Nooter Construction Co.

Read the official release (oshrc.gov)

Plain-English summary

Nooter Construction was building coke drums at a New Jersey refinery when OSHA cited compressed-gas-cylinder, ladder, and scaffold conditions. The Commission reversed the ALJ's cylinder ruling, holding that a three-sided cylinder truck was not suitable when its securing chain was left open and the cylinders could be knocked out; it assessed $140. It affirmed a $490 ladder violation because the ladder ended flush with a fourth-level guardrail rather than extending above it, and Nooter had not communicated a specific rule preventing employees from using that access. The Commission upheld vacatur of a scaffold-guardrail item involving an employee who stepped beyond the main guardrail onto an unguarded cantilevered platform. It found that Nooter's safety-belt rule, the physical guardrail, supervision, and discipline established that the employee's conduct was unpreventable and unforeseeable. The reviewed items resulted in $630 in penalties, while a separate $100 item not on review was unaffected.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.350(a)(1), 1926.350(a)(7), 1926.350(h), 1926.450(a)(5), 1926.451(a)(4), and 1926.405(j)(1)(i).
• Outcome: Mixed. The cylinder and ladder items were affirmed with $140 and $490 penalties, while the scaffold-guardrail item was vacated.
• Key point: An employee-misconduct defense depends on a preventive rule that was communicated and enforced, while equipment must still satisfy the protective purpose of the cited standard.

Full text (OSHRC public release)

                                 UNITED   STATES OF AMERICA
    OCCUPATIONAL             SAFETY AND HEALTH REVIEW                 COMMISS
                                   One Lafayette Centre
                             1120 20th Street, N.W. - 9th Floor
                                Washington, DC 20036-3419


                                                                                     FAX:
                                                                                     COM (202) 6o6-w50
                                                                                     m@W-

SECRETARY OF LABOR,

             Complainant,

   V.                                               : OSHRC Docket No. 91-237
                                                    ..

NOOTER CONSTRUCI’ION CO., ..
..
Respondent. ..
..

                                           DECISION

BEFORE: FOULKE, Chairman, and MONT.OYA, Commissioner.
BY THE COMMISSION:
Nooter Construction Company, a heavy construction company specializing in
petrochemical and power plant construction and the erection of pressure vessels, was
building four new coke drums at a refinery in New Jersey. The site was inspected between
September 18 and October 11, 1990 as part of an Occupational Safety and Health
Administration (“OSHA”) national emphasis program on the petrochemical industry.
Following the inspection, OSHA cited Nooter for violations of the Occupational Safety and
Health Act of 1970,29 U.S.C. 09 651-678 (“the Act”), for its alleged failure to comply with
standards governing compressed gas cylinders, ladders, and scaffolding. The judge vacated
the cylinder and guardrail violations but affirmed the ladder violation. He assessed a total
penalty of $590 ($490 for the ladder violation and $100 for a violation not on review). Both
the Secretary of Labor and Nooter petitioned for review of the judge’s decision. Review was
directed on the following issues:

   (1)      Whether the judge erred in finding that the employer was not in
   violation of 29 C.F.R. .§ 1926.350(a)(7) for failure to provide a “suitable
   cylinder truck, chain or other steadying device;”

2

    (2)     Whether the judge erred in finding that the employer wm in violation
    of 29 C.F.R. 5 1926450(a)(5)   for failure to provide an appropriate ladder
    extension; and

    (3)      Whether the judge erred in finding that the employer was not in
    violation of 29 C.F.R. 5 1926.451(a)(4) because the evidence supported that
    it had established an unpreventable employee misconduct defense.

                                         I. Cylinder Item
    The evidence establishes that two cylinders at the worksite were standing upright in

a “cylinder truck,” a cart especially designed to hold compressed gas cylinders. The
Secretary alleged that Nooter had failed to comply with section 1926.350(a)(7)’ because a
chain attached at one comer of the truck was dangling, unfastened to the opposite side,
leaving the truck open at one end. The judge vacated the item. He found that the standard
“requires compliance with only one of the three devices: a suitable cylinder truck or a chain
or another steadying device,” not simultaneous use of both a truck and a chain.
PartiW AtgumeW
The Secretary emphasizes that the standard requires a “suitable cylinder truck, chain
or other steadying device . . . to keep cylinders from being knocked over while in use”
(emphasis added), and argues that as used by Nooter, the truck was not “suitable” because
it failed to prevent the cylinders from being knocked down. The compliance officer, Louis
Cugno, testified that cylinder trucks are designed and manufactured with a strap or chain
for securing the cylinders inside the truck. The Secretary maintains that the three sides of
the truck alone might have prevented the cylinders from falling backwards or sideways, but
the danger contemplated by the standard was still present because there was no strap or
chain across the open end. The Secretary argues that Nooter failed to show that the truck

‘The standard provides:

    9 1926.350 Gas welding and cutting.

    (a) Transporting,moving and stonjtg compressed gu cylinders.

    ;;i A suitable cylinder truck, chain, or other steadying device shall be used to keep cylinders
    from being knocked over while in use.

3

was being used as intended, rendering its use improper and inadequate to protect against
the hazard. He points to testimony by Benny Butler, a supervisor for the last twelve of his
twenty-one years with the company, that it is Nooter’s “normal practice” to have the chains
around the tanks, not hanging down unfastened, and that had a foreman seen someone
leaving a chain unfastened, he would have warned the individual and hooked the chain
across himself. Nooter argues that the judge, who vacated the citation item, properly
construed the standard.
In addition to disputing the practical issue of whether the three-sided truck sufficiently
secured the cylinders, the parties differ on whether the Secretary’s position constitutes an
“interpretation” of the standard. The Secretary claims that since the meaning of the
standard is clear, no administrative interpretation is needed. “If one were necessary,
however, the position taken by the Secretary is reasonable and entitled to deference,” the
Secretary adds, citing Lyng v. Payne, 476 U.S. 926, 939 (1986) (cited in Martin v. OSHRC
@F&I Steel Cop), 499 U.S. 144 (1991) (“CFH’). Nooter contends, to the contrary, that
“ever since [CFW, the Secretary has resorted to reading otherwise specific and clear
regulatory language in ways that grammar school teachers would find bewildering, all in the
name of ‘administrative interpretation.“’ Nooter claims that since even with the chain or
strap fastened, an entire cylinder truck could itself be toppled over, thus frustrating the
purpose of the standard, the Secretary’s interpretation is unreasonable and not entitled to
deference. To construe the word “suitable” as requiring a truck to have a strap or chain
fastened across its open end, is, in Nooter’s view, a “wholesale change in the requirements
of the standard contrary to its plain language” calling for full rulemaking proceedings under
the Administrative Procedure Act, 5 U.S.C. 5 551-559 (“the APA”).

    We do not agree with the Secretary’s argument that the meaning of the standard is

clear and that administrative interpretation is therefore unnecessary. In our opinion, both
the syntax of the standard and the term “suitable” raise ambiguities. The judge and Nooter
both construed the disjunctive structure of the standard to require either a “truck” or a
 4

“chain,” but not both. In doing so, neither the judge nor Nooter considered the operative
effect of the adjective “suitable.”
Under the well known principles enunciated in Chevron U&l., Inc. V. NRDC, Inc.,
467 U.S. 837, 842-43 (1984), we first examine the language of the standard and then, if
necessary, the available legislative history, to determine the standard’s meaning. If no
determination can be reached, we then inquire whether the Secretary’s interpretation is
“reasonable,” that is, whether it “sensibly conforms to the purpose and wording of the
regulations,” Northern Indiana Pub. Sew. Co. v. Porter Co. Chap. of Izaak WaltonLeague,
Inc., 423 U.S. 12,lS (1975) (cited in CFI, 499 U.S. at 151). See Unarco Commercial Pro&.,
16 BNA OSHC 1499, 1502-03 (No. 89-1555, 1993), citing SecuMa Iizdus.Assoc. v. Federal
Reserve System, 847 F.2d 890 (D.C.Cir. 1988). In this case, the text and structure of the
standard do not make the meaning plain, and there is no pertinent legislative history, as the
standard was adopted from section 107 of the Contract Work Hours and Safety Standards
Act (“Construction Safety Act”), 40 U.S.C. 6 333, pursuant to section 6(a) of the OSH Act,
29 U.S.C. 8 655(a). We must therefore consider whether the Secretary’s interpretation --
that a truck, chain, or other device is “suitable” only if it keeps the cylinders from being
knocked over in any direction -- is a reasonable interpretation of the standard that is
consistent with the purposes of the OSH Act.
We find the Secretary’s interpretation is not unreasonable. The cylinder truck here
was equipped with a chain to guard its open side. The record indicates that the chain was
not fastened, thereby rendering the truck unsuitable for the statutory purpose, namely, “to
keep cylinders from being knocked over while in use.” Nooter failed to rebut this showing.
See TrinityI&i&s.,Inc., 15 BNA OSHC 1579,1992 CCH OSHD ll 29,662 (No. 88-1545,1992)
(consolidated).2

2Nooter asserts that the Secretary’s interpretation represents a %holesale change in the requirements of the
standard contrary to its plain language” subject to APA rulemaking procedures. The cases Nooter cites in
support of this characterization are, however, inapposite. In Budd Co., 1 BNA OSHC 1548, 1555, 1973-74
CCH OSHD lI 17,387, p. 21,919 (No. 199,1974) (consolidated), UT& 513 F.2d 201(3d Cir. 1975), the dissent
argued that the Secretary’s interpretation of the expression ‘talve end up” as meaning “vertical” would require
APA rulemaking procedures to be enforced. In Chamber of Commerce of the United States v. OShc4,656 E2d
464 (D.C. Cir. 1980), the court held that the Secretary’s new “interpretive rule and general statement of
policy” that employees are to be paid for time spent accompanying an inspector on a waIkaround was a
legislative rule requiring an APA notice-and-comment period.
 5

    Fma,Q Nooter’s argument that even a truck considered “suitable” by the Secretary

could tip over if it were hit hard does not affect our result. we are not charged with
assessing the wisdom of the standard. Budd CO., 1 BNA OSHC 1548, 1973-74 CCH OSHD
lI 17,383 (No. 199,1974) (consolidated), afd on othergrounds, 513 F.2d 201(3d. Cir. 1975).
We therefore conclude that the evidence supports finding a violation of the standard.
The compliance officer testified that damage to the valves on impact could cause the
cylinders to become dangerous projectiles which could strike employees. Serious injury or
death could result. The Secretary proposed a penalty of $280. That figure originally
included another subitem which was abandoned by the Secretary. Following our review of
the penalty factors outlined in section 17(j) of the Act, 29 U.S.C. 8 666(j), we assess a $140
penalty for this serious violation.
II. Ladder Item
This item involved an employee who climbed a fixed ladder up to the fourth level of
scaffolding where the top of the ladder ended flush with the top of a guardrail. In other
words, the last two rungs of the ladder were actually the two rails of the guardrail. When
the employee reached the top, he vaulted over the guardrail to the floor approximately 3%
feet below. The Secretary cited Nooter for a violation of the ladder specification standard
at section 1926.450(a)(5)3 because the ladder’s side rails did not extend 3% feet beyond the
top of the guardrail.

3At the time of the inspection, the cited standard provided:

    5 1926.450 Ladders.

    (a) General requiremen&

    $ ‘Fixed ladders shall be in accordance with the provisions of the American National
    Standards Institute, A14.3.1956, Safety Code for Fiied Ladders.

As the Secretary notes in his brief, at the time of the inspection, Section 6.3 of the pertinent ANSI standard
stated in part: “The side rails of through or side-step ladder extensions shall extend 3% feet above parapets
and landings. For through ladder extensions, the rungs shall be omitted from the extensions.” We note that
section 1926.450(a)(9) of the OSHA standard itself provided: The side rails shall extend not less than 36
inches above the landing. When this is not practical, grab rails, which provide a secure grip for an employee
moving to or from the point of access, shall be installed.” The Secretary adds that as amended in 1990 and
renumbered as 29 C.F.R. 3 1926.1053(a)(24), the OSHA standard now provides in part: The side rails of
through or side-step fixed ladders shall extend 42 inches (1.1 m) above the top of the access level or landing
platform sewed by the ladder.”
 6

    The judge, implicitly finding that there was an underlying physical violation of the

ladder standard, concluded that Nooter failed to establish the affirmative defense of
unpreventable employee misconduct. He found that Nooter did not adequately
communicate to its employees rules designed to prevent them from using the ladder in this
manner. In afErming the citation item and assessing a $@O penalty, the judge suggested that
Nooter could at least have posted a warning sign on the ladder advising employees to climb
no higher.
Parties’
Nooter contends that there was no violation of the standard because the ladder
extended well beyond the landing of the third level, the level intended to be serviced by that
ladder. Nooter argues that other ladders were available for access to the fourth and higher
levels and that there was, in any event, sufficient extension above the fourth-level landing to
satisfy the standard. Nooter also claims that because of the feasibility problems involved in
blocking off access to the fourth level, there was no violation if the employee could use the
guardrail as a “grab rail.” Nooter claims that this alternative is specifically authorized by the
standard.4 Nooter’s witness, Butler, testified that under the cited circumstance an employee
would not have to jump down to the platform, but could climb down the ladder on the
reverse side, and that this could be a safe practice if the “ladder goes up to the point where
they’ve still got something to hold onto the ladder while they step over the handrail.”
Nooter argues, in the alternative, that it has proved that any violation was due to
unpreventable employee misconduct. Nooter introduced evidence that upon being hired,
the employee involved in the alleged violation certified that he had read Nooter’s work rules
and safety regulations and that throughout the course of the job, the employee had attended
weekly safety meetings. Nooter contends that “[tlhis is not a situation where the employer
relies totally on the employee’s realization of ‘obviously’ unsafe work practices,” as the
employer did in Pressure Concrete Constr. Co., 15 BNA OSHC 2011,2016,1992 CCH OSHD

4Nooter apparently relies on terms found in section 1926.450(a)(9).See supa note 3. Nooter appears to be-
lieve that the Secretary inadvertently cited section 1926.450(a)(5), intending to cite section 1926.450(a)(9).
Nooter does not argue inapplicability or preemption of the cited standard as a defense, and seems to consider
the Secretary’s selection a typographical error or other oversight. We conclude that Nooter has not provided
us with a basis for questioning the Secretary’s choice.
 7

7 29,902, p. 40,811 (No. 90.2668,1992) (rejecting company’s argument that dangers of rising
water in sewers when it rams were obvious to any reasonable employee and a matter of
“common sense,” noting erroneous placement of burden on employees); or Concrete Corm.
Co., 15 BNA OSHC 1614,1619, 1992 CCH OSHD lI 29,681 (NO. 90-2019, 1992) (rejecting
company’s reliance on employees’ recognition of trench hazard). There is no showing,
according to Nooter, that it breached its duty to provide such training as would a reasonably
prudent employer.
The Secretary observes that the applicable ANSI standard (see supra note 3) requires
a ladder’s side rails to extend above “parapets and landings.” In this case, according to the
Secretary, the fourth level might be considered a “landing,” except that the guardrail is
essentially the equivalent of a parape?; the extension is to be beyond the top of this
“parapet,” not level with it. The Secretary notes in his reply brief that Nooter’s own witness
testified that “the ladder’s got to be up above the handrail.”

    There is no dispute that the ladder was sufficiently extended for safe access to the

landing on the third level. At issue is whether the ladder was sufficiently extended for safe
access to the fourth level where the employee was observed.
We find that it was not. The guardrail served as a parapet protecting the fourth-level
scaffold, with what would technically be the “landing” or floor approximately 3% feet
beneath the top of the parapet. The standard requires the side rails to extend beyond the
top of such parapets, not to end flush with the uppermost surface of the parapet, as was the
case here. Moreover, even if the guardrail were not characterized as a parapet, and we
were to focus solely on Nooter’s contention that the side rails extended above the “landing”
or floor of the fourth level, Section 6.4 of the ANSI standard requires the rungs to be
omitted from the extension. They were not! Thus we conclude that the ladder failed to

‘Although neither section 1926.450nor the ANSI standard incorporated by reference offers a definition of the
term “parapet,” we note that “parapet” is defined as “2: a low wall or raiZingto protect the edge of a
platform, roof, or bridge.” W;ebster!sSeventh N&v CollegiateDictionary611(19th ed. 1971). (Emphasis added).

6Rungs were removed to create the through ladder extension on the third floor, however.
 .

                                                  8

meet the requirements of the standard. it is also clear that Nooter knew or with the
exercise of reasonable diligence could have known of the condition of the ladder.’
This leaves the question of whether Nooter’s employees had access to the ladder.
Nooter contends in its brief and the judge found that the fourth level was not being used at
the time of the inspection. However, we could not find testimony or other evidence to that
effect. The only testimony on point was the compliance officer’s statement that “people
[were] working on it, yes, at all levels.” However, even if the fourth level were not a focus
of construction activity on the day of the inspection, the Secretary need only prove that
employees have access to an area of potential danger, as was the case here. See Adams
Steel Erec., Inc., 766 F.2d 804, 812 (3d Cir. 1985). There is evidence that Nooter did not
intend the fourth level to be serviced by the ladder in question since at least one other
ladder provided access to the upper levels. There is no indication in the record, however,
that Nooter relayed this intention to its employees. As Nooter’s supervisor, Butler, testified,
the ladder “actually gave the employees an opportunity to come right up to the top and
crawl over the [fourth-level guardrail], which was not the intent of that ladder, because [they
were to get off at the third level].” Not only were employees more or less tiee to use the
ladder in this way, but one was actually observed doing so.
Nooter argues that this employee exposure at the fourth level was the result of
unpreventable employee misconduct.’ Nooter claims that it introduced “extensive evidence”
that the offending employee had been properly instructed and trained in ladder usage.
However, we find, as did the judge, that no workrule or other instruction pertaining to the
type of violation at issue was communicated, either verbally or in writing. There is a rule
in the Nooter “Health and Safety Manual” that provides, in the section on Ladders: “The
side rails shall extend not less than 36 inches above the landing. When this is not practical,

‘The Secretary, who acknowledges that the Commission has held that the Secretary bears an initial burden
to show employer knowledge, continues to argue that while employer knowledge is relevant to characterization
of a violation, it is not an element of the Secretary’s prima facie case. The Commission continues to hold that
the Secretary bears the burden of establishing employer knowledge.

8The Third Circuit, to which this case may be appealed, has held that the burden is on the Secretary to show
how the employer could have foreseen and prevented the employee misconduct. PennsylvaniaPMT.& Light
Co. v. OSHRC, 737 F.2d 350 (3d Cir. 1984) (“PPdW’). The result would not differ under this test.
 9

grab rails, which provide a secure grip for an employee moving to or from the point of
access, shall be installed.” This manual is used only by supervisors, however, and is not
generally given to employees as a training aid. Nooter also relies on our recent decision in
El Paso Crane & Ri&ing Co., 16 BNA OSHC 1419,1993 CCH OSHD ll 30,231 (No. 90-1106,
1993), but we conclude that it does not help Nooter here, because Nooter failed to introduce
any evidence that it instructed its employees about the violative condition at issue in this
case.
Nooter did not dispute the characterization of a fall from the fourth level as likely to
result in serious injury, nor did Nooter challenge the amount of the proposed penalty. In
affirming this serious violation, we have considered the penalty factors in section 17(j) of the
Act, 29 U.S.C. 0 666(j), and find the penalty of $490 proposed by OSHA and assessed by
the judge to be appropriate.
III. Guardrail Item
At the time of the inspection, a proper standard guardrail had been installed at the
perimeter of the ninth-level scaffolding. Blocks of insulation were being transported fkom
the ground by a rope-and-pulley mechanism. During this operation, an employee on the
ninth level stepped outside the standard guardrail onto a cantilevered landing platform which
extended out from the scaffolding. This platform measured 4 feet by 8 feet and was
unguarded on its three open sides. From this thrust-out platform, the employee reached out
to grab the hoisting rope as the blocks of insulation were delivered. Nooter was cited for
a violation of the platform guarding standard at section 1926.451(a)(4)’ for exposing
employees to a 72.foot fall to the ground while receiving materials from the open side of the
platform attached to the sectional scaffold. The judge vacated the citation item, finding that
the employer established the unpreventable employee misconduct defense by showing that

%e standard provides:

      9 1926.451 Scaffolding.

      (a) General requirements.

      $ buardrails and toeboards shall be installed on all open sides and ends of platforms more
      than 10 feet above the ground or floor. . . .

10

the employee unexpectedly and unforeseeably stepped outside the work area contrary to his
orders and safety training.

    The parties focus not on lack of guarding around the smaller, thrust-out landing

platform, but on the instruction given to the employee who stepped out onto it without
protection of any kind. Nooter claims that the hazardous condition was the result of
unpreventable employee misconduct. The company emphasizes that it was only the
offending employee’s second day on the job and that he had attended the orientation session
where he received instruction concerning fall protection when working from elevated
surfaces. According to Nooter, employees were taught that tied-off safety belts are required
when working from incomplete scaffolds or temporary work locations not constructed for
normal employee work activities. Nooter further contends that the employee observed by
the compliance officer was not required to climb over the railing to do his job. Nooter adds
that Superintendent Butler’s vigilant supervision and visual policing of the operation, as well
as the prompt discipline administered following this incident, show that Nooter established
all the elements of the unpreventable employee misconduct defense.
The Secretary, arguing that Nooter failed to establish the defense, counters that the
only instruction the newly hired employee received was in the form of a booklet containing
sixteen “General Safety Regulations,” one of which provides that “[slafety belts and tail lines
are required where approved fixed scaffolds or ladders are not provided.“” He claims that
this written rule, along with similar oral warnings along the same lines at the orientation,
suffers from the “defects of generality and incompleteness.” The Secretary criticizes Nooter
for failing to explain what “approved” means and expresses his concern that Nooter’s oral
orientation covering the “do’s and don’ts of how to properly use the scaffolding” was of the
same caliber as its safety booklet. Finally, the Secretary notes that the Commission has
found that a prudent employer will make an effort to assure that instructions are both

‘Vhe Secretary suppo rts this argument by asserting that although the supervisor’s safety manual contains a
rule -- requiring belts “when [wlorking from completed scaffold/decking where employees may be required to
place themselves outside the protected area” -- that is seeminglymore on point than the rule Nooter relies
on, this manual is never given to new employees. The Secretary asserts further that the newly hired employee
would not yet have attended any weekly safety meetings and that there was no evidence that the employee had
been instructed in the specific manner in which Nooter intended the work to be done.
 .

                                            11

understandable and understood, citing pTessureConcrete, 15 BNA OSHC at 2017,1992 CCH
OSHD at p. 40,812. He compares the rule in this case to the one in Concrete Constm~zi~~
forbidding employees to enter an excavation that is not “laid-back” or the one in Bechtel
Power Cop., 10 BNA OSHC 2003,2008,1982 CCH OSHD lI 26,261, pa 33,172 (No. 77-3222,
1982), requiring use of “appropriate” ladders.
Discusses

   In order to establish the affirmative defense of unpreventable      employee misconduct

under Commission case law, an employer bears the burden of proving (1) that it has estab-
lished 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 have been discovered. See Jensen Conszr.
Co., 7 BNA OSHC 1477, 1479, 1979 CCH OSHD ll23,664, p. 28,695 (No. 76-1538, 1979).
The evidence establishes that employees were not required to go outside the
scaffolding guardrail to carry out the insulation operation. The supervisor, Butler, who was
with the compliance officer when he observed the employee on the unguarded landing
platform, testified that his crew had been lifting the insulation for two to three weeks and
that the operation did not require anyone to go outside the main scaffold guardrail and, up
to this time, no one had.
Although they have a duty to promote compliance among their employees, employers
are not held strictly liable for the acts of their employees. See PPL, 737 F.2d at 354. The
one documented work rule the parties in this case agree may be relevant provides that
“safety belts and tail lines are required where approved fixed scaffolds or ladders are not
provided.” The Secretary claims that an employee could reasonably believe that since the
cantilevered platforms were deliberately left unguarded, they constituted “approved” places
to work without a safety belt. However, even if the “psychological barrier” embodied in the
safety belt workrule was fairly general, we believe that the guardrail on the main scaffold
served as a physical barrier, alerting employees that the landing platform beyond the rail was
not intended as a working space.
Thus, although we agree with the Secretary that the wording of the rule might have
been clearer, we find that the company’s workrule was designed to prevent the violation at
 .

                                               12

issue in this case.” The evidence that the rule was effectively communicated and enforced

was unrebutted by the Secretary. See T&and DtillingCop, 9 BNA OSHC 1023,198O CCH
OSHD 1 24,954 (No. 765307,198O); Floyd S. pike Elec. Contmc., Inc., 6 BNA OSHC 1675,
1978 CCH OSHD 1 22,805 (No. 3069, 1978). The result is the same under the Third
Circuit’s test in PP&L. The Secretary failed to prove that the employee’s actions were
foreseeable. The citation is vacated.
IV. Order
Accordingly, we find as follows:
(1) The judge erred in vacating the cylinder item, Citation 1, item 2, a serious
violation of section 1926.350(a)(7). That citation is affirmed and a penalty of
$140 is assessed.

   (2) The judge did not err in affirming the ladder item, Citation 1, item 4, a
   serious violation of section 1926.450(a)(S). That citation is affirmed and a
   penalty of $490 is assessed.

    (3) The judge did not err in vacating the guardrail item, Citation 1, item 5, a
    serious violation of section 1926.45 l(a)(4). That citation is vacated.

The total assessed penalty, attributable to the items on review, is $630.

                                                            Chairman



                                                             Velma Montoya
                                                             Commissioner

Dated: January 31, 1994

?That the offending employee had only been on the job for a couple of days, implying that he was
inexperienced and unfamiliar with the operation, does not weigh in Nooter’s favor. To the contrary, the
Commission has expressed a special concern that new hires be made aware of hazards on the job. See, e.g.,
Pressure Concrete, 15 BNA OSHC at 2016, 1992 CCH OSHD at p. 40,811; General Dynamics Corp., 6 BNA
OSHC 1753, 1758, 1978 CCH OSHD ll 27,663, p. 22,873 (No. 12212, 1978); Turner Welding& Erec. Co., Inc.,
8 BNA OSHC 1561,198O CCH OSHD ll24,553 (No. 16235,198O). The rule in this case was flexible enough
to apply to a variety of situations employees might encounter on the worksite, but not so general as to be
meaningless, even to a new hire.
 OCCUPATIONAL SA~~~~~~‘~~~~~‘~~“,EW COMMISSION
One Lafayette Centfe
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

PHONE: FAX:
COM (202) 6064100 COM (2o2l6owOS0
nS(202)608-6100 FW=O-

                                              ..

SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. Docket No. 91-0237
.
NOOTER CONSTRUCTION CO., I
..
Respondent. ..
.

                                 NOTICE OF COMMISSION DECISION

The attached decision by the Occupational Safety and Health Review Commission was issued on
January 31, 1994. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES
TO OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITEUN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 0 660.

                                                       FOR THE COMMISSION

Januarv 31, 1994
Date Ray k- -. Da&g, Jr.
Executive Secretary
Docket No. 91-0237

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Patricia Rodenhausen, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
201 Varick St., Room 707
New York, NY 10014

John J. Gazzoli, Jr., Esquire
Lewis, Rice & Fingersh
500 N. Broadway, Suite 2000
St. Louis, MO 63102-2147

Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 420
McCormack Post Office and Courthouse
Boston, MA 02109-4501
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NM’.
4TH FLOOR
WASHINGTON D.C. 20006-l 246

                                                                      FAX:
                                                                      cgul&0~~-4008

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 91-0237
NOOTER CONSTRUCTION
Respondent.

                    NOTICE OF DOCKETING
          OF ADMINISTRATlvE    LAW JUDGE’S DECISION
The Administrative Law Judge’s Re rt in the above referenced case was

docketed with the Commission on May fl” 9, 1992. The decision of the Judge
wiIl become a final order of the Commissron on June 19, 1992 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such tition should be received by the Executive Secret on or before
June 9, 19r 2 in order to permit sufficient time for its review. Y ee
Commission Rule 91, 29 C.F.R. 2200.91.
All further pleadings or communications regarding this case shah be
addressed to:
Executive Secretary
Occupational Safety and Health
Revrew Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shah also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO8.
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
having questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 634-7950.

Date: May 20, 1992
DOCKET NO. 91-0237
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the Soeit‘&or, U.S. DOgL
Room MOO4
200 Constitution Ave., N.W.
Washington, D.C. 20210

Patricia Rodenhausen,
Re ‘onal Solicitor
w l

off ce of the Solicitor, U.S. DOL
201 Varick, Room 707
New York, NY 10014

Denise M. Hasbrook, Esq.
The Toledo Edison Company
Edison Plaza
300 Madison Avenue
Toledo, OH 43652

John J. Gazzo Jr., Esquire
l

Imris, Rice &3 ingersh
611 Olive Street
St. Louis, MO 63101

Richard W. Gordon
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
McCormack Post Office and
Courthouse, Room 420
Boston, MA 02109 4501

00017803420:02
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY.AND HEALTH REVIEW COMMISSION
JOHN W. McCORMACK POST OFFICE AND COURTHOUSE
ROOM 420
BOSTON, MASSACHUSETTS 02109-4501

PHONE: FAX:
COM (617) 223-9746 COM (617) 223-4004
FT’S 223-9746 FTS 223-4004

                                                         ..

SECRETARY OF LABOR, l
.

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                 Complainant                             l
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                                                         .       OSHRC Docket No. 91-0237

NOOTER CONSTRUCTION .
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COMPANY .

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                 Respondent.                              ..
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Appearances:

         Esther Curtwright, Esq.                         John J. Gazzoli, Jr., Esq.
                 Office of the Solicitor                         Lewis, Rice & Fingersh
                 U.S. Department of Labor                        St. Louis, MO
                         For Complainant                                  For Respondent

Before: Admistrative Law Judge Richard W. Gordon

                                       DECISION AND ORDER

         This proceeding arises under $ 10(c) of the Occupational           Safety and Health Act of

1970, 29 U.S.C. 0 651, et seq., (“Act”) to review citations issued by the Secretary pursuant

to 0 9(a) of the Act and a proposed assessment of penalty thereon issued pursuant to

8 10(a) of the Act. Respondent has admitted jurisdiction in its Answer.

         On December         11, 1990, the Secretary     issued citations   to Nooter      Construction

Company (“Nooter”) alleging that serious and other than serious safety violations had

occurred at Nooter’s worksite, the Mobil Oil (“Mobil”) Paulsboro Refinery in Gibbstown,
New Jersey, during the period September 18, 1990 to October 11, 1990. The Secretary’s

complaint charged Nooter with serious violations of 29 C.F.R. 5 1926.350(a)(l), 29 C.F.R.

s 1926.350(a)(7), 29 C.F.R. 0 1926.350(h), 29 C.F.R. 6 450(a)(5) and 29 C.F.R.

0 1926.451(a)(4); and an other than serious violation of 29 C.F.R. 0 1926.405(j)(l)(i). The

Secretary proposed a penalty of $1,610.00 for the serious violations. No monetary penalty

was assessed for the other than serious violation.

    By filing a timely notice of contest, Respondent   brought this proceeding before the

Occupational Safety and Health Review Commission (“Commission”). A hearing was held

in New York, New York on January 14, 1992. The parties have submitted their briefs and

this matter is now ready for decision.

                SUMMARY AND EVALUATION OF THE EVIDENCE

    The citations herein arose from a general OSHA inspection of the Mobil refinery in

Gibbstown, New Jersey based upon a national emphasis program for the petrochemical

industry. Mr. Louis Cugno, a compliance officer with the Occupational Safety and Health

Administration, was assigned to investigate Nooter which is a firm specializing in heavy

construction in the petrochemical industry, power plants, municipal building construction,

and erecting pressure vessels. (T-135). Nooter had a contract with Mobil to build four new

coke drums. The construction took place on a site which was about a quarter to a half mile

square. (T-136). The coke drums were approximately seventy-five (75) feet tall. Mr. Cugno

was accompanied during the inspection by Mr. Thomas A. Norton, a safety specialist with

Mobil, and by Mr. Benny Butler, a construction superintendent from Nooter. (T-10). The
inspection commenced on September 18,1990, and continued on the 19th and 20th with a

closing conference held on October 11, 1990. (Tr.486).

    It is well settled that the burden of proving all elements of an OSHA violation rests

with the Secretary. The Secretary must prove by a preponderance of the evidence that the

hazards the cited standards address existed at the worksite when the inspection was

conducted; that the persons exposed were the Respondent’s employees or under the control

of the Respondent and that the Respondent had actual or constructive knowledge of the

hazards. .

    A. Serious Citation No. 1, item no.1 (4 1926.350(a)(l))

    This item alleges that valve protection        caps were not in place on compressed gas

cylinders. This item assesses a penalty of $280.

    Both Messrs. Cugno and Norton testified that they observed a stored cylinder that

did not have a valve protection cap. Mr. Cugno testified that the hazard which could occur

is that of the valve being struck and the cylinder becoming a projectile. Mr. Norton also

testified that it was possible for materials to fall on the cylinders, because employees were

working on the scaffolding above the cylinders and the force of the wind could

something five to fifty feet. The Secretary offered no evidence on whether the cylinders

were full or empty asserting that the standard does not differentiate between full and empty

cylinders and thereby applies to both.’

’ The Secretary stated that Respondent in its Answer stated: “... all non-empty cylinders were properly
capped,...“. However, I do not consider that general statement to be an admission that the cylinders in
question were full.

                                              3

Nooter does not dispute that caps were not in place on a couple of stored oxygen

cylinders. Its position is that although the cylinders were in plain view near an active work

area, the cylinders themselves were not in an active work area and, even if there was

compressed gas in the cylinders, there was no hazard or danger of any workers being hit by

a projectile cylinder.

   I find that the Secretary has proven a violation of 9 1926.350(a)(l).         Respondent

admits that valve protection caps were not in place on some cylinders. Moreover, the

credible testimony supports a finding that Nooter’s employees were working in the area of

the uncapped cylinders and that the valve could be struck from above or aside causing the

cylinder to become a projectile. Whether the cylinders are full or empty is irrelevant to the

determination of the existence of a violation of 8 1926.350(a(d). The Secretary correctly

states that the standard does not differentiate between full and empty cylinders. The

contents of the cylinders are, however, relevant to the characterization of the violation.

   TO prove a seriolcs violation, the Secretary must establish “a substantial probability

that death or serious physical harm could result” from a condition or practice at

Respondent’s workplace. Section 17(k), 29 U.S.C. 8 666(k). Absent evidence that a cylinder

contained compressed gas, the Secretary cannot prove that there was a substantial

probability that death or serious physical harm could result. As the Secretary did not prove

the elements of a serious violation, I am reducing the citation to an other than setious

violation and assessing a penalty of $100.

   B. Serious Citation No. 1, item no. 2 (5 1926350(a)(7))

This item, comprised of two subitems, alleges that compressed gas cylinders in use

were not secured by means of a steadying device. 2 This item assesses a penalty of $280.

    The testimony of Complainant’s witnesses was to the effect that Oxygen and acetylene

or mat gas cylinders were in use and unsecured. A potential hazard existed because if one

of the cylinders fell it could become a projectile that could strike exposed employees. The

evidence establishes that Nooter was the controlling employer of this worksite and had the

duty to eliminate hazards, which it knew or could have known of with the exercise of

reasonable diligence, regardless of whose employees were em>osed to the hazard.
a

    Here, the evidence shows that the cylinders were stored in a cylinder truck with

railings and equipped with an attached chain which was not secured to the cylinders. The

Secretary asserts that the truck/cart was not a sufficient steadying device to secure the
*
cylinders and that a strap was needed to secure the bottles in the racK.

    Section 1926,350(a)(7) requires a “suitable cylinder truck, chain, or other steadying

device” be used. The standard on its face requires compliance with only one of the three

devices: a suitable cylinder truck OR a chain OR another steadying device. Simultaneous

use of both a cylinder truck and chain is not required. The Respondent is correct when it

states that the standard does not require a chain to be secured to the cylinders while the

cylinders are stationary and stored in a suitable cylinder truck. Accordingly, serious citation

no. 1, item no. 2 is vacated.

    C. Serious Citation No. 1. item no. 3 (5 1926.350(h))

2 The Secretary did not introduce any evidence at the hearing as to subitem 2(b) and therefore that portion
of this item is dismissed.

                                                 5

This item alleges that oxygen, and fuel gas pressure regulators, or their related gauges

were not in proper working order while in use at the cogeneration jobsite.

    Mr. Leonard Drew, a compliance officer with the Occupational            Safety and Health

Administration assigned to investigate a company other than Nooter, found a leak on a hose

fitting on the low pressure or “down stream” side between a gauge and an oxygen tank.

Respondent thereupon had a fire watch tighten the fitting.

    The language of this standard does not support the alleged violation.            There is no

evidence that the pressure regulators and gauges in question were not in proper order. In

fact, Mr. Drew testified that there was nothing wrong with the regulator or the gauge. If a

hazard was present because of the oxygen leak, it was unrelated to whether the regulators

and gauges were in proper working order and therefore not covered by 5 1926.350(h).

Moreover, the record reveals that the Oxygen tank in question was equipped with a flash

back arrester, which would have prevented any hazard by automatically shutting off the

oxygen tank if there was a fire. Accordingly, this item is vacated.

    D. Serious Citation No. 1, item no. 4 (5 19%.4X)(a)(5))

    This item alleges that the side rails of through or side-step ladder extensions did not

extend 3 l/2 feet above the landings.

    It is undisputed that a Nooter subcontractor installed a portable extension ladder and

scaffolding. The ladder was 30 to 40 feet tall and extended past the third level of the

scaffolding with the top of the ladder even with the fourth level railing. Mr. Cugno testified

that he observed a Nooter employee (Randy Thomas) climb to the top of the ladder and

hop over the fourth level railing. The fourth level platform was not being used at the time

                                             6

of the inspection and, according to Nooter, was not intended to be serviced by the ladder

in question. Nooter asserts that other ladders in other locations were installed and available

to give employees access to levels above the third level. Nooter asserts unpreventable

employee misconduct as a defense.

   After carefully reviewing the evidence regarding this item, I find that Nooter has

failed to establish that it adequately communicated to its employees rules designed to

prevent this type of violation and has therefore not established the unpreventable employee

misconduct defense. While Nooter introduced evidence of its safety training and

enforcement program, nowhere in the submission could I find material related to the type

of violation at issue. The Secretary is correct when she states that Nooter relied on

“common knowledge” regarding the specific use of ladders on scaffolding at issue here.

Although Nooter stated in its letter to me of April 16, 1992, that “...Mr. Butler clearly

testified that ladder and scaffolding usage was part of the employee’s orientation at the job

site”, the transcript reveals otherwise. Mr. Butler’s testimony at Tr. 191 is as follows: “I

mean that’s just common knowledge that everybody knows, that you’re not supposed to go .

above or crawl over a ladder that does not extend up above the handrail --“.

   At the very least, Nooter could have posted a warning on the ladder advising

employees at what point they should not proceed any further. This was not done.

Accordingly, this item is affirmed and a penalty of $490. is assessed.

   E. Serious Citation No. 1, item no. 5 ((3 1926.451(a)(4))

   This item alleges that standard guardrails and toeboards were not installed on all

open sides and ends of platforms more than 10 feet above the ground or floor.
 The evidence establishes that Nooter employees were receiving light-weight insulation

materials by hoist from inside the guardrails about 90 feet above the ground. Nooter

maintains that the hoisted materials were swung into the employees standing behind the

guardrails, in accordance with standard industry practice, so that crossing the guardrails was

not necessary. Mr. Butler, Nooter’s superintendent, testified that this operation had been

ongoing for 2 l/2 to 3 weeks, and that he had personally observed the operation during that

time with no violations observed.3

    Mr. Butler also testified that during the inspection              he and Mr. Cugno saw an

individual on the wrong side of the handrail. The wrong side of the handrail was in fact an

unguarded cantilevered platform which extended out from the scaffolding. In response to

what he saw, Mr. Butler instructed Nooter’s project engineer, Mr. Chris Semarelli, to

reprimand the employee.

    Again, Nooter       asserts unpreventable        employee    misconduct     as a defense.       The

employer bears the burden of establishing this defense and must show the following: (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 have been discovered. See

Jemon Conmuction Co., 7 BNA OSHC 1477, 1479, 1979 CCH OSHD II 23,664 (1979).

Nooter argues that the employee in question had been hired the day before the incident;

had attended the employee orientation session; had received instruction concerning fall

3 The Secretary’s argument that Nooter’s method to raise materials would necessarily result in many occasions
during the course of a day when an employee would be exposed to a fall hazard in order to retrieve a load is
not supported by the record.

                                                 8

protection when working from elevated surfaces (wear fall protection and be tied-off by

lanyard when working from incomplete scaffolds or temporary work locations not

constructed for normal employee work activities); but had unexpectedly and unforeseeably

stepped outside the work area contrary to his orders and safety training. Nooter further

asserts that standard guardrails and toeboards were in fact installed for all elevated work

areas and this employee was not required to climb over the railing to do his job. A careful

review of the evidence supports Nooter’s contention that it has established the unpreventable

employee misconduct defense. Accordingly, this item is vacated.

      F   l    Other Than Serious Citation No. 2, item no. 1
               (5 1926.405(j)(l)(i-J

      This item alleges that a lampholder         socket in a string of temporary      lighting was

missing a light bulb. Mr. Norton testified that a hand could easily come in contact with the

socket and that he had seen this happen. Mr. Cugno testified that an employee coming into

contact with exposed electrical parts could sustain a shock which could range from a mild

shock to the full electrical current if a ground fault circuit interrupter did not work.

      Respondent       asserts that there is no possibility of an employee unintentionally   placing

his finger in contact with the live part of the fixture. Respondent further asserts that a

ground fault circuit interrupter was provided and was tested by the OSHA compliance

officer and found to be working properly. The credible evidence supports a finding that no

hazard existed here. Accordingly, this item is vacated.

      Section 17(j) of the Act requires the Commission 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 in determining the assessment of an

appropriate penalty. Upon consideration of these factors, I have determined that a total

penalty of $590. is appropriate.

     Findings of fact and conclusions of law relevant and necessary to a determination      of

the contested issues have been made above. Fed. R. Civ. P. 52(a). All proposed findings

of fact and conclusions of law inconsistent with this decision are hereby denied.
8
ORDER

     1. Serious Citation No. 1, item no. 1 is REDUCED to an Other Than Serious

violation and a penalty of $100 is ASSESSED.

     2. Serious Citation No. 1, item no. 2 is VACATED.

     3. Serious Citation No. 1, item no. 3 is VACATED.

     4.   Serious Citation   No. 1, item no. 4 is AFFIRMED        and a penalty of $490 is

ASSESSED.

     5. Serious Citation No. 1, item no. 5 is VACATED.

     6. Other Than Serious Citation No. 2, item no. 1 is VACATED.




                                                        RICHA!fU3 W. GORDON
                                                          Judge, OSHRC


      May 15, 1992

Dated:
Boston, Massachusetts

                                            10