Security Elevator, Inc.

Plain-English summary

Security Elevator was cited after an OSHA inspection at a construction project for Sterling Drug Company in Collegeville, Pennsylvania. One alleged violation concerning fuel-gas equipment was settled before the hearing. The remaining item alleged that a required wrench was not left on a fuel-gas cylinder valve. The compliance officer saw the cylinder while it was not in use, and the foreman testified that a T-wrench or adjusted crescent wrench was used and kept next to the cylinder while it operated. The ALJ found that the Secretary had not proved noncompliance while the cylinder was in use and vacated the item. The release does not state the terms of the settlement or a final penalty amount.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.350(d)(2) and 1926.350(j)
• Outcome: The section 1926.350(j) item was settled before trial, and the fuel-cylinder wrench item was vacated.
• Key point: An observation made while a fuel-gas cylinder was not in use did not prove failure to keep the required wrench in position during use.

Full text (OSHRC public release)

                        UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centte
112020thStreet, N.W. - 9th Floor
Washington, DC 20036-3419

                                                                                  FAX:
                                                                                  cm (202)
                                                                                         6oG5050
                                                                                  FE 1202)
                                                                                        6065050

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-2320
SECURITY ELEVATOR, INC.
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 August 5, 1993. The decision of the Judge
will become a final order of the Commission on September 7, 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THEi
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received b the Executive Secretary on or before
August 25, 1993 in order to ermit suf rlcient time for its review. See
Commission Rule 91, 29 C. Ep.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:

                   Executive Secretary
                   Occupational Safety and Health
                    Review Commission
                   1120 20th St. N.W., Suite 980
                   Washington, D.C. 20036-34 19

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 by the Commission. then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any Party
having questions about review rights may contact the Co mmission’s Exe cutive
Secretary or call (202) 606-5400.

                                    FOR THE COMMISSION
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                                                                      /           /

Date: August 5, 1993 Ray H. Darling, Jr.
Executive Secretary
 DOCKET NO. 92-2320

NOTICE IS GIVEN TO THE FOLLOWING:


Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004

. 200 Constitution Ave., N.W.
Washington, DC. 20210

Marshall H. Harris, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
14480 Gatewa Build&g
3535 Market J treet
Philadelphia, PA 19104



James F. Sassaman, Director of
  Safety
GBCA
P.O. Box 15959
36 South 18th Street
Philadelphia, PA 19103



Irvin Sommer
Chie P Administrative Law Judge
Occupational Safety and Health
  Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419




00102933199:03

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
I 120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

PHONE:
FAX:
COM(202)606-5100
COM (20216~5050
fTS(202) 60&5100
mi (202)606-5050

                                                       ..

    SECRETARY              OF LABOR,                   ..
                                                        ..
               Complainant,                              ..
                                                          ..
                      v.                                   ..        Docket No. 92-2320
                                                       ..

   SECURITY ELEVATOR,                  INC., and       :
    its successors,                                    ..

               Respondent:

                                                        .


   Appearances:

               Maureen A Russo, Esq.                                        James F. Sassaman
                      U.S. Dept. of Labor                                          36 South 18th Street
                      Philadelphia, Pa.                                            Philadelphia, Pa.
                               For Complainant                                              For Respondent


    Before: Administrative       Law Judge Irving Sommer



               This is a proceeding under Section 10(c) of the Occupational               Safety and Health Act
    of 1970,29 U.S.C. section 651 et seq., (the Act), to review a citation issued by the Secretary
    of Labor pursuant to section 9(a) of the Act, and the proposed                      assessment of penalties
    therein issued, pursuant to section 10(a) of the Act.
               Following an inspection of the Respondent’s business site at 1032 Black Rock Road,
    Collegeville,     Pennsylvania,    the Secretary            of Labor issued a citation    charging a serious
    violation of the standard         at 29 C.F.R. 1926.350(d)(2) and 29 C.F.R. 1926. 350(j).                     The
    alleged violation of 29 C.F.R. 1926.350(j) was settled by the parties prior to trial. A hearing
   was held on the remaining item in Philadelphia,                   Pennsylvania.   No jurisdictional     issues are

2
is dispute, the parties having pleaded sufficient facts to establish that the Respondent is
subject to the Act and the Commission has jurisdiction of the parties and of the subject
matter.

                                           DISCUSSION
      Alleged Violation of 1926.350(d)(2)-Serious       Citation 1, item (al
      The standard at 1926.350(d)(2) provides:
              (d) Use of fuel gas. The employer shall thoroughly instruct employees in the

safe use of fuel gas, as follows:
(2) The cylinder valve shall always be opened slowly to prevent damage to the
regulator. For quick closing, valves on fuel cylinders shall not be opened more than 1 l/4
turns. When a sDecia1 wrench is reauired, it shall be left in Dosition on the stem of the valve
while the cvlinder is is use so that the fuel gas flow can be shut off auicklv in case of an
emergency. (underlining added). In the case of manifolded or coupled cylinders, at least’
one such wrench shall always be available for immediate use. Nothing shali be placed on
top of a fuel gas cylinder, when in use, which may damage the safety device or interfere with
the quick closing of the valve.
The site visited by the compliance officer was one in which nine buildings were being
constructed for Sterling Drug Co. He testified that on April 28, 1992 he absented a fuel gas
cylinder not in use, without a special wrench attached. He described the special wrench as
one which is of a T-type configuration, and is used to open and closed the cylinder, thusly
controlling the gas flow. Compliance officer Doherty states the Respondent’s foreman Duffy
told him that he had operated the cylinder earlier in the day, and had used a crescent
wrench for the job. Doherty testified the fuel-gas cylinder has a square stem, necessitating
a special wrench to speedily turn off the gas during an emergency, but he did
acknowledge that a crescent wrench can be adjusted to do the job, although he felt not up
to the merits of the special one because of some shortcomings. However, the Respondent’s
foreman stated that he used either a specially contructed T-wrench or a crescent wrench for
said operation which were effective, and that such wrenches were immediately next to the
 3
cylinder. The compliance officers notes indicate that he was told by Duffy that “when in use
the wrench is on”, meaning when the cylinder is being used.
On this record I cannot state that the Secretary has proven a violation of the standard
herein by a preponderance of the credible evidence. The compliance officer did not see
the cylinder in use. The inference to be gained from his testimony is that a crescent wrench
when adjusted can carry out the same functions as a so called special wrench-in any event
the respondent demonstrated that it recognized the needs in such work and that either a
special wrench or an adjusted crescent wrench was used. The testimony of Mr. Duffy, the
Respondent’s foreman as to the use of the wrenches when the fuel gas cylinders were in
operation was positive, uncontradicted and not inherently improbable, and I accept it. The
totality of the evidence does not establish a violation of the standard at 1926.350(d)(2) and
it is vacated.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
All findings of fact relevant and necessary to a determination of the contested issues’
have been found specially and appear herein. See Rule 52(a) of the Federal Rules of Civil
Procedure. Proposed findings of fact or conclusions of law inconsistent with this decision
are denied.
ORDER
Based upon the Findings of Fact, Conclusions of Law, and the entire record, it is
hereby ORDERED:
Citation no. 1, item (a) alleging a violation of 29 C.F.R. 1926.350(b)(2) is
VACATED AND SET ASIDE.

                                                            IRVING SdMMER
                                                            Judge

DATED: AUG
- 4w
Washington, D.C.