Vogel Brothers
Four serious construction violations affirmed, two vacated
Apply this to your situation
This order from 1993 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
Vogel Brothers Building Company was the general contractor on a wastewater administration building project in Tampa, Florida. The judge affirmed serious violations involving an unavailable fire extinguisher at a diesel fueling area, unguarded floor edges, an unbarricaded crane swing radius, and excavated material placed at the edge of an excavation. The judge vacated allegations concerning oxygen and acetylene cylinder storage and inadequate cave-in protection because the Secretary did not carry the burden of proof. Three other-than-serious items were affirmed without penalties, while the safety-program item was vacated. The assessed penalties totaled $2,125.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1926.20(b)(1); 29 C.F.R. § 1926.59(e)(1); 29 C.F.R. § 1926.59(f)(5); 29 C.F.R. § 1926.152(d)(2); 29 C.F.R. § 1926.152(g)(9); 29 C.F.R. § 1926.350(j); 29 C.F.R. § 1926.500(d)(1); 29 C.F.R. § 1926.550(a)(6); 29 C.F.R. § 1926.550(a)(9); 29 C.F.R. § 1926.651(j)(2); 29 C.F.R. § 1926.652(a)(1)
- Outcome: Four serious items affirmed with $2,125 in penalties; two serious items vacated; three other-than-serious items affirmed without penalty and one vacated
- Key point: A general contractor remained responsible for visible site hazards, including guardrails removed by subcontractors.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON. DC 20006-1246
SECRETARY OF LABOR
Complainant,
v.
VOGEL BROTHERS
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on February 10, 1993. The decision of the Judge
will become a final order of the Commission on March 12, 1993 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 etition should be received by the Executive Secretary on or before
March 2, P993 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 cp.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOY
Room S3004
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 rights may contact the Commission’s Executive
Secretary or call (202) 634-7950.
FOR THE COM-ION A n /
Date: February 10, 1993
DOCKET NO. 91-2557 .
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Ms. Bobbye D. Spears
Re ional Solicitor
Of&e of the Solicitor, U.S. DOL
Suite 339
1371 Peachtree Street, N.E.
Atlanta, GA 30309
Maxwell G. Battle, Jr., Esquire
1022 Main Street, Suite J
Post Office Box 1889
Dunedin, FL 34697 1889
James D. Burroughs
Administrative Law Jud e
Occupational Safety an B Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119
01063990776 : 04
v. OSHRCDocket No. 9la57.
a
0
VOGEL BROTHERS BUILDING l
l
0
coh!mwY, INcy - l
Respondent. l
.
.
APPEARANCES:
Raphael Bathe, Esquire ManWl 0. Battle, Jr., Esqpirt
oflie of tbe solicitof MaxmU 0. BattIq Jr? PA
u. s. Dcpmment of Latmr Duaebin,Florkh
Atlam, Gaxgb Fat Respondcat
For Complaiwlt .
Before: Administrative
Law Judge James D. Burrou@
QgQSION AND ORDEg
Vogel BrothersBuildingCompany, Inc. (Vogel), contests six serious and fxvcuotber
than serious” alleged violations. The citations emanated fkom an inspection coaductcd by
Compliance Officer Warren Knopf on April 22, 1991, at a construction site in Tampa,
Florida (Tr. 10). It was a planned inspection, although a complaint had been received (Tr.
11). A waste water administration building was under construction. The building contained
two floors for office space and a third floor for 8 garage
Upon 8Rival at the sitq Knopfproceededt0 Vogel’stmikc Vqel was the ge~ral
. contractor. Knopfshowed hiscredentialsand asked to meet with afl the ~ub~~ntracto~ ~II
the site (Tr. 24). 7%~ 0piq conference was attended b William Monroe, vogerr
superintendentat the site,and Roger Wright, a Vogel sue Fro 12). Wright
acc0mpankd Knopfon the subsequent walk-ar0uII<)(Tr. 12).
(Tr. 12).
)ule ged Violation of3 1926 1S2(dml
Vogel was charged with failure to maintain a fire extiquisher within 75 fttt of IB
flammable liquid storage area. Section 1926.152(d)(2) providesz
(2) At least one portable fire extinguisher having a rating of not kss -than
20-B units shall be located not less than 25 feet, nor more than 75 feet, from
any flammable liquid storage area located outside.
The standard requiresa 2&B fire extinguisher to be within25 to 75 feet’of any refbeling
station (Tr. 13).
Two tanks at a refueling station on the site contained diesel fix1 (ML Cl; Tr.
1345). Vogel employees were engaged in working around the stationon April 22,199l (Tr.
15). Knopfccmld not locate a fire extinguisher at the diesel retieling station. He requested
Wright to assist him. Wright was unable to locate a fire extinguisher.
Vogel ~arguesthat Kaopf may have believed there were no fire exting&hem, but that
fire extinguishers were at the site. Vogel states that 8 tie extinguisher was located in one
of the sheds. Interpreting the facts most favorable to Vogel, a fire extinguish wu within
75 feet but was not readily visible and its exact presence was unknown to a supe&or.
. Wright moved the fire extinguisher from the shed near the diesel fuel ta& to tbc
shed closest to the fuel tanks after the inspection so there would not be a problem with
seeing it in the future (Tr. 98). Knopf concedes that the fke extinguishers that were in place
four days afttr the initial inspection were sufkient to meet the OSHA requirements (Tk
2
Vogel insinuatesthat Knopfms not cmrlyconceraedmaLinp=@imhber a fin
extinguirberwmswitl& 75 feet of the tanksbemuse be chase to move on witbout checking
the trajlcr tX the other shed. It argueS that tbC OnlyiSSy is WbCtbCrthe fiE Qtinguirbet
meeting the requirements was at the site and within the requisite distance of tbc refuetins
area on the date of the inspection not whether Knopf saw it that day. TICSis fkIla&~~~
reasoning and overlooks the purpw of the stan&d. The complian4x a6ccr was IK)4
compefledto~nd~irupectiontime~~forafireextinguirber. IHtbnatnadilg
visl’ble,he may assume that empluyccs would have a problem locating it.
Wright accompanied fiopf and was unabk to Kate the fire extinguisher. ‘RR
standard assumes that the fire extinguisher winbe readily available for any emergency. OUC
needs to know its location for it to be beneficial. Employees need to lmow immediateIy
where the fire extinguisher is located The supervisor was unabk to show its location to
Knopf. The failure to be aware of its exact location is sufficient to support the violatk
Vogel had its opportunity to demonstrate compliance and failed to do SO.
Wright could not locate a fire extinguisherwithin 75 feet of the fueling station during
-the c&se of the inspection (Tr. 109). He located three fire urtinguisbers within 75 feet of
the fueling statin after Knopf had completed the inspection and had vacated the job&c
(Tr. 9748). Wright indicated that he showed the fire extinguishers to hpf during the
closing conference and that he had approved their size and location (“f’r.98,123). bopf
denied he was shown the fire extinguisher at the closing conference (Tr. 211-212) but
concedes it was in place OIIApril 26 (Tr. 61).
The alleged violation is atied
.
us Citabun - Itcu
Section 1926.350(j) stata:
(j) AtzUihal nJa. Fcx additional details not covered in this subpart,
applicable technical portiortt of American National Standards Institute,
2X9.1-1%7, safety in Welding and Wtiq, shall apply.
3
statement suppoAIy made to Knopfby Braxton. Knopfs&ted that B-on indicated that
he had worked at the site on Friday and that the cylinckn had been in the same position
since Friday with no use. Braxton unequivocaQ denied this version of the fkt~. He
testified that he used cutting torches in his job quite often for cutting rtbar (Tf. 130).
Braxton further testified as to the procedure for using and storing the tanks fire 131, 136).
According to him, the oxygen and acetylene cylinders were never put away together and
were never left on the same cart except when being used during the day. They were put
away separately each night (Tr. 126, 135). Exhibit C-2 shows an oxygen~mpresscd &83
container and 811acetylene-compressed gas container strapped to a portable welding cart
within inches of each other. Section 3.24.3 of the American National StandardsInstitute
249.14947, as adopted by 0 1926.350(j),requires that these tanks be stored at a minimum
distance of 20 feet of each other or separated by a noncombustiik bzuriet at ti 5 f-t
.
hgh.
Braxton testified that be vaguely remembered speaking with Knopf during the
inspection but did not remember the substance of the cmvenatkm (Tr. 135). He stated that
it was Vogel’s general pmctk to store the cylinders in separate locations (Tr. 136). Wright
testified that he could not recall if tbc containers had been in use three days prior to the
inspecti0n(Tr. 122423). Storing tbc containers together could remIt in their leaking Of
exploding which could cause serious bums to employees (Tr. 23). Vogel offered no
testimony to directly refute Knopfs testimony except the nebulous denial by Braxton, who
suffered from a lapse of memory. No substantive evidence was offered to establish that the
tanlwhadbeeninuseduringtbethrcedayrpriortotheinspection.
4
thatth@imknhadbeenstoredontkcart. TMsan&sionisprpo~basedonthe
admissionof Braxtonwhichhe denies.
The akgcd VioMion is vacated.
Serious Citation - Item 3
Alleged Violation of d 1926SOO(d)~
Section 1926SOO(d)(
1) provides:
(cl) Guaniingof open-sidedjIbma platfoom, and nuzways. (1) Every open-
sided floor or platform 6 feet or more above adjacent floor or &round 1~~1
shaR be guarded by a standard rail@ or the equivalent,as spd6d in
pagraph (f)(l) of this section, on all open sides, emxpt where there ir
entranceto a ramp, stairway, or fixed ladder. The railing shall be provided
with a standard toeboard wherever, beneath the open sidm persons ~r#nEMS,
or there is moving machinery, or there is equipment with which faninP
materials could create a hazar&
Item 3 of the seriouscitationstates the alleged violation as followsz
a) First Doornorth side - employees were not protected at the floor edgeb
a standard guardrail where there was a potential fall of 12 fact to the ground,
on or about-1.
b) First fkxm,south west side - employees were not protected at the Qoar
edgeby a standardguardrailwhere there was a potential fall of 12 feet to the
ground, cm or about #2&W.
c) Fiiii floor, east end - south facing west - employees exposed to a potential l
fall of approximately 12 feet to the ground, no protection by a standard
guardra& on or about 4/22/91.
l
wright stated that the guardrailsmre not taken down by vogd p loa) and that
subcontractors (either Filigree or Bickey) may have taken the guardrailsdown because they
were in the way of some operations these subcontracton were attempting to conduct and
that the subcontractors were responsible for replacing the guardrails (“I’r.100401). He
stated that Vogel continually “stayed after” the subcontractors to get them to replace the
guardrails (Tr. 101).
Vogel argues that there is no evidence as to how close the individuals who were on
the floor were to the edge where the guardrails had been taken down. Such an as~ertioa
ignores Knopfs testimony. Knopf relied on photographs C-3, C-4 and GS in making his
recomniendation that a violation be charged (Tr. 74-Z). He was not on the floor on which
the men are shwn to be standing when he took tbe photographs (Tre 74) and he did not
measure how far the men were from the edge (Tr. 75). He did obswc the men and
interviewed them (Tr. 7677). He absented the men within inches of the mguardcd
perimeter (Tr. 79).
The standard requires that guardrails of spexific strength be installed on open-sided
floors 6 feet or more above the ground or adjacent floor. Exhiiiits C-3 through C-5 show
unguarded perimeters on the second floor of the jobsite ~IK!employees working along those
unprotected cdgck Vogel admjttaj that the perimeten on the second floor were unguarded
during the inspection (Tr. 9NXI, 114). Vogel’s defense to this violation is predicated on
the fact that the subcontractors wuc taking down instaIkd guardrails and fbiling to rtplaee
them even after they were admnisbcd to do so (Tr. 9%1W, 180). Vogel, as the general
contractor and controlling m at tbc jobsite, wzu responsible for maintaining a de
workplace and may be cited for vio&tions caused by a subcontractor. G- SW dt
6
Impkmentathnof the rafetyprogram - cktkient. While laqasds WC~ kpt OILthe sitq
they were obviouly not wornby employees when tbcywmkl have been appropriate. Vogel
contends that if any workers were exposed, the violation rc&tcd from uaprcxatabk
employee misconduct. It has failed to establish this defense. The evidence fUs to ~&&MU
policy and procedures pertaining to enforcement of its tiety rules. There is no eyjdena
of an enforced disciplinary policy.
The violation is affirmed.
Serious Citation - Item 4
a a)@)
Nlened Violation of S 19265501
The Secretary charged Vogel with a violation of 0 1926.550(a)(9)? This standard
provides:
(9) Accessl’bleare= within the swing radius of tbe rear of the rotating
supers~ of the crane, either permanently of temporarily mounted, sl@l
be barricaded in such a manneras to prevent an employee from being SYNCH
or crushed by the cram
The location of the crane at the time of the inspection wzu on an access drive around
the building. There was a0 barricade or other oMrwtioa to prevent emphyccs hrn
walking within the wing mcbs of the crane while it was ia operation. The access drive
around the building had limited a- for waking. The drive provided the shortest way to
reach the other side of the building. Knopf obsewed that Vogel employees came within the
radius of the crane (Exh. C-6; Tr. 3@32). The crane wan in operation (Tr. 32).
l The citatbn alley a vblation cd 8 19265SO(Qo(6) Tbt abmphint fekrs to i 1SU65SO(8)0
7
.
is a photographwhichpurportedlysh0wrthe aam in opcratba Vc@s axmsel i&ted
thttherewaswoperatorinthccab. Knopffeltthccabkoftbecranc~~~~.
64 6261).
that the crane was not in operationat the time of the inspection.Knopfvimllyobserved
the crane hoisting material to the second floor and employees wg within the danger
zone of the radius’ swing (Tr. 31, 213-214). Wright admitted that the crane was not
barricaded during the inspection but contends that the crane had just been placed in that
position when the compliance officer arrived (Tr. 123-125). Vogel’s crane operator
conceded that the crane was not barricaded. He remembers speaking to Knoif but could
not recollect whether he had operated the crane prior to speaking with him rr. 149).
Knopfs testimony has not been rebutted and is totally crcdiiik. lhopf had ampk
opportunity to observt the crane in operation.
The violation is affirmtd,
*rious Citation- Item 5
mened Violationof 5 1926.6SW
Section 1926.652(a)(l) provides as follows:
o-
a ’ of empbyw in cwawths. (1) Each employeein an
excavation shaIl be protected from cave-ins by an adequate protectivesystem
designed in accordance with paragraph (b) or (c) of this section except when=
(i) Excavations are made entirely in stable rock or
(iii Excavations are less than 5 feet (1.521~1)in depth and
examinationof the groundby a competentperson provides no
indication of 8 potential cave-h
wide at the narrclwertpointonitsverticalwallr. Wrightwasnotawmofany~~~
been conducted on the soiL A foremlln of Vogel informed ICwpfthat it was m neassq
to test the soil at that kxation. He indicated that the sd ww @)php.* A fm &
a laborer were wwking in the excavation, The CxcavatiOn
had AticaI walk m was IK)
shoring or sloping (E&S. C-7; C-8; Tt. 34-36). T’he foreman ww engaged in pi&&g the
pipe (Tr. 36-37).
hopf initially testified that he measured the depth of the trench. He was assisted
by Wright. Knopf later said that he did not personally m the depgl (rr. 66).
According to him, Wright read the depth tape and called out the approximate footastage
to
him (Tr. 6445). He thought Wright said the excavation was 8 fttt deep. Wright chits
making the statement. Knopfs observation was that the employeesin the wenchwere from
5 to 6 feet tall. In his opinion, the excavation was 2 to 3 ftet above their heads (Tr. 6849).
The evidence offered by the Secretary in support of the allegation contains
photographs of the excavation (Exhs. C-7, C-8). The photographs support Knopf’stestimony
that the walls of the excavation were nearly vertical and that there was no shoring. Knopf
conceded that he personally did not take any measurements of the depth or width ma 68).
Knopf bolstered his testimony by saying that Vogel employees Jeff Sicheri and Dan
Weiss told him the soil consisted of “garbage” (Tr. 70). The pictures do not depict any
“garbage” and both Jeff Sicheri and Dan Weiss denied ever telling Knopf that the soil wu
ugarbagem (Tr. 159,207-208). Vogel argues that the Secretary has the burden of making a
prima facie case by showing that a significant portion of the trench wall w composed of
some soil whkh requires sloping of the trench, citing CCI, htz v. OSHRC, 688 F.2d 88,90
(10th Cir. 1982) including the foIlowing:
To establish a prima facie showing of non-compliance with 0 1926.652(c),the
Secretary must show that a signifkant portion of the trench wall is composed
of hard or compact soil. A Respondent may then rebut this prima Eaciecase
by proving that its trench was dug entirely in solid rock sheI&or cemented
sand or gravel, which are not required to be shored or sloped 688 F.2d 90,
9
Vogelstatesthat UIIfil
the secret offersevidencethat slopiq or trenchpwction
is rqdr& it % not mcGsmryfor it to rebutthe presumption
that slopingir rcquird It
submiti that tbc Secretary put forth no such prima facie case but died entirely upon
~~~~oborated, and totany rthted statementsthat the soil was ugarb+” hoer the
circums~ Vogelstates that it wasnot incumbent
uponit to offer anycvi&nccto r&but
the Secretq?s case, citing CC’ k, SUPII,
Even if a prima facie case is established show@ that protective systemsor sloping
were nccasary, Vogel contends that it has totally and completely rebutted the Sccretarfs
position with testimony of its witnesses and Exhibits R-l and R-2 Sicheri test&d that the
excavation was only about 4% f&et deep and not above the heads of the men rr. 160).
Glanton testified that the excavation was not over his head but was only up to aboutthe ‘71”
of his breastbone, which was 18 inches below the top of his head He is approximately 6
feet 3 inches tall (Tr. 173). Due to the angle at which the photographs were taken, it is
fett is the thrcsho~at which
difficult to make an accurate estimate of the depth. Fiiiiiie
0 1926.652applies
Vogel contends that the excavation was less than 5 fact deep and that it was
composed of soil cement (Tr. 89-w 111, 159460). Wrighttestified that on the day of the
inspectionhe saw Knopf measure the excavation and remembers his stating that it was either
7 or 8 feet deep(Tr. 112). He claims to have disputed the depth offered by Kwpf Q’r.90,
112). Wrightstated that he disputed the measurement because the tape was at an angle vr.
90). The excavation coven six rungs of an &foot ladder which was leaning 011one of the
vertical walls of the excavation (Exh C7; Tr. 184485).
Monroe stated that Vogel has a policy that all excavations in excess of 5 fett have
to be properly sloped and shored (Tr. 183). Aumding to him, the deepest part of the
excavation in issue was 4% feet (Tr. 183). This opinion is also shared by Jerky Sicheri,
Vogel’s pipe foreman (Tr. 160). The actual depth of the excavationremains a mystery.The
photographs of the excavation 80 not convincingkyestablish a depth. They are subjectto
vaying interpretationsdue to the angk at which tbq were taken (Tr. 166).
10
foreman’s Sqpsed characterization of the soila8 uwm (Tr. aj). T&s Statementm
denied lq Sichai (Tr. l59), who characterized the soil as ‘WI cement” (Tr. 159). He
descniii the soil as harder than amcrete vr. 160).
Serious Citation - Item 6
mened Violation of 8 1926.651@@
Section 1926.651(j)(2)providec2
(2) Employees shall be protected from excavated or other materials or
equipment that could pose a hs7ard by falling or rolling into excavations.
Protection shaIl be provided by placing and keeping such materials OY
equipment at least 2 feet (.61 m) from the edge of excavations, or by the use
of retaining devices that are sufficient to prevent materials or quipmentfrom
falling or rolling into excavations, or by a combination of bothif nwzwry. .
The standard requires that any spoil pile of material removed from an excavation be placed
2 feet back from the edge of the walls of the excavation. This is to prevent the spoil pile
from falling on employees in the excavation (Tr. 3&39),
At the time of the inspection, the spoil pile was located at the edge of the excavation
(Exhs. C-9, C-i& C-11; Tr. 38-39). The excavated material was located on the walls. The
spoil was located in a manner that there was no discernable edge between the spoil and the
wall (Tr. 4&41).
2 The complaint refers to 8 192&6Sl@)(i)(l). Tbe dtatioa refkn to 0 192&6510(Z). Suztim
l==wXfxl) poviber:
Section 1%6dSlo(2) is more s+!k Stncc the facts remain the same, the ksuc is bddal undat
0 1926651@(2), as alleged tn the dutkm \
11
excavation. ‘I& photograph does not show any ciisccmabkspace betweenthe cxxvated
materialand cxcavatio~~
(&h~ G9, Gl@ Tr. 3842).
Vogelallegerthatthesoilirrcmovedfromtbencavationbya~~prior~
beingmovedbackfromthe bank Wright stated that the soil was constantly b&g rcm(Ntd
fkom the bank (Tr. 92). It is a violation of the standard to place the materialwithin2 f&t
of the bank. The backhoe could initially place the soil more than 2 feet from the bank
Vogelwasin violation of the standard for failing to do so. The fact that the soilis placed
within 2 feet of the bank at any time creates additional stress on tbe wall of the bank, It is
the intent of the standard to prohibit the additional stress at alI times.
The violation is afIirmed.
Characterization of the Violatiory
Under section 17(k) of the Act, 29 USC 8 666(k), a violationis seriousif thereis
a substantial probability that death or serious physical harm could rcsuk This statement
doesnot mean that the occurrence of an accident must be a substantially probableresult of
the violative condition but rather that a serious injwy is the likely result shouldan accident
occur. Superkhwators, Inc., 15 BNA OSHC 1313, 1315, 1991 CCH OSHD ~29,498, p.
39,804 (No. 8%2253,1991); Nat&in& Co., 1 BNA OSHC 1204,120!& 197143 CcH OSHD
f 15,679, pp. 2&%748 (No. 401, 1973).
Theviolathsof# 1926152(d)(2), 1926.500(d)(l),1926SO(a)(9)and lB6.651@0()
subjectedempkyecs to risk of either bums, internal injuries, broken bmes, sprains,
suffbcatio~ or contusions (Tr. 23, 29, 33, 34 41). The violations are serious within tk
meaning of the Act.
12
‘I&e standard requires a safety program be developed and implemented by tbc employcf.
Vogelhad developed a safety plan which WU shown to Knopt Knopf determined
that the plan contained the following three deficiencies: (1) Management was not
maintaining or fohwi.ng safety rules; (2) Vogel w not enforcing their safety nrle and
(3) the plan failed to address certain safety items (Tr. 4243).
Knopf made it clear that the failure to maintain the program applied to a spcdc
portion and not the entire safety program (Tr. 56). He felt Vogel was not observing or
following their own program dirtctivts (Tr. 58). Knopf obsewd violations that be thought
would have been avoided had management followed their own safety programs pr. 59).
The absence of guardrails and the excavation were in plain view. In Knopf’s opinion, there
would have been no safety violations had Vogel maintied and implemented the safety
program. If a violation of any safety rule occurs, there is, in his opinion, an automatic
violation of 0 1926.20(b)(l) (Tr. 5940).
Since Knopf obsuved violatkxu, he assumed noncompliance with 9 1926.#)@)(1).
The presence of hazar& by thcmselve~ does not establish a violation of the standad.
Centwy SteeUhxto~ k, 13 BNA OSHC 1484,lW CCH OWD ~28,066 (No. 861509,
1987). Tbc standard in issue requires an employer to initiate and maintain such programs
as maybe necessary to corn* with Part 1926. Whik the purpose of 0 192620(b)(l) is to
assure compliaMx with the safety standards, the existence of an adequate safety program
does not guarantee that DOviolations witl OCCW.It is illogkal to assume that the prescncc
of a violation automaticaIIy justi& a violation of 9 1926,2o@xl). Section 19262qb)(l)
places its emphasis on initiating and maintaining a &ety progran~ The Secretary must
13
pruve that the employer &I not initiate, or if initbd, did IKM maintain a saf&y m
A violationof IIsafieqmdard docbot per se resultin a viol&on of 0 1926Jq’b)(l).
The MMion is vacati
TheSecretaryallegesthat Vogelhadnotdevelopedor implementeda writtenhazard
communication
programin violationof 0 1926.59(e)(l) and that the diesel fuel wu not
labeled
Sections 1926.59(e)(l) and (f)(S) provide:
(e) wri#cn hazoni cow aion promam. (1) Employers &all dvebp,
implement, and maintain at the workplace, a written hmd communication
program for their workplaces which at least descriiiii how the criteria
specified in paragraphs (f), (g), and (h) of this section for labels and other
forms of warning, material safety data sheets, and employeeinformationand
training will Ix met, and which also includes tbe following:
(i) A list of the hazudous chemicals known to be present using
an identity that is referencedon the appropriatematerialsafety
data sheet (the list may be compiled for the workplaceas a
wholeor for individual work areas); and
(iii The methods the employer will use to inform employees of
the hazardsof non-routinetasks(for example, the cleaning af
reactor vessels), and tbc hods associated witb chemicals
containedin unlabeledpipesin theirwork areas.
(f) Labe&andcuherfiof warning.(5) Exapt as provided in paragraphs
(Q(6) and(f)(7) the employer shall ensure that each container of hazasdous
chemicalsin the wvxkplactis labeled,taggedor marked with the following
informatiaa:
(i) Identity of the hmdous chemical(s) mntained therein; and
(iii) Appropriate hazard waminp.
Knopf did not test@ that Vogel bad not developed or implemented a written M
ommunication program (Tr. 4&W). Vogel had such a program (bhs. R4, R-R Tr.
14
.
0
.
c
. .
177480). Knopfdetermined that the pm was not maintained~usc there w -1
fbelontbdtCintwotanbthatWe~DOtlabekd TbiSiStbCSamereasopineKaopf
appliedto CitationNo. 2, item 1; ic, if a violationexists,the programwas not II&M
Such reason@ is faIfacior# The violationis vacated.
Vogel stored diesel fuel on the site in twu portabk tanksacross from the general
contractor’strailer. Employeesusedthe fbclto powtf tbCQliwkrm frontad km&r,
and crawler backhoe. The tanks were not labeled to indicate what they contained (Tr. 45).
Vogel does not dispute these facts. Knopf observed Vogel employees obtaining fkl from
the unlabeled tantn
Vogel contends that it did not violate the standard because only kncn&dgeabSe
operators and supervisorJ had aa to the tanks (Tr. 102). Tb& specious argument is
rejected. The standard specifies that hazardous material must be labeled so that all
employees at a jobsite are protected. LouterburhCbmtmctibn Co., 4 BNA OSHC 1769,14
BNA OSHC 1768,lWO CCH OSHD 129,044 (No. 8!%2575,1990).
The violation is afkneci.
meged Violation of 9 1926.152@@
Section 1926.152(g)(9) provides:
(g) S&e and @el.& areas. (9) Conspicuous and legible signs prohibiting
.
smoking shall be posted.
The standard requires placing a sign in any refueling area of the constructionsite. Vogel
contends the Secretary failed to prove exposure and requests dismissal of the allegations
The refueling area on the site contained two diesel tanks. There was no “No
Smoking” signs in the area (Tr. 47). Vogel offered no evidence to dispute Knopf’s
testimony. The photographs in evidence do not depict any “No Smoking” signs, and the
Secretary did put forth testimony that there was no such sign in the vicinity. While Knopf
testifkd that there was no sign in this area, he did not testi@ that there was any exposure
or that he saw anyemployees in the area at the time he witnesseda lack of sim
15
Section1926S~a)(6) states:
(6) A thorough,annualinspectionof the hoistingmachinery ShallbCmade
by a competentperson, or by a governmentor private agenq ftcoglljztd by
the U. S. Department of Labor. The employer shaIl maintain a record of the
dates and results of inspections for each hoistingmachine and piece of
equipment.
Tbe standard requires that an annual inspection be made of all critical parts of the crane,
particularly tbe hoisting portions of the mechanism (Tr. 48).
Knopf rquested to see the annual certification. It was unavailabk. According to
Knopf, Daniel Vogel, vice-president of Vogel, indicated to Knopf that certification was not
neces&y (Tr. 48). The annual inspection requires that critical portions of tk crane be
inspected on an annual basis. The annual inspection requires that additionalparts be
inspected other than what is included in the daily and monthly inspections (Tr. 50).
Vogel’scrane operator test&d that he performed da@ inspections on certainparts
of the crane (Tr. 141,151). The cited standard, however, requires that a thoro~~gh
annual
\
inspection of the hoisting machinery be conducted. This comprehensive inspectionb’ciistinct
from any routine daily inspcctiom Vogel may have conducted. Scr m v. fJWbtz
E’hiepiq I’k, 10 BNA OSHC 1260,198l CC?i OSHD 120,875(No. 16184,1981&
Vogelarguesthat Knoti concluded there was not an annual hspectionbecaue he
was not shown an inspection sticker. The point is made that tbc standard does not require
a ccrtifkationor inspectioo sticker. The standard ~QCSrquire that the emplqcr maintain
a record of the dates and raujts of inspections for each hoisting machine. Vogel hadmany
opportunitiesto exbiiiiit its recwds of dates and rcwlts of inspection. It f&d to establish
compliance by offering evidcncx of the record. It is assumed that a record of the annual
inspection would have been c&iiiited if it had been performed.
16
The @nmission is the final arbiter of pcnaks in all coatcstcd w Skwwy )).
OsAHRCmd hemaze G&us Co., 487 F.2d 438 (8th Cir. 1973). Under ation 17(j) of tbt
Act, in determining the appropriate penalty, the hnmission is required to find and give
“due consideration” to (1) the size of the employer’s business, (2) the gravity of the
violation, (3) tbc good faith of the employer, and (4) the history of previous violations The
gravity of the violation is the principal factor to be considered.
Vogel demonstrated good faith by fully cooperating during the inspection. The
company employed approximately thirty-five employees. There is no evidence established
that Vogel had been inspected or received any citations prior to this inspection. The gravity
of each of the violations was moderate.
Upon due consideration, it is determined that the foIlowingpenakiu are appropriate:
serious citatioq Iterq Assessed Penalty
1 1 $500
3 500
4 500
6 425
INDINGS OF FA(r AND
CLUSIONS OF LAW
T’he foregohg dccisba constitutes the findings of fact and conclusions of law in
accordance with Federal Ruk of Civil Procedure 52(a).
ORDER
Based upon the fore-g decision, it is
ORDERED: (1) That items 1,3 and 4 of the serious citation are &Tinned and a
penalty of $500 is asses& fa each of the violations;
17
(2) That items 2 and 5 of the serious citation and proposed penalties
are vacated;
(3) That item 6 of the serious citation is &I!imxd and a penalty of $625
assessed for the violation; and
(4) That items 2 through 4 of the uotber than setious” citation are
affirmed and no penalty ascsscd for each of the violations; and
(5) That item 1 of the “other than serious” citation is vacated.
/s/ James D. Burrounhs
JAMES Do BURROUGHS
Judge
Date: February 5, 1993
18
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