Fluidics, Inc.
Mixed construction ruling assesses $13,600
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
Fluidics performed mechanical-system renovations at a Philadelphia public-housing project with unusually difficult site-security conditions. The judge affirmed serious violations involving unsecured and improperly separated compressed-gas cylinders, missing GFCI protection, exposed energized electrical panels, and an inadequately guarded stair landing. He affirmed extension-cord placement and overdue fire-extinguisher inspection as other-than-serious violations without penalties, and vacated a separate equipment-grounding item. Six excavation items were barred because OSHA issued them one day after the Act's six-month limitations period, and the evidence of employee exposure was also insufficient. Allegations involving exposed panels and the landing were reduced from willful to serious because Fluidics had warned employees, repeatedly sought help from the site owner, and installed a temporary landing barrier, although those measures did not fully abate the hazards. Total penalties were $13,600.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1926.350(a)(9), 1926.350(j), 1926.404(b)(1)(i), 1926.416(b)(2), 1926.404(f)(6), 1926.651(c)(2), 1926.651(h)(1), 1926.651(i)(1), 1926.651(j)(2), 1926.651(k)(1), 1926.652(a)(1), 1910.335(a)(2)(ii), 1926.403(i)(2)(i), 1926.1052(c)(12), and 1926.150(c)(1)(viii)
- Outcome: Serious and other-than-serious items were affirmed for $13,600; one grounding item was vacated, and six excavation items were time-barred.
- Key point: A contractor on a multiemployer site must take feasible protective action when the controlling owner does not correct a known hazard, but genuine abatement efforts may defeat a willful classification.
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
FAX
CoM (202) 634-4008
FTS (202) 634 -4008
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-0411
FLUIDICS, INC.
Respondent.
NOTICE OF DOCKEX’ING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on April 9, 1993. The decision of the Judge
will become a final order of the Commission on May 10, 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 -
April 29, P993 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 c!.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. DO5
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
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 634-7950.
FOR THE COMMISSION
Date: April 9, 1993 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 924411
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOf
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Marshall H. Harris, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
14480 Gatewa Buildmg
3535 Market Htreet
Philadelphia, PA 19104
Stanley B. Edelstein, Esquire
Jacob , Dormer & Jacoby P.C.
1515 &rket Street - Suite 2000
Philadelphia, PA 19102
John H. Frye, Iii
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
Room 417/C
1825 K Street, N.W.
Washington, DC 20006 1246
00102839255:03
UNITED STATES OF AMERICA
, OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET N.W.
I
d 4TH FLOOR
WASHINGTON DC 20006-1246
FAX:
COM (202) 634.4~
FTS 6344008
SECRETARY OF LABOR, ..
.
..
Complainant,
.
v. .. Docket No. 92-0411 .
..
FLUIDICS, INC., ..
Respondent.
.
Appearances:
John M. Strawn, Esquire Stanley B. Edelstein, Esquire .
Office of the Solicitor Jacoby Donner & Jacoby
United States Department of Labor 1515 Market Street
Philadelphia, Pennsylvania Philadelphia, Pennsylvania
For Complainant For Respondent
Before: Administrative Law Judge John H Frye, III
DECISION AND ORDER
I. INTRODUCTION
This case involves an action bvd the Secretary of Labor against Fluidics Inc., a
Pennsylvania-based corporation. pursuant to Section 10(c) of the Occupational Safety and
Health Act of 19701 (the “Act”). The Secretary alleges that Respondent failed to comply
with certain safety standards at its worksite at the Martin Luther King, Jr., housing
project at 13th and Catherine Streets, Philadelphia, Pennsylvania. Respondent
. ‘29 U.S.C. 05 651 et seq.
performed certain mechanical system work at this worksite under contract to the
Philadelphia Housing Authority (PI-IA), the owner of the housing project. PHA is a
governmental agency and not subject to the Act. This work involved the renovation of
the heating and domestic water service systems in the four high-rise buildings and
community center which comprise the housing project and included the excavation and
replacement of a heating oil tank. Respondent subcontracted the excavation work to
Philadelphia Construction Equipment, Inc. (PEC).
Respondent’s President and owner, Gerald F. Dowling, selected Gregory Wright
as foreman for the project based on Mr. Wright’s past history with Respondent. Mr.
Wright was in charge of the site for Respondent for the duration of the contract, and
represented Respondent during the Occupational Safety and Heath Administration
(OS-IA) inspection.
The inspection of the worksite was conducted by the Philadelphia area office of
OSHA on July 11, 12, and September 30, 1991. The July 11 and 12 inspection was
conducted by Mr. Hiliary H. Holloway, a senior Compliance Officer, and Mr. Harold
Williams, a Compliance Officer, in response to an anonymous complaint that workers
were entering and exiting an unshored excavation by “riding the bucket” of an excavator.
The September 30 inspection was conducted by Mr. Holloway and Mr. Robert
McDonough.
The worksite presented special difficulties because of crime and the apparent
hostility of the residents toward the workers. Workers outside were vulnerable to objects
thrown from buildings. Respondent eventually hired armed guards to protect its workers,
established a policy that no worker should be outside alone, and maintained radio
communication with those workers travelling from one building to another on the site.
As a result of the OSHA inspection, the secretary issued one serious, one willful,
and one other than serious citation to Respondent on Januarv4 10, 1992.’ Respondent’s
notice of contest of these citations was docketed on February 10, 1992, with the
Occupational Safety and Health Review Commission. The hearing in this case was held
on December 9 and 10, 1992, in Philadelphia. Jurisdiction over the subject matter and
the parties has been established.
II 0 OPINION
A Citation 1, Item 1
Citation 1, Item l(a) charges that four oxygen, five acetylene, and two nitrogen
cylinders were stored in an upright position and were unsecured in violation of 29 C.F.R.
5 1926.350(a)(9), which provides in part that:
Compressed gas cylinders shall be secured in an upright position.
Citation 1, Item l(b) charges that these same cylinders were not separated as
required by 29 C.F.R. 3 1926.35Q). which adopts $3.2.4.3 American National Standards
Institute 249.1-196’7. The latter provides in part that:
Oxygen cylinders in storage must be separated from fuel-gas cylinders. . . .
by a minimum distmce of 20 feet or by a non-combustible barrier at least
five feet high having a fire-resistance rating of at least l/2 hour.
21gthe complaint filed in this matter, cltatron 2 item 2 was withdrawn.
3
me Secretary characterizes the violations as serious and proposed a $1(X)0
penalty. While admitting the factual allegations of the complaint, Respondent contests
the penalty. Respondent asserts that the cylinders were empty, and that this fact should
mitigate the proposed penalty. Respondent cites Mr. Wright’s testimony for this
proposition, but Mr. Wright did not indicate on direct that the cylinders were empty. He
did indicate that adverse conditions on the site required that materials being delivered to
the office be rushed inside and sorted later, and speculated that the cylinders had just
been placed by an employee who was then called to help move additional mate&l.
Mr. Wright admittedly was speculating as to the reason why these cylinders were
not secured and appropriately separated. His speculation falls short of the kind of
evidence needed to mitigate the proposed penalty. Moreover, even if he had testified
that the cylinders were empty, that testimony would have been insufficient to overcome
the presumption that the empty cylinders retained enough residual gas to pose a hazard.
Secretary v. WWiam En(e@ses of Georgia, Inc., 7 BNA OSHC 1900, 1903 (Rev. Corn.
1979). The proposed penalty is affirmed.
B. Citation 1. Items 2a. 2b, and 3
Citation 1, Item 2a alleges a violation of 29 CFR 1926.404(b)(l)(i) for lack of an
assured equipment grounding program or ground fault circuit interrupters (GFCI). The
fact that ground fault circuit interrupters were absent is not contested. Although Mr.
Dowling testified that Respondent had an assured equipment grounding program,’ his
testimony falls far short of establishing that a program which complies with 8
?‘r. 431 (Dowling).
4
1926.404(b)( I)( iii ) was in existence, as required by the standard under which the citation
was issued. The Secretary has established a violation of this standard, and has proposed
an appropriate penalty. This citation and penalty of WOOOare affirmed.
Citation 1, Item 2b alleges a violation of 29 CFR 1926.416(b)(2) because of
strewn cords without GFCI protection. This item was grouped with 2a and the $4000
proposed penalty levied for both violations. The lack of GFCI protection is covered by
Item 2a and need not be separately addressed in this item. Mr. Holloway testified that,
but for the lack of GFCI protection, this item would have been classified as “other than
serious.” Because the two extension cords present a tripping hazard, this item is affirmed
as an “other than serious” violation with a $00 penalty.
Citation 1, Item 3 alleges a violation of 29 CFR 1926.404(f)(6) for lack of a
continuo’us path to ground. The citation correctly alleges that a drop light was plugged
into a 3 into 2 prong “cheater” plug and proposes a $4000.00 penalty. Although
. the
Secretary argues that the fact that the drop light was plugged into the cheater plug
.
creates an inference that the drop light was not double insulated,’ that inference is’
insufficient to overcome Mr. Wright’s testimony to the contrary. Moreover, the lack of
GFCI protection which was the subject of Item 2a adequately covers the hazard which
would be posed by the drop light if it were not double insulated. Item 3 is vacated.
C. Citation 1, Items 4 through 8: Citation 2, Item 4
All of these citations concern the excavation from which the fuel tank was
removed. Citation 1, Item 4 cites the lack of a safe means of egress from the excavation.
‘Unckr 5 1926.404 (f)(7)(iv)(C)(6) a double insulated tool need not be grounded.
5
Citation 1, Item 5 cites the presence of accumulated water in the excavation. Citation 19
Item 6 cites the existence of an undermined, unsupported concrete pad overhanging the
excavation. Citation 1, Item 7 cites the presence of excavated materials and equipment
less than two feet from the edge of the excavation. Citation 1, Item 8 cites the failure to
have a competent person inspect the excavation on a daily basis. Citation 2, Item 4
alleges a failure to provide each employee in an excavation protection from cave-ins by
an adequate protective system. Citation 2, Item 4, alleges a willful violation of the Act,
while the other citations raise serious violations.
The excavation viewed by the compliance officers when they first arrived on the
site was clearly an extremely hazardous one. The evidence supporting the findings with
respect to the hazard posed to any worker in the excavation is uncontroverted.’
However, it is not clear from the evidence whether any workers were in the excavation
and, if so, when they were in it and what its condition was when they were in it. Thus
the Secretary’s case faces two initial problems: first, were any employees exposed to the
hazards; and second, were the citations issued within the six-month limitation period set
out in $ 9(c) of the Act.
The evidence relevant to these two issues may be summarized as follows. When
Messrs. Holloway and Williams arrived on site on July 11, there was no one in the
excavation and there was no ongoing work in connection with it! Messrs. Holloway and
?he findings reflect the state of the excavation when viewed by Messrs. Holloway and William, as well as
certain facts relevant to defenses raised by Respondent.
6see Tr. 1647, 27, 30, 128-29, 155, 168 (Holloway); 3L80-81(Williams); 371-72 (Wright).
6
Williams did not observe anyone in the excavation.’ One of !WO existing oil tanks had
been removed as required by the contract with PHA and there was a question whether
the excavation would need to be enlarged in order to remove contaminated soil.
Consequently, no work was proceeding pending the analysis of soil samples? Mr.
Holloway testified that Mr. Wright told him that employees of PCE had been in the
excavation on “the previous day,” and Mr. Williams prepared an undated note to the
same effect.’
It is not clear what was meant by the term “the previous day.” In response to the
question whether the employees were in the excavation on July 9 or July 10, Mr.
Holloway testified:
As a Statement of fact, I can not say that I really know. Again, based on
. experience, I have a complaint that says it was there on the 9th and the
*
superintendents, two superintendents seem to imply that it was probably on
the 9th. But because the complaint coming in on the 9th and because they
specifically said there were two people in the hole, I would say that they
were there on the 9th. And possibly on the 10th.lo
Mr. Holloway also indicated that it had rained on the lOth? The photographs .
taken by Mr. Williams show that the excavation contained an accumulation of water and
that the soil in it was wet, thus corroborating Mr. Holloway’s recollection.l* Rain
‘Tr. 27, 30, 128-29, 155, 168 (Holloway).
%ee Tr. 323-24 (Henderson), 371-72 (Wright); GX 5 and 6.
?r. 30 (Holloway), 284 (Williams). Mr. Williams written notation is GX 18. Mr. Holloway also testified
that the PCE supewisor gave him the names of these two employees. Tr. 31-32.
Vr . 16041.
“Tr. 29, 161.
‘*see GX-6.
would, in all probability, prevent work on the excavation so that it woul d be un .likely that
anyone would be in the excavation. Moreover, although Mr. Holloway thought he could
detect a footprint or two in the bottom of the excavation in one of the photographs, that
photograph contains no indication that anyone was in the excavation after the rain?
Thus what evidence there is in support of the proposition that there were
employees in the excavation indicates that this exposure would have occurred on July 9
rather than July 10, 1991.” In order to have been brought within the six-month
limitation period, the citations would have to have been issued no later than January 9,
- They were issued on January 10; consequently they are barred by § 9(c) of the
Act .
Moreover, even if one assumes for the sake of argument that 0 9(c) does not
come into play, the evidence of employee exposure is very weak. As noted above,
Messrs. Holloway and Williams did not observe anyone in the excavation. Consequently,
the Secretary’s case in support of the proposition that exposure occurred is based entirely
on the hearsay statements of Mr. Wright, Respondent’s foreman, and Mr. Reitz of PCE.
Mr. Reitz did not testify. At the hearing, Mr. Wright indicated that he had not
seen anyone in the excavation “... the way it looked when Mr. Holloway was there,
% . 173-74, 257-58; GX-6.
‘Vhis is consisten t with the fact that the anonvmous complaint was received and classified as presenting
an “imminent danger” on the ninth. Tr. 25&5k Moreover, Chapter VII, Il B.1.c of the OSHA Field
Operations Manual requires that inspcuons in response to reports of imminent danger are to be
conducted on the same day as the report 1s received, or, if necessary, not later than the employer’s next
working day. Thus the fact that the mspection was not conducted until two days following receipt of the
report corroborates Mr. Holloway’s recollection that it rained on the 10th thus preventing work.
a
unshared...? He denied hating told Mr. Holloway that he observed two PCE
employees in the excavation the previous day or that he had observed employees riding
the bucket. l6 He adcnowledged that he had indicated in a deposition given a little over
a month after the close of the job that he had been told of employees riding the bucket
into the excavation and had witnessed it once. However, he explained that he was
extremely nervous and ill-prepared when he gave his deposition, and that his memory
was not good at that time because he had wiped the job from his memory when it was
finished.”
Mr. Wright testified that it was only recently that he was able to remember details
of the job.‘* It was clear from the demeanor of both Mr. Wright and Mr. Holloway
that the worksite presented a very threatening environment. In this circumstance, I find
it not sumrising that there are conflicting accounts from Mr. Holloway and Mr. Wright
a
concerning what the latter told the former while they were standing outside next to the
excavation, or that h4r. Wright would have difficulty in recalling details.
The strongest evidence which the Secretary has offered that employees were
exposed to the hazard posed by the excavation are the statements attributed to Messrs.
Wright and Reitz. Mr. Wright denied having made the statement relied on and Mr.
Reitz did not testify. Thus the evidence is insufficient to satisfy the Secretary’s burden of
9r . 367-68.
“‘Tr. 3%,365-66.
Vr . 366.
establishing employee exposure by a preponderance of the evidence. Even if Mr.
Wright’s denial is disregarded and it is taken as established that two employees were in
the excavation, there is no evidence establishing the state of the excavation when that
exposure occurred.‘9 Even in that circumstance, the evidence is simply too sketchy to
establish employee exposure to a hazard. These citations are vacated.
D0 Citation 2, Item 1 and 3
Citation 2, Item 1 cites 29 C.F.R. 8 1910.335(a)(2)(ii) which provides in paa that:
Protective shields, protective barriers or insulating materials must be used
to protect each employee from shock, bums or other electrically related
injuries while that employee is working near exposed energized parts which
might be accidentally contacted..
Citation 2, Item 3 cites 29 C.F.R. 8 1926.403(i)(2)(i) which provides in part that:
. Live parts of electric equipment operating at 50 volts or more shall be
l
guarded against accidental contact by cabinets or other forms of enclosures,
or by any of the following means:
**s
(b) by partitions or screens so arranged that only qualified persons
will have access to the space within reach of the live parts;
***
On September 30, 1991, Mr. McDonough and Mr. Holloway observed two distinct
areas in which the above standards were violated - the basement mechanical room and
the penthouse mechanical room in building no. 1. There were open live electrical panels
on a wall in the basement and in the penthouse. In addition, the floor in the basement
was wet. There was nothing to prevent employees from coming into direct contact with
‘9Mr. Wright tes tified that he and some PCE employees were in the excavation for purposes of
disconnectingand unstrapping the oil tank. At the time, the excavation was about three feet deep, and the
work ws accomplished from the top of the tank. Tr. 362-63.
10
the enermd surfaces. & a result, Citation 2, Items 1 and 3 charged Respondent with
willful violations of the above standard and seeks $28,00() in penalties for each item.
Both Citations involve uncovered electrical panels owned by PHA. Item 1 alleges
a violation because Fluidics did not provide protection to its employees aside from
covering the panels and Item 3 alleges a violation against Fluidics because the panels
were not covered. Fluidics asserts that these Citations both reach the same condition
from different directions and accordingly should be grouped.
Indeed, when questioned, Mr. Holloway was unable to explain why the citations
were not grouped, except for the fact that one item came from the 1910 General
Industries Standards and the other came directly out of the Construction Standards.
Moreover, Mr. Holloway was unable to explain why Fluidics is being subjected to two
proposed penalties of $28,000 for essentially the same hazard. Respondent’s position is
well taken. These citations are grouped and one proposed penalty of $28,000 is
considered for both. Secrerary V. R & R Builders, Inc., 15 BNA OSHC 1383, 1391-92
(Rev. Comm. 1991).
Respondent argues that Mr. Holloway’s testimony on the issue of employee
exposure was speculative, pointing out that he did not see any employees in the vicinity
of the panels. While that is true, there was suffkient evidence to support the finding that
Respondent’s employees passed tw. and worked in the area of the electrical panels. That
is sufficient to satisfy the requirement that employee access to a hazard must be shown in
order to show that a violation of the Act has occurred.
11
Respondent raises the multiemployer worksite affirmative defense, pointing out
that it did not control the open panels, that it warned its employees, and that it
repeatedly complained to PHA to abate the hazard. Ann&@&~~o~ Co., 4 BNA OSHC
1193, 1198 (Nos. 3694, 4409, 1976). Respondent’s actions were insufficient in this
instance to absolve itself of liability for the exposure of its employees. The significant
point is that when Respondent’s complaints to PHA did not result in an abatement of
the hazard, Respondent did not take action to abate the hazard itself. Respondent could
have easily done so by placing some temporary barrier between the electrical panels and
the employees. 20 Thus, under the holding in Lee Roy Westbrook Construction Co., 13
BNA ‘OSHC 2101, 2103-04 (No. 84-9, 1989), Respondent did control the hazard.
Respondent argues that, even if violations of the cited standards are found, they
are not willful violations. In order to support a willful violation, the Secretary must show
that the employer acted “‘with intentional, knowing or voluntary disregard for the
requirements of the Act or with plain indifference to employee safety.“‘21
The findings reflect that there was no disregard of or indifference to the .
requirements of the standard. On the contrary, Respondent actively sought to get the
panel covers replaced and instructed its employees to avoid the panels. Mr. Wright
believed that he had done everything he could to abate the hazard posed by the
% view of the abatement methods suggested by the Secretary (see Tr. 88-89), Respondent’s assertions
that this was not practical or feasible are not credible.
2LSecretaryv. Wdliams Enterprises Inc., 13 BNA OSHC 1249, 1256 (Rev. Comm. 1987), quoting from
Secretaryv. Asbestos T&tile Co., 12 BNA OSHC 1062, 1063 (1984). cf: secretary K R & R Builders, I’-, 15
BNA OSHC 1383,1392(Rev. Comm. 19%).
12
panels. 22 me fact that he was mistaken in that belief does not operate to make these
violations willful. I conclude that these violations are properly classified as serious under
the Act.
Mr. Holloway calculated a gravity-based penalty of $5000 reduced by 20% because
of Respondent’s size? I conclude that this is an appropriate penalty and accordingly
affirm a $4ooo penalty for Citation 2, Items 1 and 3.
E. Citation 2. Item 5
Citation 2, Item 5 cites 29 C.F.R. 8 19261052(c)( 12) which provides in part that
Unprotected sides and edges of stairway landings shall be provided with
guardrail systems.”
opening the door leading from the outside to the basement mechanical .
room of Building No. 1, CSHOs Holloway and McDonough observed a small landing
with stairs leading down to the basement floor. The landing previously had a pipe railing
which had been removed to allow equipment to be delivered to the basement floor. This
hazard had existed for approximately 30 days. The removal of the railing created a fall
hazard of 15 feet to a concrete floor below.
The Secretary maintains that the landing was very small and that employees
passed within three feet of the unguarded side of the landing entering and exiting the
basement and as they opened and locked the double doors? Discounting Mr. Wright’s
2qr. 376 (Wright).
?Yr. 87-88.
%ese systems must meet the crltctla contained in Subpart M of 29 C.F.R. 51926.
%espondent’s employees passed by. thus ha?ard several times each day because this landing provided their
only a- to the basement.
13
testimony that he had installed a temporary guard in the form of a chain, the Secretary
maintains that Respondent could have chained or roped off the edge to at least alert
employees to the open sides and to provide some modicum of protection in case of a
slip, loss of balance, or jostling when employees were entering or exiting the basement.
Thus the Secretary argues that the violation is not only serious, but willful because
Respondent created the hazard, allowed it to exist for 30 days, knew of the daily
exposure of its employees, and could easily have abated or ameliorated the hazard.
Respondent argues that, as a practical matter, there was no access or exposure
because:
First, the door, which had a swing from right to leftx toward the unguarded side
of the landing, blocked access to the unguarded edge, thus making it impossible for
anyone entering the door and proceeding to the stairway to have access to the unguarded
area; and
Second, only ifan employee remained on the platform after closing the door and
walked beyond the stairway would the employee have access to the unguarded area. L
While Respondent’s arguments concerning the configuration of the landing are
correct, I must conclude that employees had access to the hazard. It is not unreasonable
to suppose that several employees entering or leaving together might create the necessity
for one or more to stand next to the unguarded edge. While I find that a violation of the
cited standard occurred when Respondent removed the guardrail, I also find that
Respondent replaced it with a temporary guardrail. Respondent’s placement of a
%r,
\ as illustrated in Exhibit R-5, from three o’clock on the right to twelve o’cbck.
14
temporary pa&rail establishes that the violation was not willfuk2’ Consequently, a
penalty of $4000, rather than $28,000, is appropriate.
F. Citation 3, Item 1
Citation 3, Item 1 alleges that three fire extinguishers in Respondent’s office failed
to comply with 29 C.F.R. 9 1926.15O(c)( l)(viii) which provides that:
Portable fire extinguishers shall be inspected periodically in accordance
with Maintenance and Use of Portable Fire Extinguishers N.F.P.A. No.
lOA-1970.
Respondent argues that because the extinguishers in question were awaiting return
to the shop and because other extinguishers which had been inspected were present, this
citation should be vacated. However, the Commission has held that so long as a fire
extinguisher. is present at a worksite, it must meet the requirements of the standard?
Consequently, this citation is affirmed with a penalty of $00.
III . FINDINGS OF’FACT
A General
1. Respondent is a corporation with its principal address in
Philadelphia, Pennsylvania. (Answer).
2. Respondent is engaged in interstate commerce using tools,
equipment, machinery, materials, goods and supplies from outside the State of
Pennsylvania and is an emplover
4 covered by the Act. (Answer). At the time it was
“Mr. Holloway acknowledged that the use of a chain would have offered some protection against falls,
although it would not have met the standard. See Tr. 72-73.
%ecretary v. George J. Igel & Companv,. 6 BNA OSHC 1642, 1643 (Rev. Cm. 1978).
15
inspected, Respondent employed approimateiy 200 employees as defined by the Act,
including 11 at the worksite (Answer).
3 l Respondent is engaged in construction activities, specifically
mechanical contracting (Answer). Respondent entered into a contract with the
PhiladePph 1a Housing Authority (PHA) to upgrade the heating and domestic water
service systems in four high-rise buildings and a community center comprising the Martin
Luther King Complex. The project involved work in nine mechanical spaces -- primarily
removal of pipe, valves and pumps and reinstallation of new ones --- as~ well
. as the
removal of an underground oil tank and installation of a replacement tank. The oil tank
was near the community center and in between various high rise buildings?
4 l The worksite presented special difficulties because of crime’atid the
hostility of the residents. Objects thrown from buildings were a hmrd. Drive-by and
other shootings were not uncommon. Respondent eventually hired armed guards to
escort its workers while they were outside, required that no worker travel outside alone,
and provided radio communication to those who were outside?
5 l Compliance Officers Hiliary Holloway, Harold Williams and Robert
McDonough inspected Respondent’s worksite at the Martin Luther King Complex on
July 10, 11 and September 30, 1991 (Tr. 15).
6 l Mre Holloway is an experienced Compliance Officer with over ten
years as an inspector, over six hundred inspections performed and extensive training and
?I- at 309 (Henderson), 34748 (Wnght) 17, 120-21 (Holloway); Exhibit F-l.
?r. 348-S (Wright), 16 (Holloway).
16
experience with soils and excavations (Tr. 11-M). Compliance Officers Robert
McDono@ and Harold Williams are inspectors with experience in performing safety
and health inspections and have received training from OSHA (Tr. 279-280, 287-289).
B. Citation 1. Item 1
1. On September 30, 1991, CSHOs Holloway and McDonough
observed four oxygen, five acetylene, and two nitrogen cyhciers stored together without
, separation by a fire barrier in Respondent’s field office trailer. These cylinders, which
were in an upright position, were unsecured and therefore subject to being knocked over
by accidental contact. The trailer was frequented by Respondent’s employees and used
daily by Respondent’s foreman.
2. Respondent admitted the above facts in its answer, but contests the
.
penalty. Respondent had a policy of keeping the cylinders tied. The cylinders in
question had been returned to the office awaiting return to the shop. Materials were
brought. into the office quickly and sorted later to avoid exposing Respondent’s
employees to objects thrown down from the building. Tr. 390 (Wright).
3 l The cylinders could inflict serious injury if knocked over and
ruptured. Storing the oxygen cylinders with the fuel gas cylinders increased the fire
hazard. (Tr. 11346).
C. Citation 1, Items 2a, 2b, and 3
1 l On September 30, 1991, CSHOs Holloway and McDonough
observed the area where employees were working in the basement of building one. They
noted that Respondent did not utilize an assured equipment grounding program or
17
ground fault circuit interrupters (Item 2a), that the work area was strewn with one
orange and one yellow extension cord (Item 2b), and that the yellow extension cord was
plugged into a two-prong wall receptacle using a so-called “cheater plug” (Item 3) (Tr.
90-102 (Holloway); GX 8, 9, 10).
20 The yellow cord that was plugged into the “cheater” plug went to a
drop light. This was the only plug that was plugged in. Tr. 239, 248 (Holloway), 394
(Wright). The droplight was double-insulated. Tr. 393 (Wright),
3. Mr. Wright supervised the employees and was aware of their use of
electrical equipment and conditions in the basement (Tr. 91,96, 99, 103). Although
Fluidics had ground fault circuit interrupters on the jobsite, Mr. Wright did not believe
he could use them on the outlets in the basement. Tr. 391 (Wright).
4. The basement flooi was wet increasing the shock hazard (Tr. 96,
98). Serious injuries could result to exposed employees (Tr. 96,97, 100, 103).
D. Citation 1, Items 4 through 8: Citation 2. Item 4
10 Respondent subcontracted the excavation of a heating oil tank to
Philadelphia Construction Equipment, Inc. (“PCE”) (Tr. 423-24 (Dowling); RX 11).
Fluidics entered into a written subcontract with PCE for the Project dated May 24, 1991.
(a) Under the heading “Description of the Work” the subcontract requires that
PCE provide, inter alia, “shormg as required.”
(b) Article XIII prwidcs, inter aIia:
Subcontractor shall have a competent foreman or superintendent
satisfactory to Fluidics on the site at all times during progress of the
Subcontractor’s work.
18
0C Additional Article 6 provides:
Subcontractor must comply with current OSHA regulations.
Exhibit F-11, Tr. 426 (DowIing).
2. FIuidics intended to subcontract total excavation responsibility to
PCE. Tr. 423-24 (Dowling). Prior to July 11, 1991, Mr. Wright relied on PCE to
perform the excavation work safely and properly, Tr. 358-59 (Wright), and was relying on
what he believed to be PCE’s expertise. Tr. 12627, 140, 181 (Holloway).
3. Prior to commencement of excavation work, FIuidics had an eight
foot high cyclone fence erected around the excavation area. Tr. 357 (Wright), 326
(Henderson). All of PCE’s work was within the fenced area. Tr. 125-26 (Holloway), 357
(Wright). - .
4. Thereafter, the only persons permitted to be within the fenced area
without specific direction by Mr. Wright were PCE employees, with all other employees
on the site required to stay outside the fence. Tr. 358-59 (Wright). Mr. Wright permitted
other employees within the fenced area only on two occasions: first, to cut the straps
from and disconnect the existing tank; and second, after the excavation had been
completed and shored, to install the new tank. Tr. 358 (Wright).
5. Prior to allowing PCE to start work, Mr. Wright spoke with PCE’s
Outside Superintendent, Richard Reitz, and discussed Mr. Reitz’s understanding of PCE’s
obligations under the subcontract. Based on that discussion, Mr. Wright was satisfied
that Mr. Reitz was a competent person with respect to excavation and that PCE was
competent to perform its work properly and safely. Tr. 359, 401 (Wight).
19
6 l h addition to its outside superintendent, Mr. Reitz, PCE provided a
foreman for the excavation work who was present at the excavation whenever PCE
worked. Tr. 39940 (Wright).
7. Mr. Wright totally relied on PCE to perform the excavation work
and to perform it safely. Tr. 358 (Wright). Mr. Wright did not control PCE’s operations
at the Project:
a. Except for telling when PCE was to first come to the Project,
Mr. Wright did not control PCE’s schedule. Tr. 360 (Wright), 141 (Holloway);,
b. Mr. Wright did not plan or become involved with PCE.‘s plan
as to how to execute its work;. Tr. 360, 400 (Wright);
c. Mr. Wright did not direct or become involved with how PCE
executed its work. Tr. 416 (Wright);
8 l On July 9, 1991, the Philadelphia Regional Office of OSHA received
an anonymous telephone call reporting two men allegedly working in an unshored
excavation at the project. OSHA deemed the situation reported to constitute imminent
danger. Tr 15, 129, 25455 (Holloway).
9. On July 11, 1991, the Secretary dispatched CSHO Hiliary Holloway,
Jr. and CSHO Harold Williams to the project. Tr. 15 (Holloway). Messrs. Holloway and
Williams returned to the project the following day, July 12th, and Mr. Holloway returned
again on September 30, 1991, this time with CSHO Robert McDonough. Id.
20
10a When Messrs. Holloway and Williams arrived at the excavation on
July llth, no work was being performed, and PCE was not on the site. Tr. 1647, 138
(Holloway).
11. The excavation was approximately 25 feet square and 20 feet deep
and was dug in type “C’ soil, the least stable classification of soil. Tr. 18 (Holloway). Soil
was sloughing from the walls of the trench. Tr. 21-22 (Holloway).
12. No ladder or other safe means of egress from the excavation was
present. Tr. 38 (Holloway).
13l No protective shoring, sloping
. or other protective systems were in
use. Tr. 25 (Holloway).
14. A concrete pavement overhang was left unsupported over a portion
of the excavation. Tr. 50-52 (Holloway).
‘15. A tracked excavator was parked within 2 to 3 feet of the edge of the
excavation. Tr. 20 (Holloway); GX 3.
16. A spoil bank was piled up to the edge of the excavation. Tr. 20
(Holloway); GX 4.
17. Water and oil had accumulated in the bottom of the trench. Tr. 220
23 (Holloway).
18. Superimposed loads (excavator, spoil bank) on the edge of the
unshored excavation, the presence of water and oil in the excavation, and an
unsupported concrete overhang all contributed to the risk that the walls of the excavation
might collapse. Tr. 19-25 (Holloway); GX 3, 4, 5, 6, and 7.
21
19 l The condition of the .excavation was obvious and Mr. Wright was
aware of the hazards posed. Tr. 29-30, 32-33, 35 (Holloway).
20 l Respondent did not discuss the. hazard posed by the excavation with
Mr. Reitz of PCE prior to the inspection. Tr. 403 (Wright).
21 l Potential injuries to employees caught in the excavation include
suffocation and death. Tr. 39-40 (Holloway).
22 l At no time did any OSHA inspector see anyone in the excavation.
Tr. 27, 30, 128-29, 155, 168 (Holloway). At no time did any OSHA inspector see any
Fluidics employee inside the fenced area around the excavation. Tr. 125 (Holloway).
.
E l Citation 2. Item 1 and 3
1 l On September 30, 1993 CSHOs Holloway and McDonough observed
open, unguarded, live electrical panels in the basement mechanical room and the
penthouse mechanical room of building no. 1 at the worksite (Tr. 75-76, 291-293; GX
11-Z). *
2 l Mr. Wright was aware of the unguarded panels (Tr. 64, 289-90).
Mr. Wright advised all Fluidics employees working in the mechanical rooms to stay away
from the uncovered panels. Tr. 375 (Wright), 330 (Bell). Mr. Wright believed that his
employees followed that instruction and had no reason to believe there was any lack of
compliance. Tr. 375-76 (Wright).
3e In the basement mechanical room, Respondent had a tripod next to the
panels (Tr. 77.80).
22
4. Respondent’s employees passed by and worked in the area of the
electrical panels (Tr. 77-79).
Se Respondent’s employees worked in the penthouse and passed within 3
to 4 feet of the electrical panels (Tr. 83).
6. Potential injuries to employees coming into contact with the panels
include electrocution (Tr. 84, 109).
7. The hazard was heightened by the wet floor in the basement (Tr.
75) .
8. Richard Henderson, PHA’s Director of Combustion Engineering
(Tr. 30&09), testified that PHA personnel would remove panel covers to gain access to
the panel and fail to replace them. He indicated that keeping the electrical panels
.
covered was a constant battle (Tr. 311 Henderson). Fluidics did not create and had no
control over the situation (Tr. 189 Ho11oway, Tr. 374 Wright).
9 l Mr. Wright frequently reminded Mr. Henderson and the
Maintenance Superintendent on site of the problem with the missing panel covers (Tr.
374-75 Wright). Fluidics wrote three letters to the Housing Authority advising that the
panel covers were constantly being removed and asking that the situation be corrected
(Exhibits F-8, F-9 & F-10; Tr. 3 1l- 12 Henderson). Mr. Henderson believed that Fluidics
was concerned about getting tht: panels put on and kept on. Tr. 312 (Henderson). Mr.
Holloway was advised of these efforts (Tr. 186-87 Holloway).
10. Eventuallv.4 as a result of Respondent’s repeated requests, PHA had
panel covers fabricated out of quarter inch metal plate and tack welded these onto the
23
panel boxes (Tr. 319-20, 316 Hen&rson). Prior to that time, when Respondent’s
employees were able to find panel covers at the project, Respondent would have these
reinstalled (Tr. 376 Wright). Respondent did not otherwise attempt to guard the panels
(Tr. 86 Holloway).
F. Citation 2, Item 5
1. Access to the Building No. 1 basement mechanical room was by way
a door leading to a landing and stairway. Tr. 69, 227-28 (Holloway).
2. On September 30, 1991, CSHOs Holloway and McDonough
observed that this landing was unguarded (Tr. 60-66). Fluidics had removed a railing at
the left side of the platform to lower equipment into the basement. Tr. 384 (Wright).
3 l Mr. Wright stated that his plumbers had removed the railing to
move material to the basement but had not replaced it (Tr. 69, 72). Fluidics had placed
a temporary guardrail in the form of a chain tied with wire across the top and a rope
across the midsection. . Tr. 385, 388 (Wright).
4. Respondent’s employees each used this entrance several times a day *
as it was the only access to the basement mechanical room (Tr. 337-338).
5. Employees had to pass within 3 feet of the unguarded edges of the
landing (Tr. 68).
6 l The landing was 15 feet above the basement floor (Tr. 66).
7. Potential injuries to employees who fell from the landing would be
serious and could include death (Tr. 71).
24
G. Citation 3. Item 1
1l On September 30, 1991 CSHOs Holloway and McDonough observed
three fire extinguishers in Respondent’s office trailer at the worksite which had not been
inspected within the preceding 12 months (Tr. 110-l 12).
2. These fire extinguishers had been returned to the office and were
awaiting return to Fluidics’ shop. Tr. 390-91 (Wright). There were other fire
extinguishers that Mr. Holloway did not determine to be in violation Tr. 391 (Wright).
IV . CONCLUSIONS OF LAW
A Respondent was, at all times pertinent hereto, an employer within the
meaning of 0 3(5) of the Act.
B. The Occupational Safety and Health Review Commission has jurisdiction
.
over the parties and the subject matter.
C l Respondent was in violation of 0 5(a)(2) of the Act in that it failed
. to
comply the standardsat 29 C.F.R. $0 1926.350(a)(9) and 1926.350(j) as alleged in
. .
Citation 1, Item 1. A penalty of $1,600 is appropriate.
D l Respondent was in violation of 8 S(a)( 2) of the Act in that it failed to
comply the standards at 29 C.F.R. 5 1926.404(b)(l)(‘)1 as alleged in Citation 1, Item 2a.
A penalty of $4,ooO is appropriate.
E l Respondent was in violation of 0 5(a)(2) of the Act in that it failed to
comply the standards at 29 C.F.R. 6 1926.416(b)(2) as alleged in Citation 1, Item 2b. A
penalty of $00 is appropriate.
25
F. Respondent was not in violation of 8 5(a)(2) of the Act in that it failed to
comply the standards at 29 C.F.R. 8 1926.404(f)(6) as alleged in Citation 1, Item 3.
G. Citation 1, Items 4 through 8, and Citation 2, Item 4, are barred by the six-
month limitation period found in 5 9(c) of the Act.
H. Respondent was in violation of 0 S(a)( 2) of the Act in that it failed to
comply the standards at 29 C.F.R. $5 1910.335(a)(2)(ii) and 1926.403(i)(2)(i) as alleged
in Citation 2, Items 1 and 3. These violations are grouped; a penalty of $4,000 is
appropriate.
I l Respondent was in violation of 8 5(a)(2) of the Act in that it failed to
comply the standards at 29 C.F.R. 0 1926.1052(c)( 12) as alleged in Citation 2, Item 5. A
penalty of $4000 is appropriate.
J. Respondent was in violation of 0 5(a)(2) of the Act in that it failed to
comply the standards at 29 C.F.R. 5 1926.15O(c)(l)( WI
“‘> as alleged in Citation 3, Item 1.
A penalty of $00 is appropriate.
V. ORDER
A. Citation 1, Items 1 and 2a, and Citation 2, Items 1, 3, and 5 are affirmed as
a serious violations of the Act.
B. Citation 1, Item 2b, and Citation 3, Item 1, are affirmed as other-than-
serious violations of the Act.
C l A total civil penaltv. of $13,600 is assessed.
DATED: #$ ; b m:
Washington,D.C.
26
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