks.\u00a0 The facts in the instant case are essentiallyundistinguishable and United Engineers is therefore dispositive.\u00a0 TheRespondent has successfully rebutted the Secretary’s prima facie case and has establishedthat the tanks were not in storage but rather were available for use in an area wherewelding was to be performed on an intermittent basis.Id. at pgs. 2,023-2,024.In the present case, the Secretary presented noevidence on the question of whether the cylinders were in storage.\u00a0 Accordingly, item1 of Citation No. 1 and item 1 of Citation No. 2 are vacated.During his walk-around inspection on the secondday, Brown observed respondent’s employees climbing over the rails of an aerial liftbasket onto and off of the roof of the building under construction, approximately 35 feetabove the ground (Tr. 43).\u00a0 The employees were putting insulation on the roof.\u00a0One employee would stand in the basket, with the top handrail of the basket at rooflevel, and stretch four-foot-wide rolls of insulation from the peak of the roof down tothe roof ‘s edge.\u00a0 Once the insulation was stretched, the employee in the basketwould climb onto the roof to assist another employee already on the roof in applying metalroof panels over the top of the insulation which had just been installed.\u00a0 Theemployee would then climb back onto the basket and move it over to install the nextsection (Tr. 155-156, 158-159).Respondent was issued item 2 of Citation No. 1for a serious violation of 29 C.F.R. ? 1926.556(b)(2)(iv) which provides:(iv) Employees shall always stand firmly on the floor of the basket, and shall not sit orclimb on the edge of the basket or use planks, ladders, or other devices for a workposition.Brown testified that the employees wereviolating the standard by climbing the rails to gain access to and from the roof (Tr. 50).Brown asserted that there would be no violation if the bottom of the basket were raised toroof level and the employees could remove the rails and walk onto the roof (Tr. 51).\u00a0Brown also testified that there would be no violation if the platform rails werecloser to the roof so that the employees could get to and from the roof by climbing overthe rails (Tr. 105).The method that the employees used of crawlingover the rails to get to and from the roof may constitute a hazard, but it is not a hazardproscribed by ? 1926.556(b)(2)(iv).\u00a0 That standard mandates that the employees\”stand firmly on the floor of the basket . . . for a work position.\”\u00a0 Theevidence is clear that the employees were not doing work from their positions on thebasket rails.\u00a0 They were only on the rails momentarily while getting to and from theroof.\u00a0 Therefore, respondent was not in violation of ? 1926.556(b)(2)(iv).In the course of his inspection, Brown observedtwo of respondent’s employees using a power saw that was plugged into a receptacle (Tr.95).\u00a0 Brown stated that the receptacles were noticeably damaged.\u00a0 \”Themetal covers for the receptacles inside the insulating case around the conductorsthemselves were cracked in two or three places\” (Tr. 93).\u00a0 Brown tested thereceptacles with an Etcon circuit tester, which indicates whether or not a circuit isgrounded (Tr. 90-91).\u00a0 The test showed that the receptacles were ungrounded (Tr. 90).The receptacles had been installed two days prior to Brown’s inspection by the electricalsubcontractor, Danelik Electric (Tr. 173). Upon being told that the receptacles wereungrounded, respondent’s carpenter foreman, Robert Johnson, informed Danelik Electric whoreplaced the receptacles that same day (Tr. 114).\u00a0 Johnson testified that he wasunaware of the damage to the receptacles until it was pointed out to him, but heacknowledged that they were noticeably damaged (Tr. 184).Respondent was cited for an \”other\”than serious violation of 29 C.F.R. ? 1926.404(f)(6) which provides:\u00a0 \”The pathto ground from circuits, equipment, and enclosures shall be permanent andcontinuous.\”\u00a0 Respondent argues that the citation should be vacated because ?1926.404(f)(6) was not promulgated until after the November 21, 1986, inspection. \u00a0Respondent contends that it was without notice as to the requirements of thestandard.\u00a0 This contention is without merit.Raymond Ackerman testified that he had a copy ofthe 1985 edition of the OSHA section 1926 regulations in his office (Tr. 188). In thatedition, section 1926.401(c) provides in part:\u00a0 \”The path from circuits,equipment, structures, and conduits or enclosures to ground shall be permanent andcontinuous.\”\u00a0 In 1987 the standards were revised to their present form, andsection 401(c) was transformed into section 404(f)(6).\u00a0 The standards require thesame thing:\u00a0 the path to ground from circuits shall be grounded. Respondent was onnotice as to this requirement.Respondent contends that it had no knowledge ofthe damaged receptacles and is, therefore, not in violation of the standard.\u00a0 Yet,Robert Johnson testified that the receptacles were noticeably damaged.\u00a0\”Constructive knowledge is demonstrated when the record reveals the violativeconditions are detectable through the exercise of reasonable diligence.\”\u00a0 M.C.C.of Florida, Inc., 1981 CCH OSHD at p. 31,682.\u00a0 Respondent had constructiveknowledge of the damaged receptacles.Finally, respondent contends that it was DanelikElectric who was responsible for the installation and maintenance of the receptacles,citing Anning-Johnson, 76 OSAHRC 54\/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD ? 20,690(Nos. 3694 & 4409, 1976).\u00a0 Anning-Johnson provides a subcontractor whoproves that it did not create or control a hazardous condition with an affirmativedefense.Once a cited construction subcontractor hasestablished that it neither created nor controlled the hazardous condition, it mayaffirmatively defend against the Secretary’s charge by showing either (a) that itsemployees who were or may have been exposed to the hazard were protected by means ofrealistic measures taken as an alternative to literal compliance with the cited standard,or (b) that it did not have nor with the exercise of reasonable diligence could have hadnotice that the condition was hazardous.Id. at pgs. 24,783-24,784.In the present case, respondent did not createthe hazardous condition of the damaged receptacles, but it did control it. \u00a0Respondent’s employees used the receptacles.\u00a0 When respondent notified DanelikElectric of the damage, the receptacles were replaced that same day.\u00a0 It requiredminimal effort on respondent’s part to have the hazard abated.\u00a0 Reasonable efforts bythe exposing subcontractor to abate the hazard are required, as the Review Commissionstated in the companion case to Anning-Johnson, Grossman Steel & Aluminum Corp.,76 OSAHRC 54\/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD ? 20,691, p. 24,791 (No. 12775, 1976):[E]ach employer has primary responsibility forthe safety of its own employees.\u00a0 Simply because a subcontractor cannot himself abatea violative condition does not mean it is powerless to protect its employees.\u00a0 Itcan, for example, attempt to have the general contractor correct the condition, attempt topersuade the employer responsible for the condition to correct it, instruct its employeesto avoid the area where the hazard exists if the alternative is practical, or in someinstances provide an alternative means of protection against the hazard.\u00a0 Wetherefore expect every employer to make a reasonable effort to detect violations ofstandards not created by it but to which its employees have access and, when it detectssuch violations, to exert reasonable efforts to have them abated or take such other stepsas the circumstances may dictate to protect its employees.\u00a0 In the absence of suchactions, we will still hold each employer responsible for all violative conditions towhich its employees have access.Respondent was responsible for the damagedreceptacles to which its employees had access.\u00a0 Item 1 of Citation No. 3 charging aviolation of ? 1926.404(f)(6) is affirmed.[[2\/]]FINDINGS OF FACT1.\u00a0 Respondent, Mosser Construction, Inc.,is a construction company that was engaged as a subcontractor in erecting the iron work ona project known as the Toledo Distribution Center.2.\u00a0 On November 20 and 21, 1986, OSHACompliance Officer Paul Brown conducted an inspection of respondent’s worksite.3.\u00a0 Respondent’s job office trailer waslocated on the south side of the worksite.\u00a0 The trailer was approximately 25 feet by8 feet. There were two doors leading into the trailer, a smaller door on the south side,and a large overhead door at the end of the trailer farthest from the small door.\u00a0There were wooden steps leading up to both doors.4.\u00a0 Outside of the south side of thetrailer were three propane cylinders, an oxygen cylinder, and a five-gallon can of formoil.\u00a0 The record does not reflect whether these items were \”in storage\” orwere available for \”intermittent use.\”5.\u00a0 Respondent’s employees used an aeriallift basket to gain access to the roof of the building under construction, a height ofapproximately 35 feet.\u00a0 Although the evidence reflects employees climbed over therails of the basket to gain access to the roof, there was no showing that these employeesperformed work while standing on the rails.6.\u00a0 Two of respondent’s employees wereusing a power saw plugged into a noticeably damaged receptacle that was not grounded.Respondent exercised control over the maintenance of the receptacles.CONCLUSIONS OF LAW1.\u00a0 Respondent, at all times material tothis proceeding, was engaged in a business affecting interstate commerce within themeaning of section 3(5) of the Occupational Safety and Health Act of 1970(\”Act\”).2.\u00a0 Respondent, at all times material to this proceeding, was subject to therequirements of the Act and the standards promulgated thereunder.\u00a0 The Commission hasjurisdiction of the parties and of the subject matter.3.\u00a0 Respondent was not in violation of 29C.F.R. ? 1926.152(a)(2) for storing flammable or combustible liquids in areas used forexits, stairways, or the safe passage of people.\u00a0 No evidence was adduced showingthat the Cylinders were in storage.4.\u00a0 Respondent was not in violation of 29C.F.R. ? 1926.350(j) for failing to separate combustible material by 20 feet or a 5-foothigh barrier.\u00a0 No evidence was adduced to show that the cylinders were in storage.5.\u00a0 Respondent was not in violation of 29C.F.R. ? 1926.556 (b)(2)(iv) for failing to require its employees to stand firmly on thefloor of the basket while in a work position.\u00a0 The employees were not in a workposition when they were climbing over the basket rails.6.\u00a0 Respondent was in violation of 29C.F.R. ? 1926.404(f)(6) for allowing its employees to plug a power saw into a damagedreceptacle that was not grounded.\u00a0 Respondent had constructive knowledge of andcontrol over the hazardous condition.ORDERBased upon the findings of fact and conclusionsof law, it is ORDERED:1.\u00a0 Item 1 of Citation No. 1 and proposed penalty issued to respondent on January 13,1987, are vacated.2.\u00a0 Item 2 of Citation No. 2 and proposedpenalty issued to respondent on January 13, 1987, are vacated.3.\u00a0 Item 3 of Citation No. 1 and proposedpenalty issued to respondent on January 13, 1987, are vacated.4.\u00a0 Item 1 of Citation No. 3 issued torespondent on January 13, 1987, is affirmed as an \”other\” than seriousviolation, and no penalty is assessed.EDWIN G. SALYERSJudge Date:\u00a0 January 7, 1988FOOTNOTES: [[1]] At the hearing, the Secretary withdrewserious citation item for violations of 29 C.F.R. 1926.602(c)(1)(vi).[[1\/]] Section 3.2.4.3 was the sectionoriginally cited in the citation issued to respondent on January 13, 1987.\u00a0 At thehearing the Secretary mistakenly amended this section to section 3.2.3.3, a section whichis inapplicable to this situation (\”Acetylene cylinders shall be stored valve andup.\”)\u00a0 Despite the confusion, it was understood by all present at the hearingthat the standard being litigated was section 3.2.4.3.[[2\/]] A fifth charge, item 2 of Citation No. 2,alleging a violation of 29 C.F.R. ? 1926.102(a)(1) was litigated at the hearing but waswithdrawn by the Secretary subsequent to the hearing.”