UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 76-0982 |
|
BROWN-McKEE,
INC., |
|
|
Respondent. |
|
April 18, 1980
DECISION
BEFORE CLEARY, Chairman; BARNAKO and COTTINE,
Commissioners.
BY THE COMMISSION:
A
decision of Administrative Law Judge Henry F. Martin, Jr. is before the
Commission for review pursuant to section 12(j), 29 U.S.C. § 661(i), of the
Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’).
Judge Martin affirmed a nonserious citation alleging Respondent’s (‘Brown-McKee’)
noncompliance with 29 C.F.R. § 1926.450(a)(10),[1] a serious citation
alleging Brown-McKee’s noncompliance with 29 C.F.R. § 1926.28(a),[2] and another serious
citation alleging Brown-McKee’s noncompliance with 29 C.F.R. §§ 1926.500(b)(1),
1926.500(b)(2), and 1926.500(b)(3).[3] He assessed a total
penalty of $330. For the reasons that follow, we affirm the judge’s decision as
modified herein.
Unsecured
Ladder—29 C.F.R. § 1926.450(a)(10)
Brown-McKee
was engaged in constructing a two-story addition immediately adjacent and
connected to a three-story feed processing plant. The worksite was inspected by
the Secretary’s compliance officer. At the beginning of the walkaround
inspection the compliance officer observed two of Brown-McKee’s employees on
the roof of the addition. The compliance officer was being accompanied on the
inspection by Mr. Bill Conklin, Brown-McKee’s project superintendent. The two
men proceeded to the roof of the exisitng building and then climbed down a
ladder to the roof of the addition. Mr. Conklin was first to climb down the
ladder. When he did, the compliance officer noticed that the ladder was not
tied or secured. The compliance officer had someone hold the ladder before he
descended. This unsecured ladder became the basis of a citation alleging a
nonserious violation of the Act.
Brown-McKee
argued before the judge that the Secretary failed to prove a violation of the
Act for failure to comply with section 1926.450(a)(10). The company argued that
there was no evidence that anyone other than the compliance officer and the
project superintendent used the ladder. Therefore, contended Brown-McKee, it is
as reasonable to assume that the ladder had been placed on the roof for use
only after being secured as it is to assume that it had been used by employees
in its unsecured condition. The Secretary argued before Judge Martin that the
exposure of the project superintendent on the walkaround inspection was
sufficient to prove noncompliance with the standard. Judge Martin found that
the ladder was not secured as required by section 1926.450(a)(10). He therefore
found Brown-McKee in nonserious violation of the Act.
On
review, Brown-McKee reiterates the arguments it made before Judge Martin, and
also contends that the judge’s findings and conclusions are not supported by
the evidence. We conclude that Brown-McKee violated the Act for failing to
comply with the standard as alleged.
The
Commission has held that a violation cannot be based on the exposure of an
employer’s walkaround representative during the inspection. Bechtel Power
Co., 79 OSAHRC 34/A2, 7 BNA OSHC 1361, 1365 n. 7, 1979 CCH OSHD ¶ 23,575 at
p. 28,576 n. 7 (No. 13832, 1979). Therefore, the judge’s finding of noncompliance
with section 1926.450(a)(10), to the extent it is based on the exposure of Mr.
Conklin during the walkaround inspection, is set aside. We conclude, however,
that the citation should be affirmed based on the access to the hazard of other
Brown-McKee employees.
The
Secretary need not prove that employees are actually exposed to a violative
condition in order to prove a violation of the Act. Proof that employees had
access to the hazard is sufficient. Otis Elevator Co., 78 OSAHRC 88/E5,
6 BNA OSHC 2048, 1978 CCH OSHD ¶ 23,135 (No. 16057, 1978); Gilles &
Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975–76 CCH OSHD ¶ 20,448
(No. 504, 1976). Access is established if it shown that defective equipment is
available for the use of employees. Bechtel Power Corp., supra, 7 BNA
OSHC at 1366, 1979 CCH OSHD at p. 28,577.
The
Secretary has established that the unsecured ladder was available for use by
Brown-McKee’s employees in this case. The compliance officer and Mr. Conklin,
by using the ladder at issue, reached an area where Brown-McKee’s employees
were working. Thus, the evidence demonstrates that the ladder was positioned on
the jobsite between the area where Brown-McKee’s employees were working and a
path of egress from that area. Brown-McKee did not present evidence that
another means of egress was more readily available to its employees or that any
steps were taken to prevent the use of the ladder until it was secured.
Accordingly, Brown-McKee has not rebutted the Secretary’s prima facie case that
it violated the Act for failure to comply with the standard at 29 C.F.R. §
1926.450(a)(10).[4]
Safety
Belts and Lifeline—29 C.F.R. § 1926.28(a)
When
he reached the roof of the addition, the compliance officer observed an
employee of Brown-McKee bending over the edge of the roof. The employee was
pulling some material up to the roof level. Another employee would normally
assist in hoisting the material, but it appears that no one was assisting the
employee being observed at the time of the inspection. The distance from the
roof to the ground was approximately fifty-four feet. Immediately in front of
the employee hoisting the material to the roof was a metal bar that extended
two feet horizontally out of the wall of the original building. The bar was
strong enough to support a man’s weight. Completely surrounding the roof of the
addition was a metal parapet approximately twenty inches high. There were no
guardrails around the roof’s perimeter and Brown-McKee’s employees were not
protected by the use of personal protective equipment. Brown-McKee’s project
superintendent was aware that the employees had been working at the edge of the
roof. In the opinion of the compliance officer, a safety belt and lifeline
would have protected the employees working at the edge of the roof from the
fall hazard. A citation was issued alleging a serious violation of the Act for
Brown-McKee’s failure to provide safety belts and a lifeline.
Brown-McKee
argued before Judge Martin that under the circumstances the Secretary failed to
prove that its employees were exposed to hazardous conditions requiring the use
of personal protective equipment.[5] The particular
circumstances on which the company relied were that (1) the materials being
lifted to the roof by the employees were light, (2) the employees were working
on a flat surface, (3) the employee pulling the materials up was directly
behind a steel bar that was securely attached to the original building and
which could support a person’s weight, and (4) the roof was surrounded by a
twenty-inch-high parapet, which protected the employee hoisting the materials
because he was working on his knees. Brown-McKee argued further that, if there
was a violation, it was not serious because the exposure of employees to the
hazard was brief. This latter argument was based on the testimony of
Brown-McKee’s project superintendent that the work being performed was usually
accomplished with a crane that was temporarily out of service on the day of the
inspection.
The
Secretary argued before the judge that Brown-McKee failed to comply with
section 1926.28(a) because its employees were working near the perimeter of the
roof without any protection from the hazard of a fifty-four foot fall.
Regarding Brown-McKee’s contention that the steel bar protruding from the
original building immediately in front of the one employee helped render the
situation non-hazardous, the Secretary argued simply that the standard requires
the wearing of personal protective equipment under such circumstances.
According to the Secretary, the steel bar did not eliminate the hazard because
it was only two feet long and did not meet the minimum requirements for a guardrail.
Finally, the Secretary argued that the fact a crane was normally used to hoist
materials provides no defense. The Secretary pointed to the testimony of
Brown-McKee’s McKee’s Director of Safety and Personnel that another crane could
have been rented to accomplish the work being done by the employees.
Brown-McKee, however, preferred to use its own crane, apparently because a
replacement crane would have cost $150 per hour. The Secretary argued that
where, as here, there is the possibility of serious injury or death, such an
expense is justifiable.
Judge
Martin found that Brown-McKee violated the Act by failing to comply with
section 1926.28(a) in that its employees on the roof were exposed to a fall of
fifty-four feet and were not protected by the use of safety belts and
lifelines. He found that Brown-McKee’s superintendent was aware of the
situation and that a fall of this distance would result in death or serious
injury. Accordingly, he found that the violation was serious as alleged.
On
review, Brown-McKee makes the same arguments it made before the judge. We agree
with the judge that Brown-McKee committed a serious violation of the Act by
failing to comply with the cited standard.
In
order to prove noncompliance with section 1926.28(a), the Secretary must
demonstrate either that there is exposure to hazardous conditions or that there
is another standard in Part 1926 indicating the need for personal protective
equipment. S & H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA
OSHC 1260, 1979 CCH OSHD ¶ 23,480 (No. 15855, 1979), appeal filed, No.
79–2358 (5th Cir. June 7, 1979). In order to make out his prima facie case
under the former test, the Secretary must prove employee exposure to a
hazardous condition requiring the use of personal protective equipment and must
identify the appropriate form of personal protective equipment to eliminate the
hazard. S & H Riggers and Erectors, Inc., supra, 7 BNA OSHC at 1266,
1979 CCH OSHD at p. 28,439. The test of whether a hazardous condition exists
within the meaning of section 1926.28(a)
. . . is whether a reasonable person
familiar with the factual circumstances surrounding the allegedly hazardous
condition, including any facts unique to a particular industry, would recognize
a hazard warranting the use of personal protective equipment. S & H Riggers and Erectors Inc.,
supra, 7 BNA OSHC at 1263, 1979 CCH OSHD at p. 28,436 (footnote and citations
omitted).
The
Secretary sustained his burden of proof in this case. The record establishes
employee exposure to an obvious fall hazard, thereby requiring the use of
personal protective equipment. See, e.g., Hurlock Roofing Co., 79 OSAHRC
93/A2, 7 BNA OSHC 1867, 1871, 1979 CCH OSHD ¶ 24,006 at p. 29,147 (No. 14907,
1979). The citation clearly refers to safety belts and lifelines as the
appropriate means of protection. Moreover, the compliance officer testified
without contradiction that a safety belt and lifeline would be the appropriate
method of abatement.[6]
We
also find that the noncompliance with section 1926.28(a) is a serious
violation. Brown-McKee’s contention that the exposure of its employees was
brief is simply not relevant to whether the violation was serious. We have held
that whether a violation is serious depends on the probability that death or
serious harm will result from an accident, and not on the probability that an
accident will occur. Niagara Mohawk Power Corp., 79 OSAHRC 36/A2, 7 BNA
OSHC 1447, 1450, 1979 CCH OSHD ¶ 23,670 at p. 28,703 (No. 76–2414, 1979).[7] The record supports the
judge’s finding that the violation is serious. The violation could have
resulted in a fall of fifty-four feet, a fall that would obviously cause death
or serious harm.[8]
Unguarded
Floor Openings—29 C.F.R. §§ 1926.500(b)(1), (b)(2), and (b)(3)
The
Secretary alleged that Brown-McKee violated the Act by failing to guard three
floor openings. Judge Martin concluded that Brown-McKee failed to comply with
the three cited standards as alleged, and found that the three violations ‘when
combined’ resulted in a serious violation. On review, Brown-McKee argues that
the judge erred, raising the same arguments concerning the violations and their
characterization as ‘serious’ as it made to the judge. We have carefully
reviewed the record. Judge Martin has adequately recounted the facts pertaining
to the alleged violations. His findings and conclusions, with the exception of
those concerning the serious classification of the violation, are supported by
the record and are consistent with Commission precedent. Consequently, we adopt
the judge’s decision insofar as he determined that Brown-McKee violated the Act
by failing to comply with the three cited standards. Gulf Oil Co., 77
OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD ¶ 22,737 (No. 14281, 1977). The
remainder of our discussion will concern only the classification of the
violations.
The
compliance officer testified that a fall of twenty-four feet to a concrete
floor would result from a fall through the floor opening alleged in the section
1926.500(b)(1) violation. He testified that such a fall could result in death
or serious physical injury, such as a broken back, broken neck, or fractured
skull. With respect to the alleged violation involving section 1926.500(b)(2),
the compliance officer testified that a fall through the opening would be
approximately twelve to fourteen feet to a steel platform and that a fracture,
broken neck, or death could result. Finally, the compliance officer testified
that the fall distance involved in the failure to comply with section
1926.500(b)((3) was approximately fourteen to fifteen feet to a steel platform,
and that the injuries resulting from such a fall could include broken bones, a
broken neck, and a fractured skull.
Brown-McKee
argued before the judge that none of the alleged violations are serious because
the probability of an accident occurring was low. Brown-McKee bases this
argument on the facts that (1) its workforce on the job was small, (2) all of
its employees were made aware of the floor openings through weekly meetings,
instruction, or personal observation, and (3) all employees were also aware
that the openings ‘had to be uncovered in order to reasonably expedite the
work.’ Brown-McKee also argued that the alleged violation involving section
1926.500(b)(2) should be nonserious because the fall hazard was to a platform
midway between the first and second floors and because of the size of the
opening (twenty-nine inches by thirty inches).
Although
the Secretary alleged that the three violations were serious when combined,[9] he argued before the judge
that each alleged violation was in itself serious because of the substantial
probability of death or serious physical injury should an accident have
occurred at any of the three locations.
Judge
Martin specifically found that the two violations involving sections
1926.500(b)(1) and (b)(2) were serious. He did not make a similar finding with
respect to the violation involving section 1926.500(b)(3), but he found that
the gravity of that violation was low because it would be unlikely for a person
to stumble or fall into the opening. He concluded, however, that when the three
violations involving sections 1926.500(b)(1), (b)(2), and (b)(3) were combined,
a serious violation existed.
As
discussed above in relation to the failure to comply with section 1926.28(a),
whether a violation is serious does not depend on the probability of an
accident occurring, but on the probable consequences of an accident. Niagara
Mohawk Power Corp., supra. Applying that test here, we conclude that all
three violations were serious. As the judge found, it is likely that accidents
resulting from the violations involving sections 1926.500(b)(1) and (b)(2)
would have been serious in nature. Moreover, the hazard involved in the failure
to comply with section 1926.500(b)(3) was a fourteen to fifteen foot fall to a
steel platform. The record demonstrates that such a fall would likely result in
death or serious physical injury. Accordingly, that violation is also properly
classified as serious.[10]
The
judge assessed penalties of $30 for the violation involving noncompliance with
section 1926.450(a)(10), $200 for the violation involving noncompliance with
section 1926.28(a), and $100 for the combined violation involving noncompliance
with sections 1926.500(b)(1), (b)(2), and (b)(3). He weighed the factors listed
in section 17(j) of the Act, 29 U.S.C. § 661(i), including the gravity of the
violations. We find no reason to disturb his assessments.
Accordingly,
the citations alleging serious violations of the Act for failure to comply with
the standards at 29 C.F.R. § 1926.28(a) and 29 C.F.R. §§ 1926.500(b)(1),
(b)(2), and (b)(3) are affirmed. The citation alleging a nonserious violation
of the Act for noncompliance with the standard at 29 C.F.R. § 1926.450(a)(10)
is affirmed. Penalties totaling $330 are assessed. SO ORDERED.
FOR THE COMMISSION:
RAY H. DARLING, JR.
EXECUTIVE SECRETARY
DATED: APR 18, 1980
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 76-0982 |
|
BROWN-McKEE,
INC., |
|
|
Respondent. |
|
January 6, 1977
Appearances:
U. Sidney Cornelius, Jr., Esq. Dallas,
Texas Attorney for the complainant
Warlick Carr, Esq. Lubbock, Texas Attorney
for the respondent
DECISION AND ORDER
MARTIN, Judge:
This
is a proceeding brought by the Secretary of Labor, U. S. Department of Labor,
pursuant to the provisions of section 10(c) of the Occupational Safety and
Health Act of 1970 (29 U.S.C. § 651, et seq.), hereinafter referred to as the
Act. Respondent seeks review of three citations issued by complainant on
February 13, 1976, wherein respondent was charged with one nonserious violation
and two serious violations. Respondent has also contested the penalties
proposed in the notification of proposed penalty which was issued on February
13, 1976.
The
aforementioned citations and notification of proposed penalty were issued as a
result of an inspection of a work place under the operation and control of
respondent on February 5, 1976. On the day of the inspection respondent had
employees engaged in building an addition to an existing feed mill building
located on Moorman Road, in Comanche, Texas.
In
citation No. 1, which alleged a nonserious violation, respondent was charged
with having a portable ladder in use outside of the second floor roof which was
not tied, blocked, or otherwise secured to prevent displacement, in violation
of section 29 CFR 1926.450(a)(10). This standard reads as follows:
Portable ladders in use shall be tied,
blocked, or otherwise secured to prevent their being displaced.
In
item 1a of citation No. 2, which was described as a serious violation,
respondent was charged with having a floor opening in the northeast corner of
the material bin on the second floor which was not guarded to prevent employees
working in the area from falling 24 feet to a lower floor level in violation of
section 29 CFR 1926.500(b)(1). This standard reads as follows:
Floor openings shall be guarded by a
standard railing and toeboards or cover, as specified in paragraph (f) of this
section. In general, the railing shall be provided on all exposed sides, except
at entrances to stairways.
In
item 1b of citation No. 2 respondent was charged with having a ladderway floor
opening located at the southeast corner of the second floor mixer area which
was not guarded to prevent employees working in the area from walking or
backing into the opening and falling 24 feet to a lower floor level in
violation of section 29 CFR 1926.500(b)(2). This standard reads as follows:
Ladderway floor openings or platforms
shall be guarded by standard railings with standard toeboards on all exposed
sides, except at entrance to opening, with the passage through the railing
either provided with a swinging gate or so offset that a person cannot walk
directly into the opening.
In
item 1c of the aforementioned citation respondent was charged with having a
hatchway opening located next to material bins on the second floor of the mixer
area which was not guarded to prevent employees from falling through two
openings to the bottom of the bin, some 15 feet in depth, in violation of
section 29 CFR 1926.500(b)(3). This standard provides as follows:
Hatchways and chute floor openings shall
be guarded by one of the following: (i) Hinged covers of standard strength and
construction and a standard railing with only one exposed side. When the
opening is not in use, the cover shall be closed or the exposed side shall be
guarded at both top and intermediate positions by removable standard railings;
(ii) A removable standard railing with toe board on not more than two sides of
the opening and fixed standard railings with toeboards on all other exposed
sides. The removable railing shall be kept in place when the opening is not in
use and should preferably be hinged or otherwise mounted so as to be
conveniently replaceable.
In citation No. 3, also described as a serious
violation, respondent was charged with a failure to require employees to wear
protective equipment; i.e., safety belts and lifelines, while working on the
edge of the roof of the material mixer room 54 feet above the ground where the
installation of standard guardrails was not feasible in violation of 29 CFR
1926.28(a). This standard reads as follows:
The employer is responsible for requiring
the wearing of appropriate personal protective equipment in all operations
where there is an exposure to hazardous conditions or where this part indicates
the need for using such equipment to reduce the hazards to the employees.
Respondent,
through its director of personnel and safety, filed a timely notice of contest
with complainant’s area director, advising of its desire to contest the
citations as well as the penalties proposed in connection therewith. Following
the filing of a formal complaint which was answered by respondent’s attorney,
this matter was scheduled for hearing in Lubbock, Texas, on July 8, 1976.
Complainant was represented by U. Sidney Cornelius, Jr., Esq., Regional
Solicitor’s office, Dallas, Texas, and respondent was represented by Warlick
Carr, Esq., of the firm of key, Carr, Evans & Fouts, of Lubbock, Texas. No
additional parties desired to intervene or to participate in this proceeding.
The
issues to be resolved in this proceeding are whether respondent committed
violations of sections 29 CFR 1926.450(a)(10), 29 CFR 1926.500(b)(1) 29 CFR
1926.500(b)(2), 29 CFR 1926.500(b)(3), and 29 CFR 1926.28(a); whether
respondent committed serious violations of the Act as alleged in citations 2 and
3; and whether the penalties proposed by complainant with respect to the
aforementioned violations are appropriate.
Respondent,
in its answer to complainant’s request for admissions, admitted that it was an
employer within the meaning of section 3(5) of the Act and also admitted that
this Commission has jurisdiction over the parties and subject matter herein.
The
nonserious violation (citation No. 1) alleged to have been committed by
respondent concerned a portable ladder located between the upper level and the
second floor level which said ladder was not tied, blocked, or otherwise
secured to prevent movement. The compliance officer, Mr. Scoggins, testified
that respondent’s project superintendent, Mr. Conklin, went down the ladder in
his presence. As a matter of fact the compliance officer also descended the
ladder after having someone hold it for him. After this matter was brought to
respondent’s attention the ladder was secured by wiring it to a railing. This
occurred prior to the compliance officer’s departure from the immediate area.
Mr. Scoggins pointed out the possibility of an unsecured ladder moving or
sliding which could result in an employee falling and breaking an arm or leg or
causing other injury. Accordingly, it is found that respondent’s aforementioned
portable ladder was not properly secured on February 5, 1976, and that a
violation of section 29 CFR 1926.450(a)(10) was established.
In
citation No. 3, alleging a serious violation, respondent was charged with the
failure to require its employees to wear protective equipment, that is, safety
belts and lifelines, while working on the edge of the roof of the mixer room,
54 feet above the ground, where the installation of a standard guardrail was
not feasible. The compliance officer observed two of respondent’s employees on
the second story roof, hoisting materials from the ground (see exhibits C3 and
C4). He advised that the employees were not secured in any way by safety belts
or lifelines, or guards of any kind to prevent them from falling. Respondent’s
superintendent was aware of the fact that some of his men were pulling
materials (such as piping) up on the roof by means of a rope. When questioned
as to why this was being done, Mr. Conklin replied that materials were usually
brought by crane but that the crane had broken down three days previously and
had been sent to Brownwood for repairs. (See exhibit R7) He stated that that
was the only day on which the duct piping was pulled up by rope.
Mr. Shumsky,
respondent’s director of safety, advised that the rental of another crane would
have cost $150.00 per hour. It appears from Mr. Conklin’s testimony that the
steel beam shown in exhibits C3 and R1 would adequately support the weight of a
man. Respondent offered no testimony as to why the employee next to the edge of
the roof (Mr. Brooks) wasn’t protected by a belt or a line attached to the
steel beam. It is obvious from the evidence that a fall from a height of 54
feet would result in serious injury or possibly death. Accordingly, it is found
that two of respondent’s employees were working on the edge of the second floor
roof without personal protective equipment and that a violation of section 29
CFR 1926.28(a) was established.
The
other citation for an alleged serious violation (citation No. 2) deals with the
failure of the respondent to adequately guard by standard railings and
toeboards, or covers, certain floor openings (item 1a) and ladder way floor
openings (item 1b). It was also alleged that a hatchway floor opening (item 1c)
was not guarded by covers or standard railings. The citation and complaint
alleged that a combination of these three items constituted a serious violation
in that there was a substantial probability of death or serious injury in the
event of an accidental fall.
Mr. Scoggins
testified that he and Mr. Conklin measured the floor opening and found it to be
approximately 23 x 80 inches.[11] The floor opening was on
the second floor of the mixer area and according to the evidence was unguarded
and only partially covered. Mr. Scoggins observed two of respondent’s employees
near the opening and approximately eight employees in the general area where
they would have to pass close to the floor opening to gain access to the
ladderway. Respondent’s foreman, Mr. Horton, stated to the compliance officer
that the opening had been in the same condition for some time prior to the
inspection. The opening was covered over with plywood as soon as the condition
was brought to respondent’s attention. Mr. Scoggins described the hazard as a
serious one because of the possibility of a 24 foot fall to a concrete floor,
which might result in a broken neck, fractured skull, or even death.
Mr.
Scoggins testified that the ladderway floor opening (see exhibits C2) was not
guarded to keep a person from walking directly into it. The opening was
measured and found to be approximately 29 x 30 inches. Approximately 14 feet
below the aforementioned opening was a steel platform. Respondent’s foreman,
Mr. Horton, advised Mr. Scoggins that this unguarded opening had existed for
approximately one month (Tr. 26). Mr. Conklin told Mr. Scoggins that the
ladderway opening would be guarded by a permanent railing in the near future.
Respondent’s exhibit R4 shows the temporary plywood cover which was placed over
the opening at the time of the inspection. Mr. Scoggins testified that the
hazard involved here would be the possibility of an employee falling or backing
into the opening and causing a fracture, broken neck, or even death.
Relative
to the hatchway or chute opening on the second floor of the mixer area, Mr.
Scoggins testified that it was not guarded as required by the standard. Mr.
Conklin testified that he had never required a cover for this opening because
he did not consider it necessary. He stated as follows:
Well, to be frank with you I didn’t
consider that opening dangerous. It would be hard to fall into. You’d nearly
have to climb into it or intentionally crawl into it. With all the people on
the project and myself being aware of it, I just—maybe I was wrong in my
judgment but I didn’t consider that a dangerous opening.
Respondent’s
principal contention with reference to the large floor opening or hoistway
opening was that during the course of construction the installation of the dust
collector system made it necessary for the employees to pass materials, such as
duct pipings and connections, up through the various openings between the
floors and that the work couldn’t proceed without the removal of the covers.
Admittedly, there was a steel plate over the center of the opening (exhibit
C1), and according to Mr. Conklin, plywood was used to cover the opening when
it was not in use. Exhibit R3 shows the opening covered with plywood after the
matter was brought to respondent’s attention. Relative to the ladderway opening
respondent stated that it was necessary for employees to talk to each other
through the opening while the various pieces of duct work were being fitted
together and properly aligned.
After
a careful consideration of all the evidence in the record including the
testimony of respondent’s supervisor, Mr. Conklin, and the testimony of the
compliance officer, Mr. Scoggins, it is concluded that sections 29 CFR
1926.500(b)(1) and 29 CFR 1926.500(b)(2) were violated in that the hoistway
opening and the ladderway opening were left unguarded or uncovered for various
periods of time and on the date of the inspection respondent’s employees were
subject to serious falling hazards because of the aforesaid unguarded openings.
While it may have been more convenient for employees to pass materials through
the openings rather than carry them up the stairs,[12] it is apparent that the
employees were not supervised closely enough to make certain that the openings
were guarded or covered at all times while not actually being used to hoist
materials. Exhibit R4 shows the ladderway opening which was covered as the
result of the compliance officer’s investigation. This plywood covering
afforded adequate protection to the employees and at the same time permitted
the workers to communicate with one another between the floors.
Relative to the hatchway or chute opening on the
second floor near the material bins, it was pointed out by respondent that an
eight inch toeboard goes around the opening to the bins and that on one side a
person would encounter a solid barrier three to four feet high. While a person
might stumble or fall in the opening it would be unlikely because of a heavy
bar which runs down the center of the opening. Exhibit R2 shows the plywood
covering which was placed over the opening to the bins to protect the
employees. In view of all of the evidence presented it is concluded that a
violation of section 29 CFR 1926.500(b)(3) was established; however, the
undersigned Judge would rate the gravity of this violation as low when compared
with the hoistway floor opening.
After
weighing all of the testimony presented by the parties and analyzing the
photographs and drawings received at the hearing, it is concluded that the
proposed penalties are excessive and should be reduced with the exception of
the portable ladder violation where a penalty of $30.00 was proposed.
Considering such factors as the gravity of the violation, respondent’s size,
good faith, and history of previous violations, the penalty for the failure of respondent
to protect its employees against falls from the roof should be reduced to
$200.00. The evidence reflects that this hazardous situation existed only a day
or so while the crane was being repaired. Only two employees were subject to
the hazard of falling; however, the injury would be serious in case of an
accident.
Regarding
the failure of respondent to adequately safeguard the hoistway opening, the
ladderway opening, and the hatchway or chute opening, it is concluded that a
$100.00 penalty would be appropriate under the circumstances, giving due
consideration to respondent’s good faith, size, history of previous violations,
as well as the gravity of the aforementioned infractions.
FINDINGS AND CONCLUSIONS
Based
upon the record as a whole the following findings and conclusions are made:
1.
That respondent at all times material hereto was engaged in a business
affecting commerce within the meaning of section 3(5) of the Act.
2.
That respondent was at all times material hereto subject to the requirements of
the Act and standards promulgated thereunder and this Commission has
jurisdiction over the parties and subject matter herein.
3.
That respondent, a corporation engaged in contracting and engineering work, was
on February 5, 1976, engaged in building an addition to a feed mill building
located on Moorman Road, in Comanche, Texas, where it had some 12 to 14
employees on the worksite.
4.
That on the date of the inspection respondent had a portable ladder for the use
of its employees located outside of the second floor roof which said ladder was
not tied, blocked, or otherwise secured to prevent movement, and as a result
thereof respondent violated the provisions of section 29 CFR 1926.450(a)(10)
and a reasonable and appropriate penalty therefor is $30,00.
5.
That on the date of the inspection respondent had two employees working near
the edge of the roof of the material mixer room, approximately 54 feet above gRound
level, and said employees were not wearing safety belts or lifelines and were
not protected by any other protective equipment to guard against a falling
hazard and as a result thereof respondent violated the provisions of section 29
CFR 1926.28(a).
6.
That the foregoing violation was a serious violation which might result in
death or serious physical harm within the meaning of section 17(k) of the Act
and a reasonable and appropriate penalty therefor is $200.00.
7.
That on the date of the inspection respondent had employees performing their
construction duties on the second floor in the mixer area where they were in
close proximity to a floor opening or hoistway opening which was not guarded by
standard railings or fully protected by means of a cover, thereby violating
section 29 CFR 1926.500(b)(1); that in the same area respondent had a ladderway
opening which was not guarded by standard railings to protect its employees
from a falling hazard and that said condition violated section 29 CFR
1926.500(b)(2); and that respondent also had employees in the same area where
they were near a hatchway or chute opening at the top of a minor ingredients
bin, which said hatchway or chute opening was not guarded by standard guard
rails or an appropriate cover to protect the employees from a falling hazard
and therefore constituted a violation of section 29 CFR 1926.500(b)(3).
8.
That the violations referred to in the foregoing paragraph when combined
resulted in a serious violation which might result in death or serious physical
injury within the meaning of section 17(k) of the Act and a reasonable and appropriate
penalty therefor is $100.00.
ORDER
Based
upon the foregoing findings and conclusions and upon the entire record it is
ORDERED that:
1.
Citation No. 1, alleging a nonserious violation, be and the same is hereby
affirmed and a penalty of $30.00 is assessed.
2.
Citations 2 and 3 be and the same are hereby affirmed and penalties in the
total amount of $300.00 are assessed.
3.
This proceeding be and the same is hereby terminated.
HENRY F. MARTIN, JR.
JUDGE
DATED: January 6, 1977
Dallas, Texas
[1] § 1926.450
Ladders.
(a)
General requirements.
(10)
Portable ladders in use shall be tied, blocked, or otherwise secured to prevent
their being displaced.
[2] § 1926.28(a)
Personal protective equipment
(a)
The employer is responsible for requiring the wearing of appropriate personal
protective equipment in all operations where there is an exposure to hazardous
conditions or where this part indicates the need for using such equipment to
reduce the hazards to the employees.
[3] § 1926.500
Guardrails, handrails, and covers.
(b)
Guarding of floor openings and floor holes. (1) Floor openings shall be guarded
by a standard railing and toeboards or cover, as specified in paragraph (f) of
this section. In general, the railing shall be provided on all exposed sides,
except at entrances to stairways.
(2)
Ladderway floor openings or platforms shall be guarded by standard railings
with standard toeboards on all exposed sides, except at entrance to opening,
with the passage through the railing either provided with a swinging gate or so
offset that a person cannot walk directly into the opening.
(3)
Hatchways and chute floor openings shall be guarded by one of the following:
(i)
Hinged covers of standard strength and construction and a standard railing with
only one exposed side. When the opening is not in use, the cover shall be
closed or the exposed side shall be guarded at both top and intermediate
positions by removable standard railings;
(ii)
A removable standard railing with toe board on not more than two sides of the
opening and fixed standard railings with toeboards on all other exposed sides.
The removable railing shall be kept in place when the opening is not in use and
should preferably be hinged or otherwise mounted so as to be conveniently
replaceable.
[4] Commissioner
Barnako does not agree that the Secretary proved that Brown-McKee’s employees
had access to the unsecured ladder. In his opinion, access is only established
if the Secretary shows it is reasonably predictable that employees will be,
are, or have been in a zone of danger. Otis Elevator Co., supra
(concurring and dissenting opinion). Absent an admission by an employer, the
Secretary must prove access by evidentiary facts.
Commissioner Barnako would find
that the Secretary failed to meet that burden here. The Secretary showed only
that the ladder was located on Brown-McKee’s worksite. There is no evidence
that Brown-McKee’s employees had used the ladder prior to the inspection.
Moreover, because the Secretary failed to show that the ladder provided the
most convenient access between the work stations of any of Brown-McKee’s
employees and any other location on the worksite to which those employees were
required to travel, the Secretary failed to show that the use of the ladder was
reasonably predictable.
Because the Secretary failed to
prove that Brown-McKee’s employees had access to the unsecured ladder,
Commissioner Barnako would vacate the citation alleging noncompliance with 29
C.F.R. § 1926.450(a)(10).
[5] Brown-McKee also
implied that § 1926.451(u) applies to roofs to the exclusion of all other
standards. We note that the Secretary cited Brown-McKee for noncompliance with
§ 1926.28(a) for the fall hazard to employees working near the edge of a flat
roof. The fall hazard to which § 1926.451(u) is directed is the hazard
arising from the pitch of a sloped roof—a hazard not present here. We therefore
reject Brown-McKee’s implied contention based on the application of §
1926.451(u). See John’s Roofing & Sheet Metal Co., 78 OSAHRC 57/E8,
6 BNA OSHC 1792, 1978 CCH OSHD ¶ 22,857 (No. 76–1140, 1978), and cases cited
therein.
[6] Commissioner
Barnako disagrees with the elements of the Secretary’s burden of proof assigned
by the majority. S & H Riggers and Erectors, Inc., supra (concurring
opinion). Commissioner Barnako would require that the Secretary prove that (1)
Brown-McKee’s employees were exposed to a hazard that a reasonable person
familiar with the employer’s industry would recognize as requiring the use of
personal protective equipment, (2) a feasible means of protecting against the
cited hazard exists, and (3) reference to other standards in Part 1926
indicates the need for using the personal protective equipment which the
Secretary asserts Brown-McKee’s employees should have used. Commissioner
Barnako agrees with the majority that the Secretary has established exposure to
an obvious fall hazard. Moreover, 29 C.F.R. § 1926.104 places employers on
notice that lifelines, lanyards, and safety belts are an appropriate means of
protecting employees against fall hazards. Thus, the second criterion set forth
above is satisfied. However, Commissioner Barnako finds that the Secretary did
not prove that the Brown-McKee employees observed on the roof by the compliance
officer feasibly could have used safety belts and lifelines. Accordingly, on
the existing record, Commissioner Barnako would find that the evidence fails to
establish that Brown-McKee violated the standard.
This case, however, was tried
before the first decision in which Commissioner Barnako stated that he would
place the burden of proving feasibility under § 1926.28(a) on the Secretary. Frank
Briscoe Co., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976–77 CCH OSHD ¶21,161
(No. 7792, 1976). Accordingly, Commissioner Barnako would remand the case to
the administrative law judge in order to afford the Secretary the opportunity
to present evidence regarding the feasibility of using safety belts.
[7] Moreover, we note
that the Commission has held that the fact exposure to a violative condition is
brief is not a defense to the violation. George J. Igel & Co., 78
OSAHRC 44/C2, 6 BNA OSHC 1642, 1645, 1978 CCH OSHD ¶ 22,769 at p. 27,486 (No.
76–1087, 1978).
[8] The Commission was
consistently held that employer knowledge is an element of a serious violation.
See Niagara Mohawk Power Corp., supra; Environmental Utilities Corp., 77 OSAHRC
40/A2, 5 BNA OSHC 1195, 1977–78 CCH OSHD ¶21, 709 (No. 5324, 1977). The
majority does not reach the question of employer knowledge in this case,
however, because Brown-McKee has not argued, either before the judge or the
Commission, that the violation should not be found to be serious because it
lacked knowledge of the violative condition. See Beaird-Poulan, A Division
of Emerson Electric Co., 79 OSAHRC 21/D11, 7 BNA OSHC 1225, 1979 CCH OSHD
¶23,493 (No. 12600, 1979), and cases cited therein.
Commissioner Barnako believes that
employer knowledge must be addressed here since Brown-McKee has argued that the
violation was not serious and proof of employer knowledge is an element of the
Secretary’s proof of a serious violation. He would find that Brown-McKee’s
knowledge of the violation has been established through the testimony of
Brown-McKee’s project superintendent, who stated that he knew the employees
were hoisting materials to the roof. Because the superintendent knew that the
employees would have to work near the edge of the roof to hoist the materials,
he could have known that the employees would be exposed to a fall hazard had he
exercised reasonable diligence. Southwestern Bell Tel. Co., 79 OSAHRC
4/G4, 7 BNA OSHC 1058, 1979 CCH OSHD ¶23,278 (No. 15841, 1979).
[9] Additionally, the
compliance officer testified that the combination of the three separate
violations resulted in a serious violation.
[10] For the reason
stated in note 8 supra, the majority concludes that the question of employer
knowledge of the violative conditions is not before the Commission.
Commissioner Barnako would reach
the issue of Brown-McKee’s knowledge of the violative conditions because
Brown-McKee has specifically argued that the violation is not properly
classified as serious. See note 8 supra. Commissioner Barnako would find that
the record establishes Brown-McKee’s knowledge of the unguarded floor openings.
Brown-McKee’s foreman told the compliance officer he knew of the unguarded
openings alleged to be in violation of §§ 1926.500(b)(1) and (b)(2).
Furthermore, Brown-McKee’s project superintendent testified that he knew of the
unguarded opening alleged to be in violation of § 1926.500(b)(3). Judge Martin
also found that Brown-McKee did not supervise its employees closely enough to
assure that the openings were guarded or covered when not in use. Commissioner
Barnako finds that the record supports Judge Martin’s finding.
[11] A ‘floor opening’
is defined in 29 CFR 1926.502(b) as follows: ‘An opening measuring 12 inches or
more in its least dimension in any floor, roof, or platform through which
persons may fall.’
[12] Exhibit R6 shows the location of a stairway in relation to the hoistway opening and ladderway.