National Engineering & Contracting Co.

Plain-English summary

A foreman placed an unlabeled gasoline container on the open back of a company pickup truck at a bridge construction site. Cold weather and gasoline overspray had prevented a label from sticking, and the foreman left the container while moving around the worksite. The Commission found employee access because welders and ironworkers worked nearby and it was reasonably predictable that someone would need the gasoline. It rejected infeasibility because the defense was not pleaded and the foreman had not tried another location on the container, and it found that leaving the can unlabeled was not substantial compliance. The serious violation was affirmed with the judge's reduced $100 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.59(f)(5).
• Outcome: Affirmed. The serious hazard-communication violation and $100 penalty were upheld.
• Key point: A hazardous-chemical container remains accessible when nearby employees can reasonably be expected to need its contents, even if a foreman intends to control its use.

Full text (OSHRC public release)

                                UNITED   STATES OF AMERICA
       OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                               One Lafayette Centre
                         1120 20th Street, N.Wm- 9th Floor
                            Washington, DC 20036-3419

SECRETARY OF LABOR,

                  Complainant,

           v.                                                   OSHRC Docket No. 92-73

NATIONAL ENGINEERING &~CONTRACTINGCO.,

                  Respondent.



                                         DECISION

Before: WEISBERG, Chairman, FOULKE and MONTOYA, Commissioners.
BY THE COMMISSION:
The issue in this case is whether National Engineering & Contracting Co.
(“National”) violated 29 C.F.R. 6 1926.59(f)(S)’because it did not attach to a container
filled with gasoline a label that stated its contents and provided appropriate hazard warnings.
For the reasons that follow, we find that National did violate the standard and assess a $100
penalty.

’ Section 1926.59(f)(S) provides:

   8 192639 Hazard Communication.

   $iabeLF and other forms of warning.

   i;i kxcept as provided in paragraphs (f)(6) and (f)(7) the employer shall
   ensure that each container of hazardous chemicals in the workplace is labeled,
   tagged or marked with the following information:
   (i) Identity of the hazardous chemical(s) contained therein; and
   (ii) Appropriate hazard warnings.

2

                                     Discussion
   The container in contention was in the back of a National pickup truck assigned to

Richard Skube, a laborer foreman. Skube had filled the container with gasoline the morning
of the inspection, but could not attach a label because of the extreme cold weather and
gasoline overspray on the can. National does not dispute that (1) the cited standard applies
to the unlabeled gasoline container, (2) Foreman Skube admitted that the container was not
labeled properly, and (3) Foreman Skube had actual knowledge of the unlabeled container,
and his knowledge is imputed to National. Employee access to the unlabeled container is
the only element of the SecretaryTs proof of a prima facie case in dispute.
Proof of employee access to a hazard is made by showing “that employees either
while in the course of their assigned working duties, their personal comfort activities while
on the job, or their normal means of ingress-egress to their assigned workplaces, will be, are,
or have been in a zone of danger.” The question is whether it is reasonably predictable that
an employee will be in the zone of danger. KizsparElectroplating Corp., 16 BNA OSHC
1517, 1521, 1994 CCH OSHD 130,303, p. 41,761 (No. 90-2866, 1993), citing AmtowFood
Co., 14 BNA OSHC 1817,1824,198790 CCH OSHD 129,088, p. 38,886 (No. 86-247,199O)
and Gilles & Catting Inc., 3 BNA OSHC 2002, 2003, 1975-76 CCH OSHD ll 20,448, p.
24,425 (No. X)4,1976). Here, the evidence establishes that the unlabeled gasoline container
was on the open back of a company pickup truck parked on the portion of the bridge where
welders and iron workers were working. Although Skube testified that he would not “allow
anyone to use the can in that condition” the record shows that he was not in a position to
prevent an employee from using the unlabeled can. Skube testified that he was so busy he
did not have time to attach another label to the gasoline can and that he “had to run back
and forth on the deck” of the bridge. Taking into account the varied nature of the work,
the fact that the unlabeled gasoline container must have been filled for eventual use, and
the need for gasoline that could occur, as Skube phrased it, “on a spur of the moment
basis,” we find that it was reasonably predictable that an employee would need to use
gasoline and that the Secretary has established employee access to the violative condition.
Jefferson Smuflt Cop., 15 BNA OSHC 1419,1421-22, MU-93 CCH OSHD ll29,551,
pp. 39,953.54 (No. 89-553, 1991) cited by National, does not suggest a different result. In
order to establish a violation under the machine guarding standard cited in that case, the
 3

Secretary is required to prove that the manner in which the machine functions and the way
it is operated exposes employees to a hazard. 15 BNA OSHC at 1421,1991-93 CCH OSHD
at p. 39,953. There, the Commission credited testimony that the machine operators had no
reason to come within two feet of a machine’s unguarded nip points and thus were not
exposed to a hazard. Id Here, the employees worked in the vicinity of the full, unlabeled
gasoline can and, as we have found, it was reasonably predictable that they would have to
use the gasoline. We therefore conclude that the Secretary has established the elements of
a prima facie case showing that National has violated the cited standardg2
,, Amtive De&eases
National argues that it has shown that it was infeasible to put the label on the
container. It claims that it has established that an alternative method of abatement was in
use, the second element of the affirmative defense of infeasibility, by showing that Skube
kept the container under his control. However, we need not consider National’s argument
because it is an affirmative defense that should have been, but was not, raised in its Answer,
as required by Commission Rule 34(b)(3), 29 C.F.R. 5 2200.34(b)(3). Even if the claim had
been properly raised, we would reject it because foreman Skube testified that he did not
attempt to affix the label to a different spot on the container.
National’s claim that it substantially complied with the standard is also without merit.
Leaving an unlabeled gasoline container on an open truck back -- also the repository of a
labeled gasoline container -- does not demonstrate substantial compliance. We therefore
conclude that National violated section 1926.59(f)(5).
Seriousnessof the Violation
A violation is serious under section 17(j) of the Act if an accident is possible and
there is a substantial probability that death or serious physical harm could result from the
accident. Corzsol. Freightways Cop., 15 BNA OSHC 1317, 1324, 1991-93 CCH OSHD
Tl29,500, p. 39,813 (No. M-351, 1991). National contends that the only evidence offered bY
the compliance officer to justify a serious characterization was the potential for bums or
smoke inhalation that could result from an unlabeled gasoline can if a fire occurred. It

2 Because we find from the record that access was established, we do not reach the
Secretary’s claim that he need not prove exposure under the hazard communication
standard.
 4
argues that since the unlabeled gasoline container was in good condition and the Secretary
failed to show any smokers were exposed to the can, the violation should be characterized
as other than serious. National’s argument is without merit. The compliance officer testified
that if an accident involving the gasoline occurred the likely injuries could include first,
second, or third-degree burns and/or smoke inhalation. A failure to provide the label
required by the hazard communication standard on a can of gasoline is serious because a
substantial probability exists that death or serious physical harm could result in the event of
an accident involving a volatile substance like gasoline. Fond DeveZopment Corp., 15 BNA
OSHC 2003, 2006-07, 1991-93 CCH OSHD 129,900, pp. 40,799.800 (No. 90-1505, 1992),
afd per ctim, No. 93-3090 (6th Cir. Feb. 17, 1994). National’s arguments are primarily
directed at the unlikelihood of an accident occurring, a factor which is not relevant to the
characterization of a violation as serious.
The penalty was reduced by the judge fkom the proposed $1,100 to $100. He
concluded that National had demonstrated good faith by its attitude toward the labeling
requirements of the cited standard and the actions it took upon learning of the missing label.
Neither party objects to the $100 penalty assessment and accordingly we find that a $100
penalty is appropriate here and assess that amount.

                                               Chairman




                                               Edwin G. Foulke, Jr.
                                               Commissioner




                                               Commissioner

Date: May 25, 1994