Docket No. 15581

FLINTCO, INC.

OSHRC Docket No. 15581

Occupational Safety and Health Review Commission

April 11, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Reg. Sol., USDOL

James L. Kincaid and Craid W. Hoster, 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 [*2] Judge's decision. 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:

Judge Blythe's reasons for vacating the 29 C.F.R. § § 1926.28(a) and 1926.500(d)(1) charges are correct. However, vacation of those, as well as the remaining charges which he affirmed, is warranted because of complainant's failure to issue the citations with reasonable promptness as required by 29 U.S.C. § 658(a). Secretary v. Conie & Sons, Corp., OSAHRC Docket No. 6794, June 25, 1976. Moreover, Judge Blythe erred characterizing the § 1926.304(f) charge, as a repeated violation. There is nothing in the record to indicate that respondent's actions constituted a "flaunting . . . of the Act" so as to justify the affirmance of a repeated violation. See Bethlehem Steel Corporation v. OSAHRC, 540 F.2d 157, 162 (3rd Cir. 1976).

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 [*3] disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges. Since my colleagues do not address any of the matters covered by Judge Blythe's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

APPENDIX A

DECISION AND ORDER

Jane A. Matheson, for the Department of Labor

James L. Kincaid and Craig W. Hoster, for the Respondent

STATEMENT OF THE CASE

BLYTHE, Judge:

This is a proceeding brought pursuant to § 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (the Act), contesting citations issued by the complainant, the Secretary of Labor (the Secretary), to the respondent, Flintco, Inc., under the authority vested in the complainant by § 9(a) of the Act. As the result of an inspection conducted on September 18 and 19, 1975, by the complainant's compliance officer, four citations were issued to respondent on October 2, 1975, alleging nonserious, serious and repeated violations of § 5(a)(2) of the Act by respondent's failing to comply with various standards promulgated by the Secretary. Some of the citations were not contested and have [*4] become final orders of the Commission by operation of law. Some of the contested citations were withdrawn by the complainant, and others were amended by the complaint. n1 The citations remaining at issue are as follows:

Nonserious Citation No. 1
Item
No.	Standard	Description of alleged violation
6	29 CFR 1926.552	A series of guys to provide additional
	(c)(3)	stability were not installed in addition
		to the required tie-ins provided by the
		Alimack personnel hoist located on the
		north side of the building.

Serious Citation No. 2

1	29 CFR 1926.28(a)	Employee was not wearing or utilizing
		appropriate personal protective equip-
		ment in an area where there was an
		exposure to hazardous conditions; i.e.,
		2 carpenters engaged in reshoring work
		and installation of guardrails at the
		south n1 side of the 9th floor near the
		personnel hoist without utilizing
		safety belts and lanyards to provide
		protection against falls while working
		in close proximity to the edge of the
		open sided floor.

Repeated Citation No. 3

1	29 CFR 1926.304(f)	Woodworking tools and machinery did not
		comply with ANSI Standard 01.1-1961,
		Safety Code for Woodworking Machinery;
		i.e. deWalt Radial Arm Saw, S/N 402H78,
		in the saw shop was not installed or
		provided with a means of automatically
		returning the cutting head to the rear of
		the table when released.
		BASED ON INSPECTION NO. J 3812-223-76
		DATE OF INSPECTION: July 22, 1975

Repeated Citation No. 4

1	29 CFR 1926.500(d)(1)	The open-sided floor that was 6 feet above
		the adjacent floor or ground level, did
		not have any standard railing or the
		equivalent on the open side; i.e., (a)
		employees engaged in cleaning forms on the
		roof level at the south wall or the west
		stair tower where guardrail and catch
		platform protection was not complete on
		the open side above the ground level nor
		was safety belt and lanyard protection
		being utilized in lieu of this.
		BASED ON INSPECTION NO. J-3812-219-76
		DATE OF INSPECTION: July 21, 1975

[*5]

The standards involved are:

1926.552(c)(3): "Towers shall be anchored in the structure at intervals not exceeding 25 feet. In addition to tie-ins, a series of guys shall be installed. Where tie-ins are not practical the tower shall be anchored by means of guys made of wire rope at least one-half inch in diameter, securely fastened to anchorage to ensure stability."

1926.28(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."

1926.304(f): "All woodworking tools and machinery shall meet other applicable requirements of American National Standards Institute, 01.1-1961, Safety Code for Woodworking Machinery."

ANSI Standard 01.1-1961, § 4.1.9.(d)(2):

"Installation shall be in such a manner that the front end of the unit will be slightly higher than the rear, so as to cause the cutting head to return gently to the starting position when released by the operator. CAUTION! Tilt should not be enough to cause rebound."

1926.500(d)(1): "Every opensided floor or [*6] platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard."

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n1 Respondent objected to one amendment which changed the location of the alleged 29 CFR 1926.28(a) violation from the south to the north side of the building. No prejudice was shown, so the amendment is allowed.

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The hearing was convened February 23, 1976, at Tulsa, Oklahoma. No affected employees or authorized employee representative appeared in this proceeding. The parties have submitted post-hearing briefs, and the respondent has submitted a request and findings of fact and conclusions of law. The matter is now ripe for decision.

Jurisdiction is [*7] not contested. Respondent admitted in its answer and requested findings of fact that it is an employer within the meaning of § 3(5) of the Act and submitted a requested conclusion of law that it is an employer affecting commerce within the meaning of the Act. The personnel hoist involved herein was manufactured and installed under the supervision of Heede International, Inc., of Houston, Texas (Tr. 114) and Greenwich, Connecticut (Ex. R-2, p. 22). This is sufficient to establish jurisdiction.

ISSUES

The issues remaining to be determined in this proceeding are:

Whether respondent violated § 5(a)(2) of the Act by failing to comply with the cited standards and, if so, the appropriate civil penalties therefor.

FINDINGS OF FACT

1. Respondent is a corporation having a place of business and office in Tulsa, Oklahoma, where it is engaged in business as general construction contractor and is an employer within the meaning of § 3(5) of the Act. (Complaint and answer.)

2. On September 18 and 19, 1975, compliance officer Roger Jackson conducted an Occupational Safety and Health Administration inspection of respondent's worksite at 12th and Troost Streets, Tulsa, Oklahoma, [*8] where respondent, a general contractor, was engaged in the erection of a high rise, multi-story addition to Hillcrest Hospital (Tr. 12, 13).

3. The personnel hoist erected by respondent and used by respondent's employees was tied in to the building in substantial compliance with 29 CFR 1926.552(c)(3), but it was not equipped with any guy lines. (Tr. 14, 16, 17). The personnel hoist was at least 120 feet high and was used by respondent's employees to at least the 9th floor (Tr. 15-17, 105).

4. During said inspection two of respondent's employees, Don Barry and Oscar Ray, were working near the perimeter of the 9th floor wrecking out existing shoring. This required removal of a section of guard rail to which the shoring was attached, leaving the perimeter unguarded at that point. Said employees were not utilizing safety belts and lanyards (Tr. 20, 76, 95, 101). However, respondent supplied safety belts and lanyards to its employees on this job, and had instructed its employees, including Barry and Ray, to use them when working near the perimeter of the building, and this policy was enforced. It had an adequate safety program which included daily safety inspections, "tool box" [*9] safety meetings two or three times a week, distribution of OSHA literature, and a seminar for supervisory personnel. Barry and Ray were not specifically instructed on this occasion to use safety belts, and their supervisor was not in a position to observe them. However, Barry and Ray were experienced employees with no prior record of disobedience of the employer's rule regarding safety belts, and there was no reason to believe they would do so in this instance.

5. At said work site respondent provided for use of its employees a radial arm saw which did not automatically return to the starting position after each use. This saw was used by respondent's employees on a daily basis (Tr. 25, 26). As a result of a previous inspection conducted by compliance officer Jackson on July 22, 1975, of respondent's workplace at 3rd and Main Streets, Tulsa, Oklahoma, a citation was issued to respondent on August 7, 1975, for a violation of 29 CFR 1926.304(f) in that a radial arm saw was not installed in such a manner as to cause the cutting head to return gently to starting position. This citation was not contested (Exhibits C-5 and C-6; Tr. 124).

6. During said inspection, Pat Yost, an employee [*10] of respondent, was observed cleaning forms on the 10th floor roof level on an open side which did not have a standard guardrail. (Tr. 33, 34). Respondent has twice before been cited by complainant for violations of 29 CFR 1926.500(d)(1), i.e., on October 22, 1973, and August 5, 1975; respondent did not contest either of these two citations (Exhibits C-5, C-6).

I. The Personnel Hoist Citation [29 CFR 1926.552(c)(3)]

Admittedly, the personnel hoist here involved had no "series of guys" in addition to the tie-ins to the building, but respondent contends (1) that the hoist was installed in compliance with the manufacturer's specifications, which it asserts is sufficient under 29 CFR 1926.552(a); (2) that the use of guys should be interpreted as an alternative method of anchoring the hoist, in view of a 1975 revision of ANSI A10.4-1963, which is incorporated by reference in 29 CFR 1926.552(c)(16); and (3) that the "series of guys" requirement is too vague to be enforced.

The compliance officer conceded that the building tie-ins were substantially in compliance with the standard, and respondent's vice president testified that these tie-ins were in compliance with the manufacturer's [*11] specifications. The "general requirements" of 29 CFR 1926.552(a)(1) include that

"The employer shall comply with the manufacturer's specifications and limitations applicable to the operation of all hoists. . ." (emphasis supplied).

This requirement does not, as respondent contends, mean that it is sufficient for an employer to comply with the manufactuer's specifications for installation of a hoist. "Operation" is not synonymous with "installation." Also, specific requirements of a standard must prevail over the general.

Respondent points out that 29 CFR 1926.552(c)(16) n2 adopts by reference the requirements of American National Standard A10.4-1963, the latest revision of which makes the use of tie-ins and guys alternative methods of anchoring personnel hoists. However, 29 CFR 1926.552(c)(16) does not apply to cantilever type personnel hoists, such as is here involved, and ANSI 10.4-1963 contains nothing helpful, anyway. ANSI A10.4-1963 has had two revisions, in 1973 and 1975, and P5.4.2 n3 of the 1975 revision is similar to 29 CFR 1926.552(c)(3) except that it omits the sentence requiring "a series of guys" "[i]n addition to tie-ins."

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n2 "(16) All personnel hoists used by employees shall be constructed of materials and components which meet the specifications for materials, construction, safety devices, assembly, and structural integrity as stated in the American National Standard A10.4-1963, Safety Requirements for Workmen's Hoists. The requirements of this subparagraph (16) do not apply to cantilever type personnel hoists."

n3 "5.4.2 Each hoist structure shall be anchored to the building or other structure at vertical intervals not exceeding 25 feet. Where the building or other structure is of such character that tie-ins cannot be made, the hoist structure shall be guyed by means of a suitable number of guys. Such guys shall be fastened to adequate anchorages to ensure hoist structure stability. When wire rope is used for guys, the rope shall be at least 1/2 inch in diameter."

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The 1975 version of ANSI A10.4 cannot be substituted for the 1963 version as part of the OSHA standard without complying with the rule-making procedure required by § 6 of the Act. Therefore, respondent's [*13] ingenious argument must fail.

Respondent's remaining defense, that the requirement of "a series of guys" in addition to the tie-ins is too vague to be enforced, might have some merit if it had made any effort to comply. If, for instance, it had installed one pair of guys to the portion of the tower extending above the roof, and the Secretary contended this was insufficient, it would be in a much better position to raise the vagueness defense. It should not be heard to complain of vagueness when it has chosen to ignore the requirements, especially in view of the variance procedure provided by § 6(b)(6) of the Act, which it did not utilize.

No penalty was proposed for this violation, and, although this is not binding on the Commission, I agree that none should be assessed.

II. The Safety Belt Citation [29 CFR 1926.28(a)]

Respondent's defenses to the charge of violating 29 CFR 1926.28(a) are: (1) The Secretary did not sustain his burden of proving that the employer had knowledge of the violation; and (2) the employees' failure to wear safety belts was an "isolated occurrence."

There is no dispute about the existence of the hazard. The compliance officer photographed (Ex. [*14] C-2, C-3) two workmen removing shoring on the perimeter of the ninth floor without protective devices of any kind (guard rails, catch platforms, net, or safety belt-and-lanyard). These employees had removed a section of guard rail to which the shoring was attached. Safety belts and lanyards, tied off to nearby supports, would have afforded adequate protection. The hazard of falling was serious in view of the height above ground, and the likelihood of such a fall was substantial.

Under both the Act and the cases, employer knowledge -- actual or constructive -- is an essential element of a "serious" violation. 29 U.S.C. § 646(j); Secretary v. The Mountain States Telephone & Telegraph Co., 2 OSAHRC 168 (1973). A foreman's knowledge of a violation may be inputed to the employer. Secretary v. Eichleay Corporation, 15 OSAHRC 635 (1975).

Here the foreman sent two employees, without direct supervision, to remove shoring attached to the guard rail, and he should have known that a section of guard rail would be removed. He did not specifically instruct the two employees to use safety belts and layards, but the employer had a rule, which it enforced, requiring the wearing of [*15] safety belts under such circumstances. There was no reason to suspect that the workmen would deviate from observance of this rule. The employer had a good safety program. It has pleaded that the present violation was an "isolated occurence," and the proof lends credence to this contention. The citation should be vacated.

III. The Radial Arm Saw Citation [29 CFR 1926.304(f)]

The respondent, on brief, does not contend that its radial arm saw met the requirement of ANSI 01.1-1961, § 4.1.9(d)(2) that "the front end . . . will be slightly higher than the rear, so as to cause the cutting head to return gently to the starting position when released by the operator." Rather, it claims (1) that complainant failed to prove employee exposure to the hazard and (2) that it was misled by the compliance officer's advice regarding abatement methods in a prior inspection.

There is ample, and unrebutted, proof of employee exposure. Compliance Officer Jackson testified (Tr. 26, 27), that he was informed by one of respondent's carpenters that they "used it almost on a daily basis," usually "every day for about an hour or so." It is not necessary that the compliance officer personally observe [*16] such use. The saw was on the work site, and apparently was there to be used. All of respondent's employees who might pass the saw while it was in use were exposed to the hazard and were in the "zone of danger" or at least had access to the danger area. Secretary v. Gilles & Cotting, Inc., Docket No. 504 [Commission decision of February 20, 1976, on remand from the Fourth Circuit in Brennan v. Gilles & Cotting, Inc., 504 F. 2d 1255 (4th Cir., 1974)], CCH OSHD P20,448.

Respondent previously had been cited for violating this same standard, and it contends that it was told by the compliance officer that abatement could be achieved by either (1) raising one end of the table so the saw would return to the rear of the table by gravity or (2) widening the table so the saw would not extend beyond the table, and that it chose the latter means.

There seems to have been a genuine misunderstanding regarding this. The compliance officer admitted giving advice to widen the table but said it was in connection with another problem. In view of the ease with which the violation could be, and eventually was, abated by elevating one end of the table, it seems likely that the respondent [*17] acted in good faith in electing the more difficult means of widening the table. However, it is mistaken in contending it was entitled to rely on the compliance officer's advice, whatever it was. He was under no obligation to give such advice, and, even if this advice was wrong, it was not binding on the complainant. Secretary v. Betten Processing Corporation, 8 OSAHRC 784 (1974) (Otto, J.). Also, it should be noted that the ANSI standard itself tells precisely how the desired result is to be obtained: "[T]he front end of the unit will be slightly higher than the rear. . ."

The respondent thus violated 29 CFR 1926.304(f), however unintentionally, and technically it was a repeated violation. The proposed penalty of $80 appears appropriate under the criteria of § 17(j) of the Act.

IV. The Guardrail Citation [29 CFR 1926.500(d)(1)]

Both the citation (No. 4) and the complaint (P10) make it clear that this alleged violation occurred at the roof level.

In Secretary v. Central City Roofing Co., Inc., Docket No. 8173, June 4, 1976, the Commission held that 29 CFR 1926.500(d)(1) does not apply to flat roofs. This case reverses prior Commission precedent and is dispositive [*18] of the citation here involved.

CONCLUSIONS OF LAW

1. The Commission has jurisdiction of the parties and of the subject matter of this proceeding.

2. On September 18 and 19, 1975, respondent was in nonserious violation of 29 CFR 1926.552(c)(3) for which no penalty should be assessed.

3. On September 18 and 19, 1975, respondent was not in violation of 29 CFR 1926.28(a) and 29 CFR 1926.500(d)(1).

4. On September 18 and 19, 1975, respondent was in repeated violation of 29 CFR 1926.304(f), and a civil penalty of $80 should be assessed therefor pursuant to the provisions of § 17(j) of the Act.

ORDER

On the basis of the foregoing finding of fact and conclusions of law, it is ORDERED that:

1. Citation 1 for nonserious violation of 29 CFR 1926.552(c)(3) be and it hereby is affirmed and that no penalty be assessed therefor.

2. Citation 2 for serious violation of 29 CFR 1926.28(a) be and it hereby is vacated.

3. Citation 3 for repeated violation of 29 CFR 1926.304(f) be and it hereby is affirmed, and that a civil penalty of $80 be and it hereby is assessed therefor.

4. Citation 4 for repeated violation of 29 CFR 1926.500(d)(1) be and it hereby is vacated.

5. All [*19] proposed findings of fact and conclusions of law inconsistent with this Decision and Order be and they hereby are denied.

6. This proceeding be and it hereby is terminated.

DEE C. BLYTHE, ADMINISTRATIVE LAW JUDGE

July 7, 1976