Lexcon Building Systems

Plain-English summary

Lexcon served as construction manager for a mall project and was responsible for coordinating subcontractors and conducting safety inspections. OSHA cited the company over the frequency of its inspections, an unprotected LP-gas cylinder, and two unguarded floor openings. The LP-gas item was withdrawn at the hearing. The ALJ then affirmed the inspection-program item with a $640 penalty and vacated the floor-opening item because the openings were only about five inches deep and employee exposure was not shown. During Commission review, the Secretary withdrew the inspection-program item. The Commission granted the withdrawal and allowed the floor-opening vacatur to become final, leaving no penalty from the contested items.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.20(b)(2), 1926.153(h)(5), and 1926.500(b)(1)
• Outcome: Inspection and LP-gas items withdrawn; floor-opening item vacated; the $640 penalty was eliminated.
• Key point: The Commission did not preserve the ALJ's inspection-frequency ruling after the Secretary withdrew that item on review.

Full text (OSHRC public release)

Docket No. 88-0854

SECRETARY OF LABOR,

Complainant,

v.

LEXCON BUILDING SYSTEMS,

Respondent.

OSHRC Docket No. 88-0854

ORDER

This case was directed for review before the
Occupational Safety and Health Review Commission by Former Commissioner Linda L. Arey on
December 30, 1988 from a decision by Administrative Law Judge Edwin G. Salyers dated
November 23, 1988. The Secretary of Labor has filed a Withdrawal of Item 1 of Citation 1
pursuant to Commission Rule 102, 29 C.F.R. � 2200.102.

Having reviewed the official record in this case, the
Commission construes the Secretary's withdrawal as a motion to Withdraw Item 1 of Citation
1 and grants the motion. In addition, the Commission sets aside the Judge's decision to
the citation. Judge Salyers' Decision and Order now becomes a final order to the extent
that it rules on Item 2 of Citation 1.

Edwin G. Foulke, Jr.

Chairman

Velma Montoya

Commissioner

Donald G. Wiseman

Commissioner

Dated: May 24, 1990

SECRETARY OF LABOR,

Complainant,

v.

LEXCON BUILDING SYSTEMS ,

Respondent.

OSHRC Docket No. 88-0854

APPEARANCES:

Sandra R. Kramer, Esquire, Office of the Solicitor,
U. S. Department of Labor, Cleveland, Ohio on behalf of complainant.

James H. Newman, Safety Engineer, Lexcon Building
Systems, Forest Fair Mall Project, Fairfield, Ohio, on behalf of respondent.

DECISION AND ORDER

SALYERS, Judge: Respondent, Lexcon Building Systems,
is a wholly-owned subsidiary of Lathrop Company, Inc. At the time in question, Lexcon was
engaged by the project developer as the construction manager or general contractor at the
Forest Fair Mall Project in Fairfield, Ohio (Tr. 59). In this capacity, Lexcon employed
approximately eight employees to oversee the operations of numerous subcontractors at the
site (Tr. 10). Lexcon's primary responsibility was to coordinate the construction and to
assure that construction schedules were met and that work performed by subcontractors met
specifications (Tr. 27). The role of Lexcon was supervision and its employees did not
engage in actual construction (Tr. 28). Included among the responsibilities of Lexcon,
however, was the obligation to conduct safety inspections at the project to insure
compliance with applicable safety standards (Ex. R-1).

The Forest Fair project was inspected by compliance
officers of the Occupational Safety and Health Administration during the period December
22, 1987, through February 1, 1988. This inspection resulted in the issuance of 143
citations to various subcontractors at the site (Ex. C-3) alleging violations of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et. seq. ). The Secretary
also charged Lexcon with the following items;

1

29 CFR 1926.20(b)(2): Programs providing for frequent and regular inspections or the job
sites, materials and equipment were not being made by competent persons designated by the
employer:

(a) On the mall part of the project, inspections were
being done on a monthly basis with the past two conducted resulting in only six and ten
violations noted.

2

29 CFR 1926.153(h)(5): Valves on containers having water capacity greater than 50
pounds (nominal 20 pounds LP-Gas capacity) were not protected from damage while in use or
storage:

(a) On the east side of the Lexcon office trailer,
there was a 100 gallon capacity LP gas cylinder in use that was not protected from
physical damage of vehicular traffic.[[1]]

3

29 CFR 1926.500(b)(1): Floor openings were not guarded by standard railings and toeboards
or covers as specified in paragraph (f) of this section:

(a) At the east end of the mall in area E, near
column lines N5 and 3-18.5, employees were exposed to unprotected floor openings measuring
6'1" x 6'1" and 15 1/2' x 16'1" that were 5" deep.

ADEQUACY OF INSPECTION PROGRAM

Section 1926.20 of 29 C.F.R. requires an employer to
initiate and maintain an accident prevention program to assure a safe workplace is
provided for employees. Subsection b(2) of this standard requires:

Such programs shall provide for frequent and regular
inspections of the job sites, materials, and equipment to be made by competent persons
designated by the employers.

The Secretary contends in this case that Lexcon
failed to meet its responsibilities under this standard since it did not conduct
"frequent and regular inspections." [[2]] While the standard is nonspecific, the
Secretary maintains that inspections should be performed on a weekly basis and that the
results of each inspection should be written up and communicated to the responsible
parties (Tr. 14-15).

The evidence is undisputed that Lexcon's safety
engineer, Jim Newman, did not make formal inspections on a weekly basis. During the time
in question, Mr. Newman made four inspections in a five-month period (Ex. C-1; Tr. 18).
These reports note a variety of unsafe acts and conditions relative to several of the
subcontractors at the site. These reports also make specific reference to construction
standards allegedly violated and observed during the course of the inspection.

In support of her contention that weekly inspections
are required by the standard, the Secretary offered a report made by one of Lathrop's
insurance carriers (Ex. C-4). The report makes three references to weekly inspections. On
page one under Job Planning, it is noted that "controls for these hazards include
hazard recognition by your Safety Manager during his weekly inspections." Page two
refers to a meeting with Mr. Daulton [[3]] in which he stated that the company's Safety
and Accident Prevention Manual was followed and "[t]his included weekly safety
inspections conducted by himself." Also, on page two, Lathrop is advised "[i]t
may also be beneficial to post signs, as well as note the violators during your weekly
safety inspections."

The Secretary's contention is bolstered by the
testimony of Compliance Officer James M. Denton, who holds a degree in Environmental
Safety and Management from Indiana University and has nine years' experience in
construction safety (Tr. 7-8). Mr. Denton's testimony, based upon his experience, reflects
an industry practice of conducting safety inspections on a weekly basis (Tr. 26).

The Secretary also calls attention to the numerous
citations, issued to the various subcontractors at the site and urges this tribunal to
draw an inference that this circumstance reflects Lexcon's safety inspection program was
inadequate and ineffective.

Lexcon was represented at the hearing by its safety
engineer, James H. Newman, acting pro se . In support of his company's
position, he offered into evidence Lexcon's Safety and Accident Prevention Manual (Ex.
R-1), various certificates reflecting his membership in safety societies and completion of
safety training courses (Ex. R-2), and certain summaries showing names of persons
attending safety meetings during the period September 19, 1987, through July 3, 1988 (Ex.
R-3).[[4]]

The safety manual (Ex. R-1) sets forth the company's
concern for safety and accident prevention and places primary responsibility for this
program on the safety engineer. it specifically reflects the safety engineer (Ex. R-1,
page 5):

Performs compliance reviews on an unscheduled, yet planned, periodic basis to evaluate job
conditions and personnel compliance. Reviews results which concerned and involved
Management and Supervisory Staff. Formulates plans to correct noted deficiencies. Refers
to Managers all of those safety requirements and recommendations involving changes to
Corporate policy.

In his testimony, Mr. Newman outlines, in general
terms, the procedures he follows in making his inspections. This testimony reflects he
looks only for obvious infractions (i.e., missing ground plugs or guardrails) and marks
them with tags to warn of hazards. If he considers a problem requires immediate attention,
he will discuss it with project managers or the superintendent and request action (Tr.
60-61). He emphasized, however, that he in careful to avoid the implication that his
inspections relieve the subcontractors of their primary responsibility for safety, because
his company "takes a position that if all the subcontractors make me their safety
representative, then we've taken on a large responsibility that we don't want and can't
handle" (Tr. 60).

As previously noted, the issue for determination with
respect to Citation Number One, Item One, is whether the practice followed by respondent
prior to and at the time of the Secretary's inspection comports with the cited standard.
No case law has been found which resolves this issue. Under this circumstance, deference
should be given to the Secretary's interpretation of the standard. If the interpretation
made by the policymaking agency is reasonable, it should be given controlling weight. United
Steelworkers of America v. Schuylkill Metals Corp. , 828 F.2d 314 at 319 (5th Cir.
1987).

In this case, respondent has undertaken by contract
to conduct safety inspections in furtherance of an accident prevention program. The
Secretary's interpretation that these inspections should be made on a weekly basis is
reasonable and appears to accord with industry practice. The purpose of such inspections
is to promote safety awareness among the various subcontractors and to reflect the concern
of the general contractor in this regard. While this procedure does not shift the primary
responsibility for the safety of subcontractors' employees to Lexcon, it does impose an
obligation to conduct regular and effective inspections in furtherance of Lexcon's
accident prevention policy and its overall responsibility as the general
contractor/construction manager to promote a safe workplace. In this case, the failure of
Lexcon to conduct inspections on a weekly basis constitutes a violation of the cited
standard.

GUARDING FLOOR OPENINGS

The Secretary charges Lexcon with a violation of 29
C.F.R. � 1926.500(b)(1) [[5]] for its alleged failure to guard or cover certain floor
openings on the ground floor in the east end of the mall. One of these openings was
roughly six feet by six feet and the other fifteen feet by sixteen feet. Both were
approximately five inches deep (Ex. C-5--C-8; Tr. 44). The Secretary maintains these
openings created a serious hazard to employees working in the area including employees of
respondent who allegedly traversed the area in the performance of their duties. [[6]]
Lexcon argues that this standard is directed at protection against employee falls through
the openings and does not to the shallow openings here involved where the "fall"
would be a maximum of five inches (Tr. 68-69).

The general provisions of the cited standard provide
that the standard applies to conditions "where there in danger of employees or
materials falling through the floor , roof or wall openings" [1926.500(a)].
(Emphasis added.) In similar fashion, the definition of "floor opening" found at
1926.502(b) provides "an opening measuring 12 inches or more in its least dimension
in any floor, roof, or platform through which persons may fall ." (Emphasis
added.) It is concluded that the cited standard was intended to protect against falls
which could result in serious consequences to employees At the very most, this condition
exposed employees to no more than a minor tripping hazard with minimal potential for
serious injury (Tr. 47). This item will be vacated.

The foregoing constitutes my findings of fact and
conclusions of law.

ORDER It is ORDERED:

1. Serious Citation One, Item One, is affirmed and a
   civil penalty of $640.00 is assessed.

2. Serious Citation One, Item Two, is vacated. Dated
   this 23rd day of November, 1988.

EDWIN G. SALYERS

Judge

FOOTNOTES:

[[1]] This item was withdrawn by counsel for the
Secretary at the hearing and is no longer in contention.

[[2]] The Secretary concedes that James H. Newman, respondent's safety engineer who
conducted inspections, is a competent person as contemplated by the standard (Tr. 15; see
also Ex. R-2).

[[3]] This individual is not identified in the record
but is, apparently, a Lathrop supervisor.

[[4]] The significance of this exhibit was not fully
explained in the testimony of Newman. Apparently, Newman conducted periodic meetings with
the supervisor/foremen of subcontractors during which safety topics were discussed (Tr.
57). However, this evidence does not directly relate to the crucial issue, i.e, safety
inspections of the jobsite.

[[5]] Section 1926.500(b)(1) of 29 C.F.R. provides:

(b) Guarding of floor openings and floor holes . (1) Floor openings shall be guarded
by a standard railing and toe boards or cover, as specified in paragraph (f) of this
section. In general, the railing shall be provided on all exposed sides, except at
entrances to stairways.

[[6]] No proof was offered by the Secretary that
Lexcon's employees actually were exposed to the alleged hazard.