SECRETARY OF LABOR.

Complainant.

v.

ALL PHASE ELECTRIC & MAINTENANCE, INC.

Respondent.

Docket No. 89-3268

ORDER

This matter is before The Commission on a Direction for Review entered by Commissioner Edwin G. Foulke, Jr. on June 17, 1991. The parties have now filed a Stipulation and Settlement Agreement.

Having reviewed the record, and based upon the representations appearing in the Stipulation and Settlement Agreement, we conclude that this case raises no matters warranting further review by the Commission.The terms of the Stipulation and Settlement Agreement do not appear to he contrary to the Occupational Safety and Health Act and are in compliance with the Commission's Rules of Procedure.

Accordingly, we incorporate the terms of the Stipulation and Settlement Agreement into this order. This is the final order of the Commission in this case. See 29 U.S.C. §§ 659(c), 660(a) and (b).

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

Dated January 17, 1992

LYNN MARTIN, SECRETARY OF LABOR,
Complainant,

v.

ALL PHASE ELECTRIC & MAINTENANCE INC.

Respondent.

OSHRC Docket No. 89-3268

STIPULATION AND SETTLEMENT AGREEMENT

I

The parties have reached agreement on a full and complete settlement and disposition of the issues in this proceeding which are currently pending before the Commission.

II

It is hereby stipulated and agreed by between the Complainant, Secretary of Labor, and the Respondent, All Phase Electric & Maintenance Inc., that:

1. Respondent represents that all of the alleged violations for which it was cited have been abated.

2. Complainant hereby amends Citation 1, items 1, 2, and 3 to characterize the alleged violations of 29 C.F.R. §§ 1926.59(e)(1), 1926.59(g)(8) and 1926.59(h) as other than serious violations. The total proposed penalty for Citation 1, items 1, 2, and 3 is hereby amended to $315.

3. Respondent hereby agrees to withdraw its notice of contest to items 1, 2, and 3 of citation 1 as amended above, to the amended penalties for Items 1, 2 and 3, and to items 4, 5, and 6 of Citation 1, alleging violations of 29 C.F.R. §§1926.152(a)(1), 1926.403(i)(2)(i), and 1926.600 (e)(1)(iii), respectively, which were affirmed by the judge below and became a final order of the Commission on June 17, 1991. Respondent hereby agrees to pay a penalty of $550 for Citation 1, items 4, 5, and 6.

4. Respondent agree to pay a penalty in the total amount of $865 by submitting its check, made payable to "U.S. Department of Labor - OSHA" to the OSHA Area Office within 30 days from the date of this agreement.

5. Each party agrees to bear its own fees and other expenses incurred by such party in connection with any stage of this proceeding.

6. Respondent states that there are authorized representatives of affected employees.

7. The parties agree that this Stipulation and Settlement Agreement is effective upon execution.

8. Respondent certifies that a copy of this Stipulation and Settlement Agreement was posted at its main office on the 26th day of December, 1991, in accordance with Commission Rules 7 and 100, and will remain posted for a minimum period of ten days.

Respectfully submitted,

MARSHALL J. BREGER

Solicitor of Labor

CYNTHIA L. ATTWOOD

Associate Solicitor for

Occupational Safety and Health

DONALD G. SHALHOUB

Deputy Associate Solicitor for

Occupational Safety and Health

DANIEL J. MICK

Counsel for Regional Trial Litigation

PAUL PULEO

President

All Phase Electric & Maintenance Inc.

ORLANDO ANNOCCHIA

Attorney for the
Secretary of Labor

SECRETARY OF LABOR,

Complainant,

v.

ALL PHASE ELECTRIC & MAINTENANCE, INC.,

Respondent.

OSHRC Docket No. 89-3268

APPEARANCES: Leslie John Rodriguez, Esquire, Office of the Solicitor, U. S. Department of Labor, AtIanta, Georgia, on behalf of complainant.

Paul Puleo, President, All Phase Electric & Maintenance, Inc., Tampa, Florida, on behalf of respondent.

DECISION AND ORDER

BRADY, Judge:     This proceeding is brought pursuant to section 10 of the Occupational Safety and Health Act of 1970 (Act) to Contest two citations issued by the Secretary of Labor (Secretary) pursuant to section 9(a) of the Act.

Prior to commencement of the hearing in this cause, the Secretary's motion to amend Item 6 of the citation to allege violation of 1926.500 (e)(1)(iv), instead of 500(e)(1)(iii), was granted. Respondent, All Phase Electric & Maintenance, Inc., (All Phase) basically contends it was without knowledge of any violative conditions, any such violations were not serious, and the proposed penalties are not reasonable.

ALLEGED VIOLATIONS OF 29 C.F.R. § 59 (e)(1), (g)(8), AND 59 (h)

The standards which pertain to hazard communication require in pertinent part as follows:

(e) Written hazard communication program

(1) Employees shall develop, implement and maintain it the workplace a written hazard communication program for their workplaces.

(g) Material safety data sheets

(8) The employer shall copies of the required material safety data sheets for each hazardous chemical in the workplace, and shall ensure that they are readily accessible during each work shift to employees when they are in their work area(s).

(h) Employee information and training

Employers shall provide employees with information and training on hazardous chemicals in their work area at the time of their initial assignment, and whenever a new hazard is introduced into their work area.

The violations are alleged in the citation as follows:

29 CFR 1926.59(e)(1): Employer had not developed or implemented a written hazard communication program which describes how the criteria in 29 CFR 1926.59(f), (g) and (h) will be met:

(a) For employees using or potentially exposed to hazardous chemicals such as, but not limited to, gasoline and PVC cement, on or about July 10, 1989 10, 1989.

29 CFR 1926-59(g)(8): Employer did not maintain copies of the material safety data sheets for each hazardous chemical in the workplace and ensure that they are readily accessible to the employees in their work area during each work shift:

(a) For employee using or potentially exposed to hazardous chemicals such as,but not limited to, gasoline and PVC cement, on or about, July 10, 1989.

29 CFR 1926.59(h):  Employees were not provided information and training as specified in 29 CFR 1926.59(h)(l) and (2) on hazardous chemicals in their work area at the time of their initial assignment and whenever a new hazard was introduced into their work area:

(a) For employees using or potentially exposed to hazardous chemicals such as, but not limited to, gasoline and PVC cement, on or about July 10, 1989.

Ms. Nancy Hodenius, a compliance officer, testified that she conducted an inspection of respondent's work site at the construction of a one-story building. In the course of performing electrical work, she noted employees were using PVC cement and gasoline, which are hazardous chemicals (Tr. 14, 16). Ms. Hodenius stated that All Phase did maintain a material safety data sheet for the PVC cement. She indicated, however, that the employees were not aware of the hazards associated with use of the chemicals involved. Her investigation revealed that no written hazard communication program had been developed or implemented and the employees were not provided and training on hazardous chemicals at the work site (Tr. 16-17).

Mr. Paul Puleo, Owner and President of All Phase, admitted the alleged violations, indicating he was unaware of the hazard communication, requirements (Tr. 61, 83).

The violations occurred as alleged.

ALLEGED VIOLATION OF 29 C.F.R. § 1926.152 (a) (1)

The standard, which pertains to flammable and combustible liquids, requires in part as follows:

Only approved containers and portable tanks shall be used for storage and handling of flammable and combustible liquids. Approved metal safety cans shall be used for the handling and use of flammable liquids in quantities greater than one gallon...

The citation alleges that a five gallon metal container used for storage and handling gasoline was not a safety can.

Ms. Hodenius testified that gasoline was stored in a container that was not a safety can. The container did not have a self-closing spout which could result in easy spilling (Tr. 21-22). Mr. Puleo did not refute the inspecting officer's testimony, but indicated he was not aware of the safety requirements (Tr. 64).

The standard was violated as alleged.

ALLEGED VIOLATION OF 29 C.F.R. § 1926.403 (i) (2) (i)

The standard pertains to guarding of live electrical parts and requires in part as follows:

... live parts of electric equipment operating at 50 volts or more shall be guarded against accidental contact by cabinets or other forms of enclosures ...

The citation alleges that a circuit breaker panel did not have proper cover over the live parts. Ms. Hodenius testified that she observed the violative condition as shown in exhibit C-3 (Tr. 24).

Mr. Puleo pointed out that a temporary cardboard cover was used for protection, but agreed a proper cover should have been in place (Tr. 92).

The live parts were not guarded against accidental as required.

ALLEGED VIOLATION OF 29 C.F.R. § 500(e)(1)(iv)

This standard applies to stairway railings and states:

(iv) On stairways more than 44 inches wide but less than 88 inches wide, one handrail on each enclosed side and one stair railing on each open side.

The citation alleges stairs to the job trailer did not have railings.

Ms. Hodenius testified that the stairs, with six risers, did not have railings on the open sides (Exh. C-4).

No evidence was offered by All Phase to refute the alleged violation.

NATURE OF THE VIOLATIONS

Since the violations have been established, it must now be determined whether they are of a serious nature as alleged. For a violation to be determined serious under section 17(k) of the Act, there must be substantial probability that death or serious physical harm could result therefrom.

Although All Phase seriously questions the nature of the violations in this case, the evidence of the hazards involved clearly establish they are serious within the context of the Act. The evidence shows that violation of the hazard communication standards could result in dizziness to employees and possible falls into machinery. It also shows that PVC cement could be absorbed through employees' skin and affect their internal organs (Tr. 18-19).

Ms. Hodenius explained that without a self-closing spout, gasoline could spill, resulting in fire. During refueling, a spill onto hot equipment could cause fire and serious burns to employees (Tr. 22). She also pointed out that the cardboard over the live electrical parts could easily be displaced, allowing employees to contact the parts by falls or while flipping the breakers. Serious electrical burns could result (Tr. 26). Ms. Hodenius noted that employees going in or out of the trailer could easily slip and fall, causing possible fractures (Tr. 28).

Although All Phase argues that accidents are not probable under the conditions described by the inspector the Secretary is not required to prove that an accident is probable. It is sufficient if an accident is possible and its probable result would be serious injury or death. Brown & Root, Inc., Power Plant Division, 80 OSAHRC 17/B8, 8 BNA OSHC 1055, 1980 CCH OSHD ¶ 24,275 (No. 76-3942, 1980); Niagara Mohawk Power Corp., 79 OSAHRC 36/A2, 7 BNA OSHC 1447, 1979 CCH OSHD ¶ 23,670 (No. 76-2414, 1979); Kent Nowlin Construction Co., 81 OSAHRC 44/A2, 8 BNA OSHC 1286, 1980 CCH OSHD ¶ 24,459 (Nos. 76-191 and 76-192, 1980).

Respondent also raises the question of knowledge in this case. It is true that the Secretary must prove that an employer knew or, with the exercise of reasonable diligence, should have known the existence of the violation. Such knowledge is directed to the physical conditions which constitution violation Southwestern Acoustics & Specialty, Inc., 77 OSAHRC 141/D10, 5 BNA OSHC 1091, 1977-78 CCH OSHD ¶ 21,382 (No. 12174, 1977). Clearly under the circumstances presented All Phase knew or with reasonable diligence could have known of the violative conditions. In this regard, the Commission has held that an employer has an obligation to inspect the work area, to anticipate hazards to which employees may be exposed, and to take measures to prevent their occurrence. Swidzinski Co., 81 OSAHRC 4/E14, 9 BNA OSHC 1230, 1981 CCH OSHD ¶ 25,1219 (No. 76-4627, 1981); Automatic Sprinkler Corp. of America, 80 OSAHRC 47 E4, 8 BNA OSHC 1385, 1980 CCH OSHD ¶ 24,495 (No. 76-5089, 1980).

FINDINGS OF FACT

All findings of fact relevant and necessary to a determination of the contested issues in this case have been found specially and appear in the above decision.

CONCLUSIONS OF LAW

1. All Phase Electric & Maintenance, Inc., at all times pertinent hereto, was an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of parties and subject matter herein pursuant to section 10(c) the Act.

2. Respondent is, and at all times pertinent hereto, required to comply with the safety and health regulations promulgated by the Secretary pursuant to section 6(a)Act.

3. Respondent was violation of 29 C.F.R. § 1926.59(e)(1), 59(g)(8) and 59(h); 152(a)(1); 403(i)(2)(i); and 500(e)(iv) as alleged.

ORDER

Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, it is ORDERED:

Citation No. 1 is hereby affirmed and a penalty in the amount of $1,810.00 is hereby assessed.

PAUL L. Brady

Judge

Date: May 9, 1991