George J. Igel & Co., Inc.

Plain-English summary

George J. Igel & Co. was performing construction site development work in Columbus, Ohio. OSHA cited the company after a mechanic used 160 psi compressed air to clean a truck's backup alarm without approved safety glasses while the dump body was raised without its locking support. The judge vacated the eye-protection item because management was about 300 yards away, did not know the mechanic had arrived, and could not have known he was not wearing the required glasses. The compressed-air item was affirmed because management knew 160 psi air was being used for cleaning, even if it did not know a construction standard applied. The dump-body support item was also affirmed because the lock bar had been missing for about two weeks and the company's inspection system did not effectively report the defect to management. The judge rejected the employee-misconduct defense and assessed reduced penalties of $300 and $2,000, for a total of $2,300.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.102(a)(2), 29 C.F.R. § 1926.302(b)(4), 29 C.F.R. § 1926.601(b)(10)
• Outcome: Mixed. The eye-protection item was vacated; the compressed-air and dump-body support items were affirmed as serious, with penalties totaling $2,300.
• Key point: An employer can have constructive knowledge of an equipment defect when its inspection and reporting system fails to bring a known, long-standing problem to management's attention.

Full text (OSHRC public release)

Secretary of Labor,
Complainant,

             v.                                    OSHRC Docket No. 00-1825

George J. Igel & Co., Inc., EZ
Respondent.

Appearances:

      Patrick L. Depace, Esquire                           Douglas L. Suter, Esquire
           Office of the Solicitor                            Isaac, Brant, Ledman & Testor
           U. S. Department of Labor                          Columbus, Ohio
           Cleveland, Ohio                                         For Respondent
               For Complainant

Before: Administrative Law Judge Stephen J. Simko, Jr.

                                       DECISION AND ORDER
      George J. Igel & Co., Inc., is engaged in the business of construction site development.

On August 24, 2000, respondent was engaged in construction work at a jobsite in Columbus,
Ohio. The Occupational Safety and Health Administration (OSHA) conducted an inspection of
respondent’s jobsite on August 24, 2000. As a result of this inspection, respondent was issued a
citation. Respondent filed a timely notice contesting the citation and proposed penalties.
Citation No. 1, item 1, alleges a serious violation of 29 C.F.R. § 1926.102(a)(2) as
follows:
Eye and face equipment required by this part did not meet the requirements
specified in the American National Standards Institute Z87.1-1968, Practice for
Occupational and Educational Eye and Face Protection.

      On the site, dirt and gravel was blow [sic] from around the back up alarm with a
      high pressure hose without approved safety glasses.

   Citation No. 1, item 2, alleges a serious violation of 29 C.F.R. § 1926.302(b)(4) as

follows:

      Compressed air, not reduced to less than 30 p.s.i., was used for cleaning
      purposes:

On the site, dirt and gravel were removed from the back-up alarm with a [sic] air
pressure hose with 160 pounds per square inch.

   Citation No. 1, item 3, alleges a serious violation of 29 C.F.R. § 1926.601(b)(10) as

follows:

   Trucks with dump bodies were not equipped with positive means of support,
   permanently attached, and capable of being locked in position to prevent
   accidental lowering of the body:

   On the site, work was performed with the truck bed up without locking the
   equipment to prevent the bed from lowering.

   A hearing was held pursuant to the E-Z trial procedures in Columbus, Ohio, on January

17, 2001. At the conclusion of the hearing, a bench decision was issued vacating Citation No. 1,
item 1, and affirming Citation No. 1, items 2 and 3. A penalty of $300 was assessed for item 2
and a penalty of $2,000 was assessed for item 3.
Excerpts of relevant transcript pages and paragraphs, including findings of fact and
conclusions of law, are attached hereto in accordance with 29 C.F.R. § 2200.209(f).

                             FINDINGS OF FACT AND
                            AND CONCLUSIONS OF LAW

   The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Federal Rule of Civil Procedure 52(a).

                                         ORDER

   Based upon the foregoing decision, it is ORDERED:
   1.      Citation No. 1, item 1, is vacated.
   2.      Citation No. 1, item 2, is affirmed as a serious violation and a penalty of $300 is

assessed.
 3. Citation No. 1, item 3, is affirmed as a serious violation and a penalty of $2,000
is assessed.

                                          STEPHEN J. SIMKO, JR.
                                          Judge

Date: February 8, 2001
1 (On the record.) 211

2 JUDGE SIMKO: Back on the record. It s 3:15 in the

3 afternoon. I have reviewed all the exhibits both sides

4 have submitted today. I took copious notes during the

5 hearing, and I have reviewed those notes and the testimony

6 and all the evidence that s been presented today.

7 At this time, I m going to enter a decision on the

8 record. It ll be followed, after I receive the transcript,

9 with the portions of the transcript in this decision

10 attached thereto, and I will add additional language and

11 some discussion in the decision which will follow in

12 writing. What I m going to give you today is pretty much
13 the guts of the decision, however.

14 Going straight to the citation, which was issued as

15 the result of an inspection that took place at Respondent s

16 work site on August 24, 2000 at 1668 West McKinley Avenue

17 in Columbus, Ohio, three items were issued in this
18 citation.

19 The first one alleged the violation of 29 C.F.R.

20 1926.102 (a) (2). It alleges that eye and face equipment

21 required by this part did not meet the requirement

22 specified in the American National Standards Institute

23 Z87.1 (1968) Practice for Occupational and Educational Eye

24 and Face Protection, specifically on the site. Dirt and

25 gravel was blown from around the backup alarm with a high

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1 pressure hose without approved safety glasses.

2 The four elements which we referred to earlier in this

3 case will apply to all of these violations, specifically

4 whether the standard applies, whether the terms of the

5 standard have been violated, whether employees were

6 exposed, and whether there was knowledge. If that is

7 proved, then we go to the next element., and that is the
8 employee misconduct defense.

9 Here, the employee was not wearing safety glasses.

10 Everyone admits that. He was wearing his regular

11 prescription eyeglasses. These were not safety glasses in

12 accordance with the ANSI standard. The terms of the

13 standard were not complied with. The employee was exposed

14 to the hazard of flying rock and debris in the area.

15 The element which we reach next is the element of

16 knowledge, and I find that there was no knowledge on the

17 part of the Employer on this site, either actual or

18 constructive, and that s because the mechanic arrived on

19 this jobsite, although he had been called out here by the

20 superintendent, he arrived on the jobsite while the

21 superintendent and the Safety Director were meeting with

22 the Compliance Officer. They had no knowledge of his

23 presence when he arrived on the site.

24 This is a matter of personal protective equipment

25 which the Company does require and appears to enforce. The

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1 employee was not wearing it, and this Employer, being at
2 least 300 yards away, did not know and could not have known
3 of the requirement of the fact that this employee was not
4 wearing the personal protective equipment. So due to lack
5 of knowledge, I am vacating this item and assessing no
6 penalty.
7 With regard to Item Number 2, this alleges that
8 compressed air which was not reduced to 30 pounds per
9 square inch or psi was used for cleaning purposes in
10 violation of 29 C.F.R. 1926.302(b)(4). Specifically on the
11 site, dirt and gravel were removed from the backup alarm
12 with an air pressure hose with 160 pounds per square inch.
13 There appears to be no dispute as to the specific
14 facts alleged herein that this hose did contain 160 pounds
15 per square inch of pressure. The Respondent argues that he
16 did not know that there was a construction standard that
17 applied. There was a general industry standard that
18 applies, however, and here we find that there truly was a
19 construction standard that did apply.
20 Even if there were not a construction standard that
21 applied, the general industry standards do apply whether or
22 not corresponding construction standards to all industry.
23 So you might want to look at that in the future for any
24 other standards that might apply to your operation.
25 There was the knowledge required in this case is
--

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1 knowledge of the condition, not the existence of a law or
2 standard. As they said in the old days, ignorance of the
3 law is no excuse. Well, ignorance of the existence of a
4 standard here is no excuse either. But it s the knowledge
5 of the condition that we re talking about.
6 Here, the Respondent, management knew that 160 pounds
7 per square inch was being used for cleaning purposes.
8 There s been nothing to contradict that, and it was not
9 reduced to 30 pounds per square inch. After the
10 inspection, Respondent acted in good faith and got the
11 appropriate wands and nozzles to step this down and make
12 this these cleaning nozzles comply with the standard.
--

13 This goes to the good faith of this Respondent, and I
14 think the Respondent did act in very good faith in making
15 these corrections. I do find that a violation of the
16 standard occurred. The employee was exposed to this. The
17 standard requirements were not complied with, and it was
18 applicable. I also find the requisite knowledge of this
19 condition.

20 However, I do believe that the penalty, given the good
21 faith on the part of this Company, its good safety program,
22 good safety record and the interest of the safety of its
23 employees should be reduced and will be reduced to a total
24 of $300 for that item.
25 Now, we go to -- that amount is assessed -- Item 3.

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1 This is the item that both sides seemed to focus most on.
2 The Citation Item 3 of Citation Number 1 alleges violation
3 of 29 C.F.R. 1926.601(b) (10) in that trucks with dump
4 bodies were not equipped with positive means of support
5 permanently attached and capable of being locked in
6 position to prevent accidental lowering of the body.
7 Specifically on the site, work was performed with the truck
8 bed up without locking the equipment to prevent the bed
9 from lowering.

10 The first element of the Secretary s burden is the
11 applicability of the standard. Clearly, the standard does
12 apply. This is a truck with a dump body. It s used in
13 construction. The next element is whether there was
14 compliance with the terms of the standard, and I find that
15 there was not a positive means of support permanently
16 attached to this truck body which was capable of locking in
17 position to prevent accidental lowering of the body.
18 We reach next the question of exposure. There is some
19 difference of opinion in this testimony that I must
20 resolve. The Compliance Officer testified that he observed
21 Mr. Testa reaching in to pull muck and dirt and mud from
22 the area of the backup alarm. Mr. Testa testified that he
23 only used the wand to blow it out. He did not reach in
24 there.
25 However, Mr. Testa did testify that he came, if I

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1 accept the totality of his testimony, that he came within
2 six inches of a crush point. Exposure is not just being
3 actually exposed. It s having access to a hazard and to a
4 zone of danger. Mr. Testa clearly was within the zone of
5 danger not only being able to be crushed by the truck body
6 coming down and crushing him between the bed and the frame,
7 but also just the bed of the truck coming down could strike
8 an individual who is six inches from a crush point or even
9 up to three feet from the backup alarm itself.
10 So. I find that the credibility rests with the
11 Compliance Officer. However, even if I find that Mr.
12 Testa s testimony is credible, which I do not totally
13 discredit, I find that he is within the zone of danger.
14 And therefore, has access to the hazard and therefore is
15 exposed.
16 The final area that I have to deal with in the
17 Secretary s case-in-chief is knowledge on the part of the
18 Employer. For the first item, there was no knowledge
19 because Mr. Testa arrived on the site without the knowledge
20 of the management, and management was nowhere near the
21 area. It involved using personal protective equipment,
22 something that was in the control of the employee.
23 Here, we re talking about knowledge of condition,
24 which is a bit different. The condition is the condition
25 of this truck not being equipped with a positive means of

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1 support permanently attached. The testimony was that this
2 was a condition that existed for possibly two weeks without
3 correction.
4 The superintendent called for a mechanic to come out
5 to this jobsite. He knew that the mechanic was going to be
6 coming out here to work on a problem with one of its
7 trucks. The driver was charged by the Respondent with the
8 responsibility to check the safety of the truck. He knew
9 that the lock bar was off for two weeks. He also testified
10 that a night mechanic took this lock bar off.
11 The night mechanic, according to the testimony of Mr.
12 Igel, has responsibility which is delegated by the
13 Respondent to inspect the equipment daily on a nightly
14 basis. The Respondent had a program for inspections by the
.

15 driver and the night mechanics, but obviously, did not have
16 a program for those mechanics or drivers to report the
17 deficiencies to management in an effective manner. This
18 was came through from the testimony of Mr. Igel and Mr.
--

19 Culver.
20 Now, management has an ongoing responsibility to
21 inspect equipment for deficiencies. They cannot relegate
22 this responsibility or delegate this responsibility to
23 drivers and mechanics without some mechanism for reporting
24 this to management. It could have known of the existence
25 of the hazard with the exercise of reasonable diligence,

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1 and therefore, had requisite knowledge of the violative
2 condition.
3 The Employer has the responsibility to discover
4 violations on its jobsite and has an ongoing responsibility
5 to locate these conditions whenever possible. And here it
6 was possible, and in fact, it was known to the driver, and
7 it was known, apparently, to the night mechanics, but there
8 was no mechanism to get this corrected.
9 I find that the Secretary has carried his burden on
10 his case-in-chief, and now, we turn to the unpreventable
11 employee misconduct defense. The threshold question that I
12 have before me is one of applicability of this defense.
13 Does the standard require a positive employee action. An
14 example of that is an employee must wear hi~ personal
15 protect~Lve and eye equipment or tie off 1o a beam, or does
16 it require Employer action such as erecting guardrails.
17 This affirmative defense is geared primarily towards
18 violations over which employees have individual control.

19 Arguably, this is one that falls within, and I would find

20 and do find, that this falls within the area of Employer

21 action rather than the individual employee action.

22 Even if this does fall within the area of where

23 employee action would come into play, there are four

24 elements that the Respondent must reach to prove his

25. defense. One is whether the Employer has established work

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    219

1 rules designed to prevent the violation.
2 The Employer has shown that he has general safety work
3 rules, and that he enforced those work rules. He has to
4 have work rules. It has to be communicated to the
5 employees, and he has to enforce these work rules. I
6 believe that he had established work rules designed to
7 prevent the violation, that these work rules were
8 communicated in general to the employees, and that he did
9 enforce work rules by disciplinary action, progressive
10 disciplinary action through warnings, through written
11 reprimands, and also through firing.
12 The final element is whether the Employer has taken
13 the steps to discover the violations. And this is where we
14 run into a problem. If this if I find this employee
--

15 misconduct even applies, which I do not, I do find that the
16 lock bar was removed and not replaced for a period of two
17 weeks, and the Employer did not take the steps and discover
18 those violations. There s no requirement by the Respondent
19 for employees to report this particular type of violation,
20 and therefore, the employee misconduct defense must fail.
21 I affirm the violation as alleged in Item 3. However,
22 once again, due to the good faith of this Employer and the
23 exemplary safety record of this Employer, I am reducing the
24 proposed penalty and assessing a penalty of $2,000.
25 Okay. Is there anything further today.?

                  BURKE COURT REPORTING CO.
                        (856) 627-7733