H.K. FERGUSON COMPANY
OSHRC Docket No. 305
Occupational Safety and Health Review Commission
October 11, 1974
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: CLEARY
OPINION:
CLEARY, COMMISSIONER: A decision of Review Commission Judge David G. Oringer, dated February 21, 1973, is before this Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., hereinafter referred to as "the Act"). Respondent was issued a citation alleging nine other than serious violations of section 5(a)(2) of the Act for failure to comply with nine occupational safety and health standards which were published in 29 CFR § 1518 (now codified as 29 CFR § 1926). Judge Oringer affirmed seven and vacated two of these other than serious violations, assessing a total penalty of $105 pursuant to section 12(j) of the Act.
Having examined the record in its entirety, the Commission finds no prejudicial error therein.
So ORDERED.
CONCURBY: MORAN (In Part)
DISSENTBY: MORAN (In Part)
DISSENT:
MORAN, CHAIRMAN, concurring in part and dissenting in part: I concur with my colleagues' affirmation of the dismissal below of charges alleging a failure to comply with the occupational safety and health standards codified at 29 C.F.R. § § 1910.180(h)(3)(vi) and 1910.106(e)(6)(ii). [*2] I respectfully dissent, hoever, from their ruling affirming seven "other than serious violations" of 29 U.S.C. § 654(a)(2). I do so because complainant has failed to comply with the requirements of 29 U.S.C. § 658(a).
This section requires that:
. . . [e]ach citation . . . describe with particularity the nature of the violation, including a reference to the standard . . . alleged to have been violated. . . . (Emphasis added).
It is clear that § 658(a) mandates that citations state two separate and distinct elements: (1) a description of the nature of the violation, and (2) a reference to the standard allegedly violated. A reference to, and an enumeration of, a standard allegedly violated. A reference to, and an enumeration of, a standard does not describe the "nature of the violation" with particularity. Secretary v. Union Camp Corporation, 5 OSAHRC 514 (1973). That is the case here. n1
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n1 Even complainant believes such a description falls short of minimum requirements of § 658(a). The Department of Labor's Compliance Operations Manual, January 1972, OSHA 2006, "Citations," page X-3, states: "The description . . . should fully state observed condition(s) or practice(s) which shall not comply. . . . [It] should be particular in stating the area where the condition or practice was observed, . . . [and] factual details of the alleged violation."
[*3]
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Count 2 of the citation describes the alleged violation as a "[f]ailure to keep construction site clear of scrap lumber and other debris in work areas." 29 C.F.R. § 1518.25(a), the standard from which noncompliance was charged, states:
During the course of construction . . . scrap lumber and all other debris shall be cleared from work areas. . . .
Count 4's description states there was a "[f]ailure to avoid storage of flammable and combustible liquids nearer than 20 feet from any building." § 1518.152(c)(4), n2 the applicable standard, states:
Outdoor portable tank storage: (i) . . . tanks shall not be nearer than 20 feet from any building. . . .
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n2 The citation only refers to § 1518.152(c)(4). Was respondent charged with failure to comply with 152(c)(4)(i) or 152(c)(4)(ii), or both? "Particularity" under 29 U.S.C. § 658(a) means a specific and accurate reference to a standard. See Secretary v. York Metal Finishing Co., This "reference" fails to so specify.
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Count 5's description alleges that there was a "[f]ailure to post 'No Smoking' sign in vicinity of flammable storage."
1518.151(a)(3) states:
Smoking shall be prohibited at or in the vicinity of operations which constitute a fire hazard, and shall be conspicuously posted: "No Smoking. . . ."
Count 6 described the alleged violation as a "[f]ailure to provide valve protection caps in place and secured on all compressed gas cylinders." § 1518.350(a)(1) states:
(a) . . . compressed gas cylinders. (1) Valve protection caps shall be in place and secured.
Count 7's description alleges "[f]ailure to secure compressed gas cylinders in an upright position at all times except, if necessary, for short periods of time while cylinders are actually being hoisted or carried." § 1518.350(a)(9) states:
Compressed gas cylinders shall be secured in an upright position at all times except, if necessary, for short periods of time while cylinders are actually being hoisted or carried.
Count 8's description states that there was a "[f]ailure to guard runways with standard railing on all open sides four feet or more [*5] above ground level." § 1518.500(d)(2) reads:
Runways shall be guarded by a standard railing . . . on all open sides, 4 feet or more above floor or ground level.
Count 9 describes the alleged violation as a "[f]ailure to provide ladders for safe access to all elevations." § 1518.450(a)(1) states:
. . . ladders . . . shall be used to give safe access to all elevations.
Each of these descriptions is effectually nothing more than a recitation of the wording of the standard. The remedial purposes of the Act cannot be accomplished if the citation is not specific enough to clearly advise the cited employer exactly what he did wrong. If this is not specified, proper corrective action may well be unsuccessful.
Such a statutory requirement is also necessary to afford respondent the full opportunity of defending against the charges. It is a fundamental precept of due process of law that the person who is accused must be adequately informed of the charges against him. Describing the "nature of the violation" in the citation is an integral part of the charge under these proceedings.
It is my opinion, therefore, that respondent's motion to dismiss these counts due to complainant's [*6] failure to comply with § 658(a) should have been sustained.
[The Judge's decision referred to herein follows]
ORINGER, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting a Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act. The Citation alleges that as the result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at 700 Schrock Road, Columbus, Ohio, and described as follows: "Construction site to double the capacity of Anheuser Busch, Inc.," the Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof. The Respondent was issued a Citation and Notification of Proposed Penalty on November 17, 1971, for the following alleged violations:
1. 29 CFR 1910.180(h)(3)(vi) Failure to avoid carrying loads over people with truck mounted crane.
2. 29 CFR 1518.25(a) Failure to keep construction site clear of scrap lumber [*7] and other debris in work areas.
3. 29 CFR 1910.106(e)(6)(ii) Failure to provide a proper bond between dispensing tank and container when dispensing flammable liquids.
4. 29 CFR 1518.152(c)(4) Failure to avoid storage of flammable and combustible liquids nearer than 20 feet from any building.
5. 29 CFR 1518.151(a)(3) Failure to post "No Smoking" sign in vicinity of flammable storage area.
6. 29 CFR 1518.350(a)(1) Failure to provide valve protection caps in place and secured on all compressed gas cylinders.
7. 29 CFR 1518.350(a)(9) Failure to secure compressed gas cylinders in an upright position at all times except, if necessary, for short periods ot time while cylinders are actually being hoisted or carried.
8. 29 CFR 1518.500(d)(2) Failure to guard runways with standard railing on all open sides four feet or more above ground level.
9. 29 CFR 1518.450(a)(1) Failure to provide ladders for safe access to all elevations.
The Citations, which were issued on November 17, 1971, allege that the violations contested by the Respondent result from a failure to comply with standards promulgated by the Secretary by publication in the Federal Register and codified in [*8] 29 CFR 1910.180(h)(3)(vi), 29 CFR 1518.25(a), 29 CFR 1910.106(e)(6)(ii), 29 CFR 1518.152(c)(4), 29 CFR 1518.151(a)(3), 29 CFR 1518.350(a)(1), 29 CFR 1518.350(a)(9), 29 CFR 1518.500(d)(2) and 29 CFR 1518.450(a)(1).
The description of the alleged violations contested by the Respondent, contained in the said Citations, state as follows:
(1) 29 CFR 1910.180(h)(3)(vi) The operator should avoid carrying loads over people.
(2) 29 CFR 1518.25(a) During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures.
(3) 29 CFR 1910.106(e)(6)(ii) Grounding. Class I liquids shall not be dispensed into containers unless the nozzle and container are electrically interconnected. Where the metallic floor-plate on which the container stands while filling is electrically connected to the fill stem or where the fill stem is bonded to the container during filling operations by means of a bond wire, the provisions of this section shall be deemed to have been complied with.
(4) 29 CFR 1518.152(c)(4) Outdoor portable tank storage: (i) [*9] Portable tanks shall not be nearer than 20 feet from any building. Two or more portable tanks, grouped together, having a combined capacity in excess of 2,200 gallons, shall be separated by a 5-foot-clear area. Individual portable tanks exceeding 1,100 gallons shall be separated by a 5-foot-clear area.
(5) 29 CFR 1519.151(a)(3) Smoking shall be prohibited at or in the vicinity of operations which constitute a fire hazard, and shall be conspicuously posted: "No Smoking or Open Flame."
(6) 29 CFR 1518.350(a)(1) Valve protection caps shall be in place and secured.
(7) 29 CFR 1518.350(a)(9) Compressed gas cylinders shall be secured in an upright position at all times except, if necessary, for short periods of time while cylinders are actually being hoisted or carried.
(8) 29 CFR 1518.500(d)(2) Runways shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, 4 feet or more above floor or ground level. Wherever tools, machine parts, or materials are likely to be used on the runway, a toe board shall also be provided on each exposed side.
(9) 29 CFR 1518.450(a)(1) General requirements. Except where either permanent [*10] or temporary stairways or suitable ramps or runways are provided, ladders described in this subpart shall be used to give safe access to all elevations.
A Notification of Proposed Penalty was issued on November 17, 1971. Pursuant to the provisions of Section 10(a) of the Act, the penalties set forth below were proposed by the Complainant, based on the above Citations:
Alleged Violations -- Proposed Penalty
1. -- 29 CFR 1910.180(h)(3)(vi) -- $35.00
2. -- 29 CFR 1518.25(a) -- 17.50
3. -- 29 CFR 1910.106(e)(6)(ii) -- No penalty
4. -- 29 CFR 1518.152(c)(4) -- 8.75
5. -- 29 CFR 1518.151(a)(3) -- No penalty
6. -- 29 CFR 1518.350(a)(1) -- 26.25
7. -- 29 CFR 1518.350(a)(9) -- 8.75
8. -- 29 CFR 1518.500(d)(2) -- 8.75
9. -- 29 CFR 1518.450(a)(1) -- 35.00
Total for All Alleged Violations -- $140.00
Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated November 17, 1971, from Mr. Peter M. Schmitt, Area Director of the Columbus, Ohio area, that the Occupational Safety and Health Administration of the United States Department of Labor proposed to assess penalties for the violations alleged, in the total amount [*11] of $140.
After Respondent contested this enforcement action, and a Complaint and an Answer had been filed by the parties, the case came on for hearing at Columbus, Ohio, on Thursday, March 2, 1972.
At the end of the Complainant's case, the Secretary's legal representative, having presented no evidence on item #3, of the Citation, to wit, the alleged violation of 29 CFR 1910.106(e)(6)(ii), moved to dismiss that item of the Complaint, on the grounds that the standard cited was inadvertently incorrect, and that there was not standard that would fit the situation in the instant cause. No objection was made by the Respondent, and the motion was granted.
Having heard the testimony and observed the demeanor of the witnesses, and having considered the same, together with the Citation, Notification of Proposed Penalties, Notice of Contest, pleadings, representations and admissions of the parties, it is concluded that substantial evidence, on the record considered as a whole, supports the following:
FINDINGS OF FACT
1. The Respondent, the H.K. Ferguson Company, is an Ohio corporation, with its principle office and place of business located at 1 Erieview Plaza, Cleveland, Ohio [*12] 44114 (T. 4).
2. The Respondent is engaged at its principle place of business and at worksites throughout the United States, in the business of designing, constructing and re-constructing factories, plants and other commercial establishments engaged in commerce or in the production of goods for interstate commerce (T. 4 & 5).
3. The inspection of Respondent's workplace to determine the Respondent's compliance with the Occupational Safety and Health Act of 1970 (hereinafter referred to as "the Act") was conducted on the morning of October 1, 1971, at a premises located at 700 Schrock Road, in the City of Columbus, in the State of Ohio (T. 142, 13).
3. Subsequent to an inspection of Respondent's workplace, the Respondent on or about November 22, 1971, was issued a Citation for alleged violations (other than serious), of nine standards promulgated pursuant to Section 6 of the Act, together with a notification of proposed penalties, therefore (Complaint and Answer; Citation, and Notification of Proposed Penalties) (T. 5).
4. A Notice of Contest, dated November 30, 1971, was filed by the Respondent with Mr. Peter M. Schmitt, Area Director of the United States Occupational Safety [*13] and Health Administration, in Columbus, Ohio, and was forwarded to the Commission (T. 5).
5. On the day of the inspection a truck-mounted crane carrying a load, passed over the heads of employees of the Respondent (T. 15, 85, 101, 102, 144, 155, 157).
6. The Standard found at 29 CFR 1910.180(h)(3)(vi) was derived by the adoption of the USANSI Standard B-30.5, 1968, by the Secretary. The word "should", as used in this Standard, is purely hortatory and of an advisory nature (See 29 CFR 1910.183 and excerpt of ANSI Standard B-30.5, 1968, appended hereto).
7. On October 1, 1971, the day of the inspection of the Respondent's worksite, a working area was messy and cluttered and constituted a tripping hazard (T. 17, 18, 19, 106, 107, 145, 146).
8. The Complainant adduced no evidence concerning item number three (3) of the Citation and accordingly failed to sustain the burden of proof insofar as that item, to wit, an alleged violation of 29 CFR 1910.106(e)(6)(ii), was concerned (T. 164, 165).
9. The Respondent, on its premises, had a portable storage tank which contained gasoline, nearer than twenty (20) feet from a building, to wit, a tool shed, where some of the Respondent's [*14] employees entered and exited and were exposed (T. 21, 22, 90).
10. There was a portable storage tank containing gasoline located near a building wherein workers of the Respondent entered and left, which was a potential fire hazard and there were no visible signs warning against smoking or open flame (T. 22, 95).
11. There were gas and oxygen cylinders on the Respondent's premises some of which had no valve protection caps on, and which were within proximity of the Respondent's employees (T. 23, 24, 25, 26, 27, 28, 147, 148).
12. There were compressed gas cylinders on the Respondent's premises within the proximity of the Respondent's employees which were not in an upright position and were not being hoisted or carried at the time (T. 27, 28, 29, 149 & 150, 10, 111).
13. On the date of the inspection there were elevated walkways in excess of four (4) feet above ground level which were not guarded by a standard railing or the equivalent thereof (T. 32, 33, 116, 119, 120, 151, 36, 37, 115).
14. On the day of the inspection, the Respondent's employees were working on different elevations and going to and from such elevations that contained neither permanent nor temporary stairways, [*15] nor suitabls runways, and there were no ladders utilized to give safe access to all elevations (T. 36, 37, 121, 122, 123, 151, 152, 153, 159, 160, 161, 162, 163).
15. Employees of the Respondent were exposed to all of the alleged violations, on the day of the inspection, to wit, on October 1, 1971 (T. 163, 85, 86, 90).
OPINION
The Respondent argues vehemently that the Citation does not meet the criteria of Section 9(a) of the Act, to wit, that it does not describe with particularity, the nature of the violation. Section 9(a) requires, inter alia, that "each Citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation or order alleged to be violated." The Respondent alleges that the Secretary failed to fulfill that requirement of the Act, and that all he did in describing the violations was repeat the language of the standard. The Judge finds this argument without merit, in that the Secretary substantially complied with the statutory directive. An example would be item number one (1) of the Citation, which alleged a violation of 29 CFR 1910.180(h)(3)(vi) [*16] and described it as, "failure to avoid carrying loads over people with truck-mounted crane." This description, in the opinion of the Judge, substantially complies with the mandate of the Congress. There was one truck-mounted crane upon the premises at the time it was observed lifting materials over the head of persons. A representative of the Respondent was traversing the site with the compliance officer on the walk around inspection when it was observed. The description of the violation alleges a failure to avoid carrying a load or loads over people with that crane. It is difficult for this trier of the issues to see how the violation could have been described with more particularity when found upon a site such as the one in question. The Judge finds this item of the Citation must fail, however, on different grounds. This standard, to wit, 29 CFR 1910.180(h)(3)(vi) reads as follows: "The operator should avoid carrying loads over people. n1 29 CFR 1910.183 relates the sources of the standards and discloses the source of this standard, to wit, 29 CFR 1910.180, was ANSI Standard B30.5-1968, SAFETY CODE FOR CRAWLER, LOCOMOTIVE AND TRUCK CRANES. When one goes to the [*17] standard cited by the Secretary, that is, USAS B30.5-1968, CRAWLER, LOCOMOTIVE AND TRUCK CRANES, Page 2 thereof, reads as follows:
Section V Mandatory and Advisory Rules
Mandatory rules of this Code are characterized by the use of the word "shall." If a rule is of an advisory nature it is indicated by the use of the work "should" or is stated as a recommendation.
While the Judge is of the opinion that carrying a load over people by the hoist of a truck-mounted crane certainly affects health and safety, nevertheless, this standard, written as it is, is purely advisory and hortatory rather than mandatory. This is emphasized not only by the instruction carried in the standard that was adopted by the Secretary, but looking at the standard itself, it is preceded and followed by standards carrying the mandatory word, "shall." In order to be able to prosecute a violation under this standard, it is incumbent upon the Secretary to change the language of such standard and use the mandatory term "shall". In its present composition this standard is purely hortative rather than mandative, and advisory only, and a Citation and penalty cannot be sustained (See Secretary of Labor v. [*18] J. E. Chilton (Docket #123) (modified on other grounds). In accordance with the above considerations, this item of the Citation must be vacated.
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n1 Emphasis supplied
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The Respondent also argues a lack of due process. The Judge finds this argumant without merit. In the first place, it appears to the Judge, under the circumstances of this case, that the Citation sufficiently fulfills the statutory requirement insofar as apprising the Respondent of what he had to defend against. In addition thereto, the complaint, if nothing else, was some amplification of the Citation. In the opinion of the trier of the issues, the Respondent had sufficient knowledge of what was alleged by the Secretary, so as to be able to defend himself, which he did ably in the instant case. Further, in the event that the Respondent was of the opinion that he needed to utilize an instrument for discovery, the interim rules provided for depositions in Section 2200.25 thereof, and a deposition of an employee of the Secretary could [*19] have been taken upon application to the Judge, concerning any unprivileged information.
The Respondent also argues that the Secretary failed to prove any of the violations because he failed to determine and prove that the equipment complained of was owned or controlled by the Respondent. The Judge does not find this argument meritorious. The important fact to be determined is did the Respondent allow, suffer, or permit his employees to be exposed to the hazards. In the event that the Secretary had to prove that the Respondent had ownership or control of the hazardous equipment or condition, before being held in violation of the Act, then and in such case, an employer whose employees always left his premises to work upon the premises of another, would never be responsible or come within the purview of the Act. This certainly was not the intent of Congress when enacting the governing statute herein. The fact that Ferguson allowed his employees to be exposed to the hazards is sufficient upon which to predicate the Citation for violations of the standards properly promulgated by the Secretary pursuant to the Act.
The Respondent vehemently argues, on Page 24 of his brief, that "The [*20] Secretary of Labor exceeded his statutory power delegated by Congress in adopting 29 CFR 1518.16, as such a provision is vague."
The Secretary has recognized that he may not adopt (a) and (b) of 29 CFR Part 1518 (now Part 1926), in which Section 1518.16 is found, and in his promulgation of the amended occupational safety and health standards found at 29 CFR Part 1910, promulgated on Wednesday, October 18, 1972, in 1910.12(c), states, in pertinent part, "this section does not incorporate subparts (a) and (b) of Part 1926 of this chapter." Subparts (a) and (b) have pertinence only to the application of Section 107 of the contract work hours and safety standards act (the Construction Safety Act), subpart 29 CFR 1518.16 (now 1926.16) is found in subpart (b) in general interpretations, and is not incorporated as a standard. While Ferguson was the prime contractor at the construction site, that is not the reason that he was cited. The Respondent was cited because his employees were allegedly exposed to hazards concerning which, testimony was adduced at the hearing. Regardless of whether or not Ferguson had been prime contractor or sub-contractor, if its employees were exposed [*21] to hazards, then and in such case, in the event those hazards were covered in a standard, the Respondent would be in violation thereof, without regard to whether or not it was a prime or sub-contractor.
The Respondent also argues that the Complainant failed to prove a violation when his inspector failed to determine whether or not the Respondent had issued orders to the employees, covering each of the violations for which the Respondent was cited. This defense against a standard, must fail in all instances where the Secretary proved that the Respondent's employees were exposed to a hazard, as contained in the standard, with the exception of that standard governed by the word "should." The fact that an employer issued orders to employees covering each of the violations is not enough to defeat a Citation for violation of the Act, once his employees are exposed to the hazard. If the employees of the Respondent are exposed to the hazard and he is cited therefore, once the Secretary proves the hazard and the exposure of his employees, the Secretary has sustained his burden of proof. At that point the Respondent must show affirmatively what action he took to see that his employees were [*22] not exposed to the hazard. If the exposure were an isolated case that happened only once or twice in the history of the firm, or in prior instances, employees were disciplined for violation of company rules to prevent such hazards, then a different conclusion might well be reached by the trier of the facts. However, in the instance where the Secretary sustained his burden of proof that a violation of a standard in fact existed, and employees of the Respondent were exposed to that violation, then and in such case he has sustained his burden of proof, and the Respondent then, in his case, must show affirmatively what he did to see that those employees were not exposed to such hazard and that he did all he could possibly do in such instance. In the instant case such proof was not adduced by the Respondent, after the Secretary sustained his burden of proof.
The Respondent's argument that it did not violate standard 29 CFR 1910.180(h)(3)(vi) by allowing loads to pass over two employees once, particularly when the standard is permissive, not mandatory, is well taken, however, only because the standard is hortative. There was sufficient proof in the record showing that a load [*23] was carried over Ferguson employees, and until the safety inspector showed the violation to the Respondent, a whistle was not used, and there were men remaining in danger, with the load passing over their head. In any case however, this standard being purely horatory, and not mandatory, the Citation for this alleged violation must fall. The remedy for situations such as this one, is for the Secretary to restate and republish this standard, using mandatory language. Until such date, this standard must be recognized as hortative rather than mandative, and of an advisory nature only.
The Judge finds that the evidence was sufficient to show that the Respondent had considerable debris on the site which constituted a trip hazard and a violation of that standard found at 29 CFR 1518.25(a).
The Respondent argues that the Complainant failed to prove any violation of 29 CFR Part 1518.152(c)(4)(i), and of 29 CFR Part 1518.151(a)(3), on the grounds that he failed to comply with those statutory directives contained in Section 8(f)(1) of the Act. Section 8(f)(1) of the Act gives employees or employee representatives who believe that a violation of a standard exists that threatens physical [*24] harm or if imminent danger exists, the right to request an inspection by giving notice to the Secretary or his authorized representative of such violation or danger. Such notices must be reduced to writing setting forth with reasonable particularity the grounds for the notice and are to be signed by the employees or employee representatives as the case may be. A copy must be provided the employer or his agent no later than at the time of the inspection, however upon the request of the employee or representative giving such notice, the names of the individual employees referred to therein shall not appear in the copy given to the employer or in any record that is published or released.
The Judge finds that this section of the Act does not apply to the instant cause. The inspection of the Respondent's premises was not brought about by an employee complaint. During the walk-around inspection, while accompanied by a representative of the employer, an employee pointed out to the Secretary's inspector what he considered to be a hazard. This is not an event coming within the purview of 8(f)(1) of the Act. This inspection did not come about as a result of an employee complaint. [*25] Alerting the inspector's attention to the violation was incidental to the walk-around inspection. The uncontroverted testimony adduced shows that there was a portable compressed gas container within less than twenty (20) feet from the building used as a tool shed, and, in addition thereto, there was an absence of "No Smoking" signs.
In the instant cause, the Secretary's inspection came about peripherally to an inspection of the premises of a sub-contractor in a case involving a death. While on the premises, a walk-around inspection was made in proper manner of the Ferguson job site. This inspection did not come about as a result of a complaint by an employee within the purview of 8(f)(1) of the Act and the argument of failure to comply therewith lacks merit.
The Respondent argues that the items of the Citation alleging violation of 29 CFR 1518.350(a)(1) and 29 CFR 1518.350(a)(9) were not proven, on the grounds that the inspector did not attempt to determine whether the cylinders that were uncapped and unsecured were empty or had any gas remaining therein. The trier of the facts does not find this argument valid, inasmuch as the standard reads as follows:
29 CFR 1518.350(a) [*26]
Transporting, Moving, and Storing Compressed Gas Cylinders.
1. Valve protection caps shall be in place and secured.
Nowhere in that standard is there a differentiation between empty and full. While one may conjecture that the reason that such differentiation is missing from a standard may be because of the difficulty in finding out whether or not a cylinder has any gas left therein, the Judge finds that the standard means exactly what it says, to wit, when being transported, moving, stored or lying around, the protection cap shall be in place and secured. Insofar as the violation alleged of Paragraph 9, of this subpart, which requires compressed gas cylinders to be secured in an upright postition at all times except, if necessary, for short periods of time while they are actually being hoisted or carried, again the standard does not differentiate between an empty or a full cylinder, possibly for the same reason. The Judge is of the opinion that there is ample proof in the record to sustain the items in the Complainants Citation, insofar as these two alleged violations are concerned.
The Respondent also argues that it did not violate that standard found at 29 CFR [*27] 1518.450(a)(1) since there were temporary runways or ramps which were not proved inadequate. The Judge is not of that opinion. The quantum of proof in the record shows that the ramps and walkways utilized by the Respondent were hazardous and did not meet the criteria of the standards.
Insofar as the penalties are concerned in the instant cause, in the opinion of the Judge, the decision in this case comes within the purview of the Commission Decision in Hydroswift Corp., Docket No. 591, rather than under the doctrine espoused in Secretary of Labor v. J. E. Chilton Millwork and Lumber Co., Inc., Docket #123, or Secretary of Labor v. General Meat Company, Inc., Docket #250. While some of the penalties proposed by the Secretary for the violations alleged are miniscule, the gravity of the violations were such that even though labeled "non-serious" by the Secretary's minions, the gravity was sufficiently severe to rate some penalty in order to carry out the purposes of the Act. All of the violations are wholly related to the safety of the employees working at this worksite, and while some of the penalties proposed are light, the Judge finds that they are not inappropriate. [*28] The total penalties of $105 for the seven violations found is neither excessive or inappropriate. In addition thereto, any failure to abate such violations results in greatly enhanced penalties and thus mandates compliance with the Act. Accordingly, it is of the opinion of the trier of the issues, affirmance of the penalties proposed for all items of the Citation other than that penalty proposed for number one (1) thereof, is appropriate in the instant cause.
Based upon all of the foregoing, and the record in its entirety, the Judge makes the following:
CONCLUSIONS OF LAW
1. At all of the times herein mentioned, the Respondent was an employer engaged in a business affecting commerce within the meaning of Section 3 of the Act.
2. At all of the times herein mentioned, the Respondent was subject to the provisions of the Occupational Safety and Health Act of 1970, and the regulations promulgated thereunder, including those regulations alleged to be violated in the Citation in the instant cause.
3. That standard found at 29 CFR 1910.180(h)(3)(vi) utilizes the word "should" and is purely hortative rather than mandative and is advisory in nature, and the item of the [*29] Citation alleging violation thereof is herewith vacated.
4. The Respondent was in violation of that standard found in 29 CFR 1518.25(a), on October 1, 1971.
5. The Complainant failed to adduce any evidence concerning item number three (3), to wit, an alleged violation of 29 CFR 1910.106(e)(6)(ii), and accordingly failed to sustain his burden of proof as to this item.
6. The Respondent was in violation of that standard found at 29 CFR 1518.152(c)(4) on October 1, 1971.
7. The Respondent was in violation of that standard found at 29 CFR 1518.151(a)(3) on October 1, 1971.
8. The Respondent, on October 1, 1971, was in violation of 29 CFR 1518.350(a)(1).
9. The Respondent, on October 1, 1971, was in violation of that standard found at 29 CFR 1518.350(a)(9).
10. The Respondent, on October 1, 1971, was in violation of that standard found at 29 CFR 1518.500(d)(2).
11. The Respondent, on October 1, 1971, was in violation of that standard found at 29 CFR 1518.450(a)(1).
12. With the exception of those violations mentioned in items one (1) and three (3) of the Citation, the aforementioned violations of standards promulgated pursuant to, and within the purview of the Act, and [*30] those conditions and practices giving rise to those violations, had a direct and immediate relationship to safety and health, but did not constitute "serious" violations within the meaning of the Act.
13. The penalty proposed to be asserted against the Respondent for an alleged violation of item one (1) of the Citation is inappropriate for reasons aforementioned and must be vacated.
14. The penalties proposed to be assessed against the Respondent for the other violations in which penalties were proposed, are appropriate and reasonable, considering all of the premises.
In view of the foregoing; having given due deliberation to the gravity of the violations, the presence or absence of the good faith of the Respondent, and its history, and the fact that the Act was still in its infancy at the time that the inspection took place; and good cause appearing therefore, it is
ORDERED, that
1. That part of the Complainant's Citation numbered item number one (1), issued for alleged violation of that standard found at 29 CFR 1910.180(h)(3)(vi), be and the same, is hereby vacated.
2. That part of the Complainant's Citation charging violation of item number three (3), of the [*31] Citation, to wit, 29 CFR 1910.106(e)(6)(ii), be and the same, is hereby vacated.
3. Those portions of the Complainant's Citation alleging and charging violations of those standards found at 29 CFR Parts 1518.25(a), 1518.152(c)(4), 1518.151(a)(3), 1518.350(a)(1), 1518.350(a)(9), 1518.500(d)(2) and 1518.450(a)(1), be and the same, are hereby affirmed.
4. The Complainant's proposed penalties for violations of those standards enumerated in Paragraph 3, above, individually, and in the total amount of $105, be and the same, are hereby affirmed.
APPENDIX
ANSI STANDARD USAS B30.5-1968
USA STANDARD
SAFETY CODES FOR CRANES, DERRICKS, HOISTS, JACKS, AND SLINGS
INTRODUCTION
General
This Code is one of a series of safety codes on various subjects which have been formulated under the general auspices of the USA Standards Institute. One purpose of the Code is to serve as a guide to governmental authorities having jurisdiction over the subjects within the scope of the Code. It is expected, however, that the Code will find a major application in industry, serving as a guide to both manufacturers of equipment and to the purchasers and users of the equipment.
For the convenience [*32] of the user, the Code has been divided into separate volumes such as the following:
B30.1 Jacks
B30.2 Overhead and Gantry Cranes n1
B30.3. Hammerhead, Jib and Pillar Jib Cranes
B30.4 Portal, Tower, and Pillar Cranes
B30.5 Crawler, Locomotive, and Truck Cranes
B30.6 Derricks
B30.7 Hoists
B30.8 Floating Cranes and Floating Derricks
B30.9 Slings
If adopted for governmental use, the references to other national codes in the specific volumes may be changed to refer to the corresponding regulations of the governmental authorities.
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n1 This Code is designated B30.2.0 in the title only, on a temporary basis until revision of the B30.2-1943 has been completed.
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The use of cranes, derricks, hoists, jacks, and slings is subject to certain hazards that cannot be met by mechanical means, but only by the exercise of intelligence, care, and common sense. It is therefore essential to have competent and careful operators, physically and mentally fit, thoroughly trained to the safe operation of the equipment and [*33] the handling of the loads. Serious hazards are overloading, dropping or slipping of the load caused by improper hitching or slinging, obstruction to the free passage of the load, using equipment for a purpose for which it was not intended or designed.
The standards committee fully realizes the importance of proper factors of safety, minimum or maximum sizes, and other limiting dimensions of wire rope and their fastenings, sheaves, drums, and similar equipment covered by the Code, all of which are closely connected with safety. Safe sizes, strengths, and similar criteria are dependent on many different factors, often varying with the installation and uses. These factors also depend on the condition of the equipment or material; on the loads; on the acceleration, or speed of the ropes, sheaves or drums; on the type of attachments; on the number, size, and arrangement of sheaves, or other parts; on weather and other atmospheric conditions tending toward corrosion, or wear; and on other variable factors that must be considered in each individual case. The rules given in the Code must be interpreted accordingly and judgment used in determining their application.
The standards committee [*34] will be glad to receive criticisms of the Code requirements and suggestions for its improvement, especially such as are based on actual experience in the application of the rules. Revised editions will be issued from time to time with such changes as experience in its application and improvements in the arts may dictate.
Section I Scope
This Code applies to the construction, installation, inspection, maintenance, and operation of jacks, power-operated cranes; crane runways; power-operated and manually operated derricks and hoists; power-operated overhead hoists and their runways; and slings.
This Code does not apply to any crane, derrick, or hoist having a maximum rated capacity of one ton or less, or to railway or automobile wrecking cranes, skip hoists, hoist-like units used for horizontal pulling only, mine hoists, conveyors, or to shovels, dragline excavators or back hoes, or to equipment within the scope of USA Standards Committee A92 Mobile Scaffolds, Towers, and Platforms. Within the above limitations this Code also shall be applied to cranes, derricks, and hoists used on construction work.
Section II Purpose
This Code is designed (1) to guard against and minimize [*35] injury to workers and otherwise provide for the protection of life, limb, and property by prescribing minimum safety requirements, (2) to provide direction to owners, employers, supervisors, and others concerned with, or responsible for, its application, and (3) to guide governments and other regulatory bodies in the development, promulgation, and enforcement of appropriate safety directives.
Section III Exceptions and Interpretations
In case of practical difficulties or new developments, or unnecessary hardship, the administrative or regulatory authority may grant exceptions from the literal requirements or permit the use of other devices or methods, but only when it is clearly evident that an equivalent degree of protection is thereby secured. n1
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n1 To secure uniform application and interpretation of this Code, administrative or regulatory authorities are urged, before rendering decisions on disputed points, to consult the committee which formulated it through the office of The American Society of Mechanical Engineers, United Engineering Center, 345 East 47th Street, New York, New York 10017.
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Section IV New and Old Cranes
One year after the date on which this Code becomes effective, all new cranes shall conform to thess rules. Cranes manufactured prior to that date should be modified to conform to these rules unless it can be shown that the crane cannot feasibly or economically be altered and that the crane substantially complies with the requirements of the Code.
Section V Mandatory and Advisory Rules
Mandatory rules of this Code are characterized by the use of the word "shall." If a rule is of an advisory nature it is indicated by the use of the word "should" or is stated as a recommendation.