Karl & Associates

Plain-English summary

Karl & Associates is an industrial environmental services firm in the Delaware
Valley. In September 1995 it was removing asbestos from a building at the
former Publicker distillery in Philadelphia ahead of demolition. A grate on
the sixth floor collapsed, and an employee, Norman Williams, fell two or three
floors down a shaft and was seriously injured. OSHA inspected and issued one
serious citation, divided into three parts, under the demolition standards at
29 C.F.R. § 1926.850(b) and (i) and § 1926.859(g). The case was tried under
the Commission's simplified E-Z Trial procedure.

At trial the Secretary withdrew the part alleging a violation of § 1926.859(g).
Karl's main defense was that the two workers were on an unauthorized break at
the grate, but Judge John H. Frye, III credited the workers' testimony that
they were there to finish removing asbestos behind a furnace, a task the
foreman confirmed he had assigned. The judge also held that even an
unauthorized break would not have been a defense, because the grate was
regularly used by employees in the course of their work, was never marked as
hazardous, and should have been secured or isolated. He affirmed the remaining
violations of § 1926.850(b) and (i) as serious and assessed the full proposed
penalty of $1,250, which Karl had not challenged.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.850(b), § 1926.850(i), § 1926.859(g) (this last part withdrawn by the Secretary at trial)
• Outcome: Serious citation affirmed under § 1926.850(b) and (i); full $1,250 penalty affirmed
• Key point: An employer must secure or isolate a hazardous grate its workers routinely stand on; an "unauthorized break" defense fails where the area is used in the ordinary course of work.

Full text (OSHRC public release)

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United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-34 19

                                                                        Phone:(202)606-5400
                                                                         Fax:(202)606-5050

SECRETARY OF LABOR
Complainant,
V. OSHRC DOCKET
NO. 95-1688
KARL & ASSOCIATES
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 April 17, 1996. The decision of the Judge
will become a final order of the Commission on May 17, 1996 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 e$tition sho uld be received by the Executive Secretary on or before
May 7, 198 6 in or pder to permit sufficient time for its rleview. See
Commission Rule 919 29 C.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. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued bv 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 Exe cutive
Secretary or call (202) 6065400.
FOR THE COMMISSION h

Date: April 17, 1996 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 95-1688
NOTICE IS GIVEN TO THE FOLLOWING:

Deborah Pierce-Shields
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
14480 Gatewa Building
3535 Market s treet
Philadelphia, PA 19104

Ed Karl
karl and Associates
101 Kenhorst Boulevard
Reading, PA 19607

John H. Frye, III
Administrative Law Jud e
Occupational Safety an B Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00102938040:03
 UNITED STATES OF AMERICA
OCCUPATIONAL'.SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR
Complainant
Docket Nr. 95-1688
V.

KARL & ASSOCIATES,
Respondent

Appearances:

 Joseph Crawford, Esq.                  Ed Karl
 Office of the Solicitor                Karl & Associates
 U.S. Department of Labor               Reading, PA
 Philadelphia, PA                         For Respondent
   For Complainant

BEFORE: JOHN H FRYE, III, Judge, OSHRC

                         DECISION AND ORDER

I Findings of Fact and Opinion

 Respondent, Karl & Associates, is a firm engaged in rendering

various industrial environmental services throughout the Delaware

Valley. In September, 1995, it was engaged in the work of removing

asbestos from building 1 of the Publicker distillery located on

South Columbus Boulevard in Philadelphia. The distillery had been

closed following a fire some years earlier. Building 1 was to be

demolished, and the City of Philadelphia required that asbestos be

removed prior to the demolition.
 On September 14, an accident occurred in building 1. A grate,

located on the sixth floor, collapsed, causing one Karl employee,

Norman Williams, to fall two or three floors down a shaft. A large

roller, which had been on the grate and fell with him, wedged him

against the wall of the shaft, preventing him from falling to the

bottom. Mr. Williams suffered serious injuries.

  OSHA dispatched Compliance Officer Harold Williams to the site

that day. CO Williams was unable to open his inspection then

because the site had shut down. He returned the following morning

and conducted an inspection that resulted in the issuance of one

serious citation with one item to Respondent. That item was further

divided into three parts alleging violations of 29 CFR 5s 1926.850(b)

and (i) I and 29 CFR § 1926.859(g). Respondent filed a notice of

contest and this matter was docketed with the Commission. On

December 18, the Chief Judge designated it for E-Z Trial under

Subpart M of the Commission's Rules, 29 CFR §§ 2200.200 et seq.

Consequently, no complaint or answer was filed, nor was any

discovery conducted. At trial, counsel for the Secretary withdrew

the alleged violation of 29 CFR 5 1926.859(g) (item lc of the

Citation).

  There is, of course, no dispute that the grate on which Mr.

Williams was located gave way and that he suffered a fall and

serious injuries as a result. Evidence submitted at trial indicates

                                  2

that, although the building was surveyed and various areas marked

off as being hazardous, this particular grate was regarded as being

safe. Respondent's foreman, Mr. Gandia, indicated that everyone

stood on it from time to time.

    Respondent does not challenge OSHA's jurisdiction in this

matter. Respondent9 only defense is that Mr. Williams and the only

witness to the accident, Mr. Johnson, were on an unauthorized break

at the time. Respondent believes that they had gone to the grate

because a window there affords a view of the Delaware River. Mr.

Williams and Mr. Johnson, on the other hand, both assert that they

had moved to the area of the grate to complete the task of removing

asbestos from behind a furnace. They both indicate that they had

started this job on the side of the furnace opposite the grate and

removed all asbestos within reach. However, some remained to be

removed, and this required them to move to the area of the grate in

order to reach it. Mr. Gandia confirmed that there was asbestos to

be removed from this area and that he had assigned Williams and

Johnson to that task.

    Respondent supported its claim that Williams and Johnson were

on a break with an alleged admission to that effect made by Mr.

Johnson to Mr. Karl. The latter secretly taped the conversation in

which the supposed admission took place, and replayed the tape in

Mr. Johnson's hearing at trial. Mr. Johnson indicated that he had

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been apprehensive about saying anything with which Mr. Karl, his

employer at the time, might take issue, and firmly reasserted the

version of events to which he had testified. I sustained counsel's

objection to the admission of the tape. Because it was clear that

Mr. Karl's questions to Mr. Johnson strongly suggested the response

that Mr. Karl wanted, and that Mr- Johnson was reluctant to answer,

the tape did not serve to undermine the account of events given by

Messrs. Williams and Johnson. I find their account to be accurate.

 Moreover, even if they were on an unauthorized break at the

time of the accident, it is not clear that that fact would

constitute a defense to the citation. Mr. Gandia indicated that the

grate in question was frequented by many employees, at least some of

whom were there in the course of their duties. The grate was not

identified as hazardous, although clearly it should have been, and

appropriate action taken to secure or isolate it. Because the grate

was used by Respondent's employees both in the course of their

duties and apparently on breaks, it is clear the Secretary has

demonstrated a violation of both 29 CFR 5s 1926.850(b) and (i).

 Respondent has not challenged the Secretary's proposed penalty

of $1,250; consequently, it is affirmed.

II Conclusions of Law-

 Respondent, Karl & Associates, is an employer engaged in a        ,

business affecting commerce within the meaning of section 3(5) of

                               4

the Occupational Safety and Health Act of 1970, as amended, 29

U.S.C. § 652(5) ("the AcP).

   Jurisdiction of this proceeding is conferred upon the

Occupational Safety and Health Review Commission by section 10(c) of

the Act, 29 U.S.C. § 659(c).

   Respondent, Karl & Associates, was in serious violation of the

standards set out at 29 CFR §§ 1926.850(b) and (i). A penalty of

$1,250 is appropriate.

VI. ORDER

   Citation 1, item 1 is affirmed as a serious violation of the

Act.

   A total civil penalty of $1,250 is assessed.




                                   **
                                           JOH   H FRYE, III
                                        uudge,     OSHRC

Dated: APR 15 #96-
Washington, D.C.
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