CHICAGO BRIDGE AND IRON COMPANY
OSHRC Docket No. 609
Occupational Safety and Health Review Commission
November 20, 1974
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: CLEARY
OPINION:
CLEARY, COMMISSIONER: On March 28, 1973, Review Commission Judge Garl Watkins issued his decision and order in this case. Thereafter, on May 8 1973, pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq. ), that decision was ordered to be reviewed by the Commission.
Having examined the record in its entirety, the Commission finds no prejudicial error therein. We specifically approve the action of the Judge in assessing penalties in excess of those proposed by the Secretary. The Commission has consistently recognized that the penalties that it finds appropriate may well exceed those initially proposed by the Secretary. See, e.g., Hidden Valley Corp., No. 11 (February 8, 1972); Baltz Bros. Packing Co., No. 91 (February 8, 1973); Dreher Pickle Co., No. 48 (February 13, 1973); Tacoma Boatbuilding Co., Inc., No. 6 (August 31, 1973); California Stevedore & Ballast Co., No. 14 (September 4, 1973), petition for review filed, 9th Cir. No. 73-3103; Dixie Electric, No. 1345 (November 14, 1973); and Lipsky & Rosenthal, No. 690 (May [*2] 13, 1974).
This policy has also received express judicial approval. In REA Express, Inc. v. Brennan & O.S.H.R.C., 495 F.2d 822 (2d Cir. 1974), the Second Circuit affirmed the Commission's assessment of a $1,000 penalty when the Secretary had proposed a penalty of only $900. The court stated: "We do not deem the fine excessive and, in any event, it does not constitute an abuse of discretion." 495 F.2d at 827. Certainly, the advice of the Secretary in the way of penalty assessment is important. But that advice is not controlling in a de novo proceeding before the Commission. Brennan v. O.S.H.R.C. & Interstate Glass Co., 487 F.2d 438, 442 (8th Cir. 1973).
In light of these decisions, it is clear that the Commission has the power to assess penalties in excess of those proposed by the Secretary.
Accordingly, it is ORDERED that the Judge's decision is affirmed in all respects.
DISSENTBY: MORAN
DISSENT:
MORAN, CHAIRMAN, dissenting: This decision is wrong in two respects: (1) it affirms the citation for noncompliance with 29 C.F.R. § 1926.28(a) and (2) it assesses a penalty in excess of $35.00 for the respondent's failure to comply with 29 C.F.R. § 1926.451(a)(17).
1. [*3] The § 1926.28(a) Charge
At the time of the alleged failure to comply with 29 C.F.R. § 1926.28(a), that standard was worded 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 and where this part indicates the need for using such equipment to reduce the hazards to the employees. n1 (Emphasis added.)
The respondent was charged with noncompliance therewith because two employees were not using lifelines while working on a penetration tube.
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n1 Subsequently, the word "and" was changed to "or." 37 Fed. Reg. 27510 (1972)
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I submit that the standard should be declared invalid because its broad wording requires an employer to guess as to its applicability. See Cramp v. Board of Public Instruction of Orange County, Florida, 368 U.S. 278, 287 (1961).
The purpose of an occupational safety and health standard is to inform employers what they must do to avoid workplace hazards. Secretary [*4] v. Mountain States Telephone & Telegraph Company, 2 OSAHRC 168 (1973). To do this, it must be so framed that its provisions may be known, understood, and uniformly applied by those enforcing it and those against whom enforcement is directed. See Boutilier v. Immigration and Naturalization Service, 387 U.S. 118 (1967).
An employer is entitled to receive fair warning of the conduct required or proscribed by a regulation. See Jordan v. De George, 341 U.S. 223 (1951); Fleuti v. Rosenberg, 302 F.2d 652 (9th Cir. 1962). In this regard, the Commission has previously indicated that an employer is entitled to rely upon a standard's "clear language, uncolored by additional and subjective criteria." Secretary v. California Stevedore & Ballast Company, 1 OSAHRC 366, 369 (1972). They are also entitled to be free from the arbitrary application of regulations which are capable of multiple interpretations. Bouie v. City of Columbia, 378 U.S. 347 (1964). I believe that 29 C.F.R. § 1926.28(a) denies these entitlements to employers. n2
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n2 A standard such as this also defeats the purposes of the Act. If an employer did not think the conditions at this workplace were "hazardous," he would not do what the standard required. His employees would therefore be denied the protections which the Secretary of Labor believed to be necessary.
[*5]
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The primary defect in the instant standard is that id does not tell an employer specifically when he must require his employees to wear personal protective equipment. The term "hazardous conditions" is subject to wide and varied interpretations by reasonable minds. It requires employers to guess at how it will be interpreted by various enforcement and adjudicatory officials. Therefore, it is unenforceably vague.
The Commission held in Secretary v. Moser Lumber Company, 4 OSAHRC 265 (1973), that a standard employing the term "hazardous area" was unenforceably vague. I find no significant difference between that term and the term "hazardous conditions."
2. The Penalty Increase
The respondent was cited for noncompliance with 29 C.F.R. § 1926.451(a)(17) because two frost spots were detected on some scaffolding. The penalty proposed by the complainant was $35.00. The Judge assessed a penalty of $100.00 and the Commission says:
We specifically approve the action of the Judge in assessing penalties in excess of those proposed by the Secretary.
This statement is the expression of a [*6] desire to seize power and authority which doesn't exist. Congress never gave this Commission any power to go beyond the limits of enforcement set by the Secretary of Labor. The entire enforcement scheme of the Act is based on a separation of the regulatory powers from the adjudicatory powers. n3 This Commission "has neither prosecution nor enforcement powers. Those have been exclusively delegated to the Secretary." Madden v. Hodgson, F.2d. (9th Cir., No. 72-1874, decided July 29, 1974).
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n3 "The Commission is an adjudicatory body with no regulatory powers." Brennan v. OSAHRC F.2d (10th Cir., No. 74-1049, decided October 22, 1974).
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What is the purpose of increasing a penalty against an employer over the amount the Secretary thinks is proper? It can only be to penalize -- to make the employer worse off than he otherwise would have been. This could not be adjudication under the definition.
To adjudicate is to resolve issues in dispute between the parties. Here the penalty issue between the parties [*7] is whether the amount should be $35 as the Secretary has proposed or something less than that, as the employer maintains. By tripling the amount which the Secretary believes is warranted, this Commission is becoming an enforcer -- telling the employer it will fix him for violating the Act. And it will do so in a manner much more severe than would have been possible if he only had the good sense to accept his medicine from the Secretary of Labor without seeking any hearing on the matter.
By so doing, the Commission violates not only this Act's enforcement scheme but also the equal protection and due process provisions of the Constitution because the threat of increased penalties falls solely upon those who seek the just disposition of the charges against them by asserting their right to a hearing, n4 thus creating an irrational basis for selection of the class upon whom the burden falls and an irrational means of effectuating any valid legislative policy.
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n4 If the employer does not contest the Secretary's penalty proposal, that amount becomes enforceable and cannot be increased. 29 U.S.C. § 659(a). See also Madden v. Hodgson, supra.
[*8]
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There are many other arguments against what the Commission is doing here. They have appeared in prior opinions and will not be repeated in this opinion. n5 In short, the raising of penalties is not within the authority of the Commission as a matter of law, and it is a poor policy as a matter of practice because of the "chilling effect" it has on employers who wish to exercise their right to contest alleged violations. n6
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n5 See, e.g., Secretary v. Painting Unlimited, Inc., 7 OSAHRC 257 (1974); Secretary v. California Stevedore and Ballast Co., 4 OSAHRC 642 (1973); Secretary v. Tacoma Boatbuilding Co., 4 OSAHRC 607 (1973); Secretary v. M.A. Swatek and Co., 2 OSAHRC 1276 (1973).
n6 A number of employers have stated that upon being cited, they sought out the person who signed the citation for information as to what the employer could or should do. They were told, in effect, that they could contest the matter but if they did there was a chance that the Commission would increase the penalty.
[*9]
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I note that the Commission again relies on REA Express, Inc., v. Brennan, 495 F.2d 822 (2d Cir. 1974), and Brennan v. OSAHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973), to justify the penalty increase ordered in this case. As I pointed out in Secretary v. Lipsky & Rosenthal, Inc., 8 OSAHRC 375 (1974):
In an attempt to jusitfy this action [raising the penalty], two decisions which did not consider the issue have been cited, the REA Express case, supra, and the Interstate Glass case, supra. In the latter case, there was no penalty increase -- the Commission decreased the Secretary's proposed penalty and our authority to do so was appealed by him. The former case did include a penalty increase but neither party raised the issue at the hearing on appeal.
Neither the statutory nor constitutional basis for so doing has ever been decided by an appellate court. . . .
Furthermore, the affirmance of the $100.00 penalty is contrary to the principle announced in one of our earliest cases n7 that the assessment of small penalties does little to effectuate the corrective purpose [*10] of the Act. That rule is applicable here. The slippery conditions on the scaffolding were created by medium frost, not ice, and each of the two spots was only about 18 inches long. The respondent provided sand for use in reducing the slippery conditions. Under these circumstances, I am unable to understand what motivation the Commission has for levying a $100.00 penalty.
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n7 Secretary v. General Meat Co., 1 OSAHRC 403 (1972).
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[The Judge's decision referred to herein follows]
WATKINS, JUDGE: The alleged violations on February 1, 1972 of construction standards adopted under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et. seq., against which Respondent Chicago Bridge & Iron Company defends in this case are set out in two Citations received in connection with its work in constructing the steel liner of the nuclear reactor containment vessel at the Trojan Nuclear Power project near Rainier, Oregon.
The first Citation has to do with personal protective equipment and alleges Respondent [*11] did not require two men to use safety belts and lifelines when they were perched precariously on penetration tubes and on a plank lying on these tubes, 29 feet and 19 feet respectively, from the ground outside the containment vessel. The Secretary seeks to show that if they fell there was not only danger of hitting the ground, but also of being impaled on rebar which was sticking up at 3 to 6 feet from concrete immediately outside the containment vessel.
Respondent contends it had no knowledge or notice of the workmen being in this position, that failure to tie off was in violation of orders, and that all workmen had received detailed instructions about the hazards of the very thing these men were doing.
In the second Citation are at issue five items, each an alleged violation not claimed to be serious. The first alleges a violation by Respondent in the failure of two employees to wear protective eye equipment when one was using a grinder and the other an acetylene cutting torch. The last four items have to do with Respondent's scaffolding, claims being made that it was without guardrails, midrails and toeboards: that it was placed and used above or below other scaffolding without [*12] protective screens; that there was frost on a portion of the scaffolding, insufficient means being taken to remove it; and finally that the scaffolding of Respondent was of the "carpenter bracket" type and the brackets were too far apart. The Secretary claims they were from 10 feet to 10 feet, 6 inches and should have been no more than 8 feet apart.
As to the first item, Respondent contends that if in fact the two men were grinding and burning without protective equipment, they were in violation of the rules of the company. With respect to the scaffolding, Chicago Bridge & Iron takes the position that their equipment was "boilermakers' staging," that it did in fact meet the requirements for this type of staging; and in any event was safe. As to the frost on the staging, Respondent states its duty to employees was fulfilled when it provided buckets of sand for the workmen to use to eliminate the slippery conditions. These buckets had been distributed for the use of all workmen on the staging, but the sand had not been applied to two frosty places about two hours and fifteen minutes after the start of the shift.
Although a number of matters set up in Respondent's answer [*13] and designated "affirmative defenses," they are considered as matters in defense, and not in "affirmative" defense. There has been no shifting of the burden of proof -- or of meeting the evidence. The burden of proving all controverted allegations remains on the Secretary throughout.
The case was tried in Portland, Oregon on August 30 and 31, and September 1, 1972. There was full compliance with all procedural requirements for notice to parties -- both named and unnamed. Mr. Larry Rafferty, Assistant Business Manager of the authorized employee representative, appeared in a representative capacity and participated in the hearing.
Set forth separately as an appendix to this decision -- and made a part of it -- are the specific provisions of the allegations of the Citations, the Proposed Penalties, the allegations of the Complaint having to do with each, and the standards alleged to have been violated.
Perhaps there should first be a discussion of the facts as they apply to the alleged serious violation, and a decision reached on it. This will necessarily include some facts applicable to other violations. Each of the others can then be discussed briefly with mention of additional [*14] facts necessary.
The Citations resulted from the first of a series of inspections by Compliance Officers Richard Jackson and Paul Thomas of the Occupational Safety and Health Administration, United States Department of Labor, at the Trojan Nuclear Power Plant project commencing on the morning of February 1, 1972. From those inspections a number of other cases have come before this Commission for review.
A written Complaint had been filed against Chicago Bridge & Iron by the Business Manager of the Union local which is the additional party and authorized employee representative. Jackson testified the complaint precipitated an inspection of the entire project and all the contractors working there. It also appears to be the reason why Respondent was inspected first that morning.
There was first a meeting of the two OSHA Compliance Officers with representatives of all contractors working on the site at the time (or at least as many as chose to attend -- all were invited). After the meeting Respondent's foreman and engineer remained behind and talked to Jackson and Thomas. They were shown the Complaint and shortly thereafter the inspection began.
At this point it might [*15] not be amiss to point out that there is no conflict about any material fact in the case. There are conflicts about immaterial matters. In the evidence there were a great many more statements in generalities than in the specifics of facts such as would make disposition of the case more orderly and expeditious.
For example, Jackson and Thomas testified they walked over to the Chicago Bridge worksite with Newell and Donahue (the foreman and engineer) and with Pat Sims, the safety manager for Bechtel Corporation. Along the way they picked up an employee representative.
Newell and Donahue testified they went back to their office alone, waited about fifteen minutes, and then joined the rest of the party at the worksite. The evidence is clear that they all got to the worksite at about the same time and the inspection commenced.
The containment vessel being built by Respondent looked like a short steel cylinder 124 feet in diameter, placed on its end. It was about 50 feet high at the time of the inspection. It later was to be capped or domed but the walls were vertical at that time. A large number of "penetration tubes" varying in diameter from about 10 inches to possibly 2 or 3 [*16] feet were in fact holes in the wall of the vessel, with the tube protruding a uniform distance outside.
In preparation for a concrete covering of the steel vessel to be 3 feet, 7 inches thick -- rebar was sticking out of concrete at the base of the vessel and just outside it, a distance of 3 feet, 5 & 1/2 inches. The penetration tubes which were to reach the outside of the concrete covering extended 3 feet, 7 inches from the wall of the vessel.
Respondent's work was building this metal vessel, hence its men were both inside and outside the circular walls. On February 1, the foreman estimated he had 25 boilermakers on the job, 5 welders, 2 welder supervisors and 5 assistant foremen, or "pushers." There were thus about 5 workmen (boilermakers) for each pusher. When the party arrived at the outside of the containment vessel, everybody saw the two workmen on the outer wall. One was about 19 feet from the ground and standing on a plank or planks laid across three or four of the penetration tubes (Secretary's Exhibit 3).
The other was about 29 feet up and was supporting himself on two of the penetration tubes (Secretary's Exhibit 2). They were Respondent's employees. [*17] Neither was "tied off" with his lifeline. There is no disagreement about the fact that in situations such as this, they should have been tied off or on a scaffold.
The evidence about work customs is that workmen normally go to a point where they are to work only if told to do so by a supervisor. If they are told to "set a staging" and then do the job, they probably would take this course -- a safe one. If they are not so instructed, they would be more likely to the take a chance, and if not corrected by a supervisor, place themselves in positions of danger such as are shown in the photographs.
Although there is some testimony in corroboration, the pictures are enough to show the men did not get where they were in a short period of time; it necessarily took them time to reach their precarious perches. Aside from the foreman, Newell, who had been at the meeting, Respondent had seven supervisory personnel at the scene at the time. Some were inside the containment vessel -- some outside. Five of them -- the pushers -- had authority to direct these two workmen. This is a small worksite. In the normal course of events while going about their regular duties, some supervisor would [*18] be able to see the workmen all the time.
The two welding supervisors were not allowed to give orders to be boilermakers, but they could have spoken to a pusher, who in turn could have spoken to the two men.
The facts are such that a finding of actual knowledge of the violation would probably be justified. It is sufficient however to find that by the exercise of any diligence at all, the facts could have been known to one of the supervisory personnel -- and to Respondent. Thus, one of the additional requirements for a serious violation is met.
The other is the question of hazard. The question is whether there was "a substantial probability that death or serious physical harm could result." The answer to this is equally obvious. Not only were the men in danger of falling to the ground and receiving serious injury; they were in danger of falling on the rebar and impaling themselves.
John B. Donahue, Respondent's engineer, had testified previously to the effect that one falling off a scaffold, which extends out some fraction of an inch farther than the rebar, could not fall on the rebar. He went farther and testified that one falling off the wall from the penetration [*19] tubes could not reach the rebar if he fell straight down. The fallacy of this testimony was demonstrated in cross examination of the witness by Larry Rafferty, representative of the union, on page 384 to 387 of the Transcript.
Q. (By Mr. Rafferty) I think I heard you make this statement, sir, that if a man fell off of a staging, that there would be no way for him to fall inboard, so he would land underneath the staging, is that right?
A. That's correct.
Q. Well, if a man falls -- I don't know, have you ever seen a man fall?
A. No, I haven't, no.
Q. When a man falls, wouldn't you think that his natural instinct would be to grab something -- grab whatever he could get ahold of?
A. Yes.
Q. If he would grab this plank, say, for instance, and held on just for a minute, would it have a tendency to throw him back in underneath it? His weight falling off, wouldn't it have a tendency -- (interrupted)
A. There's a possibility yes.
Q. I am sure that they didn't. You talk about staging being on top of one another -- directly on top of one another, and if anything fell from one plank to another -- one set of staging to the one below, then it wouldn't land -- it couldn't land [*20] down below. This staging -- say one set of staging is shoved further in and the one furthest out -- I mean, on these brackets, how much deviation do you think would be there -- the variation?
A. It's Company policy, in the erection of the staging, is that to place the boards as far away from the containment liner, right against the uprights. JUDGE WATKINS: Mr. Donahue, you did not answer the question. Would you answer Mr. Rafferty's question?
A. Okay. If the boards were against the container liner at one staging and if the boards are against the handrail in the other staging?
Q. Yes.
A. The answer would be yes, in that circumstance.
Q. It would be quite a -- I asked you how much -- (interrupted)
A. Oh, how far?
Q. Yes.
A. Approximately a foot.
Q. That's close enough, but then, in other words, if welder happened to lay his stinger down there or his say, slag hammer or wire brush, or something, it could fall off the staging and hit somebody below?
A. Yes.
Q. Or, if a come-along, for instance, fell off that staging above and hit the handrail and swung in on top -- maybe it would hang up on the handrail below -- that handrail sometimes sticks out -- [*21] leans outwards, you know -- if that fell off, I mean, wouldn't you think that it would be possible for a come-along to hit somebody?
A. There is a possibility.
Counsel for the Secretary in cross examining Donahue brought out the additional fact -- quite evident from the photographs (Secretary's Exhibits 2 and 3) -- that there is ample room between rows of penetration for one to fall straight down between them and onto the rebar.
Although the result might very well be the same if the language were different, this is not a case where a standard requires an employer to provide something and an employee to use it. The regulation says "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" (29 CFR 1926.28(a)). There is no express duty placed on the employee. In our view this does not mean the employee has no duty to use his protective equipment. He does. The language simply means that there is a greater duty on the part of the employer than in the situation where reciprocal [*22] duties are provided.
This was not only a serious violation -- the hazard was extreme, the gravity was great.
The five less serious violations will be discussed briefly in order.
1. Grinding and acetylene burning without eye protection. This item fails for want of proof. No one other than Jackson saw the men. He did not find out who they were, for whom they worked, why they were doing the particular job requiring grinding and acetylene burning, what instructions had been given them or anything else except the bare fact that they performed the tasks.
There is no question that employees had been given frequent instructions on the use of eye protective equipment in situations of this kind. There is also no question that Chicago Bridge & Iron provided a sufficient supply of adequate protective equipment of all kinds for its employees. They were exposed to literature and to signs which should have warned them of the dangers of the practice in which they were engaged.
This is an isolated instance with no evidence other than that the work was carried on contrary to the policy of the employer and against specific instructions. There is no evidence that anyone in authority [*23] could have seen the men and stopped them. We are unable to find a violation.
2. All the scaffolding requirements can be discussed at the same time. A clear preponderance of the evidence indicates that the scaffolding was defective so far as the standards are concerned. It lacked handrails, midrails, toeboards. It lacked screens. The five gallon pails provided by Chicago Bridge & Iron in which workmen were sometimes instructed to put their tools could not substitute for the express provisions of the standard. Respondent's engineer testified to the fact that the absence of toeboards and screens from staging above, would endanger men on the one below. The "smoke screen" thrown up about "carpenter bracket scaffolding" produced no substantial evidence that any other type was used on this job site. According to the standards, the brackets were placed inadequately. There was clearly a violation of all four standards as alleged.
In determining the penalty for the serious violation, the gravity of the offense -- the danger to the men involved -- overshadows all other considerations. With full consideration of all other factors prescribed by Section 17(j) of the Act, [*24] supra, we find that $850.00 would be a modest penalty for this serious violation.
As to penalties for the less serious violations, the proposal of a penalty of $0, as well as the Citation, for the burning and grinding without eye protection must be vacated.
The suggestion of $110 each for the first two scaffolding violations would seem to be within the range of our thinking.
With respect to the frost on the scaffolding, $35.00 seems inadequate and this is set at $100.00. This was a dangerous situation. Two hours and fifteen minutes after the work day began, there were still two dangerous frost spots on the scaffolding.
The scaffolding bracket violation does not warrant a monetary penalty. There is no evidence the violation weakened the scaffold in any way.
Based upon the entire record, the undersigned makes the following
FINDINGS OF FACT
I.
Respondent Chicago Bridge & Iron Company at all times mentioned was in the construction business in many states, including Oregon. There were frequent movements of its personnel and property between states. It purchased goods and materials outside Oregon for use in that state; and engaged in many business activities crossing state [*25] lines.
II.
On February 1, 1972, the Secretary caused an inspection to be made of a worksite and work place of Respondent at the Trojan Nuclear Power project near Rainier, Oregon. The workmen mentioned in these findings were all employees of Respondent. Those parts of the worksite or work place mentioned herein were under the dominion and control of Respondent, Chicago Bridge & Iron Company All property mentioned herein, other that the work place itself, was owned by respondent.
III.
On February 1, 1972 Respondent did not require the wearing and use of life belts and lifelines by at least two of its employees. These two workmen were on the outside of a vertical wall of the steel liner of a nuclear reactor containment vessel being built by Respondent. One was at a height of approximately 19 feet above the ground and above closely spaced vertical steel rebar embedded in concrete just below the surface of the ground, the rebar rising to heights of three to six feet above the ground. In such position there is a probability he would have struck it had he fallen. The workman 19 feet above the ground was on a plank or planks which were unsecured and resting on two or more [*26] penetration tubes extending outward from the wall of the vessel. The other workman was approximately 29 feet above ground kneeling on one penetration tube extending approximately 3 feet, 7 inches out from the wall. He was supporting himself on another such penetration tube. He was in the same relation to the ground and the rebar as the other workman except that he was higher. Neither workman was using his life belt or lifeline for personal protection at the time.
IV.
The exact length of time the two workmen had been exposed to the hazards described is not known but the evidence preponderates in favor of this finding they had been there long enough so that Respondent or one of its supervisory employees knew or by the exercise of due diligence could have known of their presence and the great hazards to which they were subjected. $850.00 is a reasonable penalty to be assessed for this as a serious violation.
V.
On the same date and at the same time, Citations were issued for certain other violations not alleged to be of a serious nature or character. Findings with respect to them are as follows.
1. The Secretary has failed to meet his burden of proving that Respondent failed [*27] in his obligation to require two of its workmen to wear appropriate personal protective equipment when they were respectively using a grinder and an acetylene cutting torch.
2. Respondent had scaffolding or staging on both the outside and inside walls of the containment vessel. It owned the staging. Many of the handrails and midrails were missing, both from the sides and ends of the staging. On most of the staging there were no toeboards. On none of it were there screens to prevent tools or other objects from falling. There were sections of staging so set that some workmen were working above others and some below others. At some points, this staging was approximately 48 feet above ground. All was more than 10 feet above ground. This scaffolding was known as "carpenter's bracket scaffolding" under the definition of the Secretary and as prescribed in his regulations. On two places, approximately two hours and fifteen minutes after the men started working on February 1, 1972, and at a height of approximately 35 feet above ground, there was sufficient frost on the scaffold planks to make them dangerous.
For Respondent's violation of the following standards the monetary [*28] amount set out by each is a reasonable civil penalty:
1. 29 CFR 1926.451(a)(4), regarding absence of handrails and midrails from the scaffolding: $110.00.
2. 29 CFR 1926.451(a)(6), regarding the absence of screening on the scaffolding: $110.00.
3. 29 CFR 1926.451(a)(17), regarding frost on scaffolding and slippery scaffolding: $100.00.
4. 29 CFR 1926.451(n)(3), regarding spacing of brackets greater than 8 feet on carpenter bracket scaffolding, no monetary penalty.
Based upon the foregoing and upon all the facts admitted, stipulated or proved by substantial credible uncontroverted evidence, the undersigned makes the following
CONCLUSIONS OF LAW
I.
On February 1, 1972 Respondent was an employer engaged in a business affecting commerce as contemplated by Section 3(5) of the Act. The Commission has jurisdiction of the parties and the subject matter of this action.
II.
Respondent was in violation of 29 CFR 1926.28(a) by not requiring two of its workmen to wear and use safety belts and lifelines under facts herein before stated. By the exercise of due diligence, Respondent could have known of their activities, the hazard to which they were subjected and of the [*29] violation of the standard in question. Because of the gravity of the violation, $850.00 is a proper penalty to be assessed against Respondent and an order should be entered finding the violation and assessing the penalty.
III.
Respondent was in violation of the following items of the Citation issued to it February 17, 1972, the violations having occurred on February 1, 1972 and the penalty stated with respect to each should be assessed for these violations, which are considered not to be of a serious nature.
Item 8: 29 CFR 1926.451(a)(4). Absence of midrailings, handrailings and toeboards on Respondent's scaffolding. A penalty of $110.00 should be assessed.
Item 9: 29 CFR 1926.451(a)(6). Scaffolding above and below other scaffolding with workmen on both; absence of a screen between the toeboards and the guardrails. A penalty of $110.00 should be assessed.
Item 10: 29 CFR 1926.451(a)(17). Frost on the scaffolding making it slippery and dangerous. A penalty of $100.00 should be assessed.
Item 11: 29 CFR 1926.451(m)(3). Erecting and using carpenter's bracket scaffolding with brackets spaced more than 8 feet apart. No monetary penalty should be assessed for this violation. [*30]
IV.
Respondent was not in violation of 29 CFR 1926.28(a) as alleged in Item 2 of the Citation last named for allowing two of its workmen to use grinding equipment and an acetylence cutting torch without adequate eye protective equipment. This item of the Citation and Proposed Penalty should be vacated.
ORDER
Based upon the foregoing, it is hereby ORDERED
I.
Respondent be and is hereby held in violation as alleged in Citation No. 1 for Serious Violation of 29 CFR 1926.28(a) in not requiring two of its workmen to wear and use safety belts and lifelines while working at a dangerous level and in a dangerous position outside the steel liner of the nuclear reactor containment vessel. Civil penalty for this violation is $850.00. Citation affirmed and Proposed Penalty modified to the amount stated.
II.
Respondent be and is hereby held in violation of the following items and offenses alleged in the Citation No. 3 dated February 17, 1972 in further violation of the standards stated with respect to each item and the penalty assessed as stated.
Item 8: 29 CFR 1926.451(a)(4). Absence of midrails, handrails and toeboards on scaffolding. Penalty -- $110.00. The Citation [*31] and Proposed Penalty are affirmed.
Item 9: 29 CFR 1926.451(a)(6). Absence of scree on scaffolding with scaffolding located and men working above and below others. Penalty -- $110.00. The Citation and Proposed Penalty are affirmed.
Item 10:29 CFR 1926.451(a)(17). Frosting and slippery places on scaffolding. Penalty -- $100.00. The Citation is affirmed and Proposed Penalty modified to the amount stated.
Item 11: 29 CFR 1926.451(m)(3). Erection and use of carpenter's bracket scaffolding with brackets spaced more than 8 feet. No monetary penalty. The Citation and Proposed Penalty are affirmed.
III.
Respondent was not in violation of 29 CFR 1926.28(a) as alleged in Item 2 of the Citation for not requiring its workmen to use personal protective equipment while grinding and using an acetylene cutting torch. Item 2 of the Citation and the Proposed Penalty in the amount of $0 are vacated and the allegations of the Complaint of the Secretary based thereon are dismissed.
APPENDIX
CHICAGO BRIDGE & IRON COMPANY, DOCKET NO. 609
CITATIONS -- PROPOSED PENALTIES -- ALLEGATIONS OF COMPLAINT -- REGULATIONS, STANDARDS
In this case there are two Citations for Serious Violations [*32] and a third Citation containing 14 items of alleged violations not considered serious.
Contested and at issue here are only the first Citation for Serious Violation and Items 2, 8, 9, 10 and 11 of the third Citation.
The serious violation is alleged to have occurred February 1, 1972; the non-serious items February 1, 2 and 3, 1972. Although there is evidence of a continued violation of some of the items on February 2 and 3, these dates are surplusage. The correct date for all is February 1, 1972.
For each alleged violation there is the language of the Citation, the Proposed Penalty, the basic allegation of the Complaint, the language of the standard alleged to have been violated and any other standard necessary or helpful to consider.
CITATION FOR SERIOUS VIOLATION
Citation Number: 1 -- Date Issued: February 17, 1972 -- EMPLOYER: Chicago Bridge & Iron Company, (Street) 41777 Boyce Road, P.O. Box 668 -- ADDRESS: (City) Fremont; (State) California; (Zip) 97537
An inspection of a workplace under your ownership, operation, or control located at Trojan Nuclear Power Plant construction sight and described as follows: Construction Sight has been conducted. On the basis of the [*33] inspection it is alleged that you have violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, in the following respects:
29 CFR Part 1926 (formerly part 1518 as adopted)
Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected
29 CFR Part 1910.12 -- February 1, 1972 -- Two employees were observed not using appropriate personal protective equipment (life lines). One workman was kneeling on a penetration tube approximately 28' above ground level. The other workman was standing on two unsecured planks approximately 19' above ground level. Below both workmen on the ground level were exposed rebar sticking up from 1' to 6'. -- Immediately
PROPOSED PENALTY: $750.00
COMPLAINT:
IV.
On February 1, 1972, at the aforesaid worksite and place of employment, the respondent violated the construction work regulations (specifically 29 CFR 1926.28(a)) in the following respect:
Two employees were observed not using appropriate personal protective equipment (life lines). One workman was kneeling on a penetration tube approximately 28 feet above ground level. The other workman was standing [*34] on two unsecured planks approximately 19 feet above ground level. Below both workmen on the ground level there was exposed rebar sticking up from one foot to six feet.
VII.
The violation alleged in Citation Number 1, and charged in paragraph IV above, was a serious violation within the meaning of section 17(k) of the Act, in that there was a substantial probability that death or serious physical harm could result from the condition alleged to exist, or the practices, means, methods, operations or processes which are alleged to have been adopted or in use at the aforesaid worksite, and the respondent knew, or could with the exercise of reasonable diligence have known, of the presence of the violation.
STANDARD: 29 CFR 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.
29 CFR 1926.104 -- Safety Belts, Lifelines, and Lanyards
(a) Lifelines, safety belts, and lanyards shall be used only for employee safeguarding.
(b) Lifelines shall be secured above [*35] the point of operation to an anchorage or structural member capable of supporting a minimum dead weight of 5,400 pounds.
CITATION
Citation Number: 3 Page 1 of 5 pages -- Date Issued: February 17, 1972 -- EMPLOYER: Chicago Bridge & Iron Company; (Street) 41777 Boyce Road, P.O. Box 668 -- ADDRESS -- (City) Fremont; (State) California; (Zip) 94537
An inspection of a work place under your ownership, operation, or control located at Trojan Nuclear Power Plant and described as follows: Construction Site has been conducted. On the basis of the inspection it is alleged that you have violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, in the following respects:
29 CFR Part 1926 (formerly 1518 as adopted)
Item Number -- Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected
2 -- 29 CFR Part 1910.12, 1926.28(a) -- February 1, 2, & 3, 1972 -- In the area east of the reactor containment vessel two men were observed not using personal protective equipment, one workman was burning without eye protection and the other workman was grinding without adequate eye protection contrary to [*36] 29 CFR 1926.28(a); Immediately
PROPOSED PENALTY: $0
COMPLAINT:
V.
On February 1, 2, and 3, 1972, at the aforesaid worksite and place of employment, the respondent further violated the safety and health regulations in the following respects:
1. In the area east of the reactor containment vessel, two men were observed not using personal protective equipment, one workman was burning without eye protection and the other workman was grinding without adequate eye protection, contrary to 29 CFR 1926.28(a);
STANDARD: 29 CFR 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.
Subpart E. 1926.102 Eye and face protection.
(a) General. (1) Employees shall be provided with eye and face protection equipment when machines or operations present potential eye or face injury from physical, chemical, or radiation agents.
(2) Eye and face protection equipment required by this Part shall meet the requirements specified in American National Standards Institute, [*37] Z87.1-1968, Practice for Occupational and Educational Eye and Face Protection.
(3) Employees whose vision requires the use of corrective lenses in spectacles, when required by this regulation to wear eye protection, shall be protected by goggles or spectacles of one of the following types:
(i) Spectacles whose protective lenses provide optical correction;
(ii) Goggles that can be worn over corrective spectacles without disturbing the adjustment of the spectacles;
(iii) Goggles that incorporate corrective lenses mounted behind the protective lenses.
(4) Face and eye protection equipment shall be kept clean and in good repair. The use of this type equipment with structural or optical defects shall be prohibited.
(5) Table E-1 shall be used as a guide in the selection of face and eye protection for the hazards and operations noted.
Item Number -- Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected
8 -- 1926.451(a)(4) -- On the outside and inside of the reactor containment vessel many of the hand railings on the scaffolding are loose. None of the scaffolding is equipped with toe board [*38] some of the scaffolding does not have handrails and midrails on the open ends and it is approximately 48' drop to ground level. -- Feb. 21, 1972
PROPOSED PENALTY: $110.00
COMPLAINT:
V.
2. On the outside and inside of the reactor containment vessel many of the handrailings on the scaffolding were loose; none of the scaffolding is equipped with toe boards; some of the scaffolding does not have handrails and midrails on the open ends, it being approximately a 48 foot drop to ground level, contrary to 29 CFR 1926.451(a)(4);
STANDARD: 29 CFR 1926.451(a)(4):
Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 6 feet above the ground or floor, except needle beam scaffolds and floats. Scaffolds 4 feet to 6 feet in height, having a minimum horizontal dimension in either direction of less than 45 inches, shall have standard guardrails installed on all open sides and ends of the platform.
Item Number -- Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected
9 -- 1926.451(a)(6) -- On the outside and inside of the reactor containment vessel workmen are working on scaffolding [*39] above other workmen. It was observed on 2/1 & 2/72, four men above one man, three men above five men and three men above four men and none of the scaffolding is provided with a screen between the toe boards and the guard rails. -- Feb. 21, 1972
PROPOSED PENALTY: $110.00
COMPLAINT:
V.
3. On the outside and inside of the reactor containment vessel workmen were working on scaffolding above other workmen (four men above one man, three men above five men, and three men above four men), and none of the scaffolding was provided with a screen between the toe boards and the guardrails, contrary to 29 CFR 1926.451(a)(6);
STANDARD: 29 CFR 1926.451(a)(6):
Where persons are required to work or pass under the scaffold, scaffolds shall be provided with a screen between the toeboard and the guardrail, extending along the entire opening, consisting of No. 18 gauge U.S. Standard wire 1/2-inch mesh, or the equivalent.
Item Number -- Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected
10 -- 1926.451(a)(17) -- On the inside of the reactor containment vessel the scaffold planks at the 35' level had frost [*40] on them and the workman had been on the job for two hours. -- Immediately
PROPOSED PENALTY: $35.00
COMPLAINT:
V.
4. On the inside of the reactor containment vessel, the scaffold planks at the 35 foot level had frost on them, thereby constituting a slippery condition, and the workman had been on the job for two hours, contrary to 29 CFR 1926.451(a)(17);
STANDARD: 29 CFR 1926.451(a)(17):
Slippery conditions on scaffolds shall be eliminated as soon as possible after they occur.
Item Number -- Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected
11 -- 1926.451(m)(3) -- The brackets on the carpenter's bracket scaffolding are spaced from 10' to 10'6" apart. -- Mar. 7, 1972
PROPOSED PENALTY: $0
COMPLAINT:
V.
5. The brackets on the carpenters' bracket scaffolding were spaced from 10' to 10'6" apart, contrary to 29 CFR 1926.451(m)(3).
STANDARD: 29 CFR 1926.451(m)(3):
The brackets shall be spaced no more than 8 feet apart.
29 CFR 1926.452 Definitions applicable to this subpart.
(a)(5) Carpenters' bracket scaffold" -- A scaffold consisting of wood or metal brackets supporting a platform.