SECRETARY OF LABOR,
Complainant,
v.
BLOUNT lNTERNATIONAL, LTD.,
Respondent.
OSHRC Docket No. 89-1394
DECISION
BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.
BY THE COMMISSION:
I. Introduction
Respondent, Blount International, Ltd. ("Blount"),
was the general contractor under a $17 million government contract to build a hangar for a
C5A Aircraft at Westover Air Force Base in Massachusetts. A disagreement between
Blount and its steel erection subcontractor over some of the subcontractor's actions had
prompted the Army Corps of Engineers ("ACE") to issue a stop-work order on March
1, 1989. After the ACE brought the situation to the attention of the Occupational
Safety and Health Administration ("OSHA") Compliance Officer Walter Cienaski,
Jr., conducted an 11-day inspection of the construction site. The serious citation issued
to Blount was comprised of seven items, all of which it contested. After a hearing
on the merits, Administrative Law Judge David G. Oringer affirmed four of the seven.
These were for serious violations of one storage standard, two electrical standards
and one crane standard. Blount petitioned for discretionary review and all four of
the items were directed for review. For the reasons set forth in this decision, we
affirm the judge's findings in three [29 C.F.R. § 1926.250(b)(9); § 1926.404 (b)(1) and
§ 1926.405 (b)(1)] of the four citations, and vacate the portion of the judge's decision
regarding the crane standard violation [29 C.F.R. § 1926.550(b)(2)] on the grounds that
the standard does not apply to the circumstances in this case.
II. Material Storage Standard
At issue is whether Blount violated 29 C.F.R. § 1926.250(b)(9) by failing to stack or
block structural steel in order to prevent It from spreading or tilting.[[1]]
Compliance officer Cienaski testified in this case that stockpiled steel and pieces of
channel iron were strewn about the site. Some steel members were 60 feet long,
weighed as much as 800-1550 pounds and were resting precariously approximately one foot
off the ground on rotten wood and other weatherworn dunnage. The CO also testified
of concern that the alternately freezing and thawing temperatures could cause the soil and
the dunnage to settle unevenly, increasing the risk of material slippage. Cienaski
stated that any workers caught in this area when steel members began to tilt or slide
could suffer broken bones, or worse.
Blount's own project manager, Bobby C. Bailey, admitted that some of the piles probably
should have been straighter and that the rotted wood supporting the pieces of a doorway
truss should have been replaced.
In light of this testimony, the judge found that the steel had remained in place from
March 6 through 17, including the time that the stop-work order was in effect, during
which no work was in progress. The judge further found that the steel in this case
was "stored" as contemplated by the standard, and that because the steel was
stored in such a manner that would not prevent spreading or tilting, the citation and its
proposed penalty must be affirmed.
On review, Blount claims that the material was not in storage,
but was in the process of being assembled for truss-related lifts. Blount further
argues that even if the steel was in the storage, it was of such weight and configuration
that it would not have spread or tilted, and also that the regulation imposes no specific
obligations on how to arrange or store material.
In a number of cases, the Commission has addressed the argument that material is not in
storage and thus, not covered by a storage standard. In Whitcomb Logging Co., 2 BNA
OSHC 1419, 1974-75 CCH OSHD ¶ 19,128 (No. 1323, 1974) the Commission held that a
hazardous materials storage regulation covers even material that is in temporary storage.
In that case, the standard was violated when blasting caps and powder were
improperly stored for three to four hours while employee attended to other duties
elsewhere on the site. In Gary Concrete Products, Inc., 15 BNA OSHC 1051, 1991-92
CCH OSHD ¶ 29,344 (No. 86-1087, 1991), the Commission held that a general industry
materials handling standard was violated when a stack of improperly stored concrete
pilings collapsed moments after several pilings were removed for transfer off site.
"Any material placed on a construction site is presumably for eventual use.
Under the standard, however, all material is considered 'stored' until it is in fact
used." Sierra Constr. Co., 6 BNA OSHC 1278, 1280, 1978 CCH OSHD ¶ 22,506, p.
27,158 (No. 13638, 1978) (citations omitted).
The record in the instant case demonstrates that activity did increase once the stop work
order was lifted, with workers reentering the area to engage in fabrication and bolting up
work for the truss members. However, the record indicates that most of the steel
available on the site remained untouched during the course of the 11-day inspection.
We conclude, therefore, that the steel was in storage. Further, the testimony
of the CO and of Blount's own project manager, along with the photographic evidence,
indicate that the steel was being stored in a fashion that endangered workers due to the
potential "spreading" or "tilting" contemplated by the regulation.
Although the standard does not impose specific obligations on how to arrange
material, Blount's own project manager conceded that steps could have been taken to
improve storage.
Accordingly, we affirm the portion of the judge's decision regarding this storage issue
and find the accompanying $360 penalty to be appropriate.
IIl. Electrical Standards
(1) Ground-Fault Protection
At issue is whether Blount violated 29 C.F.R. § 1926.404(b)(1)(ii) by not equipping a
panel distribution box with ground-fault circuit interrupters ("GFCl's").[[2]]
Compliance officer Cienaski testified that, following an appropriate test, he discovered
that some of the receptacle outlets were protected by GFCI's, while others were not.
He testified that without some form of ground-fault protection, workers using the
temporary power supply on this worksite were vulnerable to injury from electrical shock.
The judge found that the violations were readily detectable, and that Blount, with
supervisory authority and responsibility for overall jobsite safety, could be reasonably
expected to detect such violations.
Blount disagrees, asserting that it did not know and could not
have been expected to know of the violation. Blount argues that since Turner
Electric, Blount's electrical subcontractor, had installed the system, it was Turner alone
that created and controlled the hazard and Turner alone that should be held accountable.
Blount asserts that it was justified in relying on its subcontractor and that
expecting a general contractor to have detected and abated this hazard is unreasonable.
In order to establish a violation of a standard, the Secretary must show that the employer
knew or, with the exercise of reasonable diligence, could have known of the violative
condition. Ormet Corp., 14 BNA OSHC 2134, 2135, 1990 CCH OSHD ¶ 29,254, p. 39,199
(No. 85-531, 1991). In this case, the Secretary charges Blount with failure to
exercise reasonable diligence, given its capacity as general contractor with supervisory
authority. Thus, argues the Secretary, Blount had constructive knowledge of the GFCI
hazard.
The Commission addressed the question of responsibility for safety on a multi-employer
worksite in the Anning-Johnson/Grossman Steel line of cases:
[T]he general contractor normally has responsibility to assure
that the other contractors fulfill their obligations with respect to employee safety which
affect the entire site. The general contractor is well situated to obtain abatement
of hazards, either through its own resources or through its supervisory role with respect
to other contractors. It is therefore reasonable to expect the general contractor to
assure compliance with the standards insofar as all employees on the site are affected.
Thus we will hold the general contractor responsible for violations it could
reasonably have been expected to prevent or abate by reason of its supervisory capacity.
Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185, 1188, 1975-76 CCH OSHD ¶ 20,691, p.
24,791 (No. 12775, 1976) (footnote omitted). The Anning-Johnson opinion echoed that
principle:
[T]ypically a general contractor on a multiple employer project possesses sufficient
control over the entire worksite to give rise to a duty under section 5(a)(2) of the Act
either to comply fully with the standards or to take the necessary steps to assure
compliance.
Anning-Johnson Co., 4 BNA OSHC 1193, 1199, 1975-76 CCH OSHD ¶ 20,690, p. 24,784 (No.
3694, 1976) (consolidated cases) (footnote omitted).
Although neither of those seminal cases involved the rights and duties of general
contractors, the rules set forth in the Commission's discussions of the role of such
employers have been followed in later cases. In Red Lobster Inns of America, Inc., 8
BNA OSHC 1762, 1980 CCH OSHD ¶ 24,635 (No. 76-4754, 1980), the Commission confirmed the
Anning-Johnson/Grossman Steel principle that an employer is responsible for violations of
other employers where it could be reasonably expected to prevent or detect and abate the
violations due to its supervisory authority and control over the worksite.
Responsibility for compliance under the Red Lobster test does not depend on whether the
employer actually created the hazard or has the manpower or expertise to abate the hazard
itself.
In Knutson Constr. Co., 4 BNA OSHC 1759, 1976-77 CCH OSHD ¶ 21,185 (No. 765, 1976),
aff'd, 566 F.2d 596 (8th Cir 1977) ("Knutson"), the Commission relieved a
general contractor of liability for failing to detect a one-inch crack on the underside of
a scaffolding platform before it collapsed.
The Commission stated:
The duty we imposed upon a general contractor in Grossman Steel & Aluminum Corp. and
Anning-Johnson Co. is a reasonable one; that is, we will not hold a general contractor
liable for violations which it could not reasonably be expected to detect or prevent.
Id., 4 BNA OSHC at 1761, 1976-77 CCH OSHD at p. 25,481. In Knutson, the inability of
the general contractor and of the steel erection subcontractor that rented the defective
scaffold to observe the crack during their inspections, combined with the unforeseen
casual relationship between the crack and the collapse of the scaffold, led the Commission
to find a lack of knowledge. In the instant case, the GFCl problem--like many
electrical hazards--was by nature latent and hidden from view. The CO acknowledged
in his testimony that one could not tell simply by looking at the box which of the
receptacle outlets were energized or, of those, which were protected by GFCI's. A
tester would be required to identify any particular unprotected outlets. The CO also
agreed that the general contractor is not expected to know every minute detail of the
electrical system at all times. He maintained, however, that a general contractor
ought to have "general knowledge of general electrical requirements," and
described a GFCI system as "basic knowledge to every job site."
Unlike the steel erection subcontractor in Knutson, the electrical subcontractor in this
case likely would have assisted the general contractor in ascertaining how safe the
worksite was. To determine whether Blount had some minimal degree of familiarity
with the power supply on its site, the CO turned to the Blount engineer. The
engineer was unable to answer even the most elementary questions about the electrical
panel box. The CO inferred from this that Blount had neither performed its own tests
nor consulted with its electrical subcontractor to assure itself that the system was in
working order before requiring employees to use it. The evidence shows that the set
of GFCI's installed by Turner Electric was from the outset inadequate for the number of
outlets in that box, that the box was never in compliance with the applicable standard,
and that Blount remained unaware of the situation. From this, the CO gathered that
Blount had failed to fulfill its fundamental responsibilities as a general contractor
charged with overseeing jobsite safety.
Blount, on the other hand, offered no evidence on the GFCI issue at all. The record
does not reveal (1) whether Turner Electric presented Blount with any evidence of Turner's
own inspections or with other assurances, (2) other information or statements that the
electrical panel boxes met the required safety and electrical standards, (3) or even
whether any Blount representative inspected the box at any time. In addition, the
record before the Commission is silent on whether Blount took any precautionary measures
to protect workers on the site and silent on how Turner Electric was selected as a
competent electrical subcontractor; in short, the record is silent on why, as Blount
asserts, it was reasonably entitled to rely on Turner's having performed the work it was
assigned to do. Blount may well have had its reasons, but they are not reflected in
the record.
We therefore conclude that the Secretary has demonstrated that Blount's reliance on Turner
was unreasonable and that Blount could have known of the GFCI problem with the exercise of
reasonable diligence.[[3]] Accordingly, we affirm the portion of the judge's
decision regarding the GFCI violation. We find the $150 penalty, as modified by the
judge, appropriate under the circumstances.
(2) Weatherproof Box
At issue is whether Blount violated 29 C.F.R. § 1926.405(e)(1)
by failing to weatherproof an outdoor distribution panel box.[[4]]
Compliance officer Cienaski testified that he observed an outdoor distribution panel box
and associated knockout-type receptacle box loosely draped with "raggedy polyethylene
material." He testified that without a waterproof enclosure, water could
accumulate, energizing the non-current carrying parts that, in turn, could cause a full
circuit line shock, resulting in a worker's electrocution. Cienaski testified that
typical New England weather in March consisted of snow, rain, fog and ice, leading him to
classify the outdoor box as being in a wet location. He testified that the plastic
tarp partially covering the box was therefore inadequate to protect the energized parts
from moisture. He also testified that directly below the tarp-covered box were
approved, properly encased, waterproof-type boxes.
On review, Blount argues, as it did before the judge, that the box was weatherproofed with
a "heavy-duty plastic cover," and posed no danger to any employee. Finding
this overall assertion to be unsupported by the evidence, the judge ruled that the
violation was readily observable, and that because of its responsibility for overall
jobsite safety, Blount reasonably should have known of the violation. Therefore, the
judge affirmed the violation and the $300 penalty proposed by the Secretary.
The evidence shows that the box was not weatherproof and that water could enter,
jeopardizing worker safety. Blount's minimal efforts fell far short of the level of
protection required by the standard. Accordingly, we affirm the weatherproofing
citation and find the proposed $300 penalty to be appropriate.
IV. Crane Standard
Lastly, at issue is whether Blount violated a crane safety
standard incorporated by reference in 29 C.F.R. § 1926.550(b)(2) by permitting a crane
operator to abandon a crane with a suspended load.[[5]]
The evidence in this case reveals that by the time the compliance officer Cienaski arrived
at the construction site in response to the ACE's notification, the ACE had rescinded its
stop-work order and Blount had resumed the steel erection work that had been left
uncompleted. Contrary to industry practice, a 68-ton J-line roof truss, 278 feet
long and 80 feet high, had been raised before it's companion H-line truss was ready.
However, the J-truss was connected to its vertical "bents" or legs, most
of its bolts had been tightened, and guy wires had been attached. For additional
support, two 150-ton cranes had been left attached to the truss, a temporary arrangement
intended to stabilize the J-truss until the H-truss could be prepared for erection and
connection.
That the cranes were unmanned for over a week--between the time
the J-truss was lifted and the time the H-truss was lifted--is undisputed. The
Secretary claims that the cranes kept the truss from falling over, that there was visible
tension on the line, and that the truss should be considered a "suspended load"
requiring the presence of operators during the time in question. Blount concedes
that the lines attached to the truss were taut, not slack, but challenges the Secretary's
characterization of the load as "suspended," contending that the crane lines
were functioning in the capacity of guy lines to stabilize the truss.
The CO testified that an unattended crane, while under load, could slip, whether by
inadvertent activation of the controls or faulty brake/clutch mechanisms. Moreover, he
speculated that without the cranes to support it, the truss could have blown over or
fallen to the ground. He suggested that to abate the hazard, Blount could have put
the truss back down on the ground, manned the two cranes while employees were in the area
or kept employees out of the area.[[6]] Blount maintains that the standard does not apply
because the load was not suspended.
The judge acknowledged that the subcontractor had created the situation in which the
cranes were left to support the truss, but found that Blount was nevertheless obligated to
provide safe working conditions for employees exposed to the hazard. He also found
that there was no evidence that the bents could have supported the entire weight of the
truss without the aid of the cranes. Because of the dangers attendant to an unmanned
crane while under load, as enumerated by the CO, the judge concluded that the purposes of
the standard would not be served by adopting Blount's argument.
The Secretary cites Farthing & Weidman, Inc., 11 BNA OSHC 1069, 1983-84 CCH OSHD ¶
26,389 (No. 78-5366, 1982) ("F&W"), in support of her position that the load
was suspended. In that case, one end of a tank had been lifted when an employee
crawled underneath and was killed when the sling ripped and the tank fell on him.
The employer argued that the load had not been "lifted" within the meaning of
the standard because only one end of the load had been raised into the air. The
Commission held that the employer was liable for a violation of a standard requiring that
a load be well secured and properly balanced in the sling or lifting device before it is
lifted more than a few inches. The Commission reasoned:
To say that the tank involved here was "lifted" hardly strains the meaning of
the word, and indeed, accords well with its plain meaning. In any event, we must
construe this standard in light of its purpose: to prevent loads from falling to the
ground.
Id. at 1071, 1983-4 CCH OSHD at p. 33,491 (footnote omitted).
The parallels the Secretary urges us to draw between F&W and the case on review are
forced. In this case, the truss had long since been lifted and then settled down
into its bents and bolted up. To say that the truss, the load here, was still
"suspended" would strain the plain meaning of the word. Moreover,
construing the provision cited here in light of its purpose--to prevent loads from
dropping to the ground injuring workers below--does not undermine our rationale because
the load was already on the ground. In this case, both cranes would have had to
malfunction at the same time for the truss to lose what support the cranes provided.
Even then, there is little evidence either way on the likelihood of the truss
actually collapsing. [[7]] Thus, the facts in the case before us are distinguishable
from F&W.
We note that neither the Secretary nor Blount argues outright that the pertinent crane
standard is ambiguous. Under Martin v. OSHRC (CF&I Steel Corp.), 111 S. Ct. 1171
(1991), the Supreme Court held that the Secretary's reasonable interpretation of an
ambiguous regulation is entitled to deference. Whether the regulation is ambiguous
is a threshold question for analysis under CF&I Steel Corp. Frankly, we view the
term "suspended" as it is used here as an unlikely candidate for genuine
ambiguity. For our purposes, the term is narrowly defined, leaving little room for
interpretation. [[8]] Therefore, CF&I Steel Corp. does not apply to this case.
We conclude that the word "suspended" in the standard under consideration is not
ambiguous, that it does not describe the position of the load and that the provision of
ANSI B30.5-1968 incorporated by reference in section 1926.550(b)(2) does not apply to
these circumstances. We therefore vacate the portion of the judge's decision
regarding the crane standard violation.
Accordingly, items 1, 3 and 4 are affirmed. Penalties of $360 for item 1, $150 for
item 3 and $300 for item 4 are assessed. Item 5 is vacated.
Edwin G. Foulke, Jr.
Chairman
Velma Montoya
Commissioner
Dated: September 18, 1992
WISEMAN, Commissioner, dissenting in part:
I concur with my colleagues' decision regarding all citation
items in this case, with the exception of the item alleging a violation of 29 C.F.R. §
1926.404(b)(1)(ii) due to Blount's alleged failure to equip a panel distribution box with
sufficient ground-fault circuit interrupters ("GFCI's'). As my colleagues
stated in the majority opinion, the Secretary must show that Blount knew, or with the
exercise of reasonable diligence, could have known, of the presence of the violative
condition. Ormet Corp., 14 BNA OSHC 2134, 2135, 1989-90 CCH OSHD ¶ 29,254, p.
39,199 (No. 85-531, 1991). My colleagues find that a preponderance of the evidence
demonstrates that Blount, with the exercise of reasonable diligence, could have known that
several of the receptacle outlets were not protected by GFCI's and therefore Blount had
constructive knowledge of the resulting hazard. I disagree.
The operative term here is "reasonable diligence." While it is true
that Commission precedent establishes that a general contractor is responsible for hazards
he could reasonably be expected to prevent or abate by reason of his supervisory capacity
even though none of his own employees were exposed to the hazards, e.g., Gil Haugan, d/b/a
Haugan Constr. Co., 7 BNA, OSHC 2004, 1979 CCH OSHD ¶ 24,105 (No. 76-1512, 1979)
(consolidated cases) ("Gil Haugan") (general contractor held liable for failing
to notice a missing guardrail and ladder, along with scaffolding planks that were too long
or too short to be safe), it is also true that the Commission, in determining whether a
general contractor has exercised reasonable diligence, has based its decisions on whether
the hazardous condition was obvious, whether it was visible, and whether it could have
been observed by the general contractor during his inspections. Knutson Constr. Co.,
4 BNA OSHC 1760, 1976-77 CCH OSHD ¶ 21,185 (No. 765, 1976), aff'd, 566 F.2d. 598 (8th
Cir. 1977) ("Knutson"). Where the answer to these questions has been yes, such
as when a guardrail or a ladder is missing, the Commission has held that it would be
reasonable to expect the general contractor to discover the hazardous condition, e.g., Gil
Haugan, 7 BNA OSHC at 2006, 1979 CCH OSHD at p. 29,290; however, where the answer to these
questions has been no such as when an invisible crack on the underside of scaffolding
makes it hazardously weak, the Commission has held that the general contractor could not
see the hazardous condition and therefore was not responsible for the exposure of his
subcontractors' employees to the hazard. Knutson, 4 BNA OSHC at 1761, 1976-77 CCH
OSHD at p.25,481.
Such a rule has served to promote the interests of safety on
multi-employer construction sites due to the fact that the general contractor can be in
the best position to discover visible hazards and obtain abatement thereof.
Unfortunately, the majority is broadening that rule to include invisible hazards.
The majority indicates that Blount was obligated to apprise itself of which safety efforts
its specialty subcontractor had chosen to make by, either (1) buying a tester on its own
initiative and personally testing each receptacle outlet or (2) consulting with its
electrical subcontractor to assure itself that the system was in proper working order.
The Commission is now sending a contradictory message to general contractors.
On the one hand, general contractors are being told that they cannot rely on the
skill and expertise of their subcontractors and that they must duplicate the ongoing
compliance requirements of their subcontractors, i.e., testing each receptacle outlet, no
matter how obscure such subcontractor's violation may be. On the other hand, general
contractors are being told that they can rely on a verbal assurance from their
subcontractors as to that subcontractor's own skill, expertise, and proper handling of
certain situations. Of course, to rely on a subcontractor's verbal assurance, the
general contractor now has the burden of acquiring sufficient expertise in order for him
to have the ability to ask the appropriate questions.
Despite the contradictory aspects of the two options now offered to general contractors,
the result is the same: general contractors must now be experts in every facet of the job
in order to identify every potential invisible hazard so that they can run tests, or
inquire specifically about the unknown hazard.
Why should a general contractor hire an expert if that expert's
reputation and judgment cannot be relied upon? Furthermore, why should a general
contractor hire a soil expert to conduct studies of a trench location, in order to
determine adequate shoring, if that expert's judgment cannot be relied upon?
When we begin to make general contractors, in their general supervisory capacity, liable
for hazards resulting from invisible defects, detectable only by testing, we are
dangerously close to a strict liability test which was never intended by the Act.
Blount could not reasonably be expected to detect this particular hidden electrical hazard
and consequently did not have constructive notice that the GFCI's were defective.
Accordingly, I would vacate the citation.
Donald G. Wiseman
Commissioner
Dated: September 18, 1992
SECRETARY OF LABOR,
United States Department of Labor,
Complainant,
v.
BLOUNT INTERNATIONAL, LTD.,
Respondent.
OSHRC Docket No. 89-1394
Appearances:
FOR COMPLAINANT:
John Casler, Esq.
Office of the Solicitor
FOR RESPONDENT:
Lynn Lloyd Laughlin, Esq.
Jackson, Lewis, Schnitzler & Krupman
Decision and Order
ORINGER, J: This is a proceeding brought under section 10(c) of
the Occupational Safety and Health Act of 1970 (84 Stat. 1590, 29 U.S.C. § 651 et seq.,
hereinafter sometimes referred to as ('the Act') to review citations issued by the
Secretary of Labor pursuant to § 9(a) and a proposed assessment of penalties thereon
issued pursuant to §10(a) of the Act.
Due to a March 6 through 17 inspection of Respondent's work site located at Westover Air
Base in Chicopee, Massachusetts, CompIainant issued a serious citation alleging six
violations of the construction standards and an other-than-serious citation containing one
item on March 29, 1989. Respondent timely filed with the Secretary of
Labor a notification of intent to contest the citation and proposed penalties.
A hearing on the matter was held in Boston, Massachusetts on November 29 and 30, 1989.
BACKGROUND
Blount, International, Ltd. ('Blount') was the general contractor for the construction of
a hangar for a C5A Aircraft stationed at Westover Air Force Base, a project for which it
had responsibility for overall job site safety (Tr. 241, 321). Carrie Construction
Company ('Carrie') was the subcontractor initially responsible for steel erection at the
site (Tr. 13, 49). Due to Carrie's failure to abide by the contract and engineering
specifications, Blount assumed the steel erection process on March 7 (Tr. 15).
During the first week in March, Blount had approximately seven employees at the site: a
project manager, project engineer, office engineer, field engineer, steel engineer, steel
superintendent, and an office manager (Tr. 241). In late February, Carrie was
preparing to set up a "J-line truss," a 68 ton roof truss (Tr. 116).
William Walker, an inspector for the Corps of Engineers, testified that the engineering
plans contemplated by Blount directed that the J-line truss would be lifted by cranes,
placed on two vertical bents and bolted into place. All bolts were to be fully
tightened at the truss supports prior to the release of the cranes as the bolts were
"slip critical", not load-bearing (Tr. 214, 226; R-2). The J-line truss
was not to be lifted until an "H-line truss" was ready to be lifted as well.
The plans provided that the two trusses were to be connected by steel bridging to
provide Iateral support for the entire structure.
Bobby C. Bailey, project manager for Blount, testified that he met with Joe Cavanas,
project engineer for Carrie, on February 27 to discuss problems with the project.
Because the H-line truss was not completed and difficulties with welding and other work on
the J-line truss arose, Carrie was told by Blount and the Corps of Engineers not to lift
the J-line truss. Despite these verbal warnings, Carrie proceeded to lift the J-line
truss (Tr. 245-248). By February 28, the J-line truss had been landed on the
vertical bents and half its bolts tightened (Tr. 250). Two 4000W Manitowoc, 150 ton
cranes and a third crane were attached to the J-truss and left in place to stabilize it
(Tr. 251).
On March 1, Carrie continued to tighten the bolts so that, as Bailey attested, 90-95% of
the bolting was complete (Tr. 252). A meeting was held between the Corps of
Engineers and Blount to discuss possible action to be taken in light of Carrie's
malfeasance (Tr. 347-348). On March 2, a stop-work order was issued by the Corps of
Engineers to Blount due to the manner in which Carrie had deviated from contract and
safety requirements (Tr. 259; R- 1). [[1]] Bailey understood this order to mean that
no more work was to be performed on the J-line truss and that they were not to lift the
H-Iine truss (Tr. 264). [[2]] Blount submitted a written response to this order on March 2
(R-2).
Based on a referral from the Corps of Engineers on March 6, 1989, Compliance Safety and
Health Officer Walter Cienaski, Jr. was assigned to inspect the site. By March 6,
the two 4000W Manitowoc cranes and the third rig remained attached to the J-line truss,
and stayed in that position until March 9. By March 7, Blount had assumed Carrie's
steel erection function (Tr. 15, 263).
On March 8, the stop-work order was rescinded (R-3). Blount lifted the H-Iine truss
on March 9, and installed the wind girds, or bridging truss, between the J-line and H-line
trusses (Tr. 271, 272). A crane remained on the J-line truss until the H-line truss,
wind girds, and wind trusses were fully installed (Tr. 284).
Citation One, Item 1: Alleged serious violation of 29 CFR
§1926.250(b)(9).
The standard at 29 CFR §1926.250(b)(9) provides:
(b) Material storage.
(9) Structural steel, poles, pipe, bar stock, and other cylindrical materials, unless
racked, shall be stacked and blocked so as to prevent spreading or tilting.
Compliance officer Cienaski testified that trusses and steel members in storage were not
set up on grillage suitable for the loads that were imposed. Photographic exhibits C-1a
through C-11 depict the conditions he observed: wide flange members were stockpiled and
pieces of channel iron, weighing from 800-1550 pounds, rested on cribbing material, or
grillage, such that slippage could occur (Tr. 26, 208-210). The photographs
depict support sections for a 157 ton doorway truss resting on rotted wood (Tr. 32).
Cienaski also testified that the weather and ground conditions at tile site varied in
March, causing the ground to repeatedly freeze and thaw facilitating the settling of
dunnage and creating more instability and unevenness in the support of the flange and
channel iron (Tr. 31, 39, 40). He suggested that the proper practice in the
construction industry is to store this material individually and properly spaced, on their
flanges, on dunnage material, in order that they do not tip and fall (Tr. 35).
General construction work took place in this area: fabrication and bolting up work for the
truss members and the inspection of trusses (Tr. 33). Because employees performed
work in this area, Cienaski claimed that if this material fell over, it could result in
the crushing of bones (Tr. 26, 208-210).
While project manager Bailey denied that a lateral load could
cause the stockpiled steel to tilt or tip because of its weight, he agreed that some of
the stockpiled steel should have been straighter and that the rotted wood supporting the
pieces of the doorway truss should have been replaced (Tr. 311).
Respondent contends that the cited standard applies only to materials in
"storage" and not to "work-in-progress", citing Majestic Wiley
Contractors, Ltd., 10 BNA OSHC 1951 (No. 81-2545, 1982); Sierra Construction Corp., 6 BNA
OSHC 1278 (Rev.Comm. 1978). It maintains that the steel was in the process of being
assembled for the H-line truss lift "and other truss-related lifts" and was
thus, not in storage. This argument was specifically rejected in Sierra
Construction, supra, when the employer contended that the concrete form material placed in
a work area where it was available for "immediate use" was not
"stored" as intended by the standard. The Review Commission held that
''[a]ny material placed on a construction site is presumably for eventual use. Under
the standard, however, all material is considered 'stored' until it is in fact used."
Sierra Construction, supra, citing Brennan v. Underhill Construction Corp., 513
F.2d 1032 [2 OSHC 1641] (2nd Cir. 1975); Whitcomb Logging Co,. 74 OSAHRC 89/F7, 2 BNA OSHC
1419, 1974- 75 CCH OSHD ¶19,128 (No. 1323, 1974).
In Majestic Wiley, the employer was engaged in the construction of a 92 mile portion of
the Alaskan pipeline. While welds and joints of the pipeline were being inspected, a
piece of pipeline rolled off of its "skids" (wooden cribbing used to elevate the
pipeline) resulting in an employee fatality. At the time, the pipe was in the
process of being welded together. Majestic Wiley held that after work had begun on
welding the pipe, it could no longer be deemed "in storage"; the pipe
"could not spread since it is a single pipeline, or tilt, since it is one continuous
pipeline 800 feet long." Majestic Wiley, supra, at 1953. Further, there was no
evidence that the skids were inadequate to support the pipeline.
The facts in the instant case are clearly distinguishable from those in Majestic Wiley and
in alignment with those in Sierra Construction. The steel had remained in place from
March 6 through 17 including the time that a stop-work order had been issued and no work
was, as Respondent contends, "in progress." The steel in this case was
"stored" as contemplated by the standard; because the steel was stored in such a
manner that would not prevent spreading or tilting, I find that this item and its proposed
penalty must be affirmed and assessed.
Citation One, Item 2: Alleged serious violation of 29 CFR § 1926.251 (a) (1) .
The standard at 29 CFR §1926.251(a)(1) provides:
(a) General. (1) Rigging equipment for material handling
shall be inspected prior to use on each shift and as necessary during its use to ensure
that it is safe. Defective rigging equipment shall be removed from service.
The violation alleged by the Secretary concerns Blount's failure to detect a missing
"softener" [[3]] on a rig and its failure to take the lift out of service
because of the missing softener. Cienaski testified that on March 9, one of the two
4000W Manitowoc cranes was being replaced by a 140-ton Link Belt to support the already
raised J-line truss and in doing so, one of the softeners on one leg of the sling was not
put back into place (C-2A, C-2B, C-2D, C-2E). Cienaski pointed this out to the erection
foreman who promised to attend to it (Tr. 54).
Cienaski testified that the crane used to stabilize the J-line truss had a strain imposed
on it, which was evident in the lack of slack of the cable. He did not determine the
weight of the load, however estimates of 35,000 pounds and 5,000 pounds were made by the
crane operator and a representative of Carrie, respectively (Tr. 166, 168, 187). The
softener, he claimed, would have taken the alleged strain off the wires, and its use is
absolutely necessary in all lifting requirements used by wire rope (Tr. 79).[[4]]
Cienaski implied that if the equipment had been properly inspected, the absence of a
softener would have been detected (Tr. 95, 96).
Bailey testified that Blount's procedure is to inspect
equipment prior to and after each use (Tr. 293). Bailey stated that Blount's field
engineer, Pete Johnson and Corps of Engineers representative Rick Walker inspected the
crane attached to the J-line truss when it was ready to be relieved after the H-line truss
was in place (Tr. 294). He testified that no defective rigging equipment was found
between March 6 and March 10. Bailey contended that "his people" told him
that the softener "slipped out" while up in the air and attached to the steel
(Tr. 338).
Under 29 CFR §1926.251(a)(1), an employer is under a duty to inspect rigging equipment
prior to use to ensure that it is safe. Dye Construction Company, 9 BNA OSHC 1215
(1980), aff'd, 698 F.2d 423 [11 OSHC 1104] (10th Cir. 1983). Inspection
"requires a careful and critical examination and is not satisfied by a mere
opportunity to view equipment." Austin Commercial v. OSHRC, 610 F.2d 200 (5th
Cir. 1979) citing Dawson Company Manufacturers v. Cleveland Costume Co., 3 BNA OSHC 1534
(1975).
In Dye Construction, a violation of this standard was affirmed when an employee in charge
knew that a spreader bar lacked a safety pin but, regardless of this knowledge, decided to
proceed with moving a concrete manhole. The court found that the bar was inspected,
but used in an unsafe manner causing serious injury to an employee.
Respondent's witness established that Blount regularly inspected equipment. There
was no testimony to establish that the sling or rigging equipment were defective or
damaged by the accidental absence of the softener which would have required its removal
from service. A-1 Aggregates & Excavating, Inc., 12 BNA OSHC 1448 (1985).
The Secretary failed to meet its burden of establishing a violation of the standard,
therefore, I find that this item must be vacated.
Citation One, Item 3: Alleged serious violation of 29 CFR §1926.404(b)(1)(ii).
The standard at 29 CFR §1926.404(b)(1)(ii) provides:
1926.404 Wiring design and protection.
(b) Branch circuits--- (1) Ground fault protection (ii) Ground fault circuit interrupters.
All 120-volt, single-phase, 15-and 20-ampere receptacle outlets on construction sites,
which are not a part of the permanent wiring of the building or structure and which are in
use by employees, shall have approved ground-fault circuit interrupters for personnel
protection. Receptacles on a two-wire, single phase portable or vehicle-mounted
generator rated not more than 5kW, where the circuit conductors of the generator are
insulated from the generator frame and all other grounded surfaces, need not be protected
with ground-fault circuit interrupters.
The power that ran through the electrical lines at the site was standard: 120-volt, single
phase, 60-hertz power (Tr. 111). Cienaski testified that on March 6, with the aid of
a ground fault circuit interrupter (GFCI) tester, he tested the temporary electrical
distribution panels and outlets used by employees at the site. He concluded that only some
receptacles did not have ground fault protection; in lieu of the GFCI, Cienaski testified
that there was no assured ground conductor program (Tr. 98, 99, 103; C-3A, C-3B, C-3C).
In absence of either GFCI or an assured ground conductor program, he testified that
electric shock could occur (Tr. 104).
Turner Electric was the subcontractor who installed and maintained these temporary boxes
(Tr. 192). Respondent contends that since the electrical work was within the domain
of the subcontractor's field of expertise, that Blount did not know, nor could it
reasonably have known of the absence of GFCI protection. Cienaski maintained,
however, that Blount, as general contractor with overall job site responsibility for
safety could have discovered these alleged violations by observation, by asking the
electrical contractor or using an inexpensive ground fault tester (Tr. 197). [[5]]
Respondent cites Cuthers Corp. d/b/a Woodland Construction, 13 BNA OSHC 1986 (1988) for
the proposition that when a cited employer did not create or control the cited hazard, nor
was it aware of the violative condition, that it should be justified in relying on the
expertise of the electrical contractor responsible for the hazardous condition. The
Review Commission has held, however, that an employer is responsible for violations of a
subcontractor where it could be reasonably expected to prevent or detect and abate
violations by virtue of its supervisory authority and control over the work site.
Red Lobster Inns of America, Inc., 8 BNA OSHC 1762 (Rev. Comm. 1980). See also
Anning-Johnson Co., 4 BNA OSHC 1193 (Rev.Comm. 1976).
It is indisputable that Blount had supervisory authority and responsibility for overall
job site safety. The evidence established that these violations occurred. Because
these violations were readily detectable and Blount could be reasonably expected to detect
such violations, I find that this item must be affirmed and a proposed penalty assessed
but in this instance ameliorated.
Citation One, Item 4: Alleged serious violation of 29 CFR §1926.405(e)(1).
The standard at 29 CFR §1926.405(e)(1) provides:
1926.405 Wiring methods, components, and equipment for
general use.
(e) Enclosures for damp or wet locations (1) Cabinets fittings, and boxes.
Cabinets, cutout boxes, fittings, boxes, and panelboard enclosures in damp or wet
locations shall be installed so as to prevent moisture or water from entering and
accumulating within the enclosures. In wet locations the enclosures shall be
weatherproof.
Compliance officer Cienaski testified that Temporary Box Number One (the distribution
panel box and associated knockout-type receptacle boxes) which was located outdoors, was
designed for indoor use and was not waterproof. This was particularly hazardous, he
claimed, in light of the precipitation occurring in the month of March (Tr. 111; C-3B,
C-4). The absence of weatherproofing, he testified, could cause a full circuit line
shock, resulting in electrocution or death, as the accumulation of water could energize
the noncurrent-carrying parts of the panel box (Tr. 113, 114). Below the panel
boxes, however, approved waterproof-type outlet boxes were used (Tr. 112, 114).
The boxes were semi-covered with what Cienaski described as "raggedy polyethylene
material" that did not provide protection for the energized parts. The
polyethylene material is shown in exhibits C-3A, C-3B, and C-4 to be wide open, exposing
the panel box. Respondent's assertion that the electrical boxes were covered with
"heavy-duty plastic covers" is not supported by the evidence (see C-3A, C-3B,
C-4).[[6]] This violation was readily observable; because of its responsibility for
overall job site safety, Respondent reasonably should have known of the violation.
Therefore I find that this item and its proposed penalty must be affirmed.
Citation one, Item 5: Alleged serious violation of 29 CFR § 1926.550 (b) (2)
The standard at 29 C.F.R. §1926.550 (b) (2) provides in pertinent part:
1926.550 Cranes and derricks.
(b) Crawler, locomotive, and truck cranes.
(2) All crawler, truck, or locomotive cranes in use shall meet the applicable requirements
for design, inspection, construction, testing, maintenance and operation as prescribed in
the ANSI B30.5-1968 Safety Code for Crawler, Locomotive and Truck Cranes ....
The ANSI standard referred to in this section, 5-3.2.1.3, reads:
Holding the load.
(a) The operator shall not leave his position at the controls while the load is suspended.
There is no dispute between the parties concerning the factual circumstances surrounding
this item. As discussed, supra, two 4000W Manitowoc crawler cranes were attached to
the 68 ton J-line roof truss while it was elevated to approximately 80-90 feet above
ground. The engineering plans called for the J-line truss to be lifted by the
cranes, set upon two vertical bents, and bolted into place. The bolts, which were
not load-bearing, were to be fully tightened prior to the release of the cranes from their
load. Further, the J-line truss was not to be lifted until the H-line truss was
prepared to be lifted and the two connected by bridging so as to provide greater lateral
support for the structure. Carrie did not follow these procedures despite warnings
from Blount and the Corps of Engineers to the contrary.
Between March 6 and March 8, the J-line truss was approximately 90-95% bolted to the
vertical bents (Tr. 284). During the period of March 6 through March 9, the two
cranes, in addition to guy lines, were attached to the J-line truss at all times until, on
the 9th, the J-line and H-line trusses were tied together and both ends of the truss were
bolted into the vertical bents.
Cienaski testified that Blount personnel were exposed to the potential hazard of falling
material when he observed that cranes were unattended from time to time (Tr. 129, 136;
C-5A, C-5B, C-5C, C-5D). Bailey corroborated this observation, by stating that
cranes did not have operators in them at all times between March 6 and March 8 (Tr. 261,
276). The crane operator surmised that the cranes carried a Ioad of 35,000 pounds,
while a Carrie representative estimated the load to be 5,000 pounds (Tr. 155, 168).
The issue to be determined is whether the roof truss was, in fact, "suspended"
from the cranes during the period in question. The Secretary and Respondent disagree
on the resolution of this issue.
Respondent claims that at no time was the J-line truss suspended from the crane, but
rather, that "the crane line was functioning in the capacity of a guy line" to
stabilize the truss (Respondent's Brief, p.19). The dictionary definition of
"suspended" presented by Respondent is as follows:
Hang; esp. to hang so as to be free on all sides except at the
point of support (ex., a ball by a thread) .... [[7]]
The Secretary counters that while the capacity of the J-line truss to swing at random was
significantly limited by its having been bolted to the bents, the presence of the crane
prevented the truss from falling over. She contends that the roof truss should be
considered to have been suspended by the cranes until it was "safely supported."
Cienaski explained that an unattended crane, while under load, could cause the inadvertent
activation of controls, faulty brake/clutch mechanisms, or hoist brake slippage (Tr. 122).
He testified that accepted practice in the New England construction industry is to
have manned control stations in the cab whenever a Ioad is suspended.[[8]]
There is no decisional law to clarify what was meant by the word "suspend."
Because of the hazards enumerated by the compliance officer attendant to an
unmanned crane while under load, and in light of Respondent's failure to protect employees
in the area when the cranes were unattended, I find that the purposes of the standard
would not be served by adopting Respondent's argument. The record established that
the bolts on the vertical bents were not load bearing; there was no evidence to show that
the bents could have supported the entire weight of the truss in the event that the crane
malfunctioned as a result of being left unmanned. While I acknowledge that the
subcontractor created the situation in which the cranes were left to support the truss,
Respondent was nevertheless obligated to provide safe working conditions for employees
exposed to this hazard. Accordingly, I find that this item and its proposed penalty
must be affirmed and assessed.
Citation One, Item 6: Alleged serious violation of 29 CFR
§1926.751(c)(2)
The standard at 29 CFR §1926.751(C)(2) provides:
§1926.751 Structural steel assembly.
(2) Where longspan joists or trusses, 40 feet or longer, are used, a center row of
bolted bridging shall be installed to provide lateral stability during construction prior
to slacking of hoisting line.
Cienaski testified that the J-line truss was 278 feet long, and was set in place 80 feet
above ground without being tied in with bridging to an adjacent truss (Tr. 139, 164: C-6A
through C-6F). Lateral bridging was not set up until March 9, although the J-line
truss was hoisted by a hoisting line with tension on it from February 28 through March 8
(Tr. 288). Blount personnel worked underneath and in the immediate area to the
elevated J-line truss (Tr. 163).
Respondent urges this tribunal to consider the predicament in
which it was forced to ameliorate Carrie's intransigent actions. After Carrie lifted
the J-line truss, Blount determined that the safest work practice would be to leave the
crane lines guyed to the truss while preparing to lift the H-line truss into place.
I agree with the Respondent's defense.
Moreover, the Secretary proposes that both she and Respondent cannot prevail on both items
5 and 6 of Citation Number One, as arguments for either affirming or vacating both items
are mutually exclusive: as the Secretary notes,
Respondent's argument as to Item 5, that the "J"
truss was no longer suspended from the cranes amounts to an admission that it had indeed
slacked the hoisting lines prior to tying in the truss, thus violating 29 CFR
1926.751(c)(2). At the same time... Complainant's position that "J" truss
was still suspended would, if accepted by the Court, absolve Respondent of the alleged
violation in Item 6.
Respondent makes a similar argument, claiming that the Secretary cannot assert both that
the line was both taut, suspending a load, as well as slackened.
For the preceding reasons, I find that this item and its proposed penalty must be vacated.
Citation Two, Item 1: Alleged other-than-serious violation of 29 CFR §1926.403 (h).
The standard at 29 CFR §1926.403(h) provides:
1926.403 General requirements
(h) Identification of disconnecting means and circuits. Each disconnecting means
required by this subpart for motors and appliances shall be legibly marked to indicate its
purpose, unless located and arranged so the purpose is evident. Each service, feeder, and
branch circuit, at its disconnecting means or overcurrent device, shall be legibly marked
to indicate its purpose, unless located and arranged so the purpose is evident.
These markings shall be of sufficient durability to withstand the environment involved.
Cienaski testified that on Temporary Panel Box Number One, each service feeder and branch
circuit was not legibly marked at its disconnecting mains or overcurrent device to
indicate its purpose. Cienaski explained that if breakers do not indicate which
circuit they control, an employee would be exposed to danger in the event that there was a
power failure or if power on a particular tool in use were to be disconnected (Tr. 146,
147). Respondent did not present evidence to rebut this charge, therefore I find
that this item must be affirmed.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The findings of fact and conclusions of law contained in this opinion are incorporated
herein in accordance with Rule 52 (a) of the Federal Rules of Civil Procedure.
ORDER
In view of the foregoing, good cause appearing therefore, it is ORDERED that:
1. The allegation of serious violation by this respondent of the standard set forth at 29
CFR 1926.250 (b) (9) and found in Citation Number One, item 1, is affirmed and a penalty
of $360 assessed.
2. The allegation of serious violation by this respondent of the standard set forth at 29
CFR 1926.251 (a) (1) and found in Citation Number One, item two is vacated.
3. The allegation of serious violation by this respondent of the standard set forth at 29
CFR 1926.404 (b) (1) (ii) and found in Citation Number One, item 3, is affirmed and a
penalty of $150 assessed.
4. The allegation of serious violation by this respondent of the standard set forth at 29
CFR 1926.405 (e) (1) and found in Citation Number One, item 4 is affirmed and a penalty of
$300 assessed.
5. The allegation of serious violation by this respondent of the standard set forth at 29
CFR 1926.550 (b) (2) and found in Citation Number One, item 5 is affirmed and a penalty of
$300 assessed.
6. The allegation of serious violation by this respondent of the standard set forth at 29
CFR 1926.751(c) (2) and found in Citation Number One, item 6 is vacated.
7. The allegation of other than serious violation by this respondent of the standard set
forth at 29 CFR 1926.403 (h) and found in Citation Number Two, item 1 is affirmed.
IT IS SO ORDERED
DAVID G. ORINGER, Judge, OSHRC
Dated: November 19,1990
Boston, Massachusetts
FOOTNOTES:
[[1]] The cited standard, 29 C.F.R. § 1926.250(b)(9), provides:
29 C.F.R.§ 1926.250 General requirements for storage.
(b) Material storage.
(9) Structural steel.... unless racked, shall be stacked and blocked so as to prevent
spreading or tilting.
[[2]] The cited standard, 29 C.F.R. § 1926.404 (b)(1), allows for two alternative forms
of ground-fault protection on the worksite. Blount's site was wired with a system of
ground-fault circuit interrupters ("GFCl's"), as the standard permits:
29 C.F.R. § 1926.404 Wiring design and protection.
(b) Branch circuits -- (1) Ground-fault protection....
(ii) Ground-fault circuit interrupters. All 120-volt
single-phase,15- and 20- ampere receptacle outlets on construction sites, which are not a
part of the permanent wiring of the building or structure and which are in use by
employees, shall have approved ground-fault circuit interrupters for personnel protection.
[[3]] At the same time, we are cognizant of the role of specialty subcontractors in
running a safe, efficient construction project. A general contractor may reasonably
rely on its subcontractor's expertise. Sasser Elec., & Mfg Co., 11 BNA OSHC
2133, 1984-85 CCH OSHD ¶ 26,982 (No. 82-178, 1984). Far from requiring the
contracting employer to duplicate the safety efforts of the specialist, the Act demands
only that general contractors apprise themselves of which safety efforts their specialty
subcontractors have chosen to make in completing their assignments.
[[4]] The applicable standard, 29 C.F.R. § 1926.405(e)(1), calls for certain prophylactic
measures:
29 C.F.R. § 1926.405 Wiring methods, components, and
equipment for general use.
(e) Enclosures for damp or wet locations [.] (1) Cabinets, fittings, and boxes.
Cabinets, cutout boxes, fittings, boxes, and panelboard enclosures in damp or wet
locations shall be installed so as to prevent moisture or water from entering and
accumulating within the enclosures. In wet locations, the enclosures shall be
weatherproof.
[[5]] The applicable regulation, 29 C.F.R. § 1926.550(b)(2), provides:
29 C.F.R. § 1926.550 Cranes and derricks.
(b) Crawler ...cranes
(2) AlI crawler... cranes in use shall meet the applicable requirements for ... operation
as prescribed in the ANSI B30.5-1968, Safety Code for Crawler, Locomotive and Truck
Cranes.
The ANSI B30.5-1968 Safety Code incorporated by reference includes the following section:
5-3.2.4 Holding the Load (a) The operator shall not leave
his position at the controls while the load is suspended.
(Emphasis added).
[[6]] A fourth option, of course, would have been simply to detach the cranes from the
truss. This alternative, however, while technically abating any alleged hazard,
would have jeopardized worker safety.
[[7]] While the record shows that the crane lines were under some tension, there is no
evidence that the cranes were supporting the entire weight of the truss. To the
contrary, the testimony indicates that the load on the cranes was between 5,000 and 35,000
pounds at most, only one quarter of the weight of the truss. The standard does not
require that operators be present whenever the crane is under load, only when the load is
suspended. Had the Secretary demonstrated that the cranes were supporting the entire
weight of the truss, or close to it, this case might more reasonably be considered under
F&W.
[[8]] In the absence of much case law, the parties and the judge resorted to the
dictionary for guidance, finding nearly identical definitions e.g., "suspend: Hang;
esp to hang so as to be free on all sides except at the point of support (ex.,.... a ball
by a thread)." The word's denotation was not debated; its potential
connotations, in light of the purpose of the standard, were.
[[1]] The Corps of Engineers' stop-work order enumerated fourteen violations which caused the order to be issued. These included:
1. The failure to follow safety and quality control
requirements pertaining to the erection of trusses,
2. Connections of truss column "J" at Column line 12 were not fully impacted
prior to truss erection,
3. Failure to fully tension 100% of the bolts at the truss supports prior to the release
of the cranes....
5. Workers were working under truss being erected after having been repeatedly warned not
to do so....
10. Insufficient operators and standby operators for cranes...(See R-1).
[[2]] The Secretary notes that despite the stop-work order, work continued to be
performed by Carrie on the H-line truss on March 6 (Tr. 369).
[[3]] A softener, as described by the compliance officer, is a piece of material such as
wire, rope, or fabric, placed underneath rigging equipment to preclude damage to the
equipment by the sharpness of the member being lifted (Tr. 51).
[[4]] C-7, The Handbook for Crane Operators, issued by the International Union of
Operating Engineers, Local No, 98, states that "wire rope slings should be protected
from sharp bends and cutting edges by means of corner saddles, burlap padding, or wood
blocking."
[[5]] Cienaski testified that this violation was readily observable without the use of a
tester:
THE WITNESS: ... let's see, four receptacles that I can pick
out real quick had ground fault circuit interrupters provided on it. The rest of
them didn't. They're sitting in side-by-side boxes.
Two receptacles on one side of the box had GFCI, two on the other side didn't.
When you looked at the panel, they had two GFCI's installed and the rest of them were
circuit breakers.
Q. [By Mr. Casler] So this was something that could be observed
by the naked eye?
A That's how I looked at them. I walked up to the box and looked at it, because the
door was broken off. (Tr. 107-108).
[[6]] Respondent also engages in a battle of semantics: it
claims that the Secretary is attempting to hold Respondent to a higher standard, that of
"waterproof" rather than the less exacting one of "weatherproof" as
required by the standard. The former, it contends, means "able to withstand
exposure to weather without damage or loss of function" while the latter is defined
as "impervious to water." The standard enunciates that such panel boxes in
damp or wet locations "shall be installed so as to prevent moisture or water from
entering and accumulating within the enclosures." The makeshift polyethylene
shown in the photographic exhibits depicts neither "weatherproof" nor
"waterproof" protection.
[[7]] The Secretary's definition is nearly identical: "To hang by a support from
above, so as to be free on all sides except at the point of support."
[[8]] Respondent notes the 1982 version section 5-3.2.1.3(d) of ANSI B 30.5 as reflecting
common industry practice:
(d) As an exception to (a) above, under those circumstances where a load is to be held suspended for a period of time exceeding normal lifting operations, the operator may leave the controls provided that prior to that time, the appointed individual and operator shall establish the requirements for restraining the boom hoist, telescoping, load, swing, and outrigger functions, and provide notices, barricades, or whatever other precautions may be necessary. [Emphasis added].
This section, however, was specifically omitted by the OSHA
standard, which refers only to the 1968 ANSI standard. Further, Respondent presented
no evidence to show that it complied with this alternative exception to the standard, by
providing notices or barricades to protect employees.