Fuellgraf Electric Co.

Plain-English summary

Fuellgraf Electric Company was an electrical contractor at an elementary school construction site in Pennsylvania. OSHA alleged that an employee operating a self-elevating platform lacked proper training and that debris in a cafeteria created a tripping hazard. The judge affirmed the platform item under the amended equipment-operator training standard because the operator did not perform required checks, operated despite a hydraulic leak, and could not locate the fluid reservoirs. The judge assessed $875 for that violation and vacated the debris item because OSHA did not prove that Fuellgraf employees used the area while the debris was present. The decision also left a $500 penalty for two uncontested items after the Secretary withdrew a third grouped item.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. § 1926.20(b)(1); 29 C.F.R. § 1926.20(b)(4); 29 C.F.R. § 1926.25(a)
• Outcome: Platform-training violation affirmed with an $875 penalty; debris and one withdrawn item vacated; $500 assessed for two uncontested items
• Key point: Operator experience did not overcome evidence that the employee lacked the training needed to inspect and safely operate the elevated platform.

Full text (OSHRC public release)

..
UNITE0 STATESOF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON, DC 20006-l 246

                                                                                       FAX
                                                                                       C&l    ‘2?2,    ~~LLqJ(;8
                                                                                       FTS : 252;     634   -2:zoe
 SECRETARY        OF LABOR
                    Complainant,
           v.                                                       OSHRC DOCKET
                                                                    NO. 920 1065
 FUELLGRAF        ELECTRIC COMPANY
                     Respondent.


                         NOTICE OF DOCKETING
                  OF ADMINISTRATIVE MW JUDGE’S DECISION
      The Administrative Law Judge’s Report in the above referenced case was
 docketed with the Commission on February 8, 1993. The decision of the Judge
 will become a final order of the Commission on March 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
 March 1, 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                           .
                                                                                  .v
                           Review Commission
                          1825 K St. N.W., Room 401
                          Washington, D.C. 20006-1246
 Petitioning parties shall also mail a copvd to:
                          Daniel J. Mick, Esq.
                          Counsel for Regional Trial Liti ation
                          Office of the Solicitor, U.S. DOf
                          Room S4004
                          200 Constitution Avenue, N.W.
                          Washington, DC. 20210

 If a Direction for Review is issued by the Commission, then the counsel for
 Regional Trial Litigation will represent the Department of Labo r. hY Party
 having questions about review rights may contact the Commissio In’s Executive
 Secretary or call (202) 634-7050.
                                        FOR THE COMMISSION

                                                      a~9/-
 Date: February 8, 1993                 Ray H. Darling, Jr.
                                        Executive Secretary

DOCKETNO. 924065 .
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mid, Esq.
Counsel for Re ‘OMI Trial Liti ation
Office of the So%l
citor, U.S. DOY
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Marshall H. Harris, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U.S. DOL
14480 Gatewa Build&g
3535 Market J treet
Philadelphia, PA 19104

Michael E.Wright, Safety Director
Fuel1 raf Electric Company, Inc.
600 8 Washin ton Street
Butler9 PA 16&I1

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

00116046145:03
 - UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET N.W.
4TH FLOOR
WASHINGTON DC 20006-1246

                                                                                               FAX:
                                                                                               cm   (202~634-ulo8
                                                                                               RS w408




                                            ..

SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. Docket No. 924065

FUELLGRAF ELECTRIC COMPANY, ‘:
.
.
Respondent.
..
..

AppearaMes:

  Anita Eve Wright, Esquire                                     Michael D. Wright
         Office of the Solicitor                                       Safety Director
         United States Department of Labor                             Fuellgraf Electdc Company
         Philadelphia, Pennsytvania                                    Butler, Pennsyhnnia
                 For Complainant                                                For Respondent

BEFORE: Administrative Law Judge John H Frye, III

                              ECISION               AND ORDER

  On January 15 and Janu;lrv   l
                                   17, 1992, OSHA compliance              officer Michael Laughlin

inspected a construction workwe at the Connoquenessing Valley Elementary School in
Zelienople, Pennsylvania. Respident Fuellgraf Electric Company (Fuellgraf) was one of
several contractors working on that site. Subsequently, on February 26, 1992, Fuellgraf
received one serious citation which enumerated three items and one other than serious
~~~0~ w&h also enumerated three items. Respondent Fuellgraf contested only Items l(a),
2(a), ad 3 af t& S&OJJScitation. Those violations which were not contested and the
pndtia ppcmd fherefor h-e a final order of the Occupational Safety and Health
Review Commission by operation of law.’
The Secretary filed a complaint on May 11 and Respondent answered on July 2,1992.
Because the answer did not address the allegations of the complaint with respect to the
nature and the place of Respondent’s business and the jurisdiction of the Commission, those
allegations are deemed to be admitted.2
As a preliminary matter at the hearing, the Secretary’s counsel moved to vacatb Item
2(a) of Citation 1 issued for an alleged violation of 29 C.F.R. 1926.20(b)(l). The grouped
penalty attributed to Citation 1, Items 2a, 2b and 2c in the amount of $500.00 be-e
attniiuted to Items 2b and 2~.~
In a prehearing motion, Complainant also moved to amend Item 1 of Citation 1,
which alleges a violation of Section 5(a)( 1) of the Act to, allege in the alternative a violation
of 29 C.F.R. 1926.20(b)(4). Th e amendment is based on the same set of facts as the Section
5(a)(l) violation, but is specifically related to the employer’s failure to ensure that the
operator of the platform was properly trained and qualified to operate the platform.
Respondent opposed this motion at the hearing, but did not show that it was prejudiced by
it in the course of the hearing. Consequently, the Secretary’s motion is granted.’

ISee 3 lo(a) of the Occupatioapl Sok? and Hcaitb Act of 1970,as amended (the Act).

be Conunissinn Ruk 34(b)(2), 29 cFR 1 2200.34(B)(Z).

3At the hearing,the Secretary’sawsc1 tndicatcd that the withdrawal of item 2a, which Respondent had
contested, raised the issue of whether tbc Uoo proposed penalty for items 2a, Zb, and 2c was appropriatefor
items 2b and 2~ alone. Respondcnt’~ tcpresamdve, Mr. Wright, indicaW that wt,& Reqm&nt did not
contest the existence of the conditioa whkb kd to the issuan~t of tbcw items, Respondent did contest the
appropriatenessof the penalty. Set Tt. ZU!L Given the nature of the hazard identified in items 2b and &
the storage of eight full 100 pound pqme tanks inside, I find that tbc $SXl penalty is appropriate

el.r. pp. 44.

                                                 2

The fouling items were &tested at the hearing.
standard Alleged Violation

section S(a)(l) of the Act and, Item l(a) “Gym; Employees were
alternatively, 29 CFR 9 1926020(b)(4)o exposed to being struck by and/or falling ’
15 feet off an aerial lift in that the
operator was not properly trained and
qualified in [its] safe operation....
Additionally, the [lift] was leaking
hydraulic fluid, the steering fluid reservoir
was empty, there was no operating manual
on site, and the outriggers were not down
and locked.”

29 C.F.R. 1926.25(a) Item 3 “Debris was not kept cleared from
the following areas: (a) Cafeteria;
Employees handling materials where
scrap, block, drywall, plastic and insulation
were not cleared exposing employees to
tripping and fall hazards.”

10 Item la - The Self-Elevating Platform.

      On January 17, the second day of the inspection, Mr. Laughlin observed an employee

of Fuellgraf working atop a fully extended self-elevating platform in the gymnasium area of

the worksite. The platform was being operated while its outriggers were not down and

locked and while it was leaking hydraulic fluid. On interviewing the operator of the self-

elevating platform, Mr. Laughlin learned that an operator’s manual was not maintained with

the platform and that the operator did not perform a pre-operation inspection and function

test of the platform. Nor could the operator locate the hydraulic fluid reservoirs on the

platform, one of which was empty. Mr. Laughlin concluded that the operator’s lack of

training created a hazard of the operator falling from the platform. (Tr. 18, 30, 32, 37-39,
 b a result, Respondent was cited for a violation of section s(a)(l) of the Act. h

a mew of abgtemeat, the citation referred to the need to develop a training and

preventative mGntenan= program in accord with the manufacturer’s specifications and

ANSI/SW A!92.61990. Respondent believes it is clear that this standard is not applicable,

and that, as a result, no citation should have been issued in the first place. In such event,

Respondent maintains that the Secretary will not meet the Burden of Proof and the citation

must be vacated.

   The preface of ANSU’SIAA 92.61990, states:

          The design and manufacturing requirements of this standard apply to all aerial
          platforms manufactured on or after the effective dates. All other provisions
          of this standard apply to both new and existing units delivered by sale; lease,
          rental, or for any form of beneficial use on or after the effective date.

Respondent argues that the ANSI Standard is not applicable because the date the platform

was delivered for beneficial use was eight months before the January 2,1992, effective date.

Respondent’s job superintendent, William E. Hindman, indicated that the platiorm had been

continuously on the site since May 1991. (Tr-89, 97).

    Respondent is correct that this ANSI Standard, by its express terms, does not apply

to the platform which Mr. Laughlin observed in use in the gymnasium. Consequentiy,

Respondent cannot be cited for failure to comply with its terms in using this platform.

However, the Secretary has amended this citation to allege a violation of 8 1926.20(b)(4).

That standard states:

          The employer shall permit only those employees qualified by training or
          experience to operate equipment and machinery.

The Secretary asserts that the operator’s failure to perform a pre-operation inspection and

function check, his operation of the lift in the presence of a hydraulic fluid leak and.
deficiency, d b inability to late the hydraulic fluid reservoirs all indicate that the

operator m IXS es Respondent’s witness, Mr. Hindman, testified only that the

operator had indbtcd that he had operated the platform on numerous occasions on other

jobs and that the two of them had gone ‘La over the basic safety of keeping the outriggers

out and keeping the chains locked....” (Tr.86.)

    I find that the Secretary has established by a preponderance of the evidence that

Respondent violated 8 1926.20(b)(4). The Secretary submits that the gravity of the violation

is significant. The violation exposed at least one employee to the hazard of serious physical

injury, particularly the platform operator as the result of a 15 foot fall born the top of the

platform.

    Mr. Laughlin reduced a gravity based penalty of $3,500.00 based on the emplayer’s

company&e, no history of similar violations, and its immediate abatement of the violation.

Under the circumstances presented herein, I find that the reduced proposed penalty in the

amount of $875.00 is appropriate and affirm it.

20 Item 3 - The Debris.

    Mr. Laughlin cited Respondent for a violation of 29 C.F.R. 1926.25(a) on January 15

because debris was not kept clear from the cafeteria area where the employers maintained

their gang boxes. Mr. Lqhlin testified that the cafeteria was utilized by all contractors at

the site and that Fuellgraf employees had to walk through the cafeteria where there was a

significant accumulation of dcbns. I.e., scrap, block, drywall, plastic and insulation, which

presented a tripping hazard. Mr. Laughlin further testified that he inquired of several

‘Mr. Laughlin also believed that the operator was in error in opemting the platform at its fblly extended
position without having the outriggm. which were extended, in the down and locked position. However, it
is not clear that this operation was m conrmcntion of the manufacturer’s specifications. See Tr. pp. 6046.

                                             5

individuals hw loq &e debti had been prestmt and was told “at kst a week.” The

sp~ific soufct af && information was not identified. ML hu@lin indicated that the job

superintendent of-other contractor indicated that Respondent had been on-site during that

period. (Tr. 20-21, c$ Tr. 76). Mr. Hindman acknowledged that the Respondent had one

of its five on-site gang boxes located in the cafeteria and that there was debris in the room,

(Tr. 97.)

    I find this falls short of establishing employee exposure by a preponderance of the

evidence. Mr. Laughlin did not encounter any of Respondent’s employees on the day he

found the debris. He did not testify that he was informed that they had used that gang box

during the period while the debris was present, but only that they were on-site during that

period. On this record, a finding of employee exposure requires an assumption that this box

was actually used by Respondent’s employees while the debris was present. Given Mr.

Hindman’s testimony that the gang box in the cafeteria was one of five on-site and the

equivocal nature of the evidence on the length of time the debris was present, that

assumption is not justified. Citation 1, Item 3, is vacated?

3. FINJXNGS OF FAQ

   All facts relevant and necessary to a determination      of the contested issues have been
   

found specially and appear III the decision above. See Rule 52(a) of the Federal Rules of

Civil Procedure. All provd finrfqs of fact and conclusions of law inconsistent with this

decision are hereby denied.

despondent mounted the muIti<mpCuycr w&site defense with tu~pcct to this item and also asserted the
citations should be dismissed bw~I MS the alkgcd improprkty of Mr. Laughlin’s inspection of the
Connoquenessing Valley Elementamkbool wMsite on January IS. In light of this result, it is not naxssary
to address these arguments. ’

                                           6

4l
LAW

    A       Respondent m      at all times pertinent to this decision an employer within the

meaning of 0 3(S) of the Occupational Safety and Health Act of 1970, 29 USC. 59 651 -

678 (1970).

    B0      The Occupational Safety and Health Review Commission has jurisdiction over

the parties and subject matter.

    C0      The Secretary of Labor established by a preponderance of the evidence that

Respondent breached the standard at 29 CFR 6 1926.20(b)(4) as recited in Citation 1, Item

1, as amended. A civil penalty of $875 is appropriate.

    D0      The Secretary of Labor failed to establish by a preponderance of the evidence

that ResIjondent violated the duty imposed by $ 5(a)(l) of the Occupational Safety and

Health Act of 1970 as recited in Citation 1, Item 1.

    E   l   The Secretary of Labor failed to establish by a preponderance of the evidence

that Respondent breached the standard at 29 CFIX 0 1926.25(a) as recited in Citation 1,

Item 3.

    F.      A civil penalty of $500 is appropriate for the violations stated in Citation 1,

Items 2b and 2~.

VII. ORDER

    Based OII the above findmp     of fact and conclusions of law, it is hereby ORDERED

that:

            Am     Items 1, Zb, and 2c of Citation 1 are affirmed as serious violations of

the Act; and

                                             7

Ba A toa &il penalty of $1325 is assessed.

Dated:
Washington, D.C.