Dover Elevator Company

Plain-English summary

Dover Elevator left an oxygen cylinder unsecured for 15 to 30 minutes near an elevator shaft while employees tried to repair a hoist. The Commission rejected OSHA's view that a cylinder must be secured whenever it is not physically moving, recognizing that brief, necessary pauses during carrying may fall within the standard's exception. Dover did not qualify for that exception because the cylinder could have been carried to storage at any time and the interruption was neither brief nor necessary to its movement. Supervisors knew the cylinder was unsecured, and Dover did not show that it had adequately communicated and enforced a work rule matching the standard. The serious violation was affirmed, but the penalty was reduced from $300 to $100; the Commission declined to review a separate floor-opening item that the judge had affirmed with a $600 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.350(a)(9); 29 C.F.R. § 1926.500(b)(1)
• Outcome: The gas-cylinder violation was affirmed and its penalty reduced to $100; the separate $600 floor-opening item was not reviewed.
• Key point: A pause in carrying a compressed-gas cylinder must be brief and necessary to its movement before the cylinder may remain unsecured under the exception.

Full text (OSHRC public release)

Docket No. 88-2642

SECRETARY OF LABOR,

Complainant,

v.

DOVER ELEVATOR COMPANY,

Respondent.

OSHRC Docket No. 88-2642

DECISION

BEFORE:    FOULKE, Chairman; WISEMAN,
Commissioner.

BY THE COMMISSION:

The primary issue in this case is whether an oxygen cylinder
belonging to Dover Elevator Company ("Dover") was "being hoisted or
carried" within the meaning of 29 C.F.R. � 1926.350(a)(9), which provides that such
cylinders must be secured "except, if necessary, for short periods of time while
cylinders are actually being hoisted or carried" (emphasis added).[[1]] For
the reasons that follow, we conclude that Dover failed to establish that it satisfied the
exception clause of the standard in the circumstances presented here. We further conclude
that Dover knew, or with the exercise of reasonable diligence could have known, that the
cylinder was not secured as required by the standard. Accordingly, we affirm the decision
of Administrative Law Judge Edwin G. Salyers finding that Dover violated the Occupational
Safety and Health Act of 1970, 29 U.S.C. �� 651-78 ("the Act") by failing to
comply with the standard, as alleged in item 2 of the citation issued by the
Secretary.[[2]] We further conclude that the violation is not de minimis in
nature.

FACTS

Dover was the elevator subcontractor at a
large residential housing construction site in Jersey City, New Jersey. On July 7, 1988,
the day the Secretary inspected the worksite, Dover's employees Thomas Macchia and a
helper intended to install elevator equipment in one of the elevator shafts using a hoist
motor which had been positioned at the edge of the shaft opening at the first floor level,
about 15 feet above the next lower level. When they discovered that the hoist did not
operate due to an electrical problem, they summoned George Clarke, Dover's supervisory
mechanic at the worksite. Clark was accompanied by Mike Poshkus, Dover's elevator
adjuster. Poshkus, who was familiar with electrical circuits, attempted without success to
get the hoist motor to work. Dover then closed down its work at that shaft and assigned
Macchia to work at another building.

In the meantime, an oxygen cylinder was
delivered to the worksite. This cylinder was a replacement for another cylinder which had
been stolen, theft being a constant problem at the site. James, or "Jay,"
Brannon, another elevator mechanic and a foreman, was returning to the site from a meeting
with the general contractor when he met the delivery truck. He took the oxygen cylinder,
carried it to the area of the shaft opening, and laid it onto the edge of the floor
through a window opening at approximately the same time that Clarke arrived on the floor
to check the hoist. Macchia took the cylinder from Brannon, and Brannon then went back to
park his car. Macchia set the cylinder upright on the floor but did not secure it in any
way. It was Dover's intention to lower the cylinder by the hoist down to a shanty used for
storage in the basement area below. After it was determined that the hoist could not be
made to work, either Clarke or Macchia carried the cylinder down into the storage area.
The evidence presented at the hearing demonstrated that Dover's safety rules require that
gas cylinders be tied in an upright position when in storage: "Welding gases should
be stored in upright, secured position with caps on. Oxygen and fuel gases should be
stored separately."

Compliance officers David Katsock and George Boyd arrived at
the worksite shortly after Brannon brought the gas cylinder onto the floor. Although
Katsock testified that the cylinder was left standing upright and unsecured for at least
half an hour, Clarke stated that it was carried down after about 15 minutes. Katsock
stated that the hazard presented was that if the oxygen cylinder were displaced, it could
be punctured or its cap could break off, causing oxygen to escape. The escaping oxygen
could come into contact with oily rags that were in the area or could become ignited
through friction, causing an explosion and fire. If the valve broke off, the cylinder
could either fall on an employee or become a projectile, propelled through the worksite by
escaping gas.

ARGUMENTS OF THE PARTIES

Dover did not dispute before Judge Salvers that it left the
oxygen cylinder unsecured. Dover contended that it came within the exception to the
securing requirement of the standard because the cylinder was situated on the floor where
it was viewed by the compliance officers only for the "brief" period of time
during which Dover's employees were determining whether they would he able to lower the
cylinder to the storage area by using the hoist, as they had intended, or whether they
would have to carry it down by hand. Thus, Dover argued that in the circumstances, there
was only a transitory and temporary hiatus in the movement of the cylinder, and that the
cylinder, for all practical purposes, remained in a transit status.

Dover also asserted that the Secretary failed to prove that it
knew or should have known of the alleged violative conditions. While Dover conceded that
normally the knowledge of supervisory employees is imputed to the employer, e.g., Dull-Par
Engd. Form Co., 12 BNA OSHC 1962, 1965-66, 1986-87 CCH OSHD � 27,651, p. 36,033 (No.
82-928, 1986), it contended that it should not be held responsible for the actions of
Brannon and Clarke because of the temporary and "unforeseeable" nature of the
conditions and because Brannon and Clarke were highly trained and experienced employees
who could reasonably be expected to adhere to Dover's safety rules. In Dover's view, it
had taken appropriate measures to prevent the occurrence of the violation, and the
citation item should be vacated even if it had failed to comply with the terms of the
standard.

Judge Salyers rejected Dover's contentions. Essentially, he
accepted the Secretary's argument that the exception clause of the standard literally
requires that the cylinder be secured unless it is in actual physical motion. As did the
Secretary, the judge relied on two Commission decisions finding employers in violation of
� 1926.350(a)(9) for having unsecured cylinders, Austin Building Co., 8 BNA OSHC 2150,
1980 CCH OSHD � 24,839 (No. 77-3878, 1980) and Constructora Maza, Inc., 6 BNA OSHC 1208,
1977-78 CCH OSHD � 22,421 (No. 12434, 1977). While stating that he was
"sympathetic" to Dover's position. Judge Salyers concluded that the facts did
not come within the language of the exception clause:

A literal reading of the standard reveals that "cylinders shall be secured at all
times ... except ... for short periods of time while cylinders are actually being hoisted
or carried." 29 C.F.R. � 1926.350(a)(9). (Emphasis supplied.) This language does not
include an exception for the circumstances disclosed in the evidence. It is concluded that
the Secretary's position is in accord with the terms of the standard and is supported by
Commission precedent.

Although the judge observed that the conditions at the worksite
were within the plain view of supervisor Clarke, he did not address Dover's contention
that it could not have reasonably anticipated that the cylinder would be left unsecured
for a period of time.

The parties' arguments on review before us largely parallel their arguments before the
judge. Dover asserts that to read the exception clause literally to apply only where a
cylinder is actually in physical motion would render the clause meaningless because a
cylinder obviously cannot be secured while it is moving. Therefore, Dover contends that
the clause cannot be read totally literally. It also asserts that the clause may
reasonably be construed to apply in the circumstances presented here because Brannon
brought the cylinder into the work area expecting that it would be placed in the basement
storage area, and the cylinder was carried to the basement as soon as Dover determined
that the hoist was inoperable. Thus, Dover contends that the unforeseen circumstance of
the hoist motor breaking down prevented it from moving the cylinder without interruption
and that therefore it has satisfied the requirement of the exception clause permitting a
cylinder to be unsecured for a short period of time "where necessary."
Essentially, Dover contends that the exception clause of the standard excuses an employer
from having to secure a cylinder in an upright position where the employer intends to move
the cylinder but its actual movement is briefly interrupted by circumstances beyond the
employer's control.

For the same reason, Dover reiterates its position that it had
taken all reasonable measures to comply with the requirement of the standard. Dover does
not dispute that both Clarke and Brannon knew that the cylinder had been left unsecured
but contends that it had acted with due diligence in the circumstances here. In Dover's
view, to find it in violation would be tantamount to imposing strict liability. See
National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1266 & n.35 (D.C. Cir.
1973) (Act requires the elimination only of hazards which are preventable).

Finally, Dover contends that even if a violation exists, it is
de minimis in nature because there is no tangible likelihood of a hazard occurring in the
circumstances here. Pointing out that the standard by its terms does not necessarily
require a cylinder to be secured at all times, Dover contends that the standard itself
reflects a realization by the Secretary that there may be circumstances in which securing
a cylinder is not essential for employee safety. Dover asserts that the need to repair the
hoist and the brevity of the interruption in the cylinder's movement Justify a finding of
de minimis.

The Secretary disputes Dover's contention that a cylinder can never be secured in an
upright position while it is in motion. The Secretary observes that there are mechanical
devices, such as a cradle, that would allow an employer normally to transport a cylinder
while keeping it secured in an upright position. In the Secretary's view, the exception
clause allows a limited exemption from the standard's requirement if for some reason it
becomes necessary to have the cylinder unsecured for a short period of time while such a
device is in use. For this reason, the Secretary argues that her interpretation limiting
the exception provision only to situations where cylinders are in actual physical motion
is reasonable.

The Secretary also contends that her interpretation is
reasonable because 1) the Commission has accepted that interpretation in its decisions in
Austin Building and Constructora Maza, 2) the plain wording of the standard supports the
Secretary's view, and 3) a narrow reading of the exception better effectuates the
protective purposes of the standard and the Act. The Secretary asserts that we must accept
her interpretation under Martin v. OSHRC (CF&I Steel Corp.), 111 S.Ct. 1171 (1991)
(the Secretary's interpretations of regulations are entitled to deference when
reasonable). In any event, the Secretary further argues, in interruption of 30 minutes
does not constitute a brief or momentary lapse in the movement of a cylinder even under
Dover's view of the meaning of the exception clause, nor did Dover establish that it was
"necessary" to leave the cylinder standing unsecured for this length of time.

Regarding the question of whether Dover should be held
responsible for the actions of its supervisory employees, the Secretary disputes Dover's
claim that it had a safety rule with which its employees failed to comply. In the
Secretary's view, that claim is contradicted by Dover's position that it was not required
to secure the cylinder under the terms of the standard. Finally, the Secretary contends
that a de minimis classification is inappropriate because the violation has a direct and
tangible relationship to employee safety and health, and the hazard presented by an
unsecured cylinder is substantial.

DISCUSSION AND ANALYSIS

We reject the Secretary's narrow and literal view that the
exception clause requires a cylinder to be secured in an upright position whenever a
cylinder ceases to be in actual motion regardless how brief the interruption in the
movement of the cylinder or the reason for the interruption. The Secretary's
interpretation sets forth a rigid and inflexible rule that fails to reflect the variety of
circumstances that may exist on a construction worksite or the realities of the work
environment. While we do not dispute the Secretary's contention that it cylinder being
transported by a mechanical device can readily be secured as it is moved from one location
to another, the exception clause applies to cylinders that are being "hoisted or
carried" (emphasis added). This language plainly is broad enough to include a
cylinder that is being hand-carried by an employee, as in this case. An employee carrying
a cylinder by hand may naturally be expected to pause briefly to rest or change his grip,
for example. In our view, the standard cannot reasonably be read to require the employee
to secure the cylinder in an upright position when its movement is momentarily interrupted
for reasons of this nature. Indeed, under certain facts the Secretary's literal
interpretation would be unreasonable even where a cylinder is being moved by a mechanical
device. The Secretary's construction of the exception clause would require the cylinder to
be secured upright when employees, for instance, momentarily set the cylinder down simply
to attach or remove the lifting apparatus. While we recognize the broad remedial purposes
of the Act, we agree with the observation of the Court of Appeals for the Eighth Circuit
in H.S. Holtze Construction Co. v. Marshall, 627 F.2d 149, 151 (8th Cir. 1980) that the
Act also implies "some modicum of reasonableness and common sense." In our view,
the Secretary's strictly literal interpretation of the exception clause is unreasonable to
the extent that it can result in the imposition of abatement requirements that may not be
realistic or practical in certain circumstances. As the court stated in Holtze,
"[t]here is a point at which the impracticality of the requirement voids its
effectiveness." Id.[[3]]

Such circumstances, however, are not present in this case. The
burden is on the party claiming the benefit of an exception to prove that it comes within
the exception, StanBest, Inc., 11 BNA OSHC 121-2, 1226. 1983-84 CCH OSHD � 26,455, p.
33,619 (No. 76-4355, 1983). We conclude that the evidence fails to establish that Dover
has satisfied the exception clause. Brannon carried the oxygen cylinder to the work area
so that it could be lowered into the storage facility by means of the hoist, and the
cylinder was then taken to the storage area, again by hand, after the hoist motor was
determined to be inoperative. Since Dover intended to place the cylinder in storage by
using the hoist, the interruption in the movement of the cylinder clearly resulted from
the need to repair the hoist motor. Accordingly, Dover has shown that the reason for the
interruption had a connection with the process of moving the cylinder; that is, Dover did
not simply leave the cylinder in an unsecured condition in order to engage in a totally
unrelated work activity. On the other hand, completion of any repair to the hoist, while
related to the overall operation of placing the cylinder into the storage area, was not
essential for the movement of the cylinder. Furthermore, Brannon and Clarke allowed the
cylinder to remain unsecured for 15 to 30 minutes while the hoist motor was being worked
on, whereas the cylinder unquestionably could have been moved into the storage area at any
time. In our view, these circumstances fail to show a brief or momentary lapse in the
movement of the cylinder or a necessity to leave the cylinder unsecured so as to bring
Dover within the scope of the exception clause.

We also conclude that Dover knew or with the exercise of
reasonable diligence could have known of the existence of the violation. As previously
indicated, Dover concedes that Brannon and Clarke were supervisory employees whose
knowledge and actions normally are imputed to their employer. The Secretary having made a
prima facie showing of employer knowledge through Dover's supervisory employees, the
burden shifts to Dover to rebut the Secretary's case by establishing that it could not
have prevented the violation. Specifically, Dover must establish that it had relevant work
rules that it adequately communicated and effectively enforced. Consolidated Freightways
Corp., 15 BNA OSHC 1317, 1991 CCH OSHD � 29,500 (No. 86-531, 1991): H. E. Wiese, Inc., 10
BNA OSHC 1499, 1505, 1982 CCH OSHD � 25,985, p. 32,614 (No. 78-204, 1982), aff'd without
published opinion, 705 F.2d 449 (5th Cir. 1983). Although there is some evidence that
Dover will terminate employees who violate safety rules and that Dover's union conducts
periodic safety inspections of its worksites, Dover resented no evidence to show that it
took any measures to monitor adherence to safety rules by supervisory employees. See
Regina Constr. Co., 15 BNA OSHC 1044, 1051, 1991 CCH OSHD � 29,354, p. 39,470 (No.
87-1309, 1991) (employer's burden to adduce evidence that it took action to discover
violations of work rules). Furthermore, while Dover provides safety instruction to new
employees and conducts periodic seminars at which safety matters are discussed, Dover has
not shown that it gives its employees any specific training on securing gas cylinders. In
fact, there is no showing that Dover even has a safety rule that is equivalent to the
cited standard. Its rule deals only with securing gas cylinders in storage and does not
address the matter of securing cylinders during transportation or moving operations. See
Ormet Corp., 14 BNA OSHC 2134, 2138-39, 1991 CCH OSHD � 29,254, p. 39,203 (No. 85-531,
1991) (work rule on which employer relies must parallel the requirements of the cited
standard). Accordingly, Dover has failed to show that it took sufficient steps to prevent
the occurrence of the violation.

Lastly, we find that the violation may not properly be
classified as de minimis in nature. A de minimis violation is one having no "direct
or immediate" relationship to employee safety; normally, that classification is
limited to situations in which the hazard is so trifling that an abatement order would not
significantly promote the objectives of the Act. Super Excavators, Inc., 15 BNA OSHC 1313,
1991 CCH OSHD � 29,498 (No. 89-2253,1991); Pratt & Whitney Aircraft, 9 BNA OSHC 1653,
1981 CCH OSHD � 25,359 (No. 13401, 1981). Compliance officer Katsock testified without
rebuttal that the unsecured cylinder presented a hazard of fire or explosion or the
possibility that the cylinder could become a projectile. Katsock's testimony is consistent
with long-standing Commission precedent in which the Commission has recognized that the
hazards � 1926.350(a)(9) is intended to protect against are not insignificant. Beall
Constr. Co., 1 BNA OSHC 1559, 1562, 1973-74 CCH OSHD � 17,339, p. 21,879 (No. 557, 1974).
aff'd, 507 F.2d 1041 (8th Cir. 1974); Bechtel Power Corp., 4 BNA OSHC 1005, 1009, 1975-76
CCH OSHD � 20,503, p. 24,501 (No. 5064, 1976), aff'd. 548 F.2d 249 (8th Cir. 1977).
Furthermore, Dover's motive for leaving the cylinder unsecured--the need to work on the
hoist--does not have any bearing on the hazard. The relatively short duration of the
violation also does not justify finding the violation de minimis. The cylinder was in an
admittedly cluttered area, about 12 feet from the shaft opening where the employees were
working. Clearly, the movement of the employees in the cluttered area could have caused
the cylinder to tip over, thus creating a hazard. The facts fail to show either a remote
possibility of an accident or a remote or non-existent likelihood of injury should an
accident occur.[[4]]

However, although Dover left the Cylinder unsecured for more
than a brief or momentary period, the length of time it kept the cylinder in the work area
before taking it to the storage area was relatively short. Therefore, the likelihood of an
accident occurring is reduced. Accordingly, we find) the gravity of the violation, while
not insignificant, to be low. Furthermore, Dover has taken some measures to implement a
safety program, and the circumstances of the violation itself demonstrate that Dover acted
in good faith. Considering the criteria for assessing penalties set forth in section 17(j)
of the Act, 29 U.S.C. � 666(j), we conclude that a penalty of $100, rather than $300 as
proposed by the Secretary, is appropriate.

Accordingly, item 2 of the citation alleging a violation of 29
C.F.R. � 1926.350(a)(9) is affirmed and a penalty of $100 is assessed therefor.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Dated: November 19, 1991

SECRETARY OF LABOR,

Complainant,

v.

DOVER ELEVATOR COMPANY,

Respondent.

OSHRC Docket No. 88-2642

APPEARANCES:

Alan Kammerman, Esquire, Office of the Solicitor, U. S.
Department of Labor, New York, New York, on behalf of complainant.

W. Scott Railton, Esquire, and Lawrence G. Brett, Esquire,
Reed, Smith, Shaw and McClay, Washington, D.C., on behalf of respondent.

DECISION AND ORDER

SALYERS, Judge: On July 7, 1988, respondent was the elevator
subcontractor on a multi-employer work site located at the Foot of Chapel Avenue in Jersey
City, New Jersey. This complex consisted of townhouses and multi-story condominiums under
construction in an area the size of "ten football fields" (Tr. 57). Compliance
officers David Katsock and George Boyd of the Occupational Safety and Health
Administration conducted an inspection of these premises on that date under the provisions
of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.). At
approximately 1:00 p.m., they observed a work site on the first floor of a multi-story
complex where respondent's employees were moving in materials and supplies in preparation
for the installation of an elevator. They noticed two employees of respondent working near
an elevator shaft which was not fully covered or protected by guardrails and one
free-standing oxygen cylinder on the first floor which had not been secured from
displacement (Tr. 11-15). As a result of this inspection, on October 20, 1988, respondent
was charged with the following violations:[[1]]

2

29 CFR 1926.350(a)(9): Compressed gas cylinders were not secured in an upright position:

(a) Ring Condo 1-2 - Elevator shaft area - South end - One (1)
oxygen cylinder was not secured while in storage so as to prevent displacement.

Violation observed on or about 7/7/88.

3

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

(a) Ring condo 1-2 - Elevator shaft area - South end - Floor
opening measuring 22 inches x 9 ft with a fall of 15 ft was not guarded by standard
railings or toeboards to prevent falls.

Violation observed on or about 7/7/88.

For the most part, the facts in this matter are not in serious
dispute. On the day of the inspection, respondent was beginning its work activities at the
inspection site. On the morning of that day, James Brannon, an elevator mechanic employed
by respondent, had noted the shaft on the first floor was covered by planks and protected
by portable guardrails which had been placed by the general contractor (Tr. 132). After
lunch a Dover crew arrived at the scene to deliver materials (including the oxygen
cylinder) and store these materials in respondent's shanty located in the basement of the
building (Tr. 77-78). This procedure was to be accomplished by using a hoist to lower the
material from the first floor down the shaft to the basement floor 15 feet below.
Respondent's crew removed some planking covering the shaft and moved the portable
guardrails back from the edge in anticipation of using the hoist. George Clarke,
respondent's mechanic in charge, testified the hatch or shaft must be open to use the
hoist and that its normal procedure to clear the area of covers and guardrails during
hoisting operations (Tr. 86). This was especially true in this instance since the pit
work, as large as the elevator structure, was to be moved into the shaft (Tr. 83). Before
the hoisting began, it was discovered that the hoist was not working properly and Clarke
and Mike Poshkas, an elevator adjuster, were called to the site from an adjacent building
to effectuate repairs (Tr. 78). At this point, respondent's operations in regard to moving
materials were suspended until the hoist could be fixed. Shortly before it was discovered
the hoist was inoperable, Brannon had received delivery of an oxygen cylinder, carried it
to the site and placed it on the first floor near the shaft for hoisting into storage in
the basement (Tr. 75). After placing the cylinder, Brannon was parking his car when the
OSHA inspectors arrived on the scene (Tr. 111).

At the time of their arrival, the inspectors noted and
photographed the unsecured oxygen cylinder (Ex. C-1). They also photographed the unguarded
floor opening (Ex. C-2) and observed respondent's employees working in close proximity to
this opening while attempting to repair the hoist (Tr. 31). Respondent does not dispute
the fact that the cylinder was not secured while on the first floor awaiting storage in
the basement. Also, respondent does not dispute that its employees were working around the
floor opening which was not fully covered or protected by guardrails.

THE 29 C.F.R. � 1926.350(a)(9) CHARGE

The cited standard deals with " [t]ransporting, moving
and storing compressed gas cylinders" and provides "[c]ompressed gas
cylinders shall be secured in an upright position at all times except, if necessary, for
short periods of time while cylinders are actually being hoisted or carried."

The evidence reflects that the cylinder had just been brought
into the building as the inspectors arrived. Had the hoist been operative, the cylinder
would have been immediately lowered into the basement for storage. However, because the
hoist was inoperative, the cylinder was allowed to stay where it had been placed for a
short period of time until it was determined that the hoist could not be repaired at which
time the cylinder was carried down the stairs to the storage area (Tr. 98-99). There is
some conflict in the testimony concerning the period of time the cylinder sat on the first
floor before being carried into the basement. Compliance officer Katsock testified the
cylinder remained on the first floor for about 30 minutes (Tr. 19). George Clarke
testified the cylinder was on the first floor for about 15 minutes until it was determined
that the hoist could not be repaired, at which point it was immediately carried into the
basement (Tr. 98-99).

Respondent contends the cylinder was in transit to storage
which was interrupted by a fortuitous event (the breakdown of the hoist) and that
respondent's action in not securing the cylinder for this brief period was reasonable
under the unforeseeable circumstances encountered by respondent. It cites two ALJ
decisions [[2]] in support of this position.

In Secretary of Labor v. M. J. Lee Construction Co., 77
OSAHRC 157/A2, 5 BNA OSHC 1993, CCH OSHD � (No. 76-1478, 1977), Judge Morris noted that
an oxygen cylinder that was lying on the ground after being carried to the vicinity of a
pickup truck "was in effect in the process of being 'carried' from the car to the
pickup trick, although for a short time it was laying on the ground and not secured."
He concluded the cylinder was in transit and, therefore, fell within the exception
provided in the standard for short time periods when the cylinder is being carried into
storage.

Respondent also cites Secretary v. Baystone Construction,
Inc ., 74 OSAHRC 67/C12, 2 BNA OSHC 3166, 1974-75 CCH OSHD � 18,505 (No. 3772, 1974),
in which Judge Brady reached a similar conclusion that cylinders briefly unsecured while
in transit did not contravene the standard.

The Secretary disagrees with respondent's theory that the
cylinder in question was "in transit" while it remained on the first floor since
it was neither being "hoisted or carried" at the time. The Secretary cites Constructora,
Maza, Inc., 77 OSAHRC 213/B3, 6 BNA OSHC 1209, 1977-78 CCH OSHD � 22,421 (No. 12434,
1977); and Austin Building Co. , 80 OSAHRC 98/E1, 8 BNA OSHC 2151, 1980 CCH OSHC �
24,839 (No. 77-3878, 1980), in which the Review Commission takes a strict view that
cylinders must be secured at all times unless they are actually in the process of
being hoisted or carried. She contends, under the circumstances of this case, the standard
required the cylinder be secured during the period it remained on the first floor and
urges that this unsecured cylinder presented a potential for being knocked over and
releasing the pressure resulting in a fire hazard or conversion of the cylinder into a
flying object. Since employees were in the area near the cylinder, they were exposed to
this potential hazard. The area in the vicinity of the cylinder was cluttered with other
materials thereby intensifying the possibility that it might be tipped over by employees
traversing the area (Ex. C-1; Tr. 144). The Secretary maintains that the interruption of
the cylinder's delivery into storage resulting from the inoperative hoist did not relieve
respondent from securing the cylinder while it remained on the first floor and constituted
a violation of the cited standard.

The respective positions of the parties have been considered in
light of the evidence and existing precedent. While this court is sympathetic to
respondent's position, it is concluded that respondent's failure to secure the cylinder
for a period of 15 to 30 minutes contravened the standard. A literal reading of the
standard reveals that "cylinders shall be secured at all times . . .
except . . . for short periods of time while cylinders are actually being
hoisted or carried " 29 C.F.R. � 1926.350(a)(9). (Emphasis supplied.) This
language does not include an exception for the circumstances disclosed in the evidence. It
is concluded the Secretary's position is in accord with the terms of the standard and is
supported by Commission precedent.

The 29 C.F.R. � 1926.500 (b) (1) CHARGE

There is little dispute concerning the sequence of events that
occurred with respect to the floor opening in the hoistway (shaft). Sometime prior to the
Secretary's inspection, this opening had been covered with planking and barricaded with
portable guardrails by the general contractor (Tr. 132). In anticipation of using the
hoist, respondent's employees had removed most of the planking and moved the guardrails
back from the shaft. At the time of the inspection, the shaft appeared as depicted in
Exhibit C-2. Boards had been removed between the hoist and center of the shaft, creating
an opening measuring 9 feet by 22 inches with a 15-foot fall potential to the concrete
floor below (Tr. 28). Two of respondent's employees were working on the hoist near this
opening (Tr. 31, 86-90). The testimony differs with respect to the distance these
employees were working from the opening. Compliance officer Katsock believed they were
within "a foot from the opening" (Tr. 31). Compliance officer Boyd believed the
distance was "approximately three feet" (Tr. 143). George Clarke testified that
neither he nor Poshkas, while working on the hoist, got any "closer than five
feet" to the edge (Tr. 91).

Respondent argues that the Secretary has failed to prove that
respondent's employees were exposed to a fall hazard, because "no employee was closer
than about five or six feet from the shaft and even then was shielded from the opening by
the hoist" (Respondent's brief p. 11). Respondent's factual assertions do not
coincide with the credible evidence. Both compliance officers testified at least one of
respondent's employees was working near the edge of the shaft (from one to three feet) and
this testimony is accepted as an accurate description of the circumstances they observed.
The evidence also fails to support that the hoist served as a barrier to employees working
near the shaft. Exhibit C-2 clearly reveals substantial openings on either side of the
hoist through which employees could fall while working in the area. The structure of the
hoist provides no protection from falls through these openings.

In any event, the Secretary is not required to prove actual
exposure to a hazard to sustain her charges. The Review Commission in Gilles &
Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD � 20,448 (No. 504,
1976), addressed this question and concluded "that a rule of access based on
reasonable predictability is more likely to further the purposes of the Act than is a rule
requiring proof of actual exposure." Id. at 2003. See also Otis Elevator Co.,
78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 CCH OSHD � 23,135 (No. 16057, 1978); Daniel
Construction Co., 82 OSAHRC 23/A2, 10 BNA OSHC 1549, 1982 CCH OSHD � 26,027 (No.
16265, 1982); Zwicker Electric Co., 77 OSAHRC 214/F1, 6 BNA OSHC 1268, 1977-78 CCH OSHD �
21,817 (No. 12271, 1977). In the case at bar, the Secretary has satisfied the
"reasonable predictability test" based upon the weight of the evidence.

Respondent's argument that it had no knowledge of the hazardous
conditions at the jobsite is also rejected. These conditions were in plain view of
respondent's mechanic in charge, George Clarke, who had the authority to abate by either
replacing the boards in the shaft, replacing the portable guardrails or requiring
employees working near the edge to wear safety belts attached to a lifeline before
attempting to fix the hoist. Clarke's failure to take measures to protect employees from
this fall hazard is imputed to respondent and constitutes a violation of the cited
standard. Iowa Southern Utilities Co., 77 OSAHRC 32/C10, 5 BNA OSHC 1138, 1977-78
CCH OSHD � 21,612 (No. 9295, 1977); Georgia Electric Co. , 77 OSAHRC 30/A2, 5 BNA
OSHC 1112, 1977-78 CCH OSHD � 21,613 (No. 9339, 1977).

The Secretary's proposed penalties were not addressed in
respondent's posthearing brief and are considered reasonable and appropriate.

The foregoing constitute findings of fact and conclusions of law in accordance with Rule
52 of the Federal Rules of Civil Procedure.

ORDER

It is hereby ORDERED:

1. Serious Citation 1, Item 2, is affirmed with a penalty of
   $300.00 assessed.

2. Serious Citation 1, Item 3, is affirmed with a penalty of
   $600.00 assessed.

Dated this 7th day of May, 1990.

EDWIN G. SALYERS

Judge

FOOTNOTES:

[[*]]Commissioner Montoya did not participate in the deliberations on this case or in the
issuance of this decision.

[[1]] The full text of the standard is as follows:

� 1926.350 Gas welding and cutting.

(a) Transporting, moving, and storing compressed gas cylinders.

....

(9) Compressed gas cylinders shall be secured in an upright position at all times except,
if necessary, for short periods of time while the cylinders are actually being hoisted or
carried.

[[2]] In addition to the citation item at issue here, the Secretary also alleged, in item
3 of the citation, that Dover failed to comply with another standard, 29 C.F.R. �
1926.500(b)(1), by exposing its employees to the hazard of a fall through an unguarded
floor opening. Dover petitioned for review of the judge's decision affirming this item,
but review was not directed on his item, nor did the Commission's subsequent briefing
order request briefs on the issues Dover sought to raise with respect to item 3.
Nevertheless, in its brief on review, Dover argues that the judge erred in finding that
its employees were exposed to a hazard and that it knew or reasonably could have known of
the existence of the violative conditions at issue in item 3. The Secretary contends that
the Commission should not entertain any issues relating to item 3.

The Commission has authority to consider any issues raised in a
case directed for review. Hamilton Die Cast, Inc., 12 BNA OSHC 1797,1986-87 CCH OSHD �
27,576 (No. 83-308, 1986). At the same time, however, the Commission has discretion to
limit the scope of its review. Pennsylvania Steel Foundry & Machine Co., 12 BNA OSHC
2017, 2019 n.3, 1986-87 CCH OSHD � 27,671, p. 36,063 n.3 (No. 78-638, 1986), aff'd, 831
F.2d 1211 (3d Cir. 1987). Dover's arguments with respect to item 3 raise essentially
factual questions which Judge Salyers addressed in his decision. Accordingly, we decline
to exercise our discretion to consider those issues on review.

[[3]] We reject the Secretary's contention that our prior
decisions in Austin Building Co., 8 BNA OSHC 2150, 1980) CCH OSHD � 24,839 (No.
77-3878, 1980) and Constructora Maza, Inc . 6 BNA OSHC 1208, 1977-78 CCH OSHD �
22,421 (No. 12434, 1977) require that we accept her interpretation here. The issue in
Austin Building was whether � 1926.350(a)(9) requires cylinders to be secured while they
are in use. Constructora Maza involved unsecured cylinders at various locations
in the worksite, some lying on the ground. Neither case dealt with cylinders being
transported or in the process of being transported, and in neither case did the
Commission's decision address the exception clause at issue here.

[[4]] We note that the Secretary alleged that the violation was
serious in nature under section 17 (k) of the Act, 29 U.S.C. � 666(k), which defines a
serious violation as one presenting "a substantial probability of death or serious
physical harm." A serious violation does not depend on the likelihood of an accident
but only on the likely result should an accident occur. Spancrete Northeast, Inc., 15
BNA OSHC 1020, 1024, 1991 CCH � 29,313, p. 39,358 (No. 86-521, 1991) Dover does not
contend that the violation should be characterized as other than serious in the event the
Commission rejects its argument that a de minimis characterization is
appropriate. In any event, the hazards described by the compliance officer could easily
result in serious injury of death.

[[1]] Respondent was also charged with a violation of 29 C.F.R.
� 1926.21(b)(2) (failure to instruct employees in recognition and avoidance of unsafe
conditions), but this charge was withdrawn by the Secretary prior to trial (Tr. 6).

[[2]] Unreviewed ALJ decisions have no precedential value. Leone
Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD � 20,387 (No.
4090, 1976).