“SECRETARY OF LABOR,Complainant,v.UNION BOILER CO.,Respondent.OSHRC Docket No. 79-0232DECISIONBefore: ROWLAND, Chairman; CLEARY and COTTINE,Commissioners.BY THE COMMISSION:In this case, Administrative Law Judge Cecil L. Cutler, Jr., held thatUnion Boiler Company (\”Union Boiler\”) committed a serious violation ofthe Occupational Safety and Health Act, 29 U.S.C. ?? 651-678 (\”theAct\”), by failing to secure a railing in accordance with therequirements of the standard contained at 29 C.F.R. ? 1926.500(f)(1)(iv). [[1\/]] The judge assessed a $500 penalty for the violation.Union Boiler petitioned for review of the judge’s decision and itspetition was granted. For the reasons that follow, we affirm the judge’sdecision.I.On Tuesday, October 10, 1978, Union Boiler, a contractor with more than1,000 employees, was performing repair work on a boiler at the PhilipSporn power plant operated by the Appalachian Power Company (\”APC\”) inNew Haven, West Virginia. Thirty-three employees of Union Boiler were onthe jobsite. The judge described the events that led to the issuance ofa citation to Union Boiler as follows:Bruce Sexton, an employee of Union Boiler, was manipulating a piece ofequipment onto the \”G\” level of the number 5 boiler at the power plant.The equipment had been hoisted by a tugger located on the [top]…floorthrough a shaft-type opening from a pickup truck at ground level 80 to100 feet below. In maneuvering the object, described as stress-relievingequipment, over a section of removable railing at the \”G\” level, Mr.Sexton backed against the railing. [The railing] came loose and felldown the opening striking two [Union Boiler] employees standing onground level by the truck. As a result, one employee was killed and theother injured.The railing in question was made of tubular steel and was 11 feet, 9inches long. It had been installed on level G as a barrier at the edgeof the shaft when that level was constructed in the 1960’s. The railingwas formed by two horizontal bars supported by two vertical posts,designated post 5 and post 6.A collar at the base of each post served to anchor the railing to thefloor of level G by means of bolts which passed through the collar andscrewed into steel and lead anchors in the concrete floor. Each collarheld four bolts.Upon examination of the fallen railing on the ground level of thefacility on the evening of the accident, Occupational Safety and HealthAdministration (\”OSHA\”) compliance officer Stanley Elliott observed twobolts with anchors attached on the collar of post 5. A single bolt andattached anchor were observed on post 6. When he examined level G, thecompliance officer found that two anchors remained in the concrete floorat the anchoring location of post 5 and two anchors were missing. At theanchoring position of post 6, the compliance officer found that threeanchors remained in the concrete floor and one was missing. One of theanchors for post 6 contained part of a broken bolt. The exposed end ofthe broken bolt was not shiny but, rather, defaced and deteriorated,indicating that the break was not recent. The other four anchors stillimbedded in the floor were filled with dirt and dust. Noting that thethreads in all the anchors that remained were undamaged, Elliott opinedthat it was unlikely that bolts had been in place in these anchors whenthe railing fell since the threads of the anchors would have beendamaged as the bolts were torn out. Elliott noted that the concretearound the anchors had deteriorated but that this deterioration was\”very minimal.\” Elliott found no loose bolts on the floor even though heinquired about the missing bolts and inspected level G and the ground inthe area of where the railing fell. Elliott inspected a railing adjacentto the one that fell and found bolts in only eight of the sixteen holesin the collars. Elliott also identified six employees of Union Boilerwho had access to the railing that fell.Michael Zerkle, safety coordinator for Union Boiler and an experiencedinvestigator, testified that, during an investigation conducted on theafternoon and evening after the accident, he found one bolt on level Gand two bolts on the ground level in the area where the railing landed.The bolts that were found were the same type as those attached to thecollars of the fallen railing. Zerkle did not disturb the bolts that hefound but did not point them out to the compliance officer during theOSHA inspection since he thought they were apparent and that thecompliance officer had seen them. The threads of these bolts were intactand did not appear to be stripped. Zerkle did not examine the threads ofthe anchors that remained in the concrete on level G. When Zerkle wasshown these anchors at the hearing he observed that \”[s]ome [of theirthreads] are good and some are not so good.\” He added that some of thethreads looked like they were stripped. Zerkle noted that the concretefloor on level G had a solid base but was \”soft and powdery\” around theanchors.Sexton, the employee who had backed against the railing when it fell,testified that he had seen eight bolts anchoring it in place, althoughhe had not bent down to observe closely the base of the railing. Beforethe railing fell, Sexton also tested it and found \”a little bit of playin it\” but considered it safe. Sexton noted that both his foreman,Dennis Cochran, and Mr. Statts, another Union Boiler supervisor, [[2\/]]were present on level G on the morning before the accident occurred, butSexton did not state whether either of them examined the railing. WhenSexton maneuvered the 150-pound piece of equipment over the railing, hewas positioned between the railing and the equipment, with his back incontact with the railing. According to Sexton, who weighed 175 pounds,he exerted \”very little\” pressure on the railing. Neither the equipmentbeing hoisted nor the tugger cable came in contact with the railing.The railing had been removed twice before the accident, on Friday,September 29, and Friday, October 6. Removal of railings was theresponsibility of Union Boiler’s pipefitters. William Arnott, one of thepipefitters who removed the railing, testified that he was instructed toremove the railing by assistant superintendent Statts. Arnott andAnthony Territo, a pipefitter who removed the railing with Arnott,testified that on both occasions the railing was returned to the samecondition it was in before removal, i.e., all of the bolts that wereremoved were replaced. Although he was not certain, Territo believedthat no bolts were missing. According to both employees, if they hadnoticed that a bolt was missing, it would have been replaced; however,Territo’s testimony in this regard was somewhat equivocal. Afterreplacing the railing, Arnott shook it and found it was \”safe.\”Ernest W. Call, Union Boiler’s superintendent at the Phillip Spornplant, testified that Union Boiler’s employees used the area by therailing only as a loading zone. Call also noted that the area was notenclosed and was exposed to rain and snow.S:\\1983\\Processed\\79-0232\\00000000\\06.tif\”Frank Reynolds, an employee of Central Operating Company, a subsidiaryof APC, testified that on Saturday, October 7, he checked the railingand found that there was no \”play\” in it. Reynolds did not notice howmany bolts were in place. To Reynold’s knowledge, the only employees whoworked on level G between October 6, when the railing was last replaced,and October 10, when the railing fell, were employed by Union Boiler.Reynolds noted that fly ash produced during the plant’s operationaccumulated on level G but that this level was one of the cleaner areasin the plant.B. H. Davis, Union Boiler’s chief engineer, testified as an expert thatthe fly ash that accumulated on level G formed an acid when combinedwith water and that this acid could digest or deteriorate concrete andrust the steel portions of the anchors and bolts. In Davis’ opinion,this acid deteriorated the concrete around the anchors and reduced theanchorage. According to Davis, if enough pressure was applied to therailing to cause it to pull out, both the bolts and the anchors wouldpull out of the concrete with the railing, unless the bolts or theanchors had deteriorated from the acid, in which case the ones that haddeteriorated would break. Davis performed tests on the strength of thetype of anchors used to attach the railing and determined that theanchors could withstand approximately 3,000 pounds of upward pressure.Davis also testified that, even with three bolts in place, the railingcould withstand a force of more than 200 pounds. However, a post withonly one bolt in place could withstand only 100 pounds of force directlyon it if the bolt was on the side of the post opposite from the sidewhere pressure was applied. Davis also calculated that the pressureexerted by Sexton an the railing when it fell was eleven pounds.II.Finding that only three bolts had been in place in the railing when itfell, the judge concluded that a violation of section 1926.500(f)(1)(iv)was established. He reasoned that, if all eight bolts had been in placewhen the railing fell, the bolts would have remained attached to thecollars and anchors or they would have pulled out of their anchors. Inthe latter case, the forcible ejection of the bolts would have strippedthe threads of the bolts and anchors. However, the judge noted, Elliotttestified that the threads in the anchors left in the floor were notstripped. The judge also noted that the pressure exerted by Sexton thatcaused the railing to topple was \”far less than the vertical pulloutstrength which Mr. Davis testified the bolts were designed to take.\”With respect to the bolts found by Zerkle, the judge observed that suchbolts normally would be found \”laying around\” a power plant and that thebolts were not attached to anchors nor were their threads stripped, thusindicating that they were not pulled out when the railing fell. Thejudge further found the testimony of pipefitters Arnott and Territoinconclusive since neither worker could recall how many bolts werereplaced in the railing. The judge also accorded no weight to Sexton’stestimony that eight bolts were in place because Sexton observed thebolts from a standing position and did not \”get down and inspect them.\”Moreover, the fact that neither the pipefitters nor Sexton noticed thebroken bolt in one of the anchors cast doubt on the thoroughness oftheir observations. The judge found that the deterioration of theconcrete through age and acid could have contributed to the collapse ofthe railing if only three bolts were holding the railing in place. Thejudge also found that the absence of eight of the sixteen required boltsfrom a nearby railing supported an inference that bolts were missingfrom the railing that fell.Additionally, the judge held that the fact that Union Boiler’s employeestwice removed and replaced the guardrail imposed a duty on Union Boilerto make reasonable efforts to detect any hazardous condition associatedwith the railing. This duty was not fulfilled by the \”slight shake\” and\”casual look\” given the railing by Union Boiler employees, according tothe judge. Noting that Union Boiler’s employees removed the railingbefore the accident and that these employees testified that they wouldhave fixed an unsafe railing, the judge found that Union Boilercontrolled the hazard and thus concluded that a multi-employer worksitedefense was not established under Anning-Johnson Co., 76 OSAHRC 54\/A2, 4BNA OSHC 1193, 1975-76 CCH OSHD ? 20,690 (Nos. 3694 & 4409, 1976)(\”Anning-Johnson\”).III.On review, Union Boiler argues that the judge erred in finding that therailing was supported by only three bolts. In Union Boiler’s view, thejudge ignored the evidence of several witnesses that the railingcontained a full complement of bolts and failed to state reasons why hedid not credit this testimony. In any event, Union Boiler contends thatcompliance with the cited standard does not turn on whether all thebolts were in place but on whether the railing could withstand 200pounds of pressure. Union Boiler submits that its expert’s testimonyshows that, even if three bolts were in place, protection in excess ofthe standard’s requirement was provided. Union Boiler further arguesthat, assuming only three bolts were in place, the judge erred infinding a violation because the deterioration of the concrete was thecause of the accident and not merely a \”contributing factor,\” as theJudge found.\” [[3\/]] Union Boiler argues that the fact that a nearbyrailing was supported by only eight of sixteen bolts is irrelevant sincethere is no evidence that its employees had ever touched that railing.Noting that its employees used the area near the railing only as a\”handy loading zone\” and that its employees, having tested the railing,considered it safe and were unaware of the deteriorated concrete, UnionBoiler submits that it neither created nor controlled the hazard andthat it had no knowledge that the railing was hazardous. In view ofthese facts, Union Boiler argues that the judge erred in rejecting itsAnning-Johnson defense.IV.To prove a violation of section 5(a)(2) of the Act, the Secretary mustshow by a preponderance of the evidence that (1) the cited standardapplies, (2) there was a failure to comply with the cited standard, (3)employees had access to the violative condition, and (4) the citedemployer either knew or could with the exercise of reasonable diligencehave known of the condition. Daniel International Corp., 81 OSAHRC71\/D6, 9 BNA OSHC 2027, 1981 CCH OSHD ? 25,813 (No. 76-181, 1981).Union Boiler does not dispute that the cited standard applies. Withrespect to the second element, Sexton testified that he exerted \”verylittle\” pressure on the railing before it fell. Union Boiler’s expertcalculated that the force exerted by Sexton was only eleven pounds.Moreover, if Sexton had been leaning heavily on the railing, it islikely that he would have fallen when the railing gave way. Thus,regardless of whether three or eight bolts were in place, the evidencesupports a finding that the railing was not \”capable of withstanding aload of at least 200 pounds,\” as required by the cited standard. Withrespect to the element of employee access, Union Boiler employeesSexton, Arnott, Territo, and the employees who were struck by therailing had access to the hazardous condition.The dispute in this case centers around the fourth element, i.e.,whether Union Boiler knew or with reasonable diligence could have knownof the weakness of the railing. In determining whether an employershould have known of a hazardous condition, the Commission has inquiredas to whether the employer exercised reasonable diligence to detect thecondition. In exercising reasonable diligence an employer is required toinspect and perform tests to discover safety-related defects in materialand equipment. Prestressed Systems, Inc.,, 81 OSAHRC 43\/D5, 9 BNA OSHC1864, 1981 CCH OSHD ? 25,358 (No. 16147, 1981).We find that Union Boiler knew or, with the exercise of reasonablediligence, could have known that the railing was of insufficientstrength. Crucial to this finding is our determination that the railingwas anchored by only three bolts when it was dislodged by Sexton. Thephysical evidence compels this conclusion. Only three bolts remainedattached to the railing after it fell. As the judge noted, the boltsfound by Union Boiler’s investigator, Zerkle, were not stripped,indicating that they were not forcibly ejected from their anchors whenthe railing fell. Although Zerkle testified that the threads of some ofthe anchors remaining in the floor were stripped while Elliott testifiedthat none were stripped, Zerkle’s opinion was based only on hisexamination of the anchors at the hearing, ten months after the railingfell. He did not examine the anchors’ threads during his investigationof the accident. Elliott, on the other hand, examined these anchors onthe day of the accident while they were still imbedded in the concreteAnd found that they were filled with dust and dirt and that theirthreads were not stripped, indicating that bolts were not attached tothese anchors when the railing fell. After the accident, the anchors hadbeen removed from the concrete by employees of Central OperatingCompany. There is no evidence concerning whether the threads of theanchors were damaged or altered during removal or at any timethereafter. Zerkle testified that the anchors looked the same at thehearing as they had when he investigated the accident, but, as alreadynoted, he had not examined the threads of the anchors during hisinvestigation. We conclude that the testimony of Elliott is moreprobative of the condition of the anchors at the time the railing fellthan the testimony of Zerkle, since Elliott’s testimony was based onobservations made when the anchors were still in place on level G and ata time closer to when the accident happened. Moreover, even Zerkle didnot contend that the threads of all of the anchors remaining in level Gwere stripped.[[4\/]]Finally, we note that Davis, Union Boiler’s expert, testified that if abolt were in place in an anchor when the railing gave way, both the boltand anchor would have pulled out of the concrete or the bolt or theanchor would have broken. Here, five of the eight anchors remainedintact in the concrete on level G after the railing fell. One of thefive anchors contained a portion of broken bolt, but the broken end wasdefaced and deteriorated rather than shiny, indicating that the bolt hadbroken some time before the railing fell. No other broken bolts werediscovered, and the three loose bolts that Union Boiler contended hadbeen attached to the railing were not broken. Only three of the boltspulled out with their anchors attached. Thus, evaluation of the physicalevidence on the basis of the theory supplied by Union Boiler’s expertleads to the conclusion that only three bolts were in place when therailing fell. [[5\/ ]]During the two week period before the accident, Union Boiler’spipefitters had removed the railing twice on the orders of a supervisor.The last time railing was removed and reinstalled was four days beforeit fell. Union Boiler’s supervisors, Cochran and Statts, were present onlevel G before the equipment was hoisted to that level. Thesesupervisors knew or should have known that Sexton would be required towork in close proximity to the railing while landing this equipment. Aninspection of the railing would have disclosed that only three boltswere in place and thus apprised the supervisors that the railing mightbe of inadequate strength. Additionally, the deteriorated condition ofthe concrete at the base of the railing, as well as Union Boiler’sknowledge that fly ash and water together cause concrete to deteriorate,should have prompted Union Boiler’s supervisors to cheek the railing’sstrength. There is no evidence that any supervisor conducted such aninspection or otherwise provided any instructions to Sexton prior todirecting him to work near the railing. Under the circumstances, weconclude that Union Boiler’s supervisors should have inspected therailing. Cf. Automatic Sprinkler Corp. of America, 80 OSAHRC 47\/E4, 8BNA OSHC 1384, 1980 CCH OSHD ? 24,495 (No. 76-5089, 1980) (an employermust make reasonable effort to anticipate hazards to which employees maybe exposed in course of scheduled work by inspecting work area todetermine what hazards exist or may arise).Although Union Boiler’s employees previously had shaken the railing totest its stability, we agree with the judge that merely shaking therailing did not satisfy the employer’s duty to inspect and perform teststo discover safety related defects in the railing. Prestressed Systems,Inc., supra. The fact that slight pressure exerted on the railing bySexton caused it to topple four days after it was reinstalled indicatesthat the checks that had been made were cursory at best. In view of theforegoing, we conclude that with reasonable diligence Union Boiler couldhave known that the railing was not sufficiently strong.We also findinapposite Union Boiler’s argument that the railing fell because ofdeterioration of the concrete surrounding the anchors and not because itwas improperly secured. The standard imposes a minimum strengthrequirement, which it has been established that the railing did notmeet. Additionally, it has been established that Union Boiler shouldhave been alerted to check the strength of the railing. Thus, whetherthe railing fell because it was inadequately secured or because theconcrete had deteriorated is immaterial to the finding that the standardwas violated.Finally, we reject Union Boiler’s contention that the judge erred inrejecting its Anning-Johnson defense. If a subcontractor on amulti-employer worksite neither created nor controlled a hazardouscondition, it may defend against a citation by showing either (a) thatits employees who were exposed to the hazard were protected by realisticmeasures taken as an alternative to literal compliance with the citedstandard, or (b) that it did not have nor with the exercise ofreasonable diligence could have had notice that the condition washazardous. See Anning-Johnson, supra, 4 BNA OSHC 1193 at 1198, 1975-76CCH OSHD ? 20,690 at p. 24,783-84. A subcontractor asserting the Anning-Johnson defense must make a threshold showing that it neither creatednor controlled the hazardous condition in question. Sunrise PlasteringCorp., 80 OSAHRC 73\/C4, 8 BNA OSHC 1765, 1980 CCH OSHD ? 24,639 (No.78-846, 1980). Control is established when it is shown that an employerpossessed the expertise and personnel to abate a hazard.Tunnel Electric Construction Co., 80 OSAHRC 80\/B7, 8 BNA OSHC 1961, 1980CCH OSHD ? 24,706 (No. 76-1803, 1980). Union Boiler removed the railingtwice during a two week period before the accident and its pipefitterspossessed the ability to replace or repair an unsafe railing. In view ofthese facts, we find that Union Boiler controlled the hazard and,therefore, conclude that Union Boiler has failed to establish an Anning-Johnson defense.In assessing a penalty for a violation, we are required to giveconsideration to the size of the employer’s business, the gravity of theviolation, the employer’s good faith, and the employer’s history ofprevious violations. 29 U.S.C. ? 666(1). Union Boiler is a largeemployer with over 1,000 employees, thirty-three of whom worked on thisjobsite. Six Union Boiler employees were exposed to the inadequaterailing. The gravity of the violation is high, since a fall of eighty toone hundred feet, or being struck by a railing falling that distance, islikely to cause serious injury or death. However, there is no evidenceof bad faith or prior violations on the part of Union Boiler. Therefore,we find a penalty of $500 to be appropriate.Accordingly, we affirm the judge’s decision finding Union Boiler to havecommitted a serious violation. A $500 penalty is assessed.SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: F E B 2 8 1983 ————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ) , telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386)FOOTNOTES:[[1\/]] Section 1926.500(f)(i)(iv) provides:The anchoring of posts and framing of members for railingsof all types shall be of such construction that the completed structureshall be capable of withstanding a load of at least 200 pounds appliedin any direction at any point on the top rail, with a minimum of deflection.[[2\/]] Sexton named only Cochran as a supervisor and identified Stattsas an \”erector.\” However, both the compliance officer and pipefitterWilliam Arnott testified that Statts was Union Boiler’s assistantsuperintendent.[[3\/]] In reducing the penalty, the judge stated that \”the weakness ofthe guardrail anchoring may have been attributable to the deteriorationof the concrete — an unseen defect.\”[[4\/]] We reject Union Boiler’s argument that the judge failed to statereasons for rejecting testimony that eight bolts were in place when therailing fell. The judge noted that neither of the pipefitters couldrecall how many bolts they replaced when they reinstalled the railingand for this reason he found that their testimony did not establish thateight bolts were in place. The judge accorded no weight to Sexton’stestimony that eight bolts were present because Sexton failed to \”getdown and inspect\” the bolts. Moreover, the judge found that theemployees’ failure to detect the broken bolt in one of the anchors\”casts some question as to the thoroughness of any prior visualinspections.\” Thus, we find that the judge properly rejected theforegoing testimony for the reasons he stated.[[5\/]] Union Boiler also argues that the judge erred in finding that thefact that bolts were missing from an adjacent railing supported hisconclusion that bolts also were missing from the railing that fell.However, we find that the judge’s inference was reasonable. In anyevent, since other evidence strongly supports the judge’s conclusionthat only three bolts were in place in the railing when it fell, it isunnecessary for us to rely on the condition of the adjacent railing inorder to agree with the judge’s conclusion.”