“Docket No. 79-0232 SECRETARY OF LABOR,Complainant, v.UNION BOILER CO.,Respondent.OSHRC Docket No. 79-0232DECISION Before: ROWLAND, Chairman; CLEARY and COTTINE,Commissioners. BY THE COMMISSION:In this case, Administrative Law Judge Cecil L. Cutler, Jr., held that Union BoilerCompany (\”Union Boiler\”) committed a serious violation of the OccupationalSafety and Health Act, 29 U.S.C. ?? 651-678 (\”the Act\”), by failing to securea railing in accordance with the requirements of the standard contained at 29 C.F.R. ?1926.500 (f)(1)(iv). [[1\/]] The judge assessed a $500 penalty for the violation. UnionBoiler petitioned for review of the judge’s decision and its petition was granted. For thereasons that follow, we affirm the judge’s decision.I. On Tuesday, October 10, 1978, Union Boiler, a contractor with more than 1,000 employees,was performing repair work on a boiler at the Philip Sporn power plant operated by theAppalachian Power Company (\”APC\”) in New Haven, West Virginia. Thirty-threeemployees of Union Boiler were on the jobsite. The judge described the events that led tothe issuance of a citation to Union Boiler as follows:Bruce Sexton, an employee of Union Boiler, was manipulating a piece of equipment onto the\”G\” level of the number 5 boiler at the power plant. The equipment had beenhoisted by a tugger located on the [top]…floor through a shaft-type opening from apickup truck at ground level 80 to 100 feet below. In maneuvering the object, described asstress-relieving equipment, over a section of removable railing at the \”G\”level, Mr. Sexton backed against the railing. [The railing] came loose and fell down theopening striking two [Union Boiler] employees standing on ground level by the truck. As aresult, one employee was killed and the other injured.The railing in question was made of tubular steel and was 11 feet, 9 inches long. It hadbeen installed on level G as a barrier at the edge of the shaft when that level wasconstructed in the 1960’s. The railing was formed by two horizontal bars supported by twovertical posts, designated post 5 and post 6.A collar at the base of each post served to anchor the railing to the floor of level G bymeans of bolts which passed through the collar and screwed into steel and lead anchors inthe concrete floor. Each collar held four bolts.Upon examination of the fallen railing on the ground level of the facility on the eveningof the accident, Occupational Safety and Health Administration (\”OSHA\”)compliance officer Stanley Elliott observed two bolts with anchors attached on the collarof post 5. A single bolt and attached anchor were observed on post 6. When he examinedlevel G, the compliance officer found that two anchors remained in the concrete floor atthe anchoring location of post 5 and two anchors were missing. At the anchoring positionof post 6, the compliance officer found that three anchors remained in the concrete floorand one was missing. One of the anchors for post 6 contained part of a broken bolt. Theexposed end of the broken bolt was not shiny but, rather, defaced and deteriorated,indicating that the break was not recent. The other four anchors still imbedded in thefloor were filled with dirt and dust. Noting that the threads in all the anchors thatremained were undamaged, Elliott opined that it was unlikely that bolts had been in placein these anchors when the railing fell since the threads of the anchors would have beendamaged as the bolts were torn out. Elliott noted that the concrete around the anchors haddeteriorated but that this deterioration was \”very minimal.\” Elliott found noloose bolts on the floor even though he inquired about the missing bolts and inspectedlevel G and the ground in the area of where the railing fell. Elliott inspected a railingadjacent to the one that fell and found bolts in only eight of the sixteen holes in thecollars. Elliott also identified six employees of Union Boiler who had access to therailing that fell.Michael Zerkle, safety coordinator for Union Boiler and an experienced investigator,testified that, during an investigation conducted on the afternoon and evening after theaccident, he found one bolt on level G and two bolts on the ground level in the area wherethe 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 he found but did notpoint them out to the compliance officer during the OSHA inspection since he thought theywere apparent and that the compliance officer had seen them. The threads of these boltswere intact and did not appear to be stripped. Zerkle did not examine the threads of theanchors that remained in the concrete on level G. When Zerkle was shown these anchors atthe hearing he observed that \”[s]ome [of their threads] are good and some are not sogood.\” He added that some of the threads looked like they were stripped. Zerkle notedthat the concrete floor on level G had a solid base but was \”soft and powdery\”around the anchors.Sexton, the employee who had backed against the railing when it fell, testified that hehad seen eight bolts anchoring it in place, although he had not bent down to observeclosely the base of the railing. Before the railing fell, Sexton also tested it and found\”a little bit of play in it\” but considered it safe. Sexton noted that both hisforeman, Dennis Cochran, and Mr. Statts, another Union Boiler supervisor, [[2\/]] werepresent on level G on the morning before the accident occurred, but Sexton did not statewhether either of them examined the railing. When Sexton maneuvered the 150-pound piece ofequipment over the railing, he was positioned between the railing and the equipment, withhis back in contact with the railing. According to Sexton, who weighed 175 pounds, heexerted \”very little\” pressure on the railing. Neither the equipment beinghoisted nor the tugger cable came in contact with the railing.The railing had been removed twice before the accident, on Friday, September 29, andFriday, October 6. Removal of railings was the responsibility of Union Boiler’spipefitters. William Arnott, one of the pipefitters who removed the railing, testifiedthat he was instructed to remove the railing by assistant superintendent Statts. Arnottand Anthony Territo, a pipefitter who removed the railing with Arnott, testified that onboth occasions the railing was returned to the same condition it was in before removal,i.e., all of the bolts that were removed were replaced. Although he was not certain,Territo believed that no bolts were missing. According to both employees, if they hadnoticed that a bolt was missing, it would have been replaced; however, Territo’s testimonyin this regard was somewhat equivocal. After replacing the railing, Arnott shook it andfound it was \”safe.\”Ernest W. Call, Union Boiler’s superintendent at the Phillip Sporn plant, testified thatUnion Boiler’s employees used the area by the railing only as a loading zone. Call alsonoted that the area was not enclosed and was exposed to rain and snow.S:\\1983\\Processed\\79-0232\\00000000\\06.tif\”Frank Reynolds, an employee of Central Operating Company, a subsidiary of APC, testifiedthat on Saturday, October 7, he checked the railing and found that there was no\”play\” in it. Reynolds did not notice how many bolts were in place. To Reynold’sknowledge, the only employees who worked on level G between October 6, when the railingwas last replaced, and October 10, when the railing fell, were employed by Union Boiler.Reynolds noted that fly ash produced during the plant’s operation accumulated on level Gbut that this level was one of the cleaner areas in the plant.B. H. Davis, Union Boiler’s chief engineer, testified as an expert that the fly ash thataccumulated on level G formed an acid when combined with water and that this acid coulddigest or deteriorate concrete and rust the steel portions of the anchors and bolts. InDavis’ opinion, this acid deteriorated the concrete around the anchors and reduced theanchorage. According to Davis, if enough pressure was applied to the railing to cause itto pull out, both the bolts and the anchors would pull out of the concrete with therailing, unless the bolts or the anchors had deteriorated from the acid, in which case theones that had deteriorated would break. Davis performed tests on the strength of the typeof anchors used to attach the railing and determined that the anchors could withstandapproximately 3,000 pounds of upward pressure. Davis also testified that, even with threebolts in place, the railing could withstand a force of more than 200 pounds. However, apost with only one bolt in place could withstand only 100 pounds of force directly on itif the bolt was on the side of the post opposite from the side where pressure was applied.Davis also calculated that the pressure exerted by Sexton an the railing when it fell waseleven pounds.II.Finding that only three bolts had been in place in the railing when it fell, the judgeconcluded that a violation of section 1926.500(f)(1)(iv) was established. He reasonedthat, if all eight bolts had been in place when the railing fell, the bolts would haveremained attached to the collars and anchors or they would have pulled out of theiranchors. In the latter case, the forcible ejection of the bolts would have stripped thethreads of the bolts and anchors. However, the judge noted, Elliott testified that thethreads in the anchors left in the floor were not stripped. The judge also noted that thepressure exerted by Sexton that caused the railing to topple was \”far less than thevertical pullout strength which Mr. Davis testified the bolts were designed to take.\”With respect to the bolts found by Zerkle, the judge observed that such bolts normallywould be found \”laying around\” a power plant and that the bolts were notattached to anchors nor were their threads stripped, thus indicating that they were notpulled out when the railing fell. The judge further found the testimony of pipefittersArnott and Territo inconclusive since neither worker could recall how many bolts werereplaced in the railing. The judge also accorded no weight to Sexton’s testimony thateight bolts were in place because Sexton observed the bolts from a standing position anddid not \”get down and inspect them.\” Moreover, the fact that neither thepipefitters nor Sexton noticed the broken bolt in one of the anchors cast doubt on thethoroughness of their observations. The judge found that the deterioration of the concretethrough age and acid could have contributed to the collapse of the railing if only threebolts were holding the railing in place. The judge also found that the absence of eight ofthe sixteen required bolts from a nearby railing supported an inference that bolts weremissing from the railing that fell.Additionally, the judge held that the fact that Union Boiler’s employees twice removed andreplaced the guardrail imposed a duty on Union Boiler to make reasonable efforts to detectany hazardous condition associated with the railing. This duty was not fulfilled by the\”slight shake\” and \”casual look\” given the railing by Union Boileremployees, according to the judge. Noting that Union Boiler’s employees removed therailing before the accident and that these employees testified that they would have fixedan unsafe railing, the judge found that Union Boiler controlled the hazard and thusconcluded that a multi-employer worksite defense was not established under Anning-JohnsonCo., 76 OSAHRC 54\/A2, 4 BNA 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 the railing was supported by only three bolts. In Union Boiler’s view, the judge ignored theevidence of several witnesses that the railing contained a full complement of bolts andfailed to state reasons why he did not credit this testimony. In any event, Union Boilercontends that compliance with the cited standard does not turn on whether all the boltswere in place but on whether the railing could withstand 200 pounds of pressure. UnionBoiler submits that its expert’s testimony shows that, even if three bolts were in place,protection in excess of the standard’s requirement was provided. Union Boiler furtherargues that, assuming only three bolts were in place, the judge erred in finding aviolation because the deterioration of the concrete was the cause of the accident and notmerely a \”contributing factor,\” as the Judge found.\” [[3\/]] Union Boilerargues that the fact that a nearby railing was supported by only eight of sixteen bolts isirrelevant since there 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 loadingzone\” and that its employees, having tested the railing, considered it safe and wereunaware of the deteriorated concrete, Union Boiler submits that it neither created norcontrolled the hazard and that it had no knowledge that the railing was hazardous. In viewof these facts, Union Boiler argues that the judge erred in rejecting its Anning-Johnsondefense.IV.To prove a violation of section 5(a)(2) of the Act, the Secretary must show by apreponderance of the evidence that (1) the cited standard applies, (2) there was a failureto comply with the cited standard, (3) employees had access to the violative condition,and (4) the cited employer either knew or could with the exercise of reasonable diligencehave known of the condition. Daniel International Corp., 81 OSAHRC 71\/D6, 9 BNA OSHC 2027,1981 CCH OSHD ? 25,813 (No. 76-181, 1981).Union Boiler does not dispute that the cited standard applies. With respect to the secondelement, Sexton testified that he exerted \”very little\” pressure on the railingbefore it fell. Union Boiler’s expert calculated that the force exerted by Sexton was onlyeleven pounds. Moreover, if Sexton had been leaning heavily on the railing, it is likelythat he would have fallen when the railing gave way. Thus, regardless of whether three oreight bolts were in place, the evidence supports a finding that the railing was not\”capable of withstanding a load of at least 200 pounds,\” as required by thecited standard. With respect to the element of employee access, Union Boiler employeesSexton, Arnott, Territo, and the employees who were struck by the railing had access tothe hazardous condition.The dispute in this case centers around the fourth element, i.e., whether Union Boilerknew or with reasonable diligence could have known of the weakness of the railing. Indetermining whether an employer should have known of a hazardous condition, the Commissionhas inquired as to whether the employer exercised reasonable diligence to detect thecondition. In exercising reasonable diligence an employer is required to inspect andperform tests to discover safety-related defects in material and equipment. PrestressedSystems, Inc.,, 81 OSAHRC 43\/D5, 9 BNA OSHC 1864, 1981 CCH OSHD ? 25,358 (No. 16147,1981).We find that Union Boiler knew or, with the exercise of reasonable diligence, could haveknown that the railing was of insufficient strength. Crucial to this finding is ourdetermination that the railing was anchored by only three bolts when it was dislodged bySexton. The physical evidence compels this conclusion. Only three bolts remained attachedto the railing after it fell. As the judge noted, the bolts found by Union Boiler’sinvestigator, Zerkle, were not stripped, indicating that they were not forcibly ejectedfrom their anchors when the railing fell. Although Zerkle testified that the threads ofsome of the anchors remaining in the floor were stripped while Elliott testified that nonewere stripped, Zerkle’s opinion was based only on his examination of the anchors at thehearing, ten months after the railing fell. He did not examine the anchors’ threads duringhis investigation of the accident. Elliott, on the other hand, examined these anchors onthe day of the accident while they were still imbedded in the concrete And found that theywere filled with dust and dirt and that their threads were not stripped, indicating thatbolts were not attached to these anchors when the railing fell. After the accident, theanchors had been removed from the concrete by employees of Central Operating Company.There is no evidence concerning whether the threads of the anchors were damaged or alteredduring removal or at any time thereafter. Zerkle testified that the anchors looked thesame at the hearing as they had when he investigated the accident, but, as already noted,he had not examined the threads of the anchors during his investigation. We conclude thatthe testimony of Elliott is more probative of the condition of the anchors at the time therailing fell than the testimony of Zerkle, since Elliott’s testimony was based onobservations made when the anchors were still in place on level G and at a time closer towhen the accident happened. Moreover, even Zerkle did not contend that the threads of allof the anchors remaining in level G were stripped.[[4\/]]Finally, we note that Davis, Union Boiler’s expert, testified that if a bolt were in placein an anchor when the railing gave way, both the bolt and anchor would have pulled out ofthe concrete or the bolt or the anchor would have broken. Here, five of the eight anchorsremained intact in the concrete on level G after the railing fell. One of the five anchorscontained a portion of broken bolt, but the broken end was defaced and deteriorated ratherthan shiny, indicating that the bolt had broken some time before the railing fell. Noother broken bolts were discovered, and the three loose bolts that Union Boiler contendedhad been attached to the railing were not broken. Only three of the bolts pulled out withtheir anchors attached. Thus, evaluation of the physical evidence on the basis of thetheory supplied by Union Boiler’s expert leads to the conclusion that only three boltswere in place when the railing fell. [[5\/ ]]During the two week period before the accident, Union Boiler’s pipefitters had removed therailing twice on the orders of a supervisor. The last time railing was removed andreinstalled was four days before it fell. Union Boiler’s supervisors, Cochran and Statts,were present on level G before the equipment was hoisted to that level. These supervisorsknew or should have known that Sexton would be required to work in close proximity to therailing while landing this equipment. An inspection of the railing would have disclosedthat only three bolts were in place and thus apprised the supervisors that the railingmight be of inadequate strength. Additionally, the deteriorated condition of the concreteat the base of the railing, as well as Union Boiler’s knowledge that fly ash and watertogether cause concrete to deteriorate, should have prompted Union Boiler’s supervisors tocheek the railing’s strength. There is no evidence that any supervisor conducted such aninspection or otherwise provided any instructions to Sexton prior to directing him to worknear the railing. Under the circumstances, we conclude that Union Boiler’s supervisorsshould have inspected the railing. Cf. Automatic Sprinkler Corp. of America, 80 OSAHRC47\/E4, 8 BNA OSHC 1384, 1980 CCH OSHD ? 24,495 (No. 76-5089, 1980) (an employer must makereasonable effort to anticipate hazards to which employees may be exposed in course ofscheduled work by inspecting work area to determine what hazards exist or may arise).Although Union Boiler’s employees previously had shaken the railing to test its stability,we agree with the judge that merely shaking the railing did not satisfy the employer’sduty to inspect and perform tests to 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 indicates that the checksthat had been made were cursory at best. In view of the foregoing, we conclude that withreasonable diligence Union Boiler could have known that the railing was not sufficientlystrong.We also find inapposite Union Boiler’s argument that the railing fell because ofdeterioration of the concrete surrounding the anchors and not because it was improperlysecured. The standard imposes a minimum strength requirement, which it has beenestablished that the railing did not meet. Additionally, it has been established thatUnion Boiler should have been alerted to check the strength of the railing. Thus, whetherthe railing fell because it was inadequately secured or because the concrete haddeteriorated is immaterial to the finding that the standard was violated.Finally, we reject Union Boiler’s contention that the judge erred in rejecting itsAnning-Johnson defense. If a subcontractor on a multi-employer worksite neither creatednor controlled a hazardous condition, it may defend against a citation by showing either(a) that its employees who were exposed to the hazard were protected by realistic measurestaken as an alternative to literal compliance with the cited standard, or (b) that it didnot have nor with the exercise of reasonable diligence could have had notice that thecondition was hazardous. See Anning-Johnson, supra, 4 BNA OSHC 1193 at 1198, 1975-76 CCHOSHD ? 20,690 at p. 24,783-84. A subcontractor asserting the Anning- Johnson defense mustmake a threshold showing that it neither created nor controlled the hazardous condition inquestion. Sunrise Plastering Corp., 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, 1980 CCH OSHD ?24,706 (No. 76-1803, 1980). Union Boiler removed the railing twice during a two weekperiod before the accident and its pipefitters possessed the ability to replace or repairan unsafe railing. In view of these facts, we find that Union Boiler controlled the hazardand, therefore, conclude that Union Boiler has failed to establish an Anning- Johnsondefense.In assessing a penalty for a violation, we are required to give consideration to the sizeof the employer’s business, the gravity of the violation, the employer’s good faith, andthe employer’s history of previous violations. 29 U.S.C. ? 666(1). Union Boiler is alarge employer with over 1,000 employees, thirty-three of whom worked on this jobsite. SixUnion Boiler employees were exposed to the inadequate railing. The gravity of theviolation is high, since a fall of eighty to one hundred feet, or being struck by arailing falling that distance, is likely to cause serious injury or death. However, thereis no evidence of bad faith or prior violations on the part of Union Boiler. Therefore, wefind a penalty of $500 to be appropriate.Accordingly, we affirm the judge’s decision finding Union Boiler to have committed aserious violation. A $500 penalty is assessed.SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: F E B 2 8 1983\u00a0The Administrative Law Judge decision in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office bye-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 structure shall be capableof withstanding a load of at least 200 pounds applied in any direction at any point on thetop rail, with a minimum of deflection.[[2\/]] Sexton named only Cochran as a supervisor and identified Statts as an\”erector.\” However, both the compliance officer and pipefitter William Arnotttestified that Statts was Union Boiler’s assistant superintendent. [[3\/]] In reducing the penalty, the judge stated that \”the weakness of the guardrailanchoring may have been attributable to the deterioration of the concrete — an unseendefect.\”[[4\/]] We reject Union Boiler’s argument that the judge failed to state reasons forrejecting testimony that eight bolts were in place when the railing fell. The judge notedthat neither of the pipefitters could recall how many bolts they replaced when theyreinstalled the railing and for this reason he found that their testimony did notestablish that eight bolts were in place. The judge accorded no weight to Sexton’stestimony that eight bolts were present because Sexton failed to \”get down andinspect\” the bolts. Moreover, the judge found that the employees’ failure to detectthe broken bolt in one of the anchors \”casts some question as to the thoroughness ofany prior visual inspections.\” 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 the fact that boltswere missing from an adjacent railing supported his conclusion that bolts also weremissing from the railing that fell. However, we find that the judge’s inference wasreasonable. In any event, since other evidence strongly supports the judge’s conclusionthat only three bolts were in place in the railing when it fell, it is unnecessary for usto rely on the condition of the adjacent railing in order to agree with the judge’sconclusion.”