CHARLES VRANA & SON CONSTRUCTION COMPANY
OSHRC Docket No. 13528
Occupational Safety and Health Review Commission
January 5, 1977
[*1]
Before BARANKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
T. A. Housh, Jr., Regional Solicitor, USDOL
Dean G. Kratz, for the employer
OPINION:
DECISION
This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.
In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.
The Judge's decision is accorded the significance of an unreviewed Judge's decision. [*2] Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).
It is ORDERED that the decision be affirmed.
CONCURBY: MORAN (In Part)
DISSENTBY: MORAN (In Part)
DISSENT:
MORAN, Commissioner, Concurring in Part, Dissenting in Part:
I would affirm the serious citation for the reasons stated in Judge Dixon's decision, which is attached hereto as Appendix A, but would vacate the nonserious citation because the cited standard, 29 C.F.R. § 1926.21(b)(2), is unenforceably vague. Secretary v. Henkels and McCoy, Inc., OSAHRC Docket No. 8842, August 3, 1976 (dissenting opinion). Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges.
APPENDIX A
DECISION AND ORDER
JOHN B. RENICK, Office of the Solicitor, U.S. Department of Labor, Appearing on behalf of Complainant
DEAN G. KRATZ, Appearing on behalf of Respondent
Hearing held August 19, 1975, Magistrate Hearing Room, U.S. Post Office and Court Building, Omaha, Nebraska, [*3] Judge Paul E. Dixon presiding.
Paul E. Dixon, Judge:
This is an action under section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 651, et seq. (hereinafter referred to as the Act), contesting a citation for a serious violation of 29 CFR 1926.28(a) and 1926.28(b) which refers to subpart E 1926.104 and 1926.105, and a nonserious violation of 29 CFR 1926.21(b)(2) following the issuance of a citation on May 19, 1975, resulting from an inspection made on May 13, 1975, of respondent's worksite at 7311 Jones Street, Omaha, Nebraska, where respondent was engaged in repair of tornado damage.
A timely notice of contest was made by respondent, and following the issuance of complaint and response by respondent the case was brought to issue.
THE CITATION
The citation for nonserious violation issued May 19, 1975, charged respondent with violation of 29 CFR 1926.21(b)(2) in that with reference to the "(roof)" the employee had not been instructed in the recognition and avoidance of unsafe conditions applicable to his work environment. An abatement date of May 21, 1975, was established and a penalty in the amount of $90 was proposed.
A citation for alleged serious [*4] violation was likewise issued on May 19, 1975, charging respondent of being in alleged violation of 29 CFR 1926.28(a) and 1926.28(b) which refers to subpart E 1926.104 and 1926.105 in that in reference to the "(roof)" the area where employee worked was 50 feet above the floor and no safety net or other personal protective equipment was provided.
THE STANDARDS
29 CFR 1926.21(b)(2) - Safety Training and Education
"(b) Employer responsibility
(2) The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury."
29 CFR 1926.105(a) - Safety Nets
"(a) Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical."
29 CFR 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 [*5] part indicates the need for using such equipment to reduce the hazards to the employees.
(b) Regulations governing the use, selection, and maintenance of personal protective and lifesaving equipment are described under Subpart E of this part."
29 CFR 1926.104(a) - safety Belts, Lifelines, and Lanyards
(a) Lifelines safety belts, and lanyards shall be used only for employee safeguarding. Any lifeline, safety belt, or lanyard actually subjected to in-service loading, as distinguished from static load testing, shall be immediately removed from service and shall not be used again for employee safeguarding."
THE EVIDENCE
Roger Busch, a journeyman carpenter, was called on behalf of complainant. He related that following a severe tornado on May 5, 1975, in the City of Omaha, Nebraska, he was sent by his union to a jobsite at 7311 Jones Street, Omaha, Nebraska, where the Standard Metal Fabricators was located to perform work for respondent in repairing roof damage to a building.
The first level of the building was approximately 16 feet high with a peaked roof extending up to approximately 25 feet in height.
Busch described his job as taking material off and putting on other material [*6] that had been damaged or removed by the tornado.
The building was a metal building with tin roofing.
Busch quoted the supervisor on the job for respondent, Jim Chism, as instructing him to go up and take the tin off and put new material on when it came in (T. 6-8, 10).
Busch described the damage to the building as having tin and debris all over it and quoted the supervisor as sending the men from the union hall up on top to go to work and take the tin off (T. 8).
Deceased was working approximately five feet in front of Busch. They walked the beams supporting the roof and were removing damaged tin. The deceased was at the top of the roof and while working, stepped on a loose, unattached piece of roof tin and fell through the roof to the bottom interior of the building (T. 9).
Busch estimated there were more than 10 men on the job.
On the morning of May 9, 1975, when Busch reported for work and the day of the fatality, he was not furnished with a safety belt or a lifeline nor did he observe any of the other employees with such equipment (T. 12).
Busch described the roof as having holes all over it where the tin had been blown off with pieces hanging which had to be removed [*7] by the carpenters.
He described his own activities as starting at the bottom and working on up taking tin off wherever it was hanging in order that new tin could be applied.
The deceased, an apprentice carpenter, was working at the peak of the building when he fell (T. 12-13).
No discussions were had by way of a safety meeting prior to Busch's commencing work nor were discussions had as to where the beams were located or not to step on the tin between Busch and respondent's supervisor, Chism.
Busch was of the opinion that as a journeyman carpenter he was supposed to be able to handle anything assigned to him and to be safety conscious (T. 14).
There were no safety nets at the jobsite (admissions - T. 16).
Busch is accustomed to working at heights and felt that he could take care of himself in a safe manner. He described the job as an emergency situation, different than the usual job. (T. 20).
At the time Busch arrived at the jobsite which was sometime after 8:00 a.m. due to the fact that he had to obtain a permit to enter the storm area, stockpiling had been started of roofing material in the valley between the peaked roofs in preparation for fabrication of the new roof. [*8] Busch assisted in the stock piling in the valley as did the deceased.
The new roofing was being made inside the building, loaded on a forklift and raised to the 16-foot level where it was stockpiled. When not stockpiling, the carpenters would be taking tin off the building or cleaning up which activity caused Busch to work up to the peak of the building along with other employees in addition to the deceased (T. 24-25, 29, 32).
While in the process of working Busch would receive various instructions as to work activity regarding removing the tin or unloading tin whenever the superintendent would come around.
The operation was in several phases such as stockpiling tin and when that was completed the employees would remove tin. When the operation commenced the excess material was taken off while waiting for more material to come in that the employees did not have the guns to fasten the material down to the roof.
Gary Kruse, a carpenter's apprentice for respondent, was at the jobsite the day of the fatality and was ripping off sheets and stockpiling metal at the time.
He described deceased's activities regarding the fatality as helping carrying and piling a few loads of sheets at [*9] the bottom of the valley, then go up on one of the beams ripping off sheets.
Deceased returned to the valley to further stockpiling then returned to the roof over the open area. (T. 33-35)
Kruse's estimate was that the valley was some 17, 18 feet from ground level and the peak of the roof approximately 25 feet (T. 35-36).
Kruse observed deceased about seven feet down from the peak and noted there was someone else on top of the pak where there was solid metal reaching over and ripping off sheets and walking them down to the valley (T 35-36).
Kruse had worked in the area of the peak when on occasion he would observe a loose sheet and would go up, clip it off and walk it down. There were about five or ten sheets that had to be ripped off from the top.
Deceased was walking up and down the beams where there were loose sheets over the open area that were hanging by one nail (T. 37).
Kruse described the open area as having no solid footing except for the beams themselves and described the open area as the one through which deceased fell.
While Kruse and another employee had gone to the peak to rip some loose sheets he was not instructed to do so by anyone, although his understanding [*10] of the job was that the loose tin was to be cipped off and the roof cleaned off (T. 38). There were no scaffolds, catch platforms or anything of that nature between the roof and the floor of the building (T. 40).
Kruse arrived at the jobsite approximately 8:30 a.m. and was told by respondent's superintendent, Chism, to go up on the roof and clean up the valley and move the sheets. He was also told there would be a pile up of old sheets and there would be new sheets coming up later.
Later, Chism came to the roof after the new sheets were up and explained how he wanted the sheets put down. This consisted of taking a nine-foot sheet, lapping it over the first two beams, then utilizing a screw gun, screwing the sheet down onto the beams. This would be followed by other people with a ladder who would put the second sheet on. (T. 41)
This method was to be used up to the peak of the building. The sheets would be laid until they reached a damaged sheet whereupon they would reach over and rip it off.
Kruse received no instructions from Chism as to safety practices or anything to watch out for on the job or not to step on certain areas when he first reported to work (T. 42).
Kruse [*11] had his own system of observation by looking at the securing nails and covering tar to determine whether or not the sheet was secure (T. 43).
The roof consisted of two layers of tin with a layer of insulation in between and in most cases both layers were damaged by the storm.
Kruse would not work over an open area because it was necessary to walk on a 3/4 wide beam which he felt was dangerous and which he observed deceased doing.
Kruse did not observe any of the other workmen walking the beam as deceased was doing (T. 45).
Kruse identified respondent's exhibit 1, a sketch of the roof demonstrating the undamaged portion of the roof, the peak or ridge line, the gutter line, the portion to be repaired and demonstrated the method of repair (T. 46).
The repair commenced at the north end of the damaged area with one man below and one man beside the sheet which was overlapped about a foot then screwed down to stabilize the sheet working from a solid surface. Five or six sheets would be placed and then two other employees would go to the next layer utilizing a ladder across the sheeting to reach the next level. The operation required no extension over the open area (T. 49-52).
It [*12] was Kruse's judgment the work could be performed without working over an open area (T. 52).
Kruse corroborated Busch's testimony that when there was no stockpiling of sheets to be done, the employees worked at removing fragmented parts of the roof and that at that time the superintendent was not on the roof (T. 53).
After the stockpiling was finished the superintendent came on to the roof which was just prior to decedent's fall and gave instructions to Kruse and Busch as to how he wanted the sheets layed. It was at this time that Kruse heard a crashing sound and after some shouting back and forth observed deceased lying on the ground (T. 53-55).
Prior to the fall Kruse did not see deceased on the roof as he was concentrating on Chism's instructions.
It was Kruse's impression that deceased had only been on the job approximately 20 minutes before he fell. Kruse's only conversation with deceased upon his arriving at the job was to tell him to "be careful" (T. 57-58).
Kruse observed that there was some loose sheets remaining in the open area and while no particular person was assigned to go over the open area, they were just told to go up on the roof (T. 60).
Kruse felt that the [*13] loose sheets could be removed as the new sheets were installed, although that's not the way the work was done (T. 60-61).
However, this was not the procedure before the fatality because they had not started putting up new sheets (T. 63).
Mr. Jim Chism, respondent's superintendent, testified on behalf of respondent concerning the repair of the building struck by a tornado known as Standard Metals Fabricators.
The tornado occurred on May 5, and Mr. Chism commenced work of the afternoon of May 6, and from that period through May 8, engaged in general clean up and getting material ordered in preparation for repair of the building.
Mr. Chism had called the union hall for additional employees for May 9 consisting of eight carpenters and two laborers who started showing up at approsimately 8:30 a.m. on May 9.
He assigned some of the men to the gutter line for cleaning and some of the men for framing the south end of the structure for a temporary enclosure.
Chism was working at the ground level checking on the metal loading and lifting and doing a layout for the temporary construction in addition to removing a building that had been completely destroyed.
Chism recalled deceased reporting [*14] at approximately 10:00 a.m. Chism told deceased to go up in the valley and help other employees stockpile and there being metal and debris all over the building, told deceased to remove it.
Approximately 10 minutes later the stockpiling had been completed, the screw guns, screws and electricity were available whereupon Chism went up to the roof to show the carpenters how he wanted the metal put down.
Chism recalled approximately six employees on the roof and positioned himself in the valley at the time of the fatality (T. 71-77).
Chism located Kruse and Busch as standing next to him with other employees clearing out the gutter line to the north of where he was standing with two employees on the roof where two sheets had been sandwiched and were still fastened in the middle and who were engaged in taking some of the sheets off. The employees were located by Chism to be within ten feet of the gutter line (T. 79-80).
From the time Chism ascended the roof and talked to Kruse and Busch he did not see any employee working in the open area of the roof. His first notice of the employee's fall was when he heard a piece of tin hit the floor and by yelling down determined someone had fallen [*15] (T. 80-81).
Chism corroborated the fact that the area was not completely open in that there was some fragmentation of roof material and ragged edges in the area (T. 82).
Chism's recollection of his instruction to employees as they arrived was that he would tell some to help frame up the end wall or he would send someone to the roof and instruct them to help stockpile and help clean up the gutter line. Chism denied that he ever instructed anyone to go into the open area and clean off the fragmented roof (T. 83). Chism established the height from the floor to the gutter line as 18-feet and from ground level to the peak to be 32-feet (T. 84).
Chism at no time saw or had knowledge that deceased was working over the open area.
Chism' description of the method of laying down the new roof was essentially the same as described by witness Kruse, namely working off of a ladder into the side of the panel being installed (T. 84-88), with the further description of the removal of old panels of tin as the new is being installed (T. 88-89).
The operations in laying the paneling and utilization of ladders from the gutter line against the solid sheeting were all accomplished after the fatality. [*16] The work was only in preparation prior to the fatality (T. 90-93).
Chism's recollection of his instructions to the employees was that they should go up to the gutter line and clean up and stock material. He could not remember and did not believe he gave any instructions as to cleaning the tin on the roof (T. 94). Chism acknowledge there was loose tin in the area designated on R-1 as existing roof and further that there were people cleaning up in that area (T. 95).
No one had received any instructions as to how to lay the new sheets until Chism went to the roof at about 10:15 a.m. (T. 97).
Chism agreed that an apprentice would need more supervision than a journeyman carpenter, although he would give an apprentice the same instruction that he would give a journeyman (T. 97-98).
While Chism instructed the men what he wanted them to do, he did not personally supervise the men until he entered onto the roof at approximately 10:10 a.m. (T. 98).
Jean Gray, Compliance Officer for the Department of Labor, Occupational Safety and Health Administration, made an investigation of the fatality on May 13, 1975.
She identified government's exhibits 1 and 2 as being photographs of the building [*17] in question.
Gray indicated the peak of the building to be approximately 30 feet from ground level and as a result of her investigation recommended that a citation for serious violation and proposed penalty in the amount of $900 be issued and a citation for nonserious violation and a proposed penalty of $90 be issued.
In describing the methodology employed, Gray started with a figure of $1,000 because of the fatality and gave respondent a reduction of ten percent for history rounding off the amount to $100 and considering the size of respondent's business and good faith and history arrived at a proposed penalty of $90 for the nonserious violation (T. 65-70).
DISCUSSION
Alleged nonserious violation 29 CFR 1926.21(b)(2)
The preponderance of the credible evidence clearly indicates that respondent, through its foreman Chism, was in clear violation of 29 CFR 1926.21(b)(2). The testimony is uncontroverted that upon arrival at the jobsite of the two carpenters, Busch and Kruse, they were given very general, nonspecific directions by the superintendent, Chism, with no caution of hazards involved in the operation of removing damaged roofing material in preparation for the installation [*18] of new roofing to the tornado damaged building, although Chism had been on the jobsite for several days prior to survey the needs for repair.
Busch quotes Chism as instructing him to go up and take the tin off and put new material on when it came in (T. 6-8, 10).
No discussions were had by way of a safety meeting prior to Busch's commencing work nor were discussions had as to where the beams were located or not to step on the tin (T. 14).
Witness Kruse gave essentially the same testimony, that upon arrival at the jobsite, he was told to go on the roof and clean up the valley and move the sheets (T. 41).
Kruse received no instructions from Chism as to safety practices or to watch out for anything on the job or not to step on certain areas when he first reported to work (T. 42).
Superintendent Chism in his limited recollection of his instructions to deceased testified to the effect that he told the deceased to go up in the valley and help other employees stockpile and there being metal and debris all over the building, told deceased to remove it. (Emphasis supplied) The Secretary met and carried his burden of proof as to this violation.
Alleged serious violation of 29 CFR [*19] 1926.28(a) 1926.28(b) referring to Subpart E 1926.104 and 1926.105.
Respondent alleges several defenses to this charge. Namely, that superintendent Chism told the deceased to work on the valley of the roof; that Chism could not have known that deceased was working at a higher level on the roof; and an argument suggesting that deceased was a disobedient employee or that his conduct constituted an isolated occurrence.
This defense has not been established.
The preponderance of the credible evidence clearly establishes the carpenters, while required to work at the roof level and various parts of the upper elevation in cleaning up storm damage were not furnished with a safety belt or lifeline (T. 12) (Answer to admissions number 9 and 10), nor were there safety nets at the jobsite (T. 16). With regard to the actual operation, it will be noted that it was in two stages.
Preparatory to establishing the new roof there was a certain amount of fabrication taking place at ground level within the body of the building and absence of tools for installation which situation existed to approximately 10:00 a.m. the morning of the fatality.
The evidence clearly establishes that the first operation [*20] to be accomplished by the carpenters was to clear the damaged roof of segments of tin roofing material which extended all the way up to the peak of the roof which was 32 feet above ground level.
Again, the foreman's instructions to the two carpenters were of a very general non-specific nature. While Chism in his direct testimony denied he had ever instructed anyone to go into the open area and clean off the fragmented roof, this testimony is not credible in light of the testimony of the two carpenters, both as to their activities and their observations of the work taking place prior to the setting up for the installation of new roofing material.
It is correctly noted that at no time did Chism participate in any active supervision of the roofing activities until some time around 10:00 a.m. that morning.
During the interim of carpenters reporting onto the job and Chism finally arriving at the roof level, the stripping activities were taking place thoughout the roof area including the peak.
Carpenter Busch was working with deceased within five feet of him and testified they walked the beams supporting the roof and were removing damaged tin (T. 9).
Busch described his own activities [*21] as starting at the bottom and working on up. . .
Busch described the deceased as working at the peak when he fell (T. 12-13). Busch described other carpenters as taking tin off the building when not stockpiling, and working up to the peak of the building (T. 24-25-29-32).
Kruse observed deceased about seven feet down from the peak and also noted there was another employee on top of the peak reaching over from a solid base ripping off sheets (T. 35-36).
Kruse himself had worked in the area of the peak and when he would observe a loose sheet would go up, clip it off, and bring it down.
While Kruse was of the personal opinion that he would not walk on open beams, he did not observe deceased's fall which does not contradict the eye-witness account of Busch that deceased stepped on an unsecure slab of tin.
The understanding of both Krues and Busch was that the loose tin on the roof was to be ripped off and the roof cleaned off. No specifics were given to either man as to the mode of accoplishment.
There can be no disobedience of instructions on the part of an employee or the claim of an isolated occurrence when the employee is not furnished with the method of operation to be followed [*22] in producing the accomplished result; nor can the defense of Chism's lack of knowledge be asserted because Chism did not avail himself of the opportunity to observe the work activity which is an inherent part of his duties as a supervisor.
Once supervision is undertaken, it cannot be abandoned and it must be appropriate supervision for the nature of the job at hand. Secretary v. Gerstner Electric, Inc., 10 OSAHRC 441 (RC 1974).
See also Secretary v. Eller Brothers, Inc., 1 OSAHRC 638 (RC 1972), where the respondent while engaged in installation of sewer lines and in utilizing a crane et remove a large rock had a foreman on the jobsite who gave instructions and then left and went to another job across the highway. He took no steps to have high tension lines deenergized or to designate a person to observe clearance of the crane.
As a result of the operation of the crane, it came in contact with high tension lines and one of the construction workers was electrocuted. The issue in question was whether the violation could be attributed to the respondent. The Judge in affirming the citation took the view that the employer is put to a higher standard than merely informing [*23] an employee of the regulation of the hazard involved and is charged with the ultimate duty of furnishing a safe workplace for the employee. He stated "this undoubtedly implies that the employer will take whatever action is necessary to accomplish the job in a safe manner. In order to safely accomplish a job, it would appear undisputed that the employee must have adequate assistance. It does little good to warn an employee of the hazard if the employer then lets him undertake the job without adequate assistance to accoplish it in a safe manner."
Here, not even a warning was given the carpenters. There was a complete lack of any supervisory effort directed toward the activities taking place on the roof of the building during the critical time that damaged material was being removed prior to the installation of new roofing.
The Secretary has met and carried his burden of proof to sustain the violation.
PENALTIES
Considering the criteria for a nonserious violation as set forth in section 17(j) of the Act, it is noted that there is little, if any, evidence of record to render assistance such as the size, good faith and history of previous violations and the most important element [*24] that of gravity and it would appear that the assessment of $90 for a nonserious violation of 29 CFR 1929.21(b)(2) is appropriate.
Turning to the serious violation further consideration must be given under the criteria of section 17(k). Ther was a preponderance of the evidence in the record as a whole to demonstrate that respondent's operations at the job site referable to removing of portions of the damaged roof created a substantial probability that death or serious physical harm could result from a fall in that (a) the employees were not furnished with appropriate personal protective devices and (b) no safety net was provided where the working service was some 32 feet above ground level. The respondent through its superintendent Chism, could have known of the hazard had it made the effort. In addition there was testimony of the two carpenters, Busch and Kruse, that there were other supervisory personnel giving directions to the carpenters at the roof level so that respondent's claim of lack of knowledge is not supported by the evidence.
Turning to the monetary amount of the appropriateness of penalty there is no evidence of respondent's bad faith, rather, the evidence more [*25] clearly demonstrates careless inattention to supervision during an emergency situation. The Compliance Officer made reference to having been "into the place more than once" which is highly ambigous. It does not tell the writer as to whether or not the Compliance Officer had inspected Vrana or whether it had inspected the Metal Fabricating Company. Further it does not tell the writer whether the respondent had previously been cited nor whether or not the citation had been affirmed.
Based upon a consideration of previous precedential cases of similar violations, it is felt that a penalty of $600 for this violation is appropriate.
FINDINGS OF FACT
1. The Commission has jurisdiction of the parties and the subject matter (answer).
2. Respondent was in violation of 29 CFR 1926.21(b)(2) in that its employees had not been instructed in the recognition and avoidance of unsafe conditions applicable to their work environment.
3. The respondent was in violation of 29 CFR 1926.28(a) and 1926.28(b) referring to Subpart E of 29 CFR 1926.104 and 1926.105 in that respondent provided no safety net or other personal protective equipment where employees were required to work on a roof 32 [*26] feet above ground level.
DECISION AND ORDER
1. The nonserious citation for violation of 29 CFR 1926.21(b)(2) is affirmed. A penalty in the amount of $90 is assessed.
2. The serious citation for violation of 29 CFR 1926.28(a) and 1926.28(b) referring to Subpart E of 29 CFR 1926.104 and 1926.105 is affirmed. A penalty in the amount of $600 is assessed.
Paul E. Dixon, Judge, OSAHRC
Date: March 9, 1976