BUNKOFF CONSTRUCTION CO., INC.  

OSHRC Docket No. 76-2760

Occupational Safety and Health Review Commission

November 26, 1980

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Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, USDOL

James G. Bradt, Safety Director, Eastern New York Construction Employers, Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   A decision of Administrative Law Judge Robert P. Weil is before the Commission for review under section 12(j) of the Act, 29 U.S.C. §   661(i).   Judge Weil concluded that Respondent, Bunkoff Construction Co., inc., committed an other than serious violation of the Act by not complying with the standard at 29 C.F.R. §   1926.28(a) n1 in that Respondent did not require its employee to wear appropriate foot protection, i.e., metal foot shields, while operating a jackhammer. Contrary to the Secretary's allegation, however, the judge held that the violation was not repeated. Commissioner Barnako directed review of the judge's decision on the issues raised in the petition for discretionary review filed by Respondent.   Former Commissioner Moran directed review of this case "for error." Both parties   [*2]   submitted briefs on review. n2

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n1 This construction industry standard provides:

Subpart C - General Safety and Health Provisions

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§   1926.28 Personal protective equipment.

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

n2 The Secretary does not challenge Judge Weil's conclusion that the violation was not repeated. Finding no compelling public interest that would warrant Commission consideration, we will not review the portion of the judge's decision pertaining to that issue.   See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976).   Such an unreviewed disposition is not precedent binding on the Commission.   See Leone Contr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976), appeal withdrawn, No. 76-4070 (2d Cir. May 17, 1976).

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The Commission vacates the citation.   A Commission majority of Chairman Cleary and Commissioner Barnako concludes that Judge Weil's decision must be reversed.   However, because Chairman Cleary and Commissioner Barnako interpret section 1926.28(a) differently, their reasons for vacating the citation differ.

I

On June 8, 1976, David Sellars, a compliance officer from the Occupational Safety and Health Administration ("OSHA"), inspected Respondent's worksite at the LaSalle School in Albany, New York, where Respondent was renovating a four story masonry classroom building in preparation for its conversion into a dormitory.   Sellars observed one of Respondent's laborers operating a jackhammer to break up concrete on the second floor of the building.   Sellars noted that the jackhammer operator wore ordinary work shoes without protective shields.

As a result of that inspection, the Secretary issued a citation to Respondent alleging that it committed a repeated violation of the Act by failing to comply with the general industry standard at section 1910.132(a) n3 in that:

On the second floor, the employer [*4]   did not insure the use of foot protection for an employe operating a Jack Hammer [sic].   This situation exposed the employee to the hazards of foot injury.

Ther Secretary proposed a penalty of $110 and ordered immediate abatement.   Respondent timely contested this citation.   In its answer, Respondent generally denied having committed the alleged violation.

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n3 The standard reads as follows:

Subpart I - Personal Protective Equipment

§   1910.132 General requirements.

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

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At the outset of the hearing, the judge offered the view that the Secretary should have proceeded under section 1926.28(a), a construction standard more specifically applicable to Respondent's activity.   In response, the Secretary moved to amend the citation to add a reference to section 1926.28(a).   Despite Respondent's objection to the amendment, Judge Weil granted the motion. n4

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n4 In his decision, Judge Weil explained that § §   1910.5(c), 1910.12(a), and 1910.12(b) indicate that employees engaged in construction work, including alteration, should be regulated by the construction standards in Part 1926 even though, as Compliance Officer Sellars pointed out at the hearing, the general industry standard at §   1910.132(a) specifically mentions that extremities must be protected.   The judge held that §   1926.28(a) was the applicable standard and that Respondent had failed to comply with it.   However, Judge Weil alternatively concluded that Respondent failed to comply with §   1910.132(a).

At no time subsequent to the hearing did Respondent specifically object to the amendment.   Rather, in its post-hearing brief Respondent argued that the Secretary failed to meet his burden of proving noncompliance with either §   1910.132(a) or §   1926.28(a).   Respondent does not challenge the amendment on review.   However, presumably in response to the judge's alternative holding, Respondent's contentions on review address both §   1926.28(a) and §   1910.132(a).

Judge Weil properly concluded that §   1926.28(a) is the applicable standard.   Therefore, we will not consider any arguments that concern §   1910.132(a).   Commissioner Barnako observes that it would be inappropriate to alternatively consider this case under §   1910.132(a).   In his view, Respondent is engaged in construction and therefore §   1926.28(a) occupies the field for the purpose of determining what, if any, personal protective equipment must be worn by its employees.

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II

A jackhammer is a T-shaped device with a steel bit affixed at the bottom.   The device is portable and weighs about 80 pounds.   A jackhammer operates pneumatically at air pressures between 80 and 120 pounds per square inch concentrated in the steel bit that pierces a hard surface by a series of quick strokes.   The top of the T consists of two handles which the operator grips in order to hold the device and guide that bit. One of the handles rotates to control the air pressure.

Compliance Officer Sellars testified that the jackhammer used by Respondent's employee appeared to be operating normally.   However, he further testified that jackhammers bounce and thus pose a hazard to an operator's feet. He said that, in the absence of appropriate foot protection, the steel bit of the jackhammer could penetrate an operator's toes and instep and possibly break some bones.   Sellars stated that a formed metal shield that is shaped like the upper part of the shoe and worn over the shoe on each foot is an appropriate mode of foot protection.   He said that the metal shield covers the foot from the ground, over [*7]   the toes and instep, and up to the base of the ankle. n5 Over the course of his experience in safety which began in 1957, Sellars testified, he has acquired personal knowledge of four to six accidents that have occurred due to inadequate protection of the feet of jackhammer and tamper n6 operators.

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n5 Sellars further stated that even if the employee had been wearing safety shoes, which protect only the toes, Respondent still would not have been in compliance with the cited standard because the instep would have remained unprotected.   He testified that he explained this inadequacy of safety shoes to Respondent's superintendent.

n6 A tamper is a device much like a jackhammer if figuration except that at the bottom it has a square plate instead of a pointed bit.

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Sellars' testimony regarding the prevalence of metal foot shield use was equivocal.   He stated that he had seen foot shields used by utility companies as well as contractors engaged in bridge and road construction.   As examples, Sellars referred to Niagara Mohawk,   [*8]   a New York utility; Bell Tepephone and Public Service Electric and Gas, New Jersey utilities; and Horace Bohl, a contractor in Albany County, New York.   He testified that foot shields are widely in use and based that statement on observations made during his tenure as a safety officer for the New Jersey Department of Labor and later as a compliance officer for OSHA.   On cross-examination, however, Sellars was asked if he knew whether the use of the personal protective equipment that he deemed appropriate, i.e., foot shields, was customary in the construction industry.   Sellars responded, "Let me put it this way, I have seen it used." Moreover, Sellars revealed that, on many occasions at worksites in both New York and New Jersey, he observed jackhammer operators wo wore no foot protection.   In response to questions posed by Judge Weil, Sellars acknowledged that citations are consistently issued to contractors for failure to provide foot shields.

Christopher Bunkoff, Respondent's president, stated that he had been associated personally with Respondent since its incorporation in 1946.   He stated that at the time of the hearing he was chairman of the safety committee of Eastern New [*9]   York Construction Employers, Inc. as well as a member of the safety committee of the Associated General Contractors of America.

Bunkoff testified that he had operated a jackhammer many times and that a jackhammer does not "jump around on concrete" if handled in the proper manner.   He explained, as well as demonstrated, that the correct operation of a jackhammer involves a number of procedures.   According to Bunkoff, the upper portion of the jackhammer should be tilted toward the operator's body with the barrel of the device resting against the inside of the thigh (usually of the right leg).   To start the jackhammer, Bunkoff said, the operator should hold the handles of the device near the waist and turn the air pressure control with one hand.   The device should be started slowly (so that it does not jump) with the bit pointing away from the operator.   The jackhammer, according to Bunkoff, should be operated with the bit approximately 12 inches from the operator's foot. Bunkoff additionally indicated that, once the initial break in the concrete has been made, the bit should not be lifted, and the device should be moved by dragging it along the ground.

Bunkoff also demonstrated how,   [*10]   if the jackhammer is held improperly straight up and down and extended away from the body, the device will bounce and could come onto the operator's feet. He testified that he had seen jackhammers that were used improperly "bounce" off the ground.   He said that the operator would have reason to lift the jackhammer only to get it in and out of storage.   Bunkoff admitted that a jackhammer is heavy enough to break an operator's foot if dropped accidentally.

Bunkoff testified that the employee allegedly exposed to a foot hazard was a general laborer for whom jackhammer operation was but one of many duties.   Bunkoff stated that Respondent conducted a training program for general laborers in which they were taught how to run jackhammers. Further, he stated that Respondent's safety program was both written and oral and included weekly meetings with its superintendents as well as seminars.   He noted that in the past 30 years Respondent's employees have not suffered a single jackhammer-related foot injury.   In his opinion, a pair of good work shoes would adequately protect a jackhammer operator's feet if the jackhammer is used properly.   Bunkoff testified that he has never read, heard,   [*11]   or seen pictures of the foot shields deemed necessary by Sellars.   Respondent then introduced into evidence Exhibit R-1, a safety poster issued by the Eastern New York Construction Employers, Inc., which states with regard to specific foot protection only that shoes shall be first grade, hard soled, and ankle high.   The poster does not mention foot shields or jackhammer operations.   Instead, it says that personal protective equipment shall be provided and used by employees where possible hazards exist. n7

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n7 After Respondent's president had finished testifying, Sellars once again took the stand.   At that time the Secretary offered into evidence Exhibits C-2 through C-5, which consist of a section of the National Safety Council's industrial accident prevention manual and advertisements by three companies manufacturing protective footwear.   The Secretary's counsel stated that the purposes of these exhibits were to describe clearly the required foot shields as well as to show their availability.   Although Respondent's representative repeatedly stated that Respondent did not dispute the availability of the foot shields, Judge Weil admitted the exhibits as evidence going to the availability of the designated foot protection.

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III

In his decision, Judge Weil stated that section 1926.28(a) "requires the use of foot protection if . . . [the Secretary] proves industry practice to that effect, or that a reasonably prudent employer would so understand the standard." Judge Weil concluded that a prudent employer would read the cited standard to require the foot protection suggested by the compliance officer.   The judge rejected Bunkoff's defense that a properly operated jackhammer presents no hazard. The judge observed that, even assuming an operator was suitably trained and supervised, circumstances could arise that would make it impossible for the employee to correctly and safety operate the jackhammer. He further noted that, if the operator momentarily was unable to maintain exact coordination between his hands and eyes as well as physical control of "this heavy, violently shaking, bulky device," or if the bit, located about 12 inches from his foot, were suddenly to hit some material of a different texture, the operator could lose control of the jackhammer and suffer considerable injury.   He assessed the proposed penalty of [*13]   $110. n8

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n8 In his decision, the judge asserted that Respondent consented to the penalty.   Respondent stated in a post-hearing letter to the judge that, if a violation is found, "the proposed penalty of $110.00 is equitable." On review, Respondent does not take issue with the penalty assessed by the judge.

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IV

On review Respondent poses the same arguments set forth in its post-hearing brief. n9 In addition, Respondent submits a number of challenges to certain findings by Judge Weil.   The Secretary generally argues on review that he proved Respondent's failure to comply with section 1926.28(a) by a preponderance of the evidence and that judge's decision therefore should be affirmed.

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n9 In its post-hearing brief Respondent presented the following four arguments:

1.   The Secretary did not meet his burden of proving that using a jackhammer is hazardous to the operator's feet.

2.   A reasonably prudent employer would not interpret section 1926.28(a) as requiring employees to wear formed metal foot shields while operating jackhammers.

3.   the citation lacked particularity.

4.   Section 1926.28(a) is impermissibly vague.

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The issues for our consideration are: (A) whether the citation lacked particularity, (B) whether section 1926.28(a) is impermissibly vague, and (C) whether Respondent failed to comply with section 1926.28(a).

A.   Particularity of the Citation

In Meadows Industries, Inc., 79 OSAHRC 74/E2, 7 BNA OSHC 1709, 1979 CCH OSHD P23,847 (No. 76-1463, 1979), a divided Commission stated that section 9(a) of the Act n10 does not demand minute detail in a citation; instead, it requires only that the employer be given fair notice of the nature and general location of the violation.   Only where the employer has shown that it was prejudiced in its ability to determine whether to contest or in its ability to defend on the merits will the extreme sanction of vacating the citation be imposed.   Gold Kist, Inc., 79 OSAHRC 93/C8, 7 BNA OSHC 1855, 1979 CCH OSHD P23,998 (No. 76-2049, 1979).   In the instant case, we conclude that the language in the citation gave Respondent fair notice of the nature (jackhammer operator's exposure to foot injury) and location (second floor of four-story masonry building at LaSalle [*15]   School being renovated) of the violation.   Morevoer, Respondent has not demonstrated that it was prejudiced in its contest or its defense against the alleged violation.   We therefore reject Respondent's defense that the citation lacked particularity.

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n10 29 U.S.C. §   658(a).   The section provides in pertinent part:

Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated.

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As a claim related to its lack of particularity contention, Respondent states that prior to the hearing it thought steel-tipped shoes, not formed metal foot shields, were the proper means of abating the violation.   However, Respondent did not request any pretrial clarification of the issue nor did it object or move for a continuance when Compliance Officer Sellars testified at the hearing that metal foot shields were the proper protective equipment.   Although the Secretary must identify   [*16]   the appropriate form of personal protective equipment in establishing his case under section 1926.28(a), the disclosure of that information prior to the hearing has not been mandated by the Commission.   See S & H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), appeal docketed, No. 79-2358 (5th Cir. June 7, 1979) ("S & H Riggers"). n11

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n11 Commissioner Barnako's separate views on particularity are set forth in his concurring opinion in Wheeling-Pittsburgh Steel Corp., 79 OSAHRC 66/A2 at B9-B11, 7 BNA OSHC 1581 at 1587-1588, 1979 CCH OSHD P23,784 at pp. 28,857-28,858 (No. 14702, 1979).   However, he would not consider Respondent's arguments that the citation lacked particularity in this case because he concludes that section 1926.28(a) does not cover the cited condition.

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B.   Vagueness of the Standard

The Commission has consistently held section 1926.28(a) to be valid and enforceable.   S & H Riggers, supra, and cases cited therein.   [*17]   In S & H Riggers, the Commission concluded that the standard provides adequate notice of its requirements and is therefore not unenforceably vague.   Accordingly, in the instant case, we reject Respondent's contention that section 1926.28(a) is impermissibly vague.

C.   Noncompliance with Section 1926.28(a)

The Commission has held that, in order to prove a failure to comply with section 1926.28(a), the Secretary must establish employee exposure to a hazardous condition requiring the use of personal protective equipment and identify the appropriate kind of personal protective equipment that would eliminate the hazard. S & H Riggers, 79 OSAHRC at 23/B7, 7 BNA OSHC at 1266, 1979 CCH OSHD at pp. 28,438-28,439. The critical question in determining if there is a hazardous condition within the meaning of section 1926.28(a) is whether a reasonable person familiar with the factual circumstances of the allegedly hazardous condition, including any facts unique to a specific industry, would recognize a hazard requiring the use of personal protective equipment.   S & H Riggers, 79 OSAHRC at 23/A12, 7 BNA OSHC at 1263, 1979 CCH OSHD at p. 28,436. Industry custom and practice   [*18]   are helpful points of reference, but they are not controlling.   Voegele Co., 79 OSAHRC 76/A2, 7 BNA OSHC 1713, 1979 CCH OSHD P23,860 (No. 76-2199, 1979), aff'd, No. 79-2439 (3d Cir. June 26, 1980).

Chairman Cleary concludes that, based on this record, the Secretary has failed to establish by a preponderance of the evidence that a reasonable person familiar with the circumstances of the alleged hazard as well as the circumstances unique to Respondent's industry would recognize a hazard to jackhammer operators requiring the use of the metal foot shields specified by the compliance officer.   Chairman Cleary observes that, although Compliance Officer Sellars testified that he had seen metal foot shields used by various bridge and road construction contractors as well as by several utility companies, Sellars never stated that those foot shields were worn by jackhammer operators.   The Chairman considers Sellars' overly general statements with regard to foot shield use as going more to establish the availability of the foot shields than to prove that the alleged hazard to jackhammer operators would be recognized by the reasonable person described above.   Moreover, Chairman Cleary [*19]   notes Sellars' admission that he often observed jackhammer operators at worksites in both New York and New Jersey working without foot shields. n12 Because the Secretary did not meet his burden of proof regarding noncompliance with section 1926.28(a), Chairman Cleary concludes that the citation should be vacated.

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n12 Chairman Cleary also ascribes little weight to Sellars' testimony that four or six accidents involving jackhammer and tamper operators had occurred since 1957 as a result of insufficient foot protection.   The Chairman observes that there is nothing in the record to indicate how many of the accidents involved jackhammer operators, the severity of the injuries, or what, if any, foot protection the accident victims were wearing.

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As discussed in his concurring opinion in S & H Riggers, n13 Commissioner Barnako interprets section 1926.28(a) to require the use of appropriate personal protective equipment where there is exposure to hazardous conditions and where Part 1926 of the Code of Federal Regulations [*20]   indicates the need for using such equipment to reduce the hazards to employees.   Because he considers proof of both elements necessary to establish noncompliance with section 1926.28(a), he would find no violation if either element of proof is missing.   With regard to the second element, the Secretary made no reference in presenting his case to another standard in Part 1926 that indicates the need for metal foot shields. Furthermore, Commissioner Barnako observes that there is no standard in Part 1926 that refers to foot protection.   He therefore concludes that the Secretary has failed to prove noncompliance with section 1926.28(a) and that the citation should be vacated.

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n13 In S & H Riggers, 79 OSAHRC at 23/C2-C8, 7 BNA OSHC at 1269-1271, 1979 CCH OSHD at pp. 28,441-28,443, Commissioner Barnako concluded that the Secretary has the burden of proving the feasibility and likely utility of the identified personal protection equipment, a burden that had been assigned to the Secretary by the Commission in Frank Briscoe Co., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976-77 CCH OSHD P21,162 (No. 7792, 1976), but need not be considered in this case.

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V

Accordingly, we reverse Judge Weil's decision and vacate the citation alleging noncompliance with section 1926.28(a).

IT IS SO ORDERED.  

DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

Although I join in Parts IV A and IV B of the lead opinion, I dissent from the majority disposition on the merits.   The judge's conclusion with respect to the merits of the §   1926.28(a) charge is supported by the preponderance of the evidence and should be affirmed.

The compliance officer testified regarding the foot hazard presented by the use of jackhammers and the appropriate personal protective equipment to protect against the hazard. Contrary to the observations of Chairman Cleary, the compliance officer did testify that he observed the use of foot protection by jackhammer operators employed by utility and telephone companies and by one specifically named contractor in the Albany area.

Mr. Bunkoff, the Respondent's president, testified that, if used improperly, a jackhammer could bounce and strike the feet of an operator.   Mr. Bunkoff also acknowledged that jackhammer use could be hazardous to an inexperienced operator.   [*22]   Taken as a whole, Bunkoff's testimony reveals an awareness of the hazard of foot injury to jackhammer operators.   However, Bunkoff's testimony also indicates his reliance on work practices to prevent this injury to the operators.

The Commission has consistently rejected reliance on the skill and experience of employees as a substitute for affirmative safety measures.   Cornell & Company, Inc., 77 OSAHRC 164/F5, 5 BNA OSHC 1736, 1977-78 CCH OSHD P22,095 (No. 8721, 1977); Taylor Building Associates, 77 OSAHRC 27/A10, 5 BNA OSHC 1083, 1977-78 CCH OSHD 21,592 (No. 3735, 1977); Akron Brick and Block Co., 76 OSAHRC 2/E2, 3 BNA OSHC 1876, 1975-76 CCH OSHD P20,302 (No. 4859, 1976).   Furthermore, in S & H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979); appeal docketed, No. 79-2358 (5th Cir. June 7, 1979), the Commission stated:

The failure of industry to deal adequately with abatable hazards does not excuse an employer's failure to exercise that degree of care which the law requires.   Compliance may require methods of employee protection of a higher standard than industry practice.   Continental Oil Company, [*23]   78 OSAHRC 63/E1, 6 BNA OSHC 1814, 1978 CCH OSHD P22,902 (No. 1829, 1978), remanded without opinion, No. 75-1961 (6th Cir. Oct. 17, 1977); B & B Insulation, Inc., supra (concurring opinion); Southern Railway Co., 75 OSAHRC 88/C2, 3 BNA OSHC 1657, 1975-76 CCH OSHD P20,091 (No. 5960, 1975), appeal withdrawn, No. 75-2493 (6th Cir. June 4, 1976)

7 BNA OSHC at 1263, 1979 CCH OSHD P25,480 at p. 28,436. Accord, General Dynamics Corp., Quincy Shipbuilding Div. v. OSAHRC, 599 F.2d 453 (1st Cir. 1979). In this case, the Respondent's failure to protect against the hazard to which its employees were exposed cannot be justified on the basis of the skill and experience of its employees.   Moreover, the absence of protection cannot be excused because of an apparent pattern of noncompliance in the Respondent's general geographic area.

The record establishes employee exposure to hazardous condition requiring the use of personal protective equipment.   [*24]   The appropriate form of personal protective equipment to eliminate the hazard has been identified.   Accordingly, the citation should be affirmed.