Ramzel-Texas Services, Inc.

Plain-English summary

Ramzel-Texas Services performed asbestos removal at Lubbock High School in Texas. The ALJ rejected its challenge to the inspection because the school principal had control of the occupied school premises and validly consented to OSHA's entry. Two extension cords bypassed the company's GFCI panel, and Ramzel had no assured equipment-grounding-conductor program, so the first electrical item was affirmed. Several cords powering negative-pressure equipment also ran through traffic areas without protection from damage. In a wet basement crawlspace, employees used water while working under string lights whose lampholders were not weatherproof. The judge affirmed all three items as serious and assessed $100, $100, and $300, totaling $500.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.404(b)(1)(iii), 1926.405(a)(2)(ii)(I), and 1926.405(j)(1)(iv)
• Outcome: All three serious electrical items were affirmed with $500 in total penalties.
• Key point: A property controller with common authority may consent to an OSHA inspection, and an employer remains responsible for electrical hazards exposing its workers even if it did not install the equipment.

Full text (OSHRC public release)

                                UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW
                                 One Lafayette Centre
                           1120 20th Street, NAV. - 9th Floor
                              Washington, DC 200364419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-0535
RAMZEL-TEXAS SERVICES, INC.
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 June 1, 1993. The decision of the Judge
will become a final order of the Commission on July 1, 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 petition should be received by the Executive Secretary on or before
June 21, 1993 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 8 .F.R. 2200.91.

All further pleadings or communications regarding this case shall be
addressed to:

                          Executive Secretary
                          Occupational Safety and Health
                           Revrew Commission
                          1120 20th St. N.W., Suite 980
                          Washington, D.C. 20036-34 19

Petitioning parties shall also mail a copy to:

                          Daniel J. Mick, Esq.
                          Counsel for Regional Trial Liti ation
                          Office of the Solicitor, U.S. DO?L
                          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) 606-5400.

                                         FOR THE COMMISSION

Date: June 1, 1993 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 92-0535

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the SOfl
citor, U.S. DOgL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

James E. White, Esq.
Re ional Solicitor
Of&e of the Solicitor U S DOL
525 Griffin Square Bldg.,‘Suite 501
Griffin & Youn Streets
Dallas, TX 752 #2

Newman Carter Rarnzel
Ramzel-Texas Services, Inc.
P.O. Box 180383
Austin, TX 78718 0383

Stanley M. Schwartz
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
Federal Building, Room 7Bll
1100 Commerce Street
Dallas, TX 75242 0791

00107410581:06
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---_-____
__
\
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A<\ UNITED STATES OF AMERICA
\ OCCUPATIONAL SAFiti AND HEALTH REVIEW COMMISSION
R&M 7811, FEDERAL BUILDING
1100 COMMERCE
DALU”4S, TEXAS ?52420791

PHONE FAX:
COM (214)767-5271 CoM (214)767-0350
ns 729-5271 FE 729-0350

                                                               .
                                                               .
                                                               ..

SECRETARY OF LABOR,
..

                        Complainant,                            0.
                                                                 ..
              v.                                                  ..    OSHRC DOCKET NO. 92-0535
                                                                .
                                                                .
                                                                ..

RAMZEL-TEXAS SERVICES, INC.,
.
.
.
Respondent. l

                                                                ..


APPEARANCES:

              Olivia Tanyel Harrison, Esquire                   Newman Carter Ramzel
              Dallas, Texas                                     Austin, Texas
              For the Complainant.                              For the Respondent, PO se.

Before:            Administrative     Law Judge Stanley M. Schwartz

                                             DECISION AND ORDER

              This is a proceeding        brought before the Occupational        Safety and Health Review
Commission             (“the Commission”)       pursuant to section 10 of the Occupational        Safety and
Health Act of 1970, 29 U.S.C. 0 651 et seq. (“the Act”).
              The Occupational         Safety and Health Administration      (“OSHA”) inspected a worksite
at Lubbock High School in Lubbock, Texas, where Respondent                         was engaged in asbestos
removal, from July 9 through 22, 1991; as a result, Respondent                  was issued a serious citation
with three items .l Respondent               contested the citation, and a hearing was held on December
3, 1992; at the hearing,               Respondent     contested not only the citation items but also the
propriety of the inspection itself.



‘The alleged violations were absented on July 18, 1991.

2

                                     The InsDection

       Based on the record and the arguments        of the parties, the issue in this case is

whether OSHA obtained valid third party consent to conduct the inspection. The record
establishes that Rose Mediano, the school principal, was on the premises at the time of the
inspection due to summer school being in session, and that she gave OSHA permission to
conduct the inspection. The Secretary contends that Mediano had the authority to consent
because of her control over the school. Respondent, on the other hand, contends that
Mediano had no authority to consent to an inspection of its work areas because of its control

over those areas.
The validity of third party consent depends upon whether the “permission to search
was obtained from a third party who possessed common authority over or other sufficient
relationship to the premises or effects sought to be inspected.” United States v. Matbck, 415
U.S. 164, 171 (1974). Common authority may not be implied solely from a third party’s
property ownership, but instead hinges on “mutual use of the property by persons generally
having access or control for most purposes.” Id. at 171 n.7.
Thomas Nystel, the OSHA compliance officer who inspected the site, testified that
he met with Mediano in the principal’s office at the school on July 17, and that he
understood her to be the principal. He further testified that Mediano gave him permission
to conduct the inspection, and that he had no doubt of her control over the premises
because school was in session. The Secretary presented an affidavit signed by Mediano in
which she states that she is the principal of the school, that she had control of the premises
during the asbestos removal, and that she gave OSHA permission to conduct the inspection.
See Complainant’s motion for partial summary judgment. Although an affidavit is not the
best evidence, in this particular case it does corroborate the testimony of the compliance
officer. More importantly, Respondent does not contest these facts, but instead relies on
provisions in the asbestos standard. In particular, Respondent cites to 192658(b), which
defines “competent person” in part as the person “controlling entry to and exit from the
enclosure,” and to 1926.58(e)(3), which states that “[alccess to regulated areas shall be
 3

limited to authorized persons or to persons author-i& by the Act or regulations issued
pursuant thereto.”
On the basis of the foregoing, it can ody be concluded that OSHA obtained v&d
third party consent in this case. The asbestos standard provisions set out above, without
more, do not constitute proof of Mediano’s lack of authority over Respondent’s work areas.
Moreover, Nystel’s testimony, which is bolstered by Mediano’s affidavit and not rebutted by
Respondent, establishes that Mediano possessed the authority and control over the school
premises that Matlock requires to give valid consent. Respondent’s challenge of the
inspection is therefore denied.

                         Item 1 - 29 C.F.R. 5 1926.404(b)(l)(iiiJ

   The subject standard is a subpart of 1926.404(b)(l)(i),     which requires employers to

use either ground fault circuit interrupters (“GFCI’s”) or an assured equipment grounding
conductor program (“AEGCP”) to protect employees on construction sites. The subject
standard provides as follows:
The employer shall establish and implement an [AEGCP] on construction sites
covering all cord sets, receptacles which are not a part of the building or
structure, and equipment connected by cord and plug which are available for
use or used by employees.
Thomas Nystel testified the company had set up a panel of GFCI outlets into which
a number of extension cords used to power equipment were plugged; however, two cords
were plugged directly into the building’s power supply, and the company did not have an
AEGCP in place. One of the cords was plugged into a receptacle in the main hallway from
which it ran outside, along the building, and into a wooden enclosure, as shown in C-2-4,
where it powered a negative pressure fan. The other cord was connected to a receptacle
in the science lab, which was used as a dressing room for employees and as an entrance into
the containment area; this cord was plugged into another cord, as depicted in C-5, which
powered a negative pressure monitor. Nystel said that both conditions were serious hazards
because employees were working in and passing by the areas where the cords were located
and an electrical defect could have resulted in a worker being shocked or electrocuted.
 4

    Respondent’s     contention in regard to this citation item is that c-2-5 do not show the

cords servicing any of its equipment. Regardless, Nystel’s testimony about both cords a&
the equipment it powered was credible and unrebutted by Respondent; accordingly, a serious
violation of the standard is established. Turning to the assessment of an appropriate
penalty, I note most of Respondent’s cords were connected to the GFCI panel, that there
were only two in violation of the standard, and that these same two cords were cited again
in item 2, in$kz. Nystel himself considered items 1 and 2 interrelated and of low gravity
because the light foot traffic in the areas of the cited cords made potential damage to them
less likely. Upon considering these factors, as well as Respondent’s size, history and good
faith, it is concluded a penalty of $100.00 is appropriate for this item.

                          Item 2 - 29 C.F.R. 5 1926.4050(2Wi)~

    The subject standard provides as follows:
    Flexible cords and cables shall be protected from damage. Sharp comers and
    projections shall be avoided. Flexible cords and cables may pass through
    doorways or other pinch points, if protection is provided to avoid damage.
    Thomas Nystel testified he saw three instances of electrical cords in areas where they

were subject to damage in violation of the standard. The first instance was the cord
powering a negative pressure fan located outside a vacuum truck parked on the east side
of the school; C-6-7 depict the fan and the cord, and both employee traffic and equipment
such as the ladder in C-7 could have damaged the cord. The second instance was the cord
powering the negative pressure fan, as cited in the previous item and depicted in C-2-4; the
cord was subject to damage from employee and student traffic, as was the other gray-colored
cord in C-3. The third instance was the cord in C-5, as cited in the previous item, which was
also unprotected and subject to damage. Nystel said these conditions could have resulted
in shock or electrocution and could have been abated by suspending the cords out of the
way or by covering them.
The foregoing, which was not rebutted by Respondent, establishes a serious violation
of the standard. Based on the factors set out in the previous discussion, a penalty of $100.00
is assessed for this item.
 5

                           Item 3 - 29 C.F.R. 4 1926405(j)(l)(iv~

   The subject standard provides, in pertinent part, as follows:
   Lampholders       installed in wet or damp locations shall be of the weatherproof
   type*
   Thomas Nystel testified that the company’s employees were removing asbestos in a

crawlspace located in the basement of the building, and that a string of lights along the
ceiling of the crawlspace provided illumination; the employees were using water hoses to
dampen the asbestos-containing materials in the crawlspace, which made the area wet and
created a serious hazard because the lampholders housing the lights were not weatherproof
as required and could have caused employees to be shocked or electrocuted. Nystel said the
wet condition of the crawlspace made the likelihood of an accident much greater.
Respondent’s contention in regard to this citation item is that Nystel did not establish
it had installed the lights in the crawlspace. However, Commission precedent is well settled
that an employer is liable for conditions to which its workers are exposed, even if the
employer did not create the conditions. Respondent presented no evidence to rebut Nystel’s
testimony, which clearly demonstrates a serious violation of the standard. Nystel’s testimony
also demonstrates that this violation had a higher gravity due to the wet condition of the
crawlspace. In light of this factor and those set out above, a penalty of $300.00 is assessed
for this item.

                                      Conclusions of Law

    1.    Respondent,     Ramzel-Texas     Services, Inc., is engaged in a business affecting

commerce and has employees within the meaning of section 3(5) of the Act. The
Commission has jurisdiction of the parties and of the subject matter of the proceeding.
2. Respondent was in serious violation of 29 C.F.R. 66 1926.404(b)(l)(G),
1926.405(a)(2)(ii)(I) and 1926.405@( l)(iv).
 6

                                      Order

   On the basis of the foregoing Findings of Fact and Conclusions         of Law,       it   is

ORDERED that:
1. Items 1, 2 and 3 of citation number 1 are AFFIRMED as serious violations. A
penalty of $100.00 each is assessed for items 1 and 2, and a penalty of $300.00 is assessed
for item 3.

Date: MAY 24 j?q?
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