UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 6195
CRAIN ELECTRIC, INC.,
Respondent.
BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
BY THE COMMISSION: A decision of Review Commission Judge Alan M. Wienman,
dated August 6, 1974, is before this Commission for review pursuant to 29 U.S.C. § 661(i).
Having examined the record in its entirety, the Commission finds that the Judge properly
1
decided the case and adopts his decision which is attached hereto as Appendix A. Accordingly,
the Judge’s decision is hereby affirmed.
FOR THE COMMISSION:
William S. McLaughlin
Executive Secretary
DATED: OCT 20, 1976
1 Chairman Barnako does not agree to this attachment.
BARNAKO, Chairman, concurring:
I concur in the disposition only insofar as the Judge’s order is affirmed. The party aggrieved by
the Judge’s decision, the Secretary of Labor, does not seek review of that decision. I therefore do
not reach the merits of the case, for there is neither party interest nor compelling public interest,
Abbott-Sommer, Inc., Docket No. 9507, BNA 3 OSHC 2032, CCH OSHD para. 20,428 (Feb. 17,
1976); Singer Furniture Co., Docket No. 7134, BNA 3 OSHC 2079, CCH OSHD para. 20,481
(Mar. 5, 1976).
CLEARY, Commissioner, DISSENTING:
I dissent.
Administrative Law Judge Wienman vacated eight nonserious violations and proposed
penalties totaling $145 because the Secretary of Labor had not proved that any of the employees
of respondent were actually exposed to the cited hazards. My colleagues affirm his action.
Commissioner Moran concludes that the Judge’s decision is correct. This is in the face of
Commission precedent soundly rejecting the theory of actual exposure. Gilles & Cotting, Inc.,
CCH OSHD para. 20,448, 3 BNA OSHC 2002 (No. 504, 1976).
Chairman Barnako concurs in Commissioner Moran’s disposition finding neither party
interest nor compelling interest in the issue involved. I respectfully submit that the Chairman
also errs. The employer that prevailed before the Judge filled no brief. The Secretary in a letter to
the Commission dated November 4, 1974, noted that he did not petition for review by the
Commission and that the case is before us upon an order for review issued upon my own motion.
Nevertheless the Secretary did enclose an eleven-page brief filed in another case on the exposure
issue. In his view the facts did not warrant briefing. Although the Secretary’s presentation lacks
vigor, it is fair to say that he objects to the application of an actual exposure test.
Accordingly, I would remand the case for further proceedings consistent with Gilles &
Cotting, supra. See also Brennan v. O.S.H.R.C. and Underhill Constr. Corp., 513 F.2d 1032 (2d
Cir. 1975) as adopted by the Commission in Beatty Equipment Leasing, Inc., 1975–76 CCH
OSHD para. 20,694, 4 BNA OSHC 1211 (No. 3901, 1976), petition for review docketed, No.
76–2497, 9th Cir., July 7, 1976.
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 6195
CRAIN ELECTRIC, INC.,
Respondent.
APPEARANCES:
JACK F. OSTRANDER, Esquire,
Office of the Solicitor,
U. S. Department of Labor,
Dallas, Texas, for the
Secretary of Labor
MR. JACK CRAIN, President,
Crain Electric, Inc.,
7667 East 46th Place,
Tulsa, Oklahoma, for the
Respondent
Hearing held June 11, 1974, at Tulsa, Oklahoma,
Judge Alan M. Wienman presiding.
STATEMENT OF THE CASE
Alan M. Wienman, Judge, OSAHRC:
This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of
1970 (29 USC 651 et seq., hereafter called the Act) contesting a citation issued by the
complainant against respondent under the authority vested in complainant by section 9(a) of that
Act. The citation alleges on the basis of an inspection, November 14, 1973, of a workplace
located at Public Service Company Riverside Power Station, Jenks, Oklahoma, that the
respondent violated the Act by failing to comply with certain occupational safety and health
standards promulgated by the Secretary of Labor.
The citation issued December 13, 1973, alleged multiple nonserious violations of the Act
grouped under eight item headings, and the respondent elected to contest all parts of the citation.
The citation set forth the alleged violations in the following form:
Item number Standard, regulation or section of the Act Description of alleged violation
allegedly violated
1 29 CFR 1926.400(a) as adopted by 29 Live parts of electrical equipment
CFR 1910.12 were not guarded by approved
cabinets or other forms of
enclosures to prevent accidental
contact as required by National
Electrical Code, Article 110–17(a);
i.e., (a) light bulbs missing at the
following locations: west side of
boiler at 4th floor, southeast corner
of boiler on 3rd floor, 2nd floor
turbine area and 3 bulbs missing
on the 2nd floor turbine mezzanine
area (b) receptacle without cover
in the water treating area on the
2nd floor and (c) nonmetallic
Item number Standard, regulation or section of the Act Description of alleged violation
allegedly violated
sheathed cable cut exposing wiring
on the southeast corner of the third
floor.
2 29 CFR 1926.400(a) as adopted by 29 Where subject to physical damage,
CFR 1910.12 conductors were not protected by
conduit, pipe, guard strips, or other
means as required by National
Electrical Code, Article 336–6;
i.e., nonmetallic sheathed cable to
field office.
3 29 CFR 1926.400(a) as adopted by 29 Cables of one or more conductors
CFR 1910.12 for direct burial in the earth were
not of a type approved for the
purpose and use as required by
National Electrical Code, Article
310–6; i.e., cable at supply trailer.
4 29 CFR 1926.401(a)(1) as adopted by 29 The noncurrent-carrying metal
CFR 1910.12 parts of portable and/or plug
connected equipment were not
grounded; i.e., (a) 3 light guards on
south side of 2nd floor turbine area
(b) light guard in the 2nd floor
water treating area and (c) light
guard in 1st floor rest room.
5 29 CFR 1926.402(a)(8) as adopted by 29 Cables passing through work areas
CFR 1910.12 were not covered or elevated to
protect them from damage which
would create a hazard to
employees; i.e., (a) cable lying on
Item number Standard, regulation or section of the Act Description of alleged violation
allegedly violated
ground in traffic area on the north
side of the boiler (b) nonmetallic
sheathed cable run through mud
and water on south side of boiler
(c) nonmetallic sheathed cable
lying on ground across road near
cooling tower area.
6 29 CFR 1926.500(b)(1) as adopted by 29 Floor openings were not guarded
CFR 1910.12 by a standard railing and toeboards
or cover; i.e., (a) north side of 10th
floor boiler building (b) east side
of 10th floor (c) northwest corner
of 3rd floor.
7 29 CFR 1926.500(b)(8) as adopted by 29 Floor holes into which persons can
CFR 1910.12 accidentally walk were not
guarded by a standard railing and
toeboards or cover; i.e., (a) north
side of 10th floor (b) south side of
10th floor and (c) southwest corner
of 4th floor (d) west side of the 1st
floor.
8 29 CFR 1926.500(d)(1) as adopted by 29 Open-sided floor or platform 6 feet
CFR 1910.12 or more above the adjacent floor or
ground level was not guarded by a
standard railing or the equivalent;
i.e., 2nd floor turbine mezzanine
area.
Respondent was also notified by letter dated December 13, 1973, that the complainant
proposed to assess penalties for the alleged violations in the following amounts:
Item No. Proposed
Penalty
1 $35
2 None
3 None
4 $35
5 $25
6 $25
7 $25
8 None
The total proposed penalty for all alleged violations was $145.
After respondent contested the enforcement action, and Complaint and Answer were filed
by the purties, the case came on for hearing at Tulsa, Oklahoma, on June 11, 1974.
THE ISSUES
No jurisdictional questions are in issue, the parties having pleaded facts sufficient to
establish that the respondent is subject to the Act, and that the Commission has jurisdiction of the
parties and the subject matter. The chief issues for decision are whether the respondent violated
the safety regulations as alleged in the citation and complaint and, if so, what penalties, if any,
are appropriate.
SUMMARY OF THE EVIDENCE AND DISCUSSION
OSHA Compliance Officer, John B. Miles, testified he inspected the Jenks Power Station
construction project November 14, 1973, subsequent to an employee complaint relating to
another subcontractor on the project (T. 7). The work site was a multi-story boiler and power
station south of Jenks, Oklahoma, where some fifteen contractors were conducting various
operations on the inspection date (T. 8). According to respondent’s president, Jack Crain, the
mammoth project was a $100,000,000 job with as many as 800 men working on it at the peak of
construction (T. 117).
Mr. Miles first conducted an opening conference with representatives of all contractors
present. A walk-around inspection of the entire site occupied three days (T. 44).
Mr. Miles observed and photographed various conditions he believed to be violations of
safety regulations as described in the citation issued to respondent. The first five citation items
related to the installation of temporary electrical equipment. The Compliance Officer believed
that respondent was the only contractor responsible for temporary wiring at the site (T. 14).
Citation Items 6, 7 and 8 related to hazardous floor openings and holes or unguarded floors in
areas where Miles believed respondent’s employees might be working. With respect to all
hazardous conditions, however, the Compliance Officer candidly testified that he observed none
of respondent’s employees in the immediate area of the hazard at the time of the inspection (T.
14, 19, 21, 25, 29, 39, 46, 56, 63, 99). Miles also testified that respondent had eight employees
on the site (T. 81), but he did not know the exact assignment of these employees (T. 97) or the
areas in which they were working (T. 99–100).
The Compliance Officer explained that it was extremely difficult to determine the
exposure of employees to hazardous conditions because the employees would vacate each floor
as the inspection party made its rounds (T. 101–102).
Miles testified that he assumed respondent’s employees necessarily visited certain areas
of the job site in order to service the temporary wiring, but the record contains no evidence that
any employee of respondent was in fact exposed to a designated noncompliant condition at any
given time.
In view of the absence of proof with respect to employee exposure it is unnecessary to
examine the evidence relative to the alleged violations in greater detail. The Review Commission
has clearly enunciated the rule that a respondent cannot be held liable for a violation of a safety
standard where none of its own employees are subject to the noncompliant condition. Secretary
of Labor vs. Hawkins Construction Co., OSAHRC Docket No. 949. In that decision the
Commission took pains to state that ‘. . . the intent of the Act is to place responsibility for
maintaining safe working conditions upon those employers who have endangered employees, not
upon those who may merely own or to some extent control the location of the place of
employment of others.’
More recently the Commission upheld vacation of a citation alleging violation by a
subcontractor because none of the subcontractor’s employees were exposed to the dangerous
conditions even though the subcontractor had created the hazard. Secretary of Labor v. Martin
Iron Works, Inc., OSAHRC Docket No. 606.
The cited decisions control, and the citation herein must also be vacated.
FINDINGS OF FACT
Having held a hearing and considered the entire record herein, it is concluded that the
substantial evidence is the record considered as a whole supports the following Findings of Fact:
1. Respondent, Crain Electric, Inc., at all times involved in this case had a workplace at
the Public Service Company Riverside Power Station, Jenks, Oklahoma, where it was engaged in
supplying certain electrical work in the construction of a power plant.
2. Respondent at all times mentioned herein was an employer in a business which affects
interstate commerce.
3. During a three day period commencing November 14, 1973, duly authorized
representatives of the Secretary of Labor conducted an occupational safety inspection of the
aforementioned workplace where they observed certain conditions which appeared to violate
safety regulations promulgated by the Secretary. However, in no instance was an employee of
the respondent exposed to the hazardous conditions created by the apparent violations.
CONCLUSIONS OF LAW
1. At all times material hereto, respondent was an employer engaged in a business
affecting commerce within the meaning of section 3 (5) of the Act. The Occupational Safety and
Health Review Commission has jurisdiction of the parties and the subject matter herein.
2. On November 14, 1973, respondent was not in violation of the Act or any safety
regulation enumerated in the citation issued to respondent on December 13, 1973.
ORDER
Based on the above Findings of Fact and Conclusions of how is is ORDERED that the
citation issued to respondent December 13, 1973, and the penalties thereon are hereby vacated.
Alan M. Wienman
Judge, OSAHRC
Date: AUG 6, 1974