Compass Steel Erection, Inc. (Commission decision, November 19, 1990)

Plain-English summary

OSHA cited Compass Steel after finding damaged arc-welding cable repaired with duct tape, an incomplete hazard communication program, and oxygen and acetylene cylinders placed together. An ALJ affirmed the welding-cable item as serious with a $360 penalty and found the four remaining items de minimis with no penalty. During Commission review, the parties settled. The Secretary reclassified the welding-cable item as other-than-serious while retaining the $360 penalty, and Compass withdrew its contest to that item and the four items in the second citation. Compass also represented that every cited condition had been abated and would remain abated. The Commission incorporated the settlement as its final order.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.351(b)(2), 1926.59(e)(1), 1926.59(e)(1)(ii), 1926.59(e)(2), and 1926.350(j)
• Outcome: Settlement approved; welding-cable item reclassified as other-than-serious with a $360 penalty, and remaining contests withdrawn.
• Key point: The settlement changed the welding-cable violation's classification but left its $360 penalty in place.

Full text (OSHRC public release)

Docket No. 90-0354

SECRETARY OF LABOR,

Complainant,

v.

COMPASS STEEL ERECTION, INC.,

Respondent.

OSHRC Docket No. 90-0354-S

ORDER

This matter is before the Commission on a Direction for Review entered by Chairman Edwin G. Foulke, Jr. on October 24, 1990. The parties have now filed a Stipulation and Settlement Agreement.

Having reviewed the record, and based upon the representations appearing in the Stipulation and Settlement Agreement, we conclude that this case raises no matters warranting further review by the Commission. The terms of the Stipulation and Settlement Agreement do not appear to be contrary to the Occupational Safety and Health Act and are In compliance with the Commission's Rules of Procedure.

Accordingly, we incorporate the terms of the Stipulation and Settlement Agreement into this order. This is the final order of the commission in this case. See 29 U.S.C. 659(c), 660(a) and (b).

Edwin G. Foulke, Jr

Chairman

Velma Montoya

Commissioner

Donald G. Wiseman

Commissioner

Dated: November 19, 1990

ELIZABETH DOLE, SECRETARY OF LABOR,

Complainant,

v.

COMPASS STEEL ERECTION, INC.,

Respondent.

OSHRC Docket No. 90-0354-S

STIPULATION AND SETTLEMENT AGREEMENT

I

The parties have reached agreement on a full and complete settlement and disposition of the issues in this proceeding which are currently pending before the Commission.

II

It is hereby stipulated and agreed by between the Complainant, Secretary of Labor, and the Respondent, Compass Steel Erection Inc., that:

1. Respondent represents that all of the alleged violations for which it was cited have
   been abated and shall remain abated.

2. Complainant hereby amends Citation 1, item 1 to characterize the alleged violation of
   29 C.F.R. 1926.351(b)(2) as other than serious. The proposed penalty for this citation is
   $360.

3. Respondent hereby agrees to withdraw its notice of contest to Citation 1, as amended
   above, and to Citation 2, items I through 4.

4. Each party agrees to bear its own fees and other expenses incurred by such party in
   connection with any stage of this proceeding.

5. Respondent states that there are no authorized representatives of affected employees.

6. The parties agree that this Stipulation and Settlement Agreement is effective upon
   execution.

7. Respondent certifies that a copy of this Stipulation and Settlement Agreement was
   posted at its main office on the 18 day of October, 1990, in accordance with Commission Rules 7 and 100, and remained posted for a period of ten days.

ROBERT P. DAVIS

Solicitor of Labor

CYNTHIA L. ATTWOOD

Associate Solicitor for

Occupational Safety and Health

DONALD G. SHALHOUB

Deputy Associate Solicitor for

Occupational Safety and Health

DANIEL J. MICK

Counsel for Regional

Trial Litigation

D. W. DURHAM (Date)
             ORLANDO J.
PANNOCCHIA (Date)

Vice-President

Attorney for the

Compass Steel Erection, Inc.       Secretary of Labor

SECRETARY OF LABOR,

Complainant,

v.

COMPASS STEEL ERECTION, INC.,

Respondent.

OSHRC Docket No. 90-0354-S

APPEARANCES:

Daniel T. Curren , Esq., for the Complainant.

D. W. Durham , for the Respondent.

DECISION AND ORDER

L. LaVecchia, Judge

This proceeding arises under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq .), referred to as the "Act."

The respondent was cited by the Occupational Safety and Health Administration, also known as "OSHA," for alleged violations of the safety and health standards promulgated under the Act.

A hearing was held in the matter on June 8, 1990, at Dallas.

After amending the citations at the outset of the hearing, the complainant alleges that the respondent violated the following standards in the manner indicated:

Item 1 of Citation No. 1 (Serious) alleges that the respondent violated the standard set forth at 29 CFR 1926.351 (b)(2) for failing to insulate completely exposed metal parts of cable lugs used to connect or splice lengths of welding cables to each other.

The standard states that "only cable free from repair or splices for a minimum distance of 10 feet from the cable end to which the electrode holder is connected shall be used, except that cables with standard insulated connectors or with splices whose insulating quality is equal to that of the cable are permitted."

Citation No. 2, characterized as "other than serious" alleges, as amended, that the respondent violated the standard set forth at 29 CFR 1926.59(e)(1) by failing to develop, implement, or maintain at the work site a written hazard communication program for use by employees using materials such as acetylene, oxygen, and welding rods.

Under 29 CFR 1926.59(e)(1)(ii) the respondent allegedly violated the standard by not having a written hazard communication program with a complete list of the hazardous chemicals known to be present in the work area, such as acetylene, oxygen, and welding rods.

Under 29 CFR 1926.59(e)(2) the respondent allegedly violated the standard by not having a written hazard communication program in accord with the methods prescribed in pertinent sections of the standard.

Under 29 CFR 1926.350(j) (Section 3.2.4.3 ANSI 249.1-1967 as adopted by this standard, the respondent allegedly violated the Standard by storing an oxygen and acetylene bottle next to one another while tied to a guard rail in a stairwell. The standard requires that these materials be separated because of their combustible nature by a distance of at least 20 feet or by a non-combustible barrier with an appropriate fire-resistance rating.

THE FACTS

On November 13-14, 1989 the respondent's construction site in Fort Worth, Texas was inspected by Jeffery Jones, a compliance officer employed by the Occupational Safety and Health Administration ("OSHA"). The respondent company was one of the subcontractors performing work at the work site. The CO found that the respondent was operating a Lincoln are welding machine in an area where there were several welders at work. The stinger cable on the Lincoln welder showed evidence of damage which had been taped over with duct tape. Three areas within a 10- foot length of the stinger cable were found to be so taped. Duct tape is not considered to be an adequate insulating tape for wrapping damaged portions of cable. (Tr. 7-12). Interviews with respondent's representative confirmed that the welder was being used in the head house of the elevator. The infraction was considered serious because an employee exposed to the damaged areas could sustain an electrical shock. The tape itself showed evidence of being frayed and worn. Minor burns to severe burns or death could result from an electrical shock. The electricity involved is direct current of about 10 volts and 170 amperes. (Tr. 15-16). The higher the amperes the greater is the risk of serious injury.

The CO found that the respondent's hazard communication program was inadequate in that several areas in the written program were not covered. Labeling processes were not mentioned, nor was there any information with respect to the maintenance of material safety data sheets. These sheets are used to inform employees about the chemicals in use at the work site, and how to deal with them. (Tr. 22). Hazardous chemicals in use at the work site included acetylene, a fire hazard, and oxygen, a supporter or causant ant of fire hazards. (Tr. 24). Welding rods are also considered hazardous because of the fumes they generate.

The fact that employees were working in a confined space increased the hazards to which the employees might have been exposed. For example, metal fumes caused by welding can result in metal fume fever being experienced by employees working in a confined space. Lead fumes could also be generated by working in a confined space as welders.

The CO was also of the opinion that escape routes had not been established for the benefit of the employees in the event it became necessary to quickly evacuate the small space in the head house.

The employees were not advised of the procedures to be followed in multi-employer work sites, such as the one in question here. The respondent's representative asserted that all of the alleged violations would be abated.

The CO discovered a bottle of acetylene and a bottle of oxygen placed alongside each other near a stairwell. In the event of a fire this would present a dangerous mix of materials, and the storage of these two items in close proximity is prohibited by the standard. However, the respondent stated that the two items were placed in the position found only for the purpose of being picked up after the job was completed.

DISCUSSION

The respondent's representative, Mr. D.W. Durham, did not feel that the use of duct tape for repairing damaged sections of cable connections on the arc welder represented any substantial danger of electrical shock to employees using the apparatus. He indicated that duct tape had been used because it was found to be more durable than regular insulating tape. On the other hand, there is no evidence that he ever applied for a variance on that theory, and the CO's explanation of the electrical hazard involved in the custom is persuasive. I will find that there was a serious violation of the standard involved. The respondent should either apply for a variance or discontinue the practice of using duct tape for the purpose described.

The respondent has been aware of the hazard communication standards and appears to have made a diligent effort to comply with the standards. The respondent's interpretation of the language of the program has been somewhat confused, but in view of the complex matters dealt with in the standards, I will find that the violations were de minimis in character.

The acetylene and oxygen were not found to be in storage at the time of the alleged violation, but a reasonable interpretation of the standard would extend the prohibition to the mixing of the two in close proximity in almost any circumstances. A violation will be found, but it will also be found to be de minimis .

CONCLUSIONS

1. The Commission has jurisdiction in this matter.

2. The respondent was in serious violation of 29 CFR 1926.351(b)(2) as alleged in the
   citation and complaint. The proposed civil penalty of $360 is appropriate.

3. The respondent was in de minimis violation of Items 1 through 4 in
   Citation No. 2. No penalty is assessed in these circumstances.

ORDER

1. Item 1 of Citation No. 1 is affirmed, with a civil penalty of $360 assessed for the
   violation.

2. Items 1 through 4 of Citation No. 2 are affirmed as de minimis
   violations, with no penalty assessed.

So ORDERED.

Louis G. LaVecchia

Judge, OSHRC

DATED: September 14, 1990

DALLAS