R.B. Thomas Electric, Inc.

Plain-English summary

An OSHA compliance officer saw a Thomas Electric apprentice working 15 to 20 feet above concrete in an aerial lift without a safety harness. The judge found that the company was still performing construction work and had not arranged regular competent-person inspections or systematically trained each exposed employee in aerial-lift fall protection. The foreman directed the apprentice to use the lift and did not provide the locked-away harness, establishing employer knowledge. The employee-misconduct defense failed because the company lacked an adequately communicated rule, regular inspections, and a progressive disciplinary system. Other-than-serious items were also affirmed because employees could not locate the site's hazard-communication program or fire extinguishers. One general-duty item was withdrawn, and penalties totaling $2,400 were assessed.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. § 1926.20(b)(2); 29 C.F.R. § 1926.21(b)(2); 29 C.F.R. § 1926.453(b)(2)(v); 29 C.F.R. § 1910.1200(e)(1); 29 C.F.R. § 1926.150(c)(1)(i)
• Outcome: Three serious and two other-than-serious items affirmed, one item withdrawn, and $2,400 assessed.
• Key point: Safety sheets distributed irregularly did not replace jobsite inspections, effective training, and enforcement of the aerial-lift tie-off rule.

Full text (OSHRC public release)

                     UNITED STATES OF AMERICA
         OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, :
Complainant, :
v. : OSHRC Docket No. 00-2333
R.B.Thomas Electric,Inc. :
Respondent. :
________ :

APPEARANCES

            Heather A. Joys, Esq.                        Jon R. Steen, Esq.
            Office of the Solicitor                      Law Offices of Jon Russell Steen
            U. S. Department of Labor                    Austintown, Ohio
            Cleveland, Ohio                                       For Respondent
                     For Complainant

Before: Administrative Law Judge Ken S. Welsch

                                   DECISION AND ORDER
    R. B. Thomas Electric, Inc. (Thomas Electric), is an electrical contractor located in

Hudson, Ohio. One of its work crews was working at a newly constructed Ameritech Steel
processing plant in Streetsboro, Ohio, on October 26, 2000. Occupational Safety and Health
Administration (OSHA) compliance officer Daniel Pubal was driving past the plant when he
observed a member of Thomas Electric’s crew working from an aerial lift while not wearing a
safety harness. Pubal stopped and conducted an inspection of Thomas Electric at the site.
As a result of Pubal’s inspection, the Secretary issued two citations to Thomas Electric on
November 9, 2000. Prior to the hearing, the Secretary withdrew item 1 of Citation No. 1, which
alleged a serious violation of § 5(a)(1) of the Occupational Safety and Health Act (Act) for taping
the midrail of the aerial lift to the top rail.
Item 2a of Citation No. 1 alleges a serious violation of 29 C.F.R. § 1926.20(b)(2) for
failing to ensure that a designated competent person performed frequent and regular inspections
of its worksite. Amended item 2b of Citation No. 1, which the Secretary originally cited as a
serious violation of 29 C.F.R. § 1926.454(c), alleges a serious violation of 29 C.F.R. §
1926.21(b)(2), for failing to train employees in the recognition and avoidance of hazards. Item 3
of Citation No. 1 alleges a serious violation of 29 C.F.R. § 1926.453(b)(2)(v) for failing to ensure
the employees working from an aerial lift wore a body belt or harness attached with a lanyard to
the basket.
Item 1 of Citation No. 2 alleges an other-than-serious violation of 29 C.F.R.
§ 1910.1200(e)(1) for failing to ensure that a written hazard communication program was
maintained at the work site. Item 2 of Citation No. 2 alleges an other-than-serious violation of
29 C.F.R. § 1926.150(c)(1)(i) for failing to provide fire extinguishers at the worksite.
Thomas Electric denies the citations and proposed penalties. Thomas Electric asserts the
affirmative defense of unpreventable employee misconduct.
A hearing was held in this matter on April 27, 2001, in Akron, Ohio. The parties
stipulated jurisdiction and coverage (Tr. 4). The parties have filed post-hearing briefs.
For the reasons discussed, Thomas Electric’s affirmative defense of unpreventable
employee misconduct is rejected, and the remaining cited items are affirmed.

                                       Background
   Roger B. Thomas, owner and vice-president of Thomas Electric, founded the company in

1972. Thomas Electric performs a wide range of electrical contractor work, including industrial,
      commercial, and residential installations, as well as service calls (Tr. 251). In September 2000,
      general contractor Curtis Layer hired Thomas Electric as the electrical subcontractor for the
      construction of a new Ameritech Steel processing plant in Streetsboro, Ohio. Thomas Electric
      spent approximately six weeks at the site, installing the electrical system and hanging lights (Tr.
      120, 195). Thomas Electric left the site for approximately a week, then returned to the site on
      October 24 (Tr. 189).
      On October 26, 2000, Thomas Electric had a three-man crew working at the site:
      journeyman electrician and foreman Roy Junn, fourth-year apprentice Matthew Shields, and
      second-year apprentice Frederick Pozzini. No other subcontractors were on the site (Tr. 173).
      At approximately 1:30 p.m., OSHA compliance officer Daniel Pubal was driving south
      on Route 43, returning to his office. As he passed the Ameritech Steel plant, Pubal noticed an
      employee working on an outside wall of the plant. The employee, Pozzini, was in the basket of
      an aerial lift, which was elevated 15 to 20 feet above the ground. Pozzini was not wearing any
      form of fall protection (Exhs. C-2, C-3, C-3; Tr. 120-123).
      Pubal stopped his car and approached Pozzini, asking him to come down from the aerial
      lift. Pozzini complied. Pozzini directed Pubal to foreman Junn, who was working inside the
      plant. Pubal held an opening conference with Junn and questioned him regarding the company’s
      training, fall protection, hazardous communication program, and fire extinguishers.
      After Pubal concluded his inspection and as he was getting ready to leave, Roger Thomas
      and his wife, company president Diane Thomas, arrived at the site. At some point, Jerry
      Budrevich, vice-president of operations for Thomas Electric, also arrived at the site (Tr. 128).
      Pubal did not hold another opening conference with the Thomases, but he did inform them that
      he was going to recommend several OSHA violations, including the failure to ensure that its
      employees wore fall protection while working from an aerial lift. Roger Thomas responded, “If I
      get a citation, then I’ll terminate this employee [Pozzini]. You’re going to have to explain to him
      why he’s losing his job” (Tr. 129). Roger Thomas eventually fired Pozzini (Tr. 16). Pozzini
      filed an 11(c) complaint with the Secretary, which was still under investigation at the time of the
      hearing.

                                        Citation No. 1
      

      The Secretary has the burden of proving her case by a preponderance of the evidence.
      In order to establish a violation of an occupational safety or health standard, the
      Secretary has the burden of proving: (a) the applicability of the cited standard,
      (b) the employer’s noncompliance with the standard’s terms, (c) employee access
      to the violative conditions, and (d) the employer’s actual or constructive
      knowledge of the violation (i.e., the employer either knew or, with the exercise of
      reasonable diligence could have known, of the violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
In order to establish that a violation is “serious” under § 17(k) of the Act, the Secretary
must establish that there is a substantial probability of death or serious physical harm that could
result from the cited condition. In determining substantial probability, the Secretary must show
that an accident is possible and the result of the accident would likely be death or serious
physical harm. The likelihood of the accident is not an issue. Spancrete Northeast, Inc., 15
BNA OSHC 1020, 1024 (No. 86-521, 1991).

                               Applicability of the Standards
   Thomas Electric contends that the Secretary failed to meet the first element of its burden

of proof with regard to each of the items in Citation No. 1 because she failed to establish that the
cited standards apply to the cited conditions. Thomas Electric argues that it was not engaged in
construction work at the time of Pubal’s inspection, and thus the construction standards cited by
the Secretary are not applicable. Thomas Electric claims that it had completed the electrical
installation for the plant by October 26, and its crew was making a service call at the time of the
inspection.
Section 1910.12(a) provides that the Part 1926 standards apply “to every employment and
place of employment engaged in construction work.” Section 1910.12(b) defines “construction
work” as “work for construction, alteration, and/or repair, including painting and decorating.”
The Ameritech Steel plant was a new facility that was being constructed from the ground
up (Tr. 189). Thomas Electric foreman Roy Junn stated that the company’s subcontract with
Curtis Layer called for “putting in the service, hanging all the lights, doing the office power and
lighting and doing some crane rails” (Tr. 182). At the time of the OSHA inspection, Ameritech
Steel had started moving some of its equipment into the building, but it had not yet begun steel
processing operations (Tr. 190).
Thomas Electric claims that its crew was at the Ameritech Steel site on October 26 on a
service call and not to perform work that was originally contracted. Budrevich, who was only on
the site four times during the duration of the project, stated that the tasks being performed on
October 26 “were additions after the fact” and “[a]dditional extras that the owner wanted before
he moved in” (Tr. 231-232, 247). Thomas Electric did not adduce the original contract between
it and Curtis Layer, nor did it adduce evidence of a service call or request for additional work.
Also, the testimony of the employees who were actually performing the work for Thomas
Electric on October 26 fails to support the company’s claim that it was not construction work
pursuant to the original contract with Curtis Layer. When asked what the crew was doing at the
Ameritech Steel site on October 26, Matthew Shields replied, “Basically, just finishing
everything up, putting the switches and outlets. I don’t remember everything that I had to do, but
basically just finishing everything” (Tr. 64). Foreman Junn testified that Thomas Electric did
perform extra work at a later date, but that on the day of the OSHA inspection, his crew was
completing the construction work for which Curtis Layer had hired Thomas Electric (Tr. 182-
183):
Q.: Did you reach a point where the job was concluded? There was a final
meeting; the project had finished?

    Junn: Yes, I was like 99 percent done. I had some changes to do later. Once I got
    my final, that was pretty much it. But, I did have some other things that came
    back at later date.

    Q.: And, the later date was that additional work that had been ordered?

    Junn: It was extra work.

    Q.: What work is it that you were doing on the day of the OSHA inspection?

    Junn: Okay, well, that wasn’t extra. Those fixtures, we had to wait on for some
    reason; but we to wait for on for some reason; but we were hanging wall packs
    outside--well, one wall pack. (Emphasis added).

    The Court of Appeals for the Sixth Circuit (in which circuit this matter arises) held in

Brock v. Cardinal Industries, Inc., 828 F. 2d 373 (6th Cir. 1987), that, in determining whether an
employer is engaged in construction work, inquiry must be made into both the location of the
work and the nature of the work. In the instant case, the location of the work was at a
construction site, in a facility that was still being completed.
Construction work refers to “actual construction work or to related activities that are an
integral and necessary part of construction work.” Royal Logging Co., 7 BNA OSHC 1744, 1747
(No. 15169, 1979), aff’d. 645 F. 2d 822 (9th Cir. 1981). The nature of the work that Thomas
Electric was engaged in on October 26 was installing new electrical switches, outlets, and light
fixtures. The installation of these parts of a facility’s electrical system constitute an integral and
necessary part of the facility’s construction. The Secretary has established that Thomas Electric
was engaged in construction work at the time of the OSHA inspection on October 26, 2000. The
construction standards cited in items 2a, 2b, and 3 of Citation No. 1 apply to the cited conditions.
 Item 2a: Alleged Serious Violation of § 1926.20(b)(2)
The Secretary alleges that Thomas Electric committed a serious violation of §
1926.20(b)(2), which provides:
Such [accident prevention] programs shall provide for frequent and regular
inspections of the job sites, materials, and equipment to be made by competent
persons designated by the employers.

    Section 1926.32(f) defines “competent person” as “one who is capable of identifying

existing and predictable hazards in the surroundings or working conditions which are unsanitary,
hazardous, or dangerous to employees, and who has authorization to take prompt corrective
measures to eliminate them.”
Pubal assumed that foreman Junn was Thomas Electric’s designated competent person,
even though neither Junn nor anyone else told him this was so. Junn did not conduct safety
inspections of the site (Tr. 169-170). Thomas Electric claims that Junn was not its designated
competent person; only the three management personnel (Roger Thomas, Diane Thomas, and
Jerry Budrevich) were designated as competent persons to conduct safety inspections. Roger
Thomas testified that they generally conducted safety inspections as a routine part of their visits
to project sites (Tr. 270).
The inspections, as contemplated by the standard, are not supported by the record.
Shields and Junn testified that the Thomases visited the Ameritech Steel site twice while the
project was underway, and Budrevich was there four times. However, none of the three Thomas
Electric officers conducted a safety inspection during these visits. The record indicates that no
one from Thomas Electric inspected its Ameritech Steel site at any time. Thomas Electric
admitted that it did not conduct a safety inspection the day of the OSHA inspection (Exh. C-10,
p. 8). Shields testified that the management personnel came on site “if there’s a question or to
check out the job, how the progress is going” (Tr. 54). Junn stated that Budrevich did not
conduct safety inspections during his four visits to the site (Tr. 203-204). As the self-designated
competent persons, the officers knew of their failure to inspect the site.
Thomas Electric argues that § 1926.20(b)(2) does not apply to two-day service calls. As
previously discussed, Thomas Electric was engaged in construction work within the meaning of
the OSHA standards during OSHA’s inspection. Thomas Electric’s failure to conduct frequent
and regular inspections exposed its three employees to the hazardous conditions on the site. The
Secretary has established a serious violation of § 1926.20(b)(2).

                 Item 2b: Alleged Serious Violation of § 1926.21(b)(2)
   The Secretary alleges that Thomas Electric seriously violated § 1926.21(b)(2), which

provides:
The employer shall instruct each employee in the recognition and avoidance of
unsafe conditions and the regulations applicable to his work environment to
control or eliminate any hazards or other exposure to illness or injury.

   Thomas Electric uses aerial lifts on a regular basis in its work. Accordingly, §

1926.21(b)(2) requires the company to instruct its employees in the regulations applicable to
working in aerial lifts, which include the requirement to wear a safety harness, as set out in §
1926.453(b)(2)(v).
Thomas Electric runs its own apprenticeship program. It is a five-year program, taught by
the company’s managers and employees. Budrevich teaches the first and third years. The classes
meet once a week for several hours. At the end of the five years, an apprentice may take a test
administered by the state to qualify as a journeyman electrician. During their training, the
apprentices also work for Thomas Electric, under the supervision of journeyman electricians (Tr.
55, 227-228).
Pozzini testified that Thomas Electric had never trained him in general fall protection or
the requirement to wear a harness while working from an aerial lift. He stated that these topics
were not covered in the apprenticeship classes or any of the jobsite safety talks. Junn did not tell
him to wear a harness the day of the OSHA inspection. Pozzini did not know that Thomas
Electric had a harness on the site, nor did he know how to use one (Tr. 9, 13-14, 19, 22-25).
Shields testified that Thomas Electric did not train him in fall protection until the
beginning of his fourth year (Tr. 55-56). Shields testified that he worked off the aerial lift on the
Ameritech Steel site without wearing a harness. No one from Thomas Electric instructed him to
wear a harness (Tr. 65).
Keith Hopkins, who was employed by Thomas Electric at the time of the hearing, was in
the same apprenticeship class as Pozzini. He stated that he had never received training on fall
protection. Hopkins worked from aerial lifts for Thomas Electric. He did not wear a safety
harness and was unaware of OSHA’s requirement to do so (Tr. 69-71, 85-88).
 Daniel Shaffer is a former employee of Thomas Electric who was also in Pozzini’s
second -year apprenticeship class. He testified that he had never received any training in fall
protection or the use of a harness in an aerial lift. His work for Thomas Electric included
working from aerial lifts. He had never worn a safety harness and had never been instructed to
do so (Tr. 97-102).
Bradley Sladky and Nicholas Sladky were both fourth-year apprentices at the time of the
hearing and were not in Pozzini’s class. They testified that they had been instructed to wear
harnesses while working from aerial lifts (Tr. 212-213, 220-221).
Thomas Electric introduced nine pages of “Weekly Safety Meeting” reports into the
record (Exh. R-1). The first page of the exhibit addresses aerial lifts and states in pertinent part:
“You should use a full body harness and secure the harness to the proper attach bar on the
platform[.]” (Exh. R-1, p. 1). No employee signatures indicating who attended the “safety
meeting” appear on this page.
The Weekly Safety Meeting sheets come to Thomas Electric as part of a subscription
safety program. Vice-president Roger Thomas explained his company’s use of the sheets (Tr.
256):
[W]e make lots of copies of them, and we try to send them out to the job site
every week. I’m not sure they get there every week, but if the men are in the shop
like if the fellows are doing service calls--about half our people are in the shop
every day--so sometimes I garner up several of the guys, and I read them to them.
And, Diane reads them sometimes, and sometimes Jerry reads them to them.
And, then we try to get them to sign it, but generally they don’t always sign them.

    Five of the nine sheets contain no names under the heading “Meeting Attended By.” Of

those four that do contain employee signatures, none contains a signature of Pozzini (Exh. R-1).
Junn testified that when he received the Weekly Safety Meeting sheets, he handed them to the
employees and told them to read and sign it (Tr. 196). Shaffer testified that he received the
safety sheets “and [Thomas Electric] basically just said sign them. We never really went over
them” (Tr. 99).
The Secretary has established that Thomas Electric failed to instruct each of its
employees in the requirement of § 1926.453(b)(2)(v) that they tie off while working from an
aerial lift. Thomas Electric had no systematic procedure for training employees in the safety
requirements for the use of aerial lifts. The topic of fall protection was addressed haphazardly,
with no meaningful attempt to ensure that each employee received instruction. Employees who
had been in the apprentice program for more than two years appeared to be more likely to receive
safety training in the use of aerial lifts than first- and second-year apprentices. The cited
standard, however, requires each exposed employee to receive the relevant safety instruction
prior to the exposure. Item 2b is affirmed as serious.

                Item 3: Alleged Serious Violation of § 1926.453(b)(2)(v)
   The Secretary alleges that Thomas Electric committed a serious violation of

§ 1926.453(b)(2)(v), which provides:
A body belt shall be worn and a lanyard attached to the boom or basket when
working from an aerial lift.

   Thomas Electric does not dispute that Pozzini was not wearing a safety harness at the

time of the OSHA inspection (Exhs. C-2, C-3, C-4). Thomas Electric argues that the Secretary
failed to prove that it had actual or constructive knowledge of the violation.
To establish an employer’s knowledge of a violative condition, the Secretary must show
that the employer knew, or, with the exercise of reasonable diligence, should have known of the
condition. Dun Par Engineered Form Co., 12 BNA OSHC 1962 (No. 82-928, 1986). A
supervisor’s actual or constructive knowledge is imputed to the employer. Dover Elevator Co.,
16 BNA OSHC 1281, 1286 (No. 91-862, 1993).
Shields and Pozzini regarded Junn as the foreman on the day of the OSHA inspection.
Junn identified himself as the foreman on the project, but testified that he did not have the
authority to terminate, suspend, or discipline an employee (Tr. 178). Junn did have the authority
to direct and supervise the work of Shields and Pozzini. He directed Pozzini to use the aerial lift
to hang a light fixture, and he instructed Pozzini in the operation of the lift when Pozzini told
him he had never operated one (Tr. 191).
An employee who has been delegated authority over other employees, even if only
temporarily, is considered to be a supervisor for the purposes of imputing knowledge to an
employer. A. P. O’Horo, 14 BNA OSHC 2004, 2007 (No. 85-369, 1991). The record
establishes that Junn was a supervisor for Thomas Electric on the day of the OSHA inspection.
Where a supervisory employee is in close proximity to a readily apparent safety violation,
the supervisor may be charged with constructive knowledge of the violation. Hamilton Fixture,
16 BNA OSHC 1073 (No. 88-1720, 1993), aff’d. without published opinion, 28 F.3d 1213 (6th
Cir. 1994). Such supervisor knowledge is imputable to the employer and is sufficient to make a
prima facie showing of employer knowledge. Pride Oil Well Service, 15 BNA OSHC 1809,
1814 (No. 87-692, 1992).
Junn assigned Pozzini to move a light fixture and told him to use the aerial lift (Tr. 11-
12). Junn instructed Pozzini in the operation of the lift, but did not give Pozzini a safety harness
or instruct him to use one (Tr. 109, 191). The safety harness was locked inside the company’s
gang box at the site (Tr. 197). Pozzini’s failure to wear a safety harness was in plain view to
Pubal, who was driving past the site in a car. The Secretary has established that Junn, and
through him, Thomas Electric, had constructive, if not actual, knowledge that Pozzini was
working from the aerial lift while not wearing a safety harness.
Thomas Electric contends that Pozzini’s failure to wear a safety harness resulted from
unpreventable employee misconduct, and that no violation should be found. In order to establish
the affirmative defense of unpreventable employee misconduct, an employer is required to prove
(1) that it has established work rules designed to prevent the violation, (2) that it has adequately
communicated these rules to its employees, (3) that it has taken steps to discover violations, and
(4) that it has effectively enforced the rules when violations are discovered. E.g., Precast
Services, Inc., 17 BNA OSHC 1454, 1455 (No. 93-2971, 1995), aff’d. without published opinion,
106 F.3d 401 (6th Cir. 1997). Thomas Electric failed to prove any one of the four elements of its
affirmative defense. Thomas Electric did not have a written safety rule designed to prevent its
employees from using the aerial lift while not wearing a safety harness. The only written rule
that concerns personal fall protection is a general rule stating that safety belts should be worn
where the employee is exposed to “insecure unprotected positions at abnormal heights” (Exh. R-
3, p. 5).
As discussed under item 2b, Thomas Electric failed to communicate to its employees the
requirement to wear a safety harness when working from an aerial lift. The “Weekly Safety
Meeting” sheets were distributed in a haphazard manner. Several current and former employees
testified that they were unaware of the safety harness requirement.

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Also, Thomas Electric failed to take steps to discover violations. As discussed, Thomas
Electric did not have a designated competent person make frequent and regular inspections of the
worksite. The journeyman electricians who acted as foremen on the sites did not perform safety
inspections. The management personnel who were designated as competent persons were at the
sites infrequently.
Thomas Electric did not enforce safety rules when violations were discovered. The
foremen did not have the authority to discipline employees for safety infractions (Tr. 19, 31, 72,
81, 178, 206). When asked if he knew what Thomas Electric’s disciplinary program was, Junn
replied, “No, sir. That’s totally up to them” (Tr. 199-200). Roger Thomas described the
company’s approach to enforcement of safety rules (Tr. 280):
Well, I bring it to [the employees’] attention what the violation is, and I
make it perfectly clear that the safety--I stay until the safety issue is remedied, or I
feel confident that they are reinstructed that they are not going to continue in that
manner.
And, then I go back to the office and I talk to Diane and Jerry, and we kind
of put our heads together and we kind of--you know, depending upon how serious
it is or something, or if we think we have stopped it or whatever, we kind of
decide what our reaction is going to be to it.

   Adequate enforcement includes a progressive disciplinary plan consisting of higher levels

of punishment designed to deter employees who violate the employer’s work rules. Nooter
Construction, 16 BNA OSHC 1572, 1578 (No. 91-0237, 1994). Thomas Electric did not have a
progressive disciplinary program. Indeed, the company could articulate no standards of conduct
or uniformity that it relied upon in determining disciplinary action. It doled out discipline on an
ad hoc basis, and it did that infrequently. Pozzini was fired, but Junn was not even verbally
reprimanded for the safety harness violation. Thomas Electric submitted no records of
disciplinary action to the compliance officer or to the court.
Thomas Electric has failed to establish the affirmative defense of unpreventable employee
misconduct. The Secretary has established a serious violation of § 1926.453(b)(2)(v).

                                  Penalty Determination
   The Commission is the final arbiter of penalties in all contested cases. In determining an


                                              11

appropriate penalty, the Commission is required to consider the size of the employer’s business,
history of previous violations, the employer’s good faith, and the gravity of the violation.
Gravity is the principal factor to be considered.
Pubal testified that Thomas Electric had 22 employees during the 12 months prior to the
hearing. Thomas Electric had received citations for OSHA violations within the 3 years prior to
the subject inspection (Exhs. C-5 through C-9; Tr. 135). No credit is given for good faith.
Thomas Electric has failed to implement effective programs for safety instruction, safety
inspections, and disciplinary actions.
The gravity of items 2a, 2b, and 3 is high. Thomas Electric’s failure to inspect its sites
and its failure to adequately train its employees directly resulted in Pozzini’s failure to wear a
safety harness while in the aerial lift. He was exposed to a fall of 15 to 20 feet onto a concrete
surface. Other employees testified that they had worked from aerial lifts without using fall
protection.
It is determined that the appropriate total penalty for combined items 2a and 2b is
$900.00. The appropriate penalty for item 3 is $1,500.00.

                                       Citation No. 2
          Item 1: Alleged Other-than-serious Violation of § 1910.1200(e)(1)
   Section 1910.1200(e)(1) provides in pertinent part:
   Employers shall develop, implement, and maintain at each workplace, a written
   hazard communication program which at least describes how the criteria specified
   in paragraphs (f), (g), and (h) of this section for labels and other forms of warning,
   material safety data sheets, and employee information and training will be met,
   and which also includes the following:
            (i) A list of the hazardous chemicals known to be present using an identity
   that is referenced on the appropriate material safety data sheet (the list may be
   compiled for the workplace as a whole or for individual work areas)[.]

   At the Ameritech Steel site, Thomas Electric’s crew was exposed to two hazardous

substances: the gasoline in the aerial lift and the scissors lift, and PVC pipe cement in the
company’s gang box (Tr. 142, 165-166). Thomas Electric does not dispute that it was required to
maintain a written hazard communication program at the worksite due to the presence of these

                                                12

hazardous substances.
Pubal testified that he asked Junn if there was a hazardous communication program on
the site during the opening conference. Junn responded that there was, but he was unable to
locate it (Tr. 144). Roger Thomas testified that Pubal never asked him about the missing
hazardous communication program after he and Diane Thomas arrived at the site, and he did not
realize it was an issue (Tr. 273, 285). Budrevich, however, testified that Roger Thomas called
him from the site and demanded that Budrevich come out to the site and find the program, which
was contained in two manuals: “Well, he was mad at me because it’s my responsibility to get the
manuals. I’m supposed to make sure that they’re there on the job. I told him that they were out
there, and he told me, ‘Come out here and find them,’ and I did” (Tr. 246).
Pubal was still at the site when Budrevich arrived. Budrevich found the hazardous
communication program manuals “in a pile of junk, material,” in the company’s on-site trailer
(Tr. 247). He stated that he took the manuals to where the Thomases were speaking with Pubal,
said “I got them,” and put them by the job box (Tr. 244). When asked why he did not give them
to Pubal, Budrevich stated, “I didn’t know he was looking for them. I was asked where they
were at, and I said they were in the trailer. I never had a conversation with the OSHA inspector
about anything. He never talked to me directly. We never talked” (Tr. 244).
Roger Thomas acknowledges that Budrevich told him that he had found the manuals.
When asked why he did not bring the manuals to Pubal’s attention, Thomas replied, “I didn’t
want him maybe to write up anything. I mean, I just didn’t want to bring up anything that he
could write maybe another citation for or something I guess” (Tr. 286).
In its post-hearing brief, Thomas Electric attributes its failure to produce the manuals to
miscommunication, focusing on Pubal’s failure to raise the issue of the hazardous
communication program with the Thomases. It asserts that it did, in fact, have the program on
site, and that Pubal should have asked the Thomases or Budrevich about it, rather than Junn.
Thomas Electric’s argument ignores that fact that the Thomases and Budrevich were not
scheduled to be on the site that day. Junn was the foreman on site, and he could not locate the
manuals. Junn was asked, “If some employee, let’s say, one of the other apprentices needed it,
you wouldn’t have known where to get it?” He replied, “I just never thought to go look in the

                                            13

other trailer” (Tr. 199).
The purpose of the cited standard is to provide employee access to the hazardous
communication program, should the need arise. The program cannot be said to be maintained at
the site if it cannot be located by the employees and the foreman on the site. The Secretary has
established an other-than-serious violation of § 1910.1200(e)(1).

          Item 2: Alleged Other-than-serious Violation of § 1926.150(c)(1)(i)
    Section 1926.150(c)(1)(i) provides:
    A fire extinguisher, rated not less than 2A, shall be provided for each 3,000 square
    feet of the protected building area, or major fraction thereof. Travel distance from
    any point of the protected area to the nearest fire extinguisher shall not exceed 100
    feet.

    Pubal estimated that the Ameritech Steel facility measured 80 by 120 feet (Tr. 126).

Pubal looked for fire extinguishers but could not find any. He asked Junn if Thomas Electric had
any fire extinguishers on site, and Junn replied that it did not (Tr. 145, 162-163). Junn
corroborated Pubal’s testimony, but went on to state, “[B]ut if I wasn’t mistaken, the fire marshal
had been there either that day or the day before, and there was supposedly six fire extinguishers
around the building on the inside, three on one wall and three on the other” (Tr. 185).
Even if Thomas Electric could rely on the fire extinguishers provided by the building’s
owner to comply with the standard, it would have to demonstrate that its employees knew the
location of the fire extinguishers. Thomas Electric offered no proof that the fire extinguishers
were actually installed in the facility. Even if it had, the record shows that its employees would
not have known where to go in the event of an emergency. When asked, “If there had been a fire,
you wouldn’t have known where to go to get the fire extinguisher to put it out?,” Junn replied, “I
can’t say I could” (Tr. 198).
The Secretary has established an other-than-serious violation of § 1926.150(c)(1)(i).

                FINDINGS OF FACT 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).

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ORDER
Based upon the foregoing decision, it is hereby ORDERED that:
1. Item 1 of Citation No. 1, alleging a serious violation of § 5(a)(1), is withdrawn by
the Secretary;
2. Items 2a and 2b of Citation No. 1, alleging serious violations of §§ 1926.20(b)(2)
and 21(b)(2) respectively, are affirmed and a total penalty of $900.00 is assessed;
3. Item 3 of Citation No. 1, alleging a serious violation of § 1926.453(b)(2)(v), is
affirmed and a penalty of $1,500.00 is assessed;
4. Item 1 of Citation No. 2, alleging an other-than-serious violation of
§ 1910.1200(e)(1), is affirmed and no penalty is assessed; and
5. Item 2 of Citation No. 2, alleging an other-than-serious violation of
§ 1926.150(c)(1)(i) , is affirmed and no penalty is assessed.

                                                 /s/
                                           KEN S. WELSCH
                                           Judge

Date: October 11, 2001

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