Mosser Construction, Inc.

Plain-English summary

OSHA cited Mosser Construction for serious, repeat, and other-than-serious conditions and initially proposed $2,300. The judge vacated the flammable-liquid, welding-cylinder, and aerial-lift items, while affirming an electrical grounding item without a penalty. In settlement, the Secretary withdrew the flammable-liquid and repeat welding-cylinder items. The aerial-lift item was reclassified from serious to other-than-serious with no penalty, and Mosser agreed to keep it abated and withdraw its contest. The Commission approved the agreement.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.152(a)(2); 29 C.F.R. § 1926.350(j); 29 C.F.R. § 1926.556(b)(2)(iv); 29 C.F.R. § 1926.404(f)(6)
• Outcome: Settlement approved; two items withdrawn, one reclassified with no penalty, and no monetary penalty assessed.
• Key point: The settlement resolved the reviewed items through withdrawals and a no-penalty reclassification, with the employer committing to continued abatement.

Full text (OSHRC public release)

Docket No. 87-0198

SECRETARY OF LABOR,

Complainant,

v.

MOSSER CONSTRUCTION, Inc.,

Respondent.

OSHRC Docket No. 87-0198

ORDER

The parties' Stipulation and Settlement
Agreement is approved.  This order is issued pursuant to a delegation of authority to
the Executive Secretary.  41 Fed. Reg. 37173 (1976), amended at 44 Fed. Reg. 7255
(1979).

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

Dated:  November 8, 1988

ANN McLAUGHLIN, SECRETARY OF LABOR,

Complainant,

v.

MOSSER CONSTRUCTION, INC.,

Respondent.

OSHRC Docket No. 87-0198

CERTIFICATE OF POSTING

On October 17, 1988, a copy of the Settlement
Agreement in this matter was posted by Respondent Mosser Construction, Inc.,  and
will remain posted through October 27, 1998.

ARTER & HADDEN

Douglas M. Bricker

One Columbus

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true
copy of the foregoing Certificate of Posting has been served upon Antony F. Gil, U.S.
Department of Labor, Office of the Solicitor, Washington, D.C. 20210, by first class
United States Mail this 19th day of October, 1988.

Of Counsel

ANN McLAUGHLIN, SECRETARY OF LABOR,

Complainant,

v.

MOSSER CONSTRUCTION, INC.

Respondent.

OSHRC Docket

No. 87-0198

STIPULATION AND SETTLEMENT AGREEMENT

I

The parties have reached agreement on a full and
complete settlement of the instant matter which is presently pending before the
Commission.

II

The parties stipulate as follows:

(a) The Occupational Safety and Health Review
Commission (hereafter "the Commission") has jurisdiction of this matter pursuant
to Section 10(c) of the Occupational Safety and Health Act of 1970 (84 Sat, 1590; 29
U.S.C. 651 et seq.) (hereafter "the Act").

(b) Respondent, Mosser Construction, Inc. is a
corporation with its principal place of business in Fremont, Ohio.  It is engaged in
the construction business and during the course of its business respondent uses materials
and equipment which it receives from places located outside Fremont, Ohio.
  Respondent, as a result of the aforesaid activities, is an employer engaged in a
business affecting commerce as defined by Section 3(3) and 3(5) of the Act and is subject
to the requirements of the Act.

(c) As a result of an inspection conducted on
November 20 and 21, 1986 at respondent's workplace at 3518 St. Lawrence Drive in Toledo,
Ohio, a citation for three serious violations,[[1]] a citation for one repeated violation
and a citation for one other-than-serious violation were issued to respondent on January
13, 1987 pursuant to Section 9(a) of the Act.  A total penalty of $2,300 was proposed
for the violations.

(d) Respondent contested the citations and
proposed penalties.

On December 18, 1987, Commission Administrative
Law Judge Edwin G. Salyers issued his Decision and Order in which he dismissed the two
remaining serious citations alleging violations of 29 C.F.R. 1926.152(a)(2) and 29 C.F.R.
1926.152(b)(2)(iv), and the repeat violation of 29 C.F.R. 1926.350(j).  The judge
affirmed the citation for the other-than-serious violation of 29 C.F.R. 1926.404(f)(6).
 Thereafter, the Secretary filed a timely Petition for Review on the serious and
repeat violations which was granted by the Commission on February 16, 1988.

III

Now, the Secretary of Labor and Mosser Construction, Inc., in order to conclude this
matter without the necessity of further litigation or review, stipulate and agree as
follows:

(a) The Secretary hereby agrees to withdraw Item
1 of serious citation No. 1 for violation of 29 C.F.R. 1926.152(a)(2) and Item 2 of repeat
citation No. 2 for violation of 29 C.F.R. 1926.350(j).

(b) The Secretary hereby agrees to reduce the
classification for Item 2 of serious citation No. 1 for violation of 29 C.F.R.
1926.556(b)(2)(iv) from serious to other-than-serious with no penalty.

(c) Respondent hereby agrees to withdraw its
notice of contest to the violation of 29 C.F.R. 1926.556(b)(2)(iv) and states that the
violation has been abated and shall remain abated.

(d) Respondent hereby withdraws its Notice of
Contest to the citations and to the Notification of Proposed Penalty so as to come in
harmony with the terms of this agreement.

(e) None of the foregoing agreements,
statements, stipulations and actions taken by the Respondent shall be deemed an admission
by it of any of the allegations contained in the citations.  Respondent specifically
denies each such allegation.  The agreements, statements, stipulations and actions
herein are made solely for the purpose of settling this matter economically and amicably
without further litigation in order to conserve the resources of both OSHA and Respondent.
 They shall not be used by anyone for any other purpose, except by the Secretary of
Labor for subsequent enforcement proceedings filed against the Respondent under the
Occupational Safety and Health Act of 1970.

(f) Respondent and Complainant agree that each
party shall bear its own costs.

Antony F. Gil

Counsel for the

Secretary of Labor

Douglas M. Bricker

On Behalf of

Mosser Construction

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true
copy of the foregoing Stipulation and Settlement Agreement has been served upon Antony F.
Gil, U.S. Department of Labor, Office of the Solicitor, Washington, D.C. 20210, by
first-class United States mail this 18th day of October, 1988.

Of Counsel

SECRETARY OF LABOR,

Complainant,

v.

MOSSER CONSTRUCTION, INC.,

Respondent

OSHRC Docket No. 87-0198

APPEARANCES:

Christopher J. Carney, Esquire, Office of the
Solicitor, U. S. Department of Labor , Cleveland, Ohio, on behalf of complainant

Douglas M. Bricker, Esquire, Columbus, Ohio, on behalf of respondent

DECISION AND ORDER

SALYERS, Judge:  Respondent, Mosser
Construction, Inc., is a construction contractor (Tr. 21).  At the time relevant to
this proceeding, respondent was engaged as a subcontractor, erecting the iron work on a
project known as the Toledo Distribution Center (Tr. 23, 153).  OSHA Compliance
Officer Paul Brown inspected the worksite on November 20 and 21, 1986, pursuant to a
report that a piece of equipment had been overturned (Tr. 21).

Brown began the opening conference on November 20 but, due to inclement weather and people
leaving, he had to postpone the opening conference until November 21 (Tr. 22).  Brown
conducted the actual walkaround on November 21 (Tr. 24).  Respondent's job office
trailer was located at the south side of the worksite, approximately 100 feet from the
building under construction (Tr. 29, 31).  The trailer was approximately 25 feet long
and 8 feet wide (Tr. 30).  Brown was inside the trailer at least once on November 20
and was in and out of the trailer several times on November 21 (Tr. 32).  At the time
of his inspection, Brown believed that the door he used was the only passageway to the
trailer (Tr. 32).  It was established at the hearing, however, that there was a large
overhead door at one end of the trailer with wooden steps leading up to it from the
outside (Tr. 203; Respondent's Ex. 5).

Located near the steps leading to the small door
were three propane cylinders, one oxygen cylinder, and a five-gallon can (Tr. 33, 36).
 Brown believed the five-gallon can contained diesel fuel, but it was established at
the hearing that the can contained form oil (Tr. 209).  There is a dispute as to the
exact location of the four cylinders and the five-gallon can.  Brown asserts that the
three propane cylinders were directly to the right of the wooden stairway, with the oxygen
cylinder on the left (Tr. 33).  Brown testified that he measured the distance between
the oxygen cylinder and the propane cylinders as being 50 inches (Tr. 35) and that the
five-gallon can was sitting with the propane cylinders (Tr. 36).  In contrast,
Raymond Ackerman, assistant to respondent's safety officer, testified that the propane
cylinders were six to eight feet from the stairway's left rail, with the five-gallon can
between the propane cylinders and the stairway (Tr. 207-208).  To bolster his
argument, Ackerman pointed out a copper line to which the propane cylinders were hooked
when in use.  The copper line was approximately six feet from the stairway (Tr. 215,
219).  It is unnecessary to resolve this conflict in the testimony in view of the
decision reached.

The location of the cylinders and the
five-gallon can was the basis for two citations for violations of two different standards.
  Item 1 of Citation No. 1 charged a serious violation of 29 C.F.R. � 1926.152(a)(2)
which provides:

(2) Flammable or combustible liquids shall not
be stored in areas used for exits, stairways, or normally used for the safe passage of
people.

Item 2 of Citation No. 2 charged a repeat
violation of 29 C.F.R. � 1926.350(j) which provides:

(j) For additional details not covered in this
subpart, applicable technical portions of American National Standards Institute,
Z49.1-1967, Safety in Welding and Cutting, shall apply.

Section 3.2.4.3[[1/]] of ANSI standard Z-49.1-1967 provides:

Oxygen cylinders in storage shall be separated from fuel gas cylinders or combustible
materials (especially oil or grease), a minimum distance of 20 feet or by a noncombustible
barrier at least 5 feet high having a fire-resistance rating of at least 1/2 hour.

Section 1926.152(a)(2) specifies that the
cylinders must "be stored"; section 1926.350(j) specifies that the cylinders
must be "in storage."  The Review Commission has held that "cylinders
are not 'in storage' if they are located in an area where they are used
intermittently."  M.C.C. of Florida, Inc ., 81 OSAHRC 57/C10, 9 BNA OSHC
1895, 1981 CCH OSHD � 25,420, p. 31,681 (No. 15757, 1981).  In the present case,
neither party presented evidence as to whether the cylinders were being stored or used
intermittently.  It was the Secretary's burden to prove that the cylinders were in
storage.

A similar situation occurred in Grossman
Steel & Aluminum Corp ., 78 OSAHRC 85/A2, 6 BNA OSHC 2020, 1978 CCH OSHD � 21,567
(No. 76-2834, 1978).

During his inspection, the compliance officer
observed one oxygen tank and one acetylene tank standing upright and tied together in
front of the Respondent's trailer.  Neither hoses nor gauges were attached to the
tanks.  The compliance officer testified he was informed by Respondent's
representative that the tanks were in storage and were fully charged.  On the other
hand, the Respondent's Chairman testified that the tanks were not in storage, but were
ready for use in that location.  According to the witness, gauges and hoses were
removed to avoid theft and were kept in the trailer.

Judge Fier found that the tanks were not
"hooked up" and that there was no evidence to show that they were not inactive
and stored.

In United Engineers and Construction, Inc .,
75 OSAHRC 69/A2, 1974-1975 CCH OSHD � 19,780 (No. 2414, 1975), appeal dismissed, No.
75-1946 (3d Cir., September 17, 1975), the Commission affirmed the Judge's conclusion that
� 1910.252 (a)(2)(iv)(c) was not violated because the cylinders were not in storage
within meaning of the standard.  In that case, oxygen and acetylene cylinders, found
together on the site, did not have regulators and hoses attached but were located in an
area where burning would be done on an intermittent basis.  The regulators and hoses
were removed nightly to prevent leaks.  The facts in the instant case are essentially
undistinguishable and United Engineers is therefore dispositive.  The
Respondent has successfully rebutted the Secretary's prima facie case and has established
that the tanks were not in storage but rather were available for use in an area where
welding was to be performed on an intermittent basis.

Id . at pgs. 2,023-2,024.

In the present case, the Secretary presented no
evidence on the question of whether the cylinders were in storage.  Accordingly, item
1 of Citation No. 1 and item 1 of Citation No. 2 are vacated.

During his walk-around inspection on the second
day, Brown observed respondent's employees climbing over the rails of an aerial lift
basket onto and off of the roof of the building under construction, approximately 35 feet
above the ground (Tr. 43).  The employees were putting insulation on the roof.
 One employee would stand in the basket, with the top handrail of the basket at roof
level, and stretch four-foot-wide rolls of insulation from the peak of the roof down to
the roof 's edge.  Once the insulation was stretched, the employee in the basket
would climb onto the roof to assist another employee already on the roof in applying metal
roof panels over the top of the insulation which had just been installed.  The
employee would then climb back onto the basket and move it over to install the next
section (Tr. 155-156, 158-159).

Respondent was issued item 2 of Citation No. 1
for a serious violation of 29 C.F.R. � 1926.556(b)(2)(iv) which provides:

(iv) Employees shall always stand firmly on the floor of the basket, and shall not sit or
climb on the edge of the basket or use planks, ladders, or other devices for a work
position.

Brown testified that the employees were
violating the standard by climbing the rails to gain access to and from the roof (Tr. 50).
Brown asserted that there would be no violation if the bottom of the basket were raised to
roof level and the employees could remove the rails and walk onto the roof (Tr. 51).
 Brown also testified that there would be no violation if the platform rails were
closer to the roof so that the employees could get to and from the roof by climbing over
the rails (Tr. 105).

The method that the employees used of crawling
over the rails to get to and from the roof may constitute a hazard, but it is not a hazard
proscribed by � 1926.556(b)(2)(iv).  That standard mandates that the employees
"stand firmly on the floor of the basket . . . for a work position."  The
evidence is clear that the employees were not doing work from their positions on the
basket rails.  They were only on the rails momentarily while getting to and from the
roof.  Therefore, respondent was not in violation of � 1926.556(b)(2)(iv).

In the course of his inspection, Brown observed
two of respondent's employees using a power saw that was plugged into a receptacle (Tr.
95).  Brown stated that the receptacles were noticeably damaged.  "The
metal covers for the receptacles inside the insulating case around the conductors
themselves were cracked in two or three places" (Tr. 93).  Brown tested the
receptacles with an Etcon circuit tester, which indicates whether or not a circuit is
grounded (Tr. 90-91).  The test showed that the receptacles were ungrounded (Tr. 90).

The receptacles had been installed two days prior to Brown's inspection by the electrical
subcontractor, Danelik Electric (Tr. 173). Upon being told that the receptacles were
ungrounded, respondent's carpenter foreman, Robert Johnson, informed Danelik Electric who
replaced the receptacles that same day (Tr. 114).  Johnson testified that he was
unaware of the damage to the receptacles until it was pointed out to him, but he
acknowledged that they were noticeably damaged (Tr. 184).

Respondent was cited for an "other"
than serious violation of 29 C.F.R. � 1926.404(f)(6) which provides:  "The path
to ground from circuits, equipment, and enclosures shall be permanent and
continuous."  Respondent argues that the citation should be vacated because �
1926.404(f)(6) was not promulgated until after the November 21, 1986, inspection.  
Respondent contends that it was without notice as to the requirements of the
standard.  This contention is without merit.

Raymond Ackerman testified that he had a copy of
the 1985 edition of the OSHA section 1926 regulations in his office (Tr. 188). In that
edition, section 1926.401(c) provides in part:  "The path from circuits,
equipment, structures, and conduits or enclosures to ground shall be permanent and
continuous."  In 1987 the standards were revised to their present form, and
section 401(c) was transformed into section 404(f)(6).  The standards require the
same thing:  the path to ground from circuits shall be grounded. Respondent was on
notice as to this requirement.

Respondent contends that it had no knowledge of
the damaged receptacles and is, therefore, not in violation of the standard.  Yet,
Robert Johnson testified that the receptacles were noticeably damaged.
 "Constructive knowledge is demonstrated when the record reveals the violative
conditions are detectable through the exercise of reasonable diligence."  M.C.C.
of Florida, Inc ., 1981 CCH OSHD at p. 31,682.  Respondent had constructive
knowledge of the damaged receptacles.

Finally, respondent contends that it was Danelik
Electric who was responsible for the installation and maintenance of the receptacles,
citing Anning-Johnson , 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD � 20,690
(Nos. 3694 & 4409, 1976).  Anning-Johnson provides a subcontractor who
proves that it did not create or control a hazardous condition with an affirmative
defense.

Once a cited construction subcontractor has
established that it neither created nor controlled the hazardous condition, it may
affirmatively defend against the Secretary's charge by showing either (a) that its
employees who were or may have been exposed to the hazard were protected by means of
realistic measures taken as an alternative to literal compliance with the cited standard,
or (b) that it did not have nor with the exercise of reasonable diligence could have had
notice that the condition was hazardous.

Id . at pgs. 24,783-24,784.

In the present case, respondent did not create
the hazardous condition of the damaged receptacles, but it did control it.  
Respondent's employees used the receptacles.  When respondent notified Danelik
Electric of the damage, the receptacles were replaced that same day.  It required
minimal effort on respondent's part to have the hazard abated.  Reasonable efforts by
the exposing subcontractor to abate the hazard are required, as the Review Commission
stated in the companion case to Anning-Johnson, Grossman Steel & Aluminum Corp .,
76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD � 20,691, p. 24,791 (No. 12775, 1976):

[E]ach employer has primary responsibility for
the safety of its own employees.  Simply because a subcontractor cannot himself abate
a violative condition does not mean it is powerless to protect its employees.  It
can, for example, attempt to have the general contractor correct the condition, attempt to
persuade the employer responsible for the condition to correct it, instruct its employees
to avoid the area where the hazard exists if the alternative is practical, or in some
instances provide an alternative means of protection against the hazard.  We
therefore expect every employer to make a reasonable effort to detect violations of
standards not created by it but to which its employees have access and, when it detects
such violations, to exert reasonable efforts to have them abated or take such other steps
as the circumstances may dictate to protect its employees.  In the absence of such
actions, we will still hold each employer responsible for all violative conditions to
which its employees have access.

Respondent was responsible for the damaged
receptacles to which its employees had access.  Item 1 of Citation No. 3 charging a
violation of � 1926.404(f)(6) is affirmed.[[2/]]

FINDINGS OF FACT

1.  Respondent, Mosser Construction, Inc.,
is a construction company that was engaged as a subcontractor in erecting the iron work on
a project known as the Toledo Distribution Center.

2.  On November 20 and 21, 1986, OSHA
Compliance Officer Paul Brown conducted an inspection of respondent's worksite.

3.  Respondent's job office trailer was
located on the south side of the worksite.  The trailer was approximately 25 feet by
8 feet. There were two doors leading into the trailer, a smaller door on the south side,
and a large overhead door at the end of the trailer farthest from the small door.
 There were wooden steps leading up to both doors.

4.  Outside of the south side of the
trailer were three propane cylinders, an oxygen cylinder, and a five-gallon can of form
oil.  The record does not reflect whether these items were "in storage" or
were available for "intermittent use."

5.  Respondent's employees used an aerial
lift basket to gain access to the roof of the building under construction, a height of
approximately 35 feet.  Although the evidence reflects employees climbed over the
rails of the basket to gain access to the roof, there was no showing that these employees
performed work while standing on the rails.

6.  Two of respondent's employees were
using a power saw plugged into a noticeably damaged receptacle that was not grounded.
Respondent exercised control over the maintenance of the receptacles.

CONCLUSIONS OF LAW

1.  Respondent, at all times material to
this proceeding, was engaged in a business affecting interstate commerce within the
meaning of section 3(5) of the Occupational Safety and Health Act of 1970
("Act").

2.  Respondent, at all times material to this proceeding, was subject to the
requirements of the Act and the standards promulgated thereunder.  The Commission has
jurisdiction of the parties and of the subject matter.

3.  Respondent was not in violation of 29
C.F.R. � 1926.152(a)(2) for storing flammable or combustible liquids in areas used for
exits, stairways, or the safe passage of people.  No evidence was adduced showing
that the Cylinders were in storage.

4.  Respondent was not in violation of 29
C.F.R. � 1926.350(j) for failing to separate combustible material by 20 feet or a 5-foot
high barrier.  No evidence was adduced to show that the cylinders were in storage.

5.  Respondent was not in violation of 29
C.F.R. � 1926.556 (b)(2)(iv) for failing to require its employees to stand firmly on the
floor of the basket while in a work position.  The employees were not in a work
position when they were climbing over the basket rails.

6.  Respondent was in violation of 29
C.F.R. � 1926.404(f)(6) for allowing its employees to plug a power saw into a damaged
receptacle that was not grounded.  Respondent had constructive knowledge of and
control over the hazardous condition.

ORDER

Based upon the findings of fact and conclusions
of law, it is

ORDERED:

1.  Item 1 of Citation No. 1 and proposed penalty issued to respondent on January 13,
1987, are vacated.

2.  Item 2 of Citation No. 2 and proposed
penalty issued to respondent on January 13, 1987, are vacated.

3.  Item 3 of Citation No. 1 and proposed
penalty issued to respondent on January 13, 1987, are vacated.

4.  Item 1 of Citation No. 3 issued to
respondent on January 13, 1987, is affirmed as an "other" than serious
violation, and no penalty is assessed.

EDWIN G. SALYERS

Judge

Date:  January 7, 1988

FOOTNOTES:

[[1]] At the hearing, the Secretary withdrew
serious citation item for violations of 29 C.F.R. 1926.602(c)(1)(vi).

[[1/]] Section 3.2.4.3 was the section
originally cited in the citation issued to respondent on January 13, 1987.  At the
hearing the Secretary mistakenly amended this section to section 3.2.3.3, a section which
is inapplicable to this situation ("Acetylene cylinders shall be stored valve and
up.")  Despite the confusion, it was understood by all present at the hearing
that the standard being litigated was section 3.2.4.3.

[[2/]] A fifth charge, item 2 of Citation No. 2,
alleging a violation of 29 C.F.R. � 1926.102(a)(1) was litigated at the hearing but was
withdrawn by the Secretary subsequent to the hearing.