Metric Constructors, Inc.

Plain-English summary

Metric Constructors used a material hoist while building a six-floor hospital addition in Clearwater, Florida. The judge affirmed items involving long material protruding from the hoist, an unprotected ground-level hoist entrance, unenclosed unused sides of the hoist tower, and exposed reinforcing steel. In settlement, the Secretary withdrew the reinforcing-steel item and reclassified the protruding-material item from serious to other-than-serious while retaining its $720 penalty. Metric withdrew its contest to that item and agreed that the violations had been abated. The unreviewed hoist-entrance and tower-enclosure rulings remained affirmed with penalties of $315 and $630. The final penalties totaled $1,665.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.552(a)(1), 1926.552(b)(2), 1926.552(b)(5)(ii), and 1926.701(b)
• Outcome: Settled. The rebar item was withdrawn, the protruding-material item became other-than-serious with a $720 penalty, and two unreviewed hoist items remained affirmed, for $1,665 total.
• Key point: The settlement narrowed the case while preserving the penalty on the reclassified hoist-operation item.

Full text (OSHRC public release)

Docket No. 90-0403

SECRETARY OF LABOR,

Complainant,

v.

METRIC CONSTRUCTORS, INC.,

Respondent.

Docket No. 90-0403

ORDER

This matter is before the Commission on a Direction for
Review entered by Chairman Edwin G. Foulke, Jr. on October 21, 1991.  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, and we set aside the Administrative Law Judge's
Decision and Order to the extent that it is inconsistent with the Stipulation and
Settlement Agreement.  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

Donald G. Wiseman Commissioner

Velma Montoya Commissioner

Dated: July 7, 1992

SECRETARY OF LABOR,

Complainant,

v.

METRIC CONSTRUCTORS, INC.

Respondent.

OSHRC Docket No. 90-0403

STIPULATION AND SETTLEMENT AGREEMENT

In full settlement and disposition of the issues in this
proceeding, it is hereby stipulated and agreed by and between the Complainant, Secretary
of Labor, and respondent, Metric Constructors, Inc., that:

1.  This case is before the Commission upon the
granting of Respondent's Petition for Discretionary Review seeking review of the
Administrative Law Judge's Decision and Order dated August 23, 1991.  Review was
granted of serious Citation 1, Items 1 and 4(a) and (b) (review was sought and none was
granted for the affirmance of serious Citation 1, Item 2(a), and Item 3; Item 2(b) of
serious Citation 1 and other-than-serious Citation 2 were vacated).

2.  The Secretary hereby withdraws serious Citation
1, Item 4(a) and 4(b) and the proposed thereto.

3.  The Secretary hereby amends the classification of
serious Citation 1, Item 1 to other-than-serious.

4.  Respondent hereby withdraws its notice of contest
to serious Citation 1, Item 1 and to the notification of proposed penalty.

5.  Respondent agrees to a penalty of $720.00 for
serious Citation 1, Item 1.

6.  Respondent agrees that the above-mentioned
violations have been abated consistent with the terms of this agreement.

7.  By entering into this agreement, the parties do
not admit or deny the existence of any violations.  The parties have entered into
this agreement strictly to avoid the expense and uncertainty of further litigation.

8.  Respondent agrees to submit to the OSHA Area
office $720.00 within 30 days of this agreement.

9.  Respondent certifies that a copy of this
Stipulation and Settlement Agreement was posted at the workplace on the 22nd day of June
1992, in accordance with Rules 7 and 100 of the Commission's Rules of Procedure.  
There are no authorized representatives of affected employees.

10.  Complainant and respondent will bear their own
litigation costs and expenses.

Antony F. Gil

Counsel for the

Secretary of Labor

J. Larry Stine

Attorney for

Respondent

SECRETARY OF LABOR, Complainant, v. METRIC CONSTRUCTORS,
INC., Respondent.

OSHRC Docket No. 90-0403

APPEARANCES:

Leslie J. Rodriguez, Esquire, Office of the Solicitor,
U.S. Department of Labor, Atlanta, Georgia, on behalf of complainant

Mr. Stephen J. Cloutier, Charlotte, North Carolina, on
behalf of respondent.

DECISION AND ORDER

Burroughs, Judge:  Metric Constructors, Inc.
("Metric"), a general contractor with its principal place of business in
Charlotte, North Carolina, contests alleged serious violations of 29 C.F.R. �
1926.552(a)(1), for operating a material hoist with the door open and material protruding
out; 29 C.F.R. � 1926.552(b)(2), for failing to protect the full width of the landing
entrance to the hoist; 29 C.F.R. � 1926.552(b)(5)(ii), for failure to enclose the unused
sides of the hoist; and 29 C.F.R. � 1926.701(b), for failure to guard protruding
reinforcing steel at the ground level and on the fifth floor.[[1]]  The alleged
violations emanate from an inspection commenced on October 19, 1989, at a worksite in
Clearwater, Florida.  The serious citation was issued on December 22, 1989.

The inspection was conducted by Compliance Officer Nancy
Hodenius.[[2]]  The inspection was to cover "plain view" violations.  
There were seven subcontractors at the site (Tr. 64-66).  Hodenius was accompanied on
the walk-around of the site by Mickey Roberts, Metric's job superintendent, and Neal
Theshour, the project manager (Tr. 65).  A six-floor addition to a hospital was under
construction at the time of the inspection (Tr. 23).

A Champ Model MHT-50 single platform material hoist (Ex.
C-1; Tr. 30) was located on the south side of the building (Tr. 69).  The hoist had
been erected by Sims Crane Rental & Equipment Co. pursuant to a purchase order
agreement (Tr. 20, 23, 44).  Sims Rental inspected the crane and certified it for
use.  In addition, they provided a service technician who gave instructions on its
operation (Tr. 46-47).  Employees of Metric and the subcontractors used the hoist
(Tr. 95).

Material hoists are common to the construction of a
multi-story building.  They are used to raise and lower materials during construction
(Tr. 14).  The car, consisting of a platform or floor, a top and an enclosure with a
front and rear door gate to enter and exit the car, is the load carrying unit (Tr. 14-18,
57).  The hoist in this case was guided by a tower (Tr. 18).  It was controlled
by a lever operated by an employee at the base of the tower (Tr. 111-112).  The
operator was able to see the entire area where the hoist ascended and descended (Tr. 112).

In order to establish a prima facie case that an employer
has violated a standard promulgated pursuant to section 5(a)(2) of the Act, the Secretary
must show by a preponderance of the evidence that:  (1) the cited standard applies to
the facts, (2) its terms were not met, (3) employees had access to the violative
condition, and (4) the employer knew or could have known of the violation with the
exercise of reasonable diligence.  See, e.g., Walker Towing Corp., 14 BNA OSHC 2072,
2074, 1991 CCH OSHD � 29,239, p. 39,157 (No. 87-1359, 1991).  There is no dispute
concerning knowledge.  Metric was aware of the conditions at the site.  There is
a question as to the applicability of the standards and whether the terms of the standards
were fulfilled.

Item 1-Alleged Violation of 29 C.F.R. � 1926.552(a)(1)

The Secretary alleges that Metric violated �
1926.552(a)(1) by operating the material hoist with the door open and material sticking
out the open doorway.  During the inspection on October 19, 1989, the front door of
the hoist was open and material was protruding out of the doorway (Tr. 69, 79).  
There was concern that material might fall from the open car door (Tr. 69).   The
matter was brought to the attention of Roberts, who indicated he would have the condition
corrected (Tr. 72-74).  Hodenius admitted that she did not know if the material was
secured (Tr. 110).  She saw no material fall out (Tr. 111).  In addition to
Metric employees, there were subcontractors' employees in the area (Tr. 76-77).  At
least ten employees of Metric had access to the condition (Tr. 76-77).

On September 17, 1989, Hodenius observed material was
being transported on top of the cage (Tr. 79).  Roberts agreed that transporting
material on top is an unsafe practice (Tr. 25).  The citation did not charge Metric
with transporting materials on top, and the complaint makes no reference to such an
incident.  Accordingly, whether materials were carried on top and whether this is a
violation of the standard are not considered issues in this case.

Upon installation of the hoist, Sims furnished Metric with
an operations manual.  The manual does not mention anything about operating the hoist
with the door open or about protecting or erecting an enclosure around the landing area
(Tr. 50).  These matters were never mentioned by Sims (Tr. 50).

Section 1926.552(a)(1) provides:

(1) The employer shall comply with the manufacturer's
specifications and limitations applicable to the operation of all hoists and elevators.
  Where manufacturer's specifications are not available, the limitations assigned to
the equipment shall be based on the determinations of a professional engineer competent in
the field.

The standard does not explicitly set out the requirements
necessary for operation of a material hoist.  Under the terms of the standard, Metric
was required to comply with the manufacturer's specifications and limitations.

Metric contends that the standard improperly delegates the
Secretary's "regulatory power to manufacturers and that subsequent changes by
manufacturers violated the notice and comment requirements of the Administrative Procedure
Act."  A similar argument has been rejected by the Commission in Towne
Construction Co., 86 OSAHRC 66/A3, 12 BNA OSHC 2185, 1986 CCH OSHD � 27,760 (No. 83-1262,
1986), aff'd, 847 F.2d 1187 (6th Cir. 1988).  While the Towne decision pertained to
� 1926.550(a)(1), the language was similar.  The argument is rejected.

Metric next argues that the Secretary failed to prove the
elements of the violation.  Metric submits that the first element the Secretary must
establish is that the manufacturer's specifications prohibit such practice.  Metric
received an operator's manual for the hoist (Ex. R-2) from Sims.  The manual, as
presently written, does not specify that the material hoist door must be closed prior to
operation or that the material may not extend beyond the door (Tr. 132).  In
addition, Metric asserts that the service technician from Sims at no time instructed
anyone not to operate the hoist with the door open (Tr. 47).

With respect to the door, the operator's manual states,
"When platform is raised, front door will close automatically" (Tr. 32).  
Any argument that this statement supports the violation is rejected.  Such a
statement is not a limitation on operations but a description of the function of the door.
  Furthermore, the statement relates to the function of a vertical door and not to
horizontal swing doors which were used at the jobsite (Tr. 32).

The Secretary also makes reference to �
1926.552(b)(8),[[3]] which adopts "ANSI A10.5-1969, Safety Requirements for Material
Hoists."  With respect to long material hanging over the edge of the hoist car,
ANSI A10.5 � 13.5 provides:

13.5  When using a cage or platform for long
material, the several pieces of the material shall be securely fastened together and made
fast to cage or platform, so that no part of the load can fall or project beyond the sides
of the cage or platform.  The violation charges Metric with violating the
"manufacturer's specifications and limitations."  The citation makes no
reference to � 1926.552(b)(8) of the ANSI standard.

Metric objects to the reliance by the Secretary on the
ANSI standard since it was not originally referenced under the allegation.  It argues
that an ANSI standard is not a manufacturer's specification.  It is pointed out that
the OSHA standard cited by the Secretary requires it to comply with the manufacturer's
specifications in the operation of the material hoist, not the ANSI standard.  It
states that it was not cited for such a violation and did not consent to try the case
under � 1926.552(b)(8) at the hearing.

The Secretary seeks to make the provisions of ANSI A10.5
applicable by amending the pleadings.  An amendment is not necessary.  The ANSI
standard is part of the "manufacturer's specifications and limitations."  
The operator's manual furnished by Sims to Metric contains the following statement in
capitol letters at the commencement of section II (Ex. C-2):

INSTALLATION, ERECTION, OPERATION AND INSPECTION TO BE IN
ACCORDANCE WITH ANSI 10.5 -- CURRENT REVISION.

This statement adopts and incorporates ANSI 10.5 as part
of the "manufacturer's specifications and limitations."  The manufacturer
specifically referenced the ANSI standard as part of its "specifications and
limitations."

Due to the specific incorporation by reference of the ANSI
standard in the operator's manual, and the fact it is undisputed that the material hoist
was operated with long material hanging over the edge of an open hoist car door, the
violation is affirmed.

Metric introduced evidence from Roberts and Stephen
Cloutier, Metric's safety and loss control manager, that it was industry practice to move
large materials with the hoist door open where it is necessary to the transporting of the
material (Tr. 43-44, 137).  Industry practice cannot obviate an established rule.
  The defense is without merit.

Item 2 - Alleged Violation of 29 C.F.R. � 1926.552(b)(2)

Metric is charged with a violation of � 1926.552(b)(2)
for failure to (1) protect the Champ hoist at the loading dock area with a gate or bars at
the ground level entrance and (2) because the second floor landing gate did not have a
midrail, and the wire covering on the gate was pulled loose from the lower corner.  
The standard states:

(2) All entrances of the hoistways shall be protected by
substantial gates or bars which shall guard the full width of the landing entrance.

The remainder of this subsection details the
specifications for such gates or bars:

(i) Bars shall be not less than 2- by 4-inch wooden bars
or the equivalent, located 2 feet from the hoistway line.  Bars shall be located not
less than 36 inches nor more than 42 inches above the floor.

(ii) Gates or bars protecting the entrances to hoistway
shall be equipped with a latching device.  The hoist tower at the ground level,
referred to as the loading dock area, did not have gate or bars to prevent anyone from
walking under the hoist (Ex. C-2, C-3; Tr. 81-83).  Employees were walking in the
area (Tr. 83-84).  There was nothing to prevent access to the space at the bottom of
the hoistway (Tr. 19).  Approximately ten employees of Metric had access to the area
(Tr. 83).  The hoist was used on a daily basis (Tr. 83).  The violation has been
established.

All the landings had premanufactured gates except the
second level.  Metric constructed a wooden gate (Ex. C-4) for the second level
because of a height variation at the second level.  The premanufactured gate could
not be used on the second level without extensive modification (Tr. 58-59).  The
wooden gate had been covered with what Hodenius referred to as "chicken wire."
  The wire was pulled away from one of the lower corners of the gate for a small area
measuring about eight to ten inches wide (Tr. 85, 87, 115).  Hodenius testified that
the wire had been pulled back about a foot.  She then stated, "I don't
recall" (Tr. 91).  Hodenius was concerned that if an employee fell against the
wire, it might further loosen and cause a fall to the ground level (Tr. 88).  
Hodenius rejected the gate in part because it was constructed of a wooden frame as opposed
to the metal frame for the other loadings (Tr. 86).  She admits a midrail is not
required by the standard (Tr. 87).  There were two employees on the second floor (Tr.
88).

The Secretary contends that the hoistway gate on the
second level was not "substantial."  This conclusion is based on the fact
that (1) the wire covering the gate was a lighter wire than the other gates, (2) the wire
had been damaged in the lower corner, and (3) it was constructed of wood, not metal (Tr.
87).  The Secretary recommended that a midrail be added to give the gate more
stability; however, Hodenius admitted that a midrail is not required by the standard (Tr.
87).

The Secretary defines the issues in dispute as one
concerning the chicken wire covering, which was loose in one corner, attached to a wooden
frame and a 2- by 4-inch wooden bar 36 inches above the floor and a 2-by 4-inch wooden
cross brace, constitutes a substantial gate (Exs. C-2, C-4; Tr. 23-25, 58-59, 85-88, 91,
114-117).  She argues that the differences between the manufacturer's metal gates and
Metric's wooden gate, plus the damage to the chicken wire, are sufficient to support a
determination that the gate was not substantial.  In the opinion of the Secretary,
the wooden gate fails to satisfy the demands of the standard.

The standard requires that the entrance be protected by
"substantial gates or bars."  Metric argues that the meaning of
"substantial" under 29 C.F.R. � 1926.552(b)(2) must be interpreted in light of
� 1926.552(b)(2)(i) which states, "[b]ars shall not be less than 2-by 4-inch wooden
bars or the equivalent.....Bars shall be located not less than 36 inches nor more than 42
inches above the floor."  If a gate or bar is defined as substantial when
constructed with 2-inch by 4-inch wood, the Secretary's reference to the fact that the
gate is not substantial because it was constructed of wood and not metal does not allow
for a wooden gate.  This is obviously contrary to the standard.  The
determination of what is "substantial" is measured against a 2-by 4-inch wooden
bar.  The standard does not specify any type of covering.  Metric, by installing
the wire covering, went beyond the requirements of the standard.  The argument raised
by the Secretary as to the wire covering is immaterial and is not related to �
1926.552(b)(2).

The Secretary recommended a midrail be installed; however,
the standard permits a single wooden bar located between 36 and 42 inches from the floor
or a gate.  The record is devoid of any evidence concerning the height of the top bar
of the gate clearly shows that a gate was in place at this location.  The Secretary
failed to establish that a midrail is required and further failed to show that the gate
was not in compliance with the standard.  In concluding that the gate was not
substantial, the Secretary has failed to support that conclusion.  The fact that the
gate was constructed of wood and had a "chicken wire" covering does not per se
support such a violation.  The standard does not say a gate constructed of wood is
not substantial.  The alleged violation with respect to the second level gate is
vacated.

Item 3- Alleged Violation of 29 C.F.R. �
1926.552(b)(5)(ii)

The Secretary alleges Metric violated �
1926.552(b)(5)(ii) by failing to enclose the unused sides of the Champ hoist at the ground
level.  Section 1926.552(b)(5)(ii) provides:

(ii)  When a hoist tower is not enclosed, the hoist
platform or car shall be totally enclosed (caged) on all sides for the full height between
the floor and the overhead protective covering with 1/2-inch mesh of No. 14 U.S. gauge
wire or equivalent.  The hoist platform enclosure shall include the required gates
for loading and unloading.  A 6-foot high enclosure shall be provided on the unused
sides of the hoist tower at ground level.

There was no enclosure of the unused sides of the hoist
tower at ground level (Tr. 39, 64, 92).  Approximately ten Metric employees had
access to the area (Tr. 92).  Roberts agreed that the hoist tower was used without an
enclosure on all open sides (Tr. 18).  There was a chance that an employee would
inadvertently walk under the hoist and be struck from its descent (Tr. 92, 95-96).

It is uncontroverted that the hoist tower which was used
to guide the hoist car in its travel was used without an enclosure on all sides (Tr. 18).
  There was nothing to prevent access to the tower at ground level (Exs. C-2, C-3;
Tr. 19, 39, 64, 92).  Metric's employees who were in the area clearing materials
could walk underneath the hoist.  The violation is affirmed.

Metric reasons that the alleged potential hazard is based
on an argument that the material hoist would descend upon an employee (Tr. 81).  
While admitting the hoistway was not guarded, Metric asserts that the Secretary failed to
establish that the employees were exposed to the hazard of a descending platform.  It
points out that the sole proof of exposure to the danger of a descending platform is found
in the very generalized testimony of Hodenius, who stated that she saw employees
"around the hoist" (Tr. 84).  When she was asked how close the employees
were to the zone of danger she replied, "Well, some of them were walking on the
platform; just walking through the area" (Tr. 84).  Metric argues that it is
obvious that if employees were walking on the platform, they cannot be exposed to the
hazard of a descending platform and that the fact that employees were just walking through
the area fails to prove that the employees were in the zone of danger.   Metric
concluded that the testimony leaves one to speculate as to the meaning of the word
"area."  According to Metric, such an undefined answer does not establish
facts as to the location of the employees.  Metric also points out that the Secretary
failed to establish employees had access to this area when the platform was lifted.

The hoist will not operate without an operator at the
controls.  If the operator lets go of the controls, the hoist will not move (Tr.
47-48).  Metric points out that the operators can watch all operations from the
controls (Tr. 47) and can restrict access to the area under the platform whenever the
platform is in a raised position.

The standard does not require the Secretary to prove a
hazard.  Exposure must be established.  There is no question concerning the fact
that employees were in the area.  The fact the hoist was operated by an individual
who could see persons in the area does not negate the requirement of the standard.

Metric further argues that the alleged violation should be
vacated because Metric properly relied on the expertise of Sims.  Metric contracted
with Sims to construct the material hoist, which is Sims' area of expertise (Tr. 45).
  Sims installed the material hoist, inspected it, certified it, and provided a
service technician to instruct Metric personnel in the operation of the hoist (Tr. 46-47).
  The only function performed by Metric was done according to Sim's specifications
(Tr. 46).  Metric had no reason to doubt Sims' expertise in this area.  In
support of its argument, Metric cites the following form Sasser Electric &
Manufacturing Co., 84 OSAHRC 37/C6, 11 BNA OSHC 2133, 2136, 1984 CCH OSHD � 26,982 (No.
82-178, 1984):

In many situations in the workplace, it is natural for an
employer to rely upon the specialist to perform work related to that specialty safely in
accordance with OSHA standards.  Cf. Cities Service Oil Co., 76 OSAHRC 105/A2, 4 BNA
OSHC 1515, 1518, 1976-77 CCH OSHD � 20,999 at pp. 25,237-38 (No. 4648, 1976), aff'd, 577
F.2d 126 [6 OSHC 1631] (10th Cir. 1978)  ("Normally, when an employer hires an
independent contractor to perform certain work, it relies on the contractor's expertise to
perform the work correctly.")  Further, in many instances it may not be
feasible, because of an employer's lack of expertise, or wasteful, without necessarily
resulting in the best achievement of safety for all employees, to require the contracting
employer to duplicate the safety efforts of the specialist.

Accordingly, while an employer has a duty to his own
employees even when it relies upon a specialist to perform part of the work, the duty is
of a different nature than when the employer performs the work itself.  In a single
employer situation, the employer by necessity assumes the responsibility to prevent
violations.  However, when some of the work is performed by a specialist, an employer
is justified in relying upon the specialist to protect against hazards related to the
specialist's expertise so long as the reliance is reasonable and the employer has no
reason to foresee that the work will be performed unsafely.

Metric's argument the Sasser should be followed is
rejected.  There are significant differences in the two situations.  Sasser was
in the business of servicing diesel generators.  Its employees were mechanics and
electricians.  It did not operate or profess to have any expertise in crane
operations.  It rented a crane and, more importantly, an operator from Mountain
Trucking Company.  Metric merely rented the hoist.  Its employees operated the
hoist.  The hoist was installed, inspected and certified by Sims Rental.  
Metric's employees were instructed in its operation and did, in fact, operate the
hoist.  Material hoists are common at construction sites and are used by the
construction employees to transport supplies to upper floors.  Hazardous situations
are generally well known.  Roberts was aware of the conditions and recognized the
hazards.  Metric was given an operator's manual which referred to ANSI Standard
A10.5-1969.  The violation has been established.

Item 4-Alleged Violation of 29 C.F.R. � 1926.701(b)

The Secretary alleges that Metric was in violation of �
1926.701(b) for failure to guard reinforcing steel rods located on the ground level at the
ladder and on the south side of the fifth floor.  The cited standard states:

(b) Reinforcing steel.  All protruding reinforcing
steel, onto and into which employees could fall, shall be guarded to eliminate the hazard
of impalement.

Mickey Roberts, Metric's project superintendent, agreed
that reinforcing steel rebar at the ladder on the ground level protruded 11 inches[[4]]
and was unguarded (Ex. C-5; Tr. 42, 52, 97).  He also agreed that there was unguarded
protruding rebar seven inches in height on the south side of the fifth floor (Tr. 42).
  These allegations are fully supported by the photographs entered into evidence as
C-5 and C-6 and the testimony of Hodenius.

Roberts testified that the rebar had been bent over until
a couple of days before the inspection in anticipation of pouring the concrete (Tr.
53-54).  The rebar has to be in a vertical position for pouring the concrete (Tr.
52-54).  Hodenius testified that Roberts did not say when the pour would be made, and
she did not get the impression that the pour would be within a day or two (Tr. 100).

Metric argues that the rebar had been bent down to
eliminate the hazard of impalement (Tr. 53, 77), a practice generally used in the
construction industry (Tr. 138).  It is standard practice of Metric to bend the rebar
over until a couple of days prior to pouring the concrete (Tr. 53-54).  In order to
pour the wall, it was necessary to bend the rebars back to their vertical position (Tr.
53-54).  According to Metric, the forming material was in place at the fifth level
and ground level ready to be used (Tr. 54).  While Hodenius originally registered
doubt as to the stage of the work, she had to acknowledge that her own photographs (Exs.
C-5, C-6) show some forms in place, a recently formed wall and additional forms stacked in
the area (Tr. 118, 199).  She agreed that it was possible that the rebars were in a
vertical position in anticipation of pouring the wall (Tr. 119).  She had no support
for her speculations that the walls were not being ready to be poured.  The project
superintendent testified that the rebar had been bent back up in preparation of forming
the walls and that the forming material was in place both on the ground level and the
fifth level (Tr. 53-54).  Metric did not offer any evidence to show when the pour had
been scheduled.

Employees had access to the unguarded areas of the
reinforcing steel.  At the ground level, employees were walking through the area to
get access to the ladder.  At least ten Metric employees were in the area.  The
ladder was the only access to the upper levels (Ex. C-5; Tr. 98).  At the fifth
level, a wooden plank resting between a couple of pieces of reinforcing steel was used as
a walkway and employees were seen walking across it (Ex. C-6; Tr. 102, 118).

Metric's defense to the citation is that the
"reinforcing steel was not guarded because it was being readied to be moved into
place and then have concrete poured around it" (Answer; Tr. 52-54, 117-119, 138).
  Hodenius testified that her observation of the ground level area, along with
discussions with Metric's employees and superintendent Roberts, disclosed that Metric
would be pouring concrete, but she did not "get the impression that it would be
within a day or two" (Tr. 99).  Consistent with this testimony was Roberts'
admission that the rebar at ground level was unprotected since October 17, 1989, i.e., two
days prior to the inspection (Tr. 53-54).  As to the fifth level, it was being
cleaned up and the area did not appear to be ready to erect a wall (Tr. 104-105).  
The rebar was in a vertical position too long to conclude that Metric was in compliance
with the standard.  The inspection day was the third day known for certain that the
rebar was in a vertical position without a pour being made.  Three days is considered
to be excessive exposure.  Metric never stated that a pour had been scheduled, and
there was no evidence to justify raising the rebar to a vertical position that far in
advance of a pour.  Employees were constantly exposed to the condition during the
three days.  The violation is affirmed.

Classification of the Violations

The Secretary contends that the violations were serious
within the meaning of section 17(k) of the Act.  A serious violation exists where
there is substantial probability that death or serious physical harm could result from the
condition in question.  The Secretary need not prove that an accident is probable; it
is sufficient if an accident is possible, and its probable result could be serious injury
or death.  Brown & Root Inc., Power Plant Division, 80 OSAHRC 17/B8, 8 BNA OSHC
1055, 1980 CCH OSHD � 24,275 (No. 76-3942, 1980).

The Secretary must also prove that the employer knew or,
with the exercise of reasonable diligence, should have known of the existence of the
violation.  The knowledge element is directed to the physical conditions which
constitute a violation.  Southwestern Acoustics & Specialty, Inc., 77 OSAHRC
141/D10, 5 BNA OSHC 1091, 1977-78 CCH OSHD � 21,582 (No. 12174, 1977).  It is
difficult for an employer to prevail on the defense that he had no knowledge of the
violation since he has an obligation to inspect the work area, to anticipate hazards to
which employees may be exposed, and to take measures to prevent their occurrence.  
Frank Swidzinski Co., 81 OSAHRC 4/E14, 9 BNA OSHC 1230, 1981 CCH OSHD � 25,129 (No.
76-4627, 1981).

The violations were serious because of the probability of
severe injuries including death:  (1) if the hoist descended upon an employee at the
unprotected ground floor landing entrance and at the unenclosed, unused sides of the hoist
tower; (2) if materials fell out of the open car of the hoist; and (3) if employees fell
on the unguarded reinforcing steel (Tr. 78, 84, 93, 99, 103).  The probability that
such injuries could result is unchallenged by Metric.  Because all of the violations
were in plain view, Metric clearly knew of the hazards (Tr. 78-79, 85, 89, 94).

Determination of Penalties

The Commission is the final arbiter of penalties in all
contested cases.  Secretary v. OSAHRC and Interstate Glass Co., 487 F.2d 438 (8th
Cir. 1973).  In determining an appropriate penalty, the Commission is required to
find and give "due consideration" to the size of the employer's business, the
gravity of the violation, the good faith of the employer, and the history of previous
violations.[[5]]  Primary emphasis is placed on the gravity of the violation.  
Nacirema Operating Company, Inc., 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD �
15,032 (No. 4, 1972).

At the time of the inspection, Metric indicated it had
approximately 2,000 employees (Tr. 66).  Compliance Officer Hodenius considered
Metric to be very cooperative (Tr. 119).  Metric has previously been issued several
citations prior to the citation in this case.  The following penalties are considered
appropriate:

Item

Penalty

No.

1

$720

2

315

3

630

4

630

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing 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) That items one, three and four of the
serious citation issued to Metric on December 22, 1989, are affirmed and the following
penalties assessed for the violations:

Item                                 
Assessed

No.

Penalty

1

$720

3

630

4

630

(2)  That item two of the serious citation is
affirmed as it pertains to the loading dock area and vacated with respect to the second
floor landing;

(3)  That a penalty of $315 is assessed for item two
as modified; and

(4)  That the "other" citation issued to
Metric on December 22, 1989, is vacated.

JAMES D. BURROUGHS

Judge

Date: September 12, 1991

FOOTNOTES:

[[1]] Metric also contested an "other" citation
containing one item issued to it on December 22, 1989.  The Government withdrew the
citation at the beginning of the hearing (Tr. 5).

[[2]] Hodenius had apparently observed what she described
as "plain view" violations on October 17, 1989, and had reported her
observations to her supervisor.  She was assigned to conduct an inspection.

[[3]] Section 1926.552(b)(8) provides:

(8) All material hoists shall conform to the requirements
of ANSI A10.5-1989, Safety Requirements for Material Hoists.

[[4]] Compliance Officer Hodenius measured the rebar (Tr.
97-98).

[[5]] Section 17(j) of the Act states:

(j) The Commission shall have authority to assess all
civil penalties provided in this section, giving due consideration to the appropriateness
of the penalty with respect to the size of the business of the employer being charged, the
gravity of the violation, the good faith of the employer, and the history of previous
violations.