THE BOAM COMPANY

OSHRC Docket No. 77-3358

Occupational Safety and Health Review Commission

October 31, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Reg. Sol., USDOL

Thomas J. Brady, Boam Company, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge J. Paul Brenton is before the Commission for review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   In that decision, the judge vacated item 2 of citation 2.   That item alleged that Respondent, the Boam Company, failed to comply with the standard at 29 C.F.R. §   1926.251(b)(1) n2 in that it failed to affix proper identification to a job-made sling which broke while it was being used to hoist pipe. In reaching his conclusion, the judge found that the general industry definition of a sling set out at 29 C.F.R. §   1910.184(b) n3 applies to construction standards, such as 29 C.F.R. §   1926.251(b)(1).   He concluded, however, that the requirements of 29 C.F.R. §   1926.251(b)(1) applied only to slings that were manufactured by commercial manufacturers, not to slings fashioned from available equipment by an employer.   For this reason, he vacated the item.

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n1 29 U.S.C. §   661(i).

n2 §   1926.251 Rigging equipment for material handling.

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(b) Alloy steel chains. (1) Welded alloy steel chain slings shall have permanently affixed durable identification stating size, grade, rated capacity, and sling manufacturer.

n3 §   1910.184 Slings.

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(b) Definitions.

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"Sling" is an assembly which connects the load to the material handling equipment.

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The Secretary of Labor ("Secretary") petitioned for review of the judge's decision, arguing that the judge erred in vacating the citation alleging noncompliance with 29 C.F.R. §   1926.251(b)(1).   He contends in his petition that the judge's interpretation of the standard as applying only to commercially manufactured slings is in error because the provisions of 29 C.F.R. §   1926.251 clearly indicate that the standard governs job-fashioned as well as commercially manufactured slings. The Secretary also argues that this broader interpretation of the standard best effectuates the remedial purposes of the Act because   [*3]   the need for information regarding size, grade, and rated capacity is essential to those using the sling without regard to its origin.   If the Commission concludes that 29 C.F.R. §   1926. 251(b)(1) does not apply to the cited conditions, then the Secretary, as an alternative, would move to amend the citation to allege noncompliance with the general industry standard, 29 C.F.R. §   1910.184(e)(1).   This standard requires that the sling be labeled as to "size, grade, rated capacity, and reach," but it has no requirement for listing the manufacturer of the sling. The Secretary's petition for review was granted by Commissioner Cottine.

We agree with the Secretary.   The judge improperly restricted coverage of the standard at section 1926.251(b)(1) to commercially manufactured slings. If a sling is produced by a commercial manufacturer of slings, the standard requires that the manufacturer as well as the size, grade, and rated capacity of the sling be identified.   If, as in the present case, the sling is job-made, it need not be identified as to its manufacturer, but it must have "permanently affixed durable identification stating size, grade, rated capacity." In other words, the standard's [*4]   requirement to list the sling's manufacturer is severable from the more universal concerns of size, grade, and rated capacity.   We thus conclude that the cited standard applies to the sling used by Respondent.

Accordingly, the case is remanded to the Chief Judge for assignment to an administrative law judge for the purpose of deciding the merits of the item alleging noncompliance with 29 C.F.R. §   1926. 251(b)(1). n4

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n4 Judge Brenton retired from government service since issuing his decision in this case.

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SO ORDERED.  

CONCURBY: COTTINE (In Part)

DISSENTBY: COTTINE (In Part)

DISSENT:

COTTINE, Commissioner, concurring in part and dissenting in part:

I concur in the Commission's conclusion that 29 C.F.R. §   1926.251(b)(1) applies to the sling used by the Respondent.   However, I dissent from the majority's decision to remand this case to a Commission judge for a determination on the merits.   The Commission is authorized to enter findings of fact based on the record evidence.   Accu-Namics, Inc. v. OSHRC, 515 F.2d 828, 834 (5th Cir. 1975), cert.   [*5]    denied, 425 U.S. 903 (1976). Though the judge did not enter findings on all the relevant factual issues, the material facts are undisputed. Under these circumstances, the Commission may easily resolve this case as a matter of law, and it is not necessary to remand the case to a Commission judge who would simply reconsider the same record presently before the Commission.   See generally J.L. Foti Construction Co., 8 BNA OSHC 1666, 1980 CCH OSHD P24,572 (No. 77-2848, 1980) (Cottine, Commissioner, separate opinion); National Industrial Constructors, Inc., 8 BNA OSHC 1675, 1980 CCH OSHD P24,589 (No. 76-5241, 1980) (Cottine, Commissioner, separate opinion).

It is undisputed that a front-end loader was used to load pipe onto a flatbed truck at Boam's worksite. A steel chain was rigged to attach the pipe to the front-end loader operated by Boam's foreman. Two other employees guided the pipe onto the flatbed trailer.   During the operation the steel chain broke and the pipe fell, fatally injuring one of Boam's employees.   There was no identification on the steel chain sling as to its size, grade and rated capacity.

The record clearly reveals that Boam's employees were exposed [*6]   to the hazards associated with the Respondent's failure to identify the sling required by the cited standard.   Thus, the Secretary met his burden of proving that (1) a specific standard applies to the facts, (2) there was a failure to comply with the specific standard, and (3) employees of the cited employer had access to the hazard. Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD P20,690 (Nos. 3694 & 4409, 1976).

In its answer to the complaint Boam denied "any knowledge that chains were being used for lifting purposes." However, the compliance officer testified that during his inspection of the worksite Boam's foreman, Walton, said he was the operator of the front-end loader and the rigger of the sling. The compliance officer also testified that Walton told him that tying the chains together in this fashion was normal practice and that the "sling" was not tagged as to its load limit.   Respondent's superintendent, Hancock, also informed the compliance officer that the configuration used in lifting the pipe was normal.   However, Hancock did not specifically indicate that the use of chains was normal.   When Hancock testified at the hearing he stated that [*7]   he was not familiar with conditions on the day of the accident, but that Boam generally used lifting cable.

Although Walton's duties as foreman were not discussed in detail, the record demonstrates that he was vested with the authority to direct operations at the worksite. This authority included the power to order that the necessary steps be taken to properly complete the job as well as the power to assign personnel to specific tasks.   I would find that Walton was a supervisor under the criteria set forth in Iowa Southern Utilities Co., 77 OSAHRC 32/C10, 5 BNA OSHC 1138, 1977-78 CCH OSHD P21,612 (No. 9295, 1977).   Therefore, Walton's admitted knowledge of the violative conditions n5 is imputed to Boam unless Respondent demonstrates that it took all necessary precautions to prevent the occurrence of the violation.   Floyd S. Pike Electrical Contractor, Inc., 78 OSAHRC 50/E1, 6 BNA OSHC 1675, 1978 CCH OSHD P22,805 (No. 3069, 1978).   Contra, Mountain States Telephone and Telegraph Co. v. OSHRC, 623 F.2d 155 (10th Cir. 1980). This showing must include the following:

(1) a demonstration of the employer's commitment to employee safety reflected by the establishment of work [*8]   rules that effectively implement the requirements of the standard at issue;

(2) the effective communication of the work rules to employees; and,

(3) the effective enforcement of these work rules through supervision adequate to detect failures to comply with the rules and discipline sufficient to discourage such violations.

Floyd S. Pike Electrical Contractor, Inc., 6 BNA OSHC at 1677-8, 1978 CCH OSHD at p. 27,543.

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n5 Walton's statement to the compliance officer is an admission by a party opponent.   An admission by a party opponent is admissible even though it may be hearsay.   Fed. R. Ev. 801(d)(2); see Stephenson Enterprises, Inc., 76 OSAHRC 122/A2, 4 BNA OSHC 1702, 1976-77 CCH OSHD P21,120 (No. 5873, 1976), aff'd, 578 F.2d 1021 (5th Cir. 1978). In addition, hearsay evidence is admissible in an administrative proceeding and when uncontradicted it is entitled to substantial probative value.   See Metro Mechanical, Inc., 75 OSAHRC 72/A2, 3 BNA OSHC 1350, 1974-75 CCH OSHD P19,795 (No. 3518, 1975).   In this case Respondent failed to object to the introduction of an admission that was potentially damaging to its contention that it had no knowledge of the violative condition.   Nor did Respondent attempt to refute the admission by calling its foreman as a witness and questioning him concerning the statements attributed to him.   Respondent's only support for its claim of lack of knowledge was the statement of its superintendent that he was unaware of the conditions that existed on the worksite that day and that "lifting cable" was generally used.

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In his testimony, Hancock stated that Boam did not have a safety booklet, but that he holds safety meetings with his foremen, who in turn communicate safety instructions to employees.   There was no testimony with regard to the content of the instructions that were communicated.   Respondent's proof fails to establish that Respondent took all necessary precautions to prevent the occurrence of a violation.   Floyd S. Pike Electrical Contractor, Inc., supra. Accordingly, the knowledge of Respondent's foreman is properly imputed to Respondent.

In conclusion, a nonserious violation is properly found in this case based on Boam's failure to comply with section 1926.251(b)(1).   However, the Secretary did not propose a monetary penalty for this violation and I would not impose one.