Southern Forming, Inc.
Broad safety violations affirmed at $69,150
Apply this to your situation
This order from 1994 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
Southern Forming, also known as Suncrete Construction, performed concrete formwork at construction sites in Sunny Isles and Delray Beach, Florida. At the Sunny Isles site, an employee fell to his death from a stairway, and OSHA's investigation identified numerous fall-protection, stairway, electrical, personal-protective-equipment, training, inspection, and hazard-communication violations. A later inspection at the Delray Beach site found electrical hazards, incomplete scaffold and floor-edge guarding, an unstable ladder, unguarded floor openings, and exposed reinforcing steel. Southern admitted that the cited conditions existed, had stopped operating by the hearing, and later filed for bankruptcy. The judge affirmed every item, but reduced several alleged willful or repeat violations to serious because the Secretary did not prove willfulness or a substantially similar prior final order; he retained repeat classifications where the record established a qualifying prior citation. The penalties across both consolidated dockets totaled $69,150.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1926.20(b)(2), 1926.21(b)(2), 1926.100(a), 1926.251(b)(1), 1926.404(f)(6), 1926.405(a)(2)(ii)(J), 1926.405(g)(2)(iv), 1926.416(e)(1), 1926.104(b), 1926.105(a), 1926.1052(c)(1), 1926.1052(c)(4)(i), 1926.1052(c)(5), 1926.1052(c)(8), 1926.1052(c)(12), 1926.500(d)(1), 1926.59(e)(1), 1926.59(g)(1), 1926.59(h), 1926.404(b)(1)(i), 1926.403(d)(1), 1926.404(b)(1)(ii), 1926.451(a)(4), 1926.1053(b)(6), 1926.500(b)(1), and 1926.701(b).
- Outcome: Modified. All items were affirmed, several proposed classifications were reduced, and total penalties of $69,150 were assessed.
- Key point: Willful and repeat classifications require proof beyond the underlying violation, including heightened awareness for willfulness and a substantially similar prior final order for repetition.
Full text (OSHRC public release)
OCCUPATIONAL SA&!%i~~“hIEW COMMISSION
One Lafayette Cents
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419
SECRETARY OF LABOR
Complainant, OSHRC DOCKET
v. NOS. 92-2672
92-2674
SOUTHERN FORMING, INC.,
Respondent.
NOTICE OF DOCKETING
OF ~~STIXITVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on January 6, 1994. The decision of the Judge
will become a final order of the Commission on February 7, 1994 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received b the Executive Secretary on or before
January 2t , 1994 in order to ermit suii ‘cient time for its review. See
Comrmssion Rule 91, 29 C.F.5 . 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 Liti ation
Office of the Solicitor, U.S. DO%
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
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
Date: January 6, 1994 ~~~g~‘~~
DOCKET NOS. 92-2672 & 92-2674
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mid, Esq.
Counsel for Re ‘onal Trial Liti ation
?likitor, U.S. DOc
Office of the SO
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Don McCoy, Es .
Assoc. Re lonal 3 elicitor
Office of t%e Solicitor, U.S. DOL
Federal Building, Rm. 407B
299 East Broward Boulevard
Ft. Lauderdale, FL 33301
Eric Glatter, Esquire
Houston & Shahady, P. A.
100 N. E. Third Avenue, Suite 850
Ft. Lauderdale, FL 33301 1146
Paul L. Brady
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3 119
00110062338:04
SAFETV AND HEALTH REVIEW cohitUil~l()N
BCCIJPATIONAL
1365 PEACHfREE STREET,NE., SUITE 240
ATW’JTA, GEORGIA 30309-3119
SECRETARY OF LABOR,
Complainant,
a
v. 0 OSHRC Docket Nos.:
SOUTHERN FORMING, INC., 92.2672 & 92-2674
Respondent.
Appearances: 0
Stephen Alan Clark, Esquire Eric Glatter, Esquire
Office of the Solicitor Houston and Shahady
U. S. Department of Labor Ft. IAude~ Florida
Ft. Lauderdale, Florida For Respondent
For Complainant
Thomas L Prieur, Vioe Prcsidcnt
Southern Fhxming Company
For Respondent
Before: Administrative Law Judge Paul L Brady
DECISION AND ORDER
This proceeding is brought pursuant to section 10 of the Occupational Safety and
Health Act of 1970 (Act) to contest five citations issued by the Secretary of Labor
(Secretary), pursuant to section 9(a) of the Act. The citations issued under two separate
docket numbers (92-2672 and 92-2674) have been consolidated in this proceeding.
Docket No. 92-2674 contains three citations. Citation No. 1 alleges serious violations
of eight standards. Citation No. 2 alleges willful and repeat violations of eight standards.
Citation No. 3 alleges repeat violations of four standards of the Occupational Safety and
Health Act of 1970 (Act).
Docket No. 92-2672contains two citations. citation No. 1 alleges serious viola&m
,
of four standardsof the Act. Citation Na 2 alleges repeat violations of three stahr& of
theAct
At tbc beginningof the hearing, counstl for respondent, Southern Forming Inc.
(Southern) moved to withdraw from the case, on the basis that Southern could not afford
to pay him (Tr. 617). The motion was granted (Tr. 26). Southernwas representedat the
hearing by Thomas Prieur,vice-president and part awner of the company ur. 31). At the
time of the hearing, Southern (also known as Suncrete Construction) was no longer in
operation (Tr. 32). Subsequent to the hearing, Southern filed for bankruptcy.
Southern presented no real defense to the allegations, admitting that the violations
occurred (Tr. 202, 221), but arguing that all construction sites have “construction safety
problems” and that Southern was doing the best it could. Southern also contends that it
should not have borne sole responsibility for safety violations at the site.
Docket No. 924674
Southern was in the process of doing the formwork for a building under construction
at Sunny Isles, Florida, in January 1492. On January 27, 1992, an employee of Southern’s,
Marcelle “Frenchie” Subileau, fell to his death while working on a stairway of the building
(Tr. 47, 82-83). The Occupational Safety and Health Administration (OSHA) investigated
the fatality and subsequently issued the citations that are at issue in the present case.
Citation No. 1
The Secretary alleges that Southern was in serious violation of eight construction
safety standards.’
Item la: d 1926.20&1(2\
The Secretary alleges that Southern violated Q 1926.20(b)(2), which provides:
1 Section 17(k) of the Au provides that: a serious violation shall be deemed to exist in a plaot of
employmentif then is a substantial probability that death or serious ph@cal harm aWd result from a
condition which exists, or born one or more practices, means, methods, operations, or processeswhichhave
beeaadoptedor are in use, in such place of employment unless the employer did not, and could not with the
exercise of reasonable diligence, know of the presenceof the violation.
2
Such programs shall provide for frequent and regular inspections of the job
sites, materials, and equipment to be made by competent persons dcsignatd
by the emplayers.
OSHA compliance officer Corey Neale first inspected Southern’s site on
January 28, 1992, and returned to the site several times after that. He interview&
approximately 32 employees, as well as making his own observations (Tr. 109).
Neale testified that Southern did not have an assured equipment grounding
prm
on site, nor did it have ground fault circuit intempters. Also, Southern had no hazard
communication program on site. Southern had ongoing guardrail violations, both with
inadequate and missing guardrails (Tr. 111). All of these factors demonstratethat Southern
either did not have frequent and regular inspections of its jobsite, or that any such
inspections were inadequate. Southern’s practices could result in death or serious physical
harm and, therefore, it was in serious violation of Q 1926.20(b)(2).
Item lb: B 1926.2UbM21
Southern was charged with a serious violation of Q 1926.21(b)(2), which provides:
The employer shall instruct each employee in the recognition and avoidance
of unsafe conditions and the regulations applicable to his work environment
to control or eliminate any hazards or other exposure to illness or injury. .
The employees inteniewed by Neale stated that, prior to the fatality, Southern did
not hold any safety meetings at the site (Tr. 109410). Neale’s testimony is not refuted. The
large number of violations that occurred at the site is indicative of a lack of employee
training in the recognition and avoidance of unsafe conditions. The Secretary has -
established a serious violation of 0 1926.21(b)(2).
Item 2: d 1926.100(a)
The Secretary alleged that Southern committed a serious violation of 8 1926.100(a),
which provides: .
Employees working in areaS where there is a possible danger of head injury
from impact, or from falling or flying objects, or from electrical shocks and
burns shall be protected by protective helmets.
3
On February 26, 1992, bale olxe~ed Southern’s president John Michael &b
(whom Peale identified as @‘me HMs") umaking rounds through the building and also on
the ground in the proorimityof the perimeter and the crane without a hard hat,” (E&s. C-13,
C-14; Tr. 112) Later, on March 6, 1992, Nealeobserved both John Hicks and forem
Rodney Hicks walking around the site without hard hats on (Tr. 112). John and Rodney
Hicks were exposed to the hazard of falling objects. Southern was in serious violation of
Q 1926~lOO(a).
The Secretary alleges that Southern violated 0 1926.251@)(l), which provides:
Welded alloy steel chain slings shall have permanently asked durable
identification stating size, grade, rated capacity, and sling manufacture.
The inspecting officer testified that on January 8, 1992, Southern employ- were
using chain slings to lift the formwork (Exhs. C-15, C-16, C-17, C-18; Tr. 115). The chains
were not in any way marked or tagged with the required identification (‘I’r. 116). Although
the evidence clearly establishes a violation, it does not show there was a substantial
probability death or serious physical harm could result therefrom. The violation of
8 1926.25l(b)( 1) is of an other-than-serious nature.
Item 4a: S 1926.404(fJ@J
Southern was charged with a serious violation of 6 1926.404(f)(6), which provides:
The path to ground from circuits, equipment, and enclosures shall be
permanent and continuous.
The evidence shows a skiI saw used by Southern employees had a fIexiile electrical
cord on which a ground prong was broken off, creating an open ground (Tr. ll& Exh. C-19).
Southern was in serious violation of 0 1926.404(f)(6).
Item 4b: S 1926AOXaM2Xii)(J)
The Secretary alleges that Southern was in violation of 5 1926.4OS(a)(2)(ii)(J),which
provides:
4
Extension cord sets used with portable electric tools and appliances shall be
of three-wiretype and shall be designed for hard or extra-hardusage. Fkxiik
cords wed with temporary and portable lights shall be designed for hard or
extmbmi usage.
Southern employees used small extension cords with thin insulation instead of heavy
duty insulation and proper gauge wiring as required (Tr. 119). Southern was in serious
violation of 0 1926.405(a)(2)(ii)(J).
Item 4c: fi 1926.405(+&)(2)(iv~
The Secretary alleges that Southern violated 0 1926.4OS(g)(2)(iv),which provides:
Flexible cords shall be connected to devices and fittings so that strain relief is
provided which will prevent pull from being directly transmitted to joints or
terminal screws.
Mr. Neale stated that he found one of the cords in use with the strain relief pulled
loose from the receptacle. This condition exposed employees to possible electric shock
(Tr. 118; Exh. C-20). A violation of 6 1926AOS(g)(2)(iv)is established.
Item 4d: S 1926.4160~
The Secretary alleged a violation of # 1926.416(e)(l), which provides:
Worn or frayed electric cords or cables shall not be used.
The inspector found a frayed or cut area on one of the electric cords used to power
a skil saw (Tr. 119). This condition exposed employees to possl%ieelectric shock A serious
violation of 5 1926.416(e)(l) is established.
Citation No. 2
Item la: 4 1926.104(b1
The Secretary alleges a willful, or in the alternative, a repeat violation of 8
1926.104(b), which provides:
Lifelines shall be secured above the point of operation to an anchorage or
structural member capable of supporting a minimum dead weight of 5,400
pounds.
5
Neale explained that a photograph taken one to one and a half hours after t,he
.
employeefhtdiQon Janwry 26,1992, shows a “man stand@ on a column with his lanyard
tied to a cbaia railing at the top level bekw him” (Tr. 121; &ho c-12). He also observed
several employees duringhis walk-aroundinspectionwho secured theirlifelinesbelow them
(Tr. 121). This is indicated in exhibitC-22 which “showsa man with a lanyard, and he (has]
attached it to one of the form pins behind him at the edge of the fourth elevation” (Tr. 123.
124) l
The Secretary has established a violation of 0 1926.104(b). He alleges that the
violation is wilIfi&
Under long-standing Commission precedent, to establish a willful violation, it is not
enough for the Secretary to show that an employer was aware of conduct or conditions
constituting the alleged violation; such evidence is already necessary to establish any
violation, serious or nonserious. A willfulviolation is differentiated by heightened awareness
of the illegality of the conduct or condition and by a state of mind of ccmscio~~disregard-or
plain indifference. wit(iam Entep, 13 BNA OSHC 1249, 1256, 1986-W CCH OSHD 1
27,893, p. 36,589 (No. 85-0355, 1987).
The Secretary has not established that Southern’s violation of 8 1926.104(b) was
willful in nature. Southern’s failure to ensure that each of its employees tie off abave the
point of operation has not been shown to be any more than a serious violation of the
standard. No willful violation is found.
In the alternative, the Secretary alleges that Southern’s violation is repeated. “A
violation is repeated under section 17(a) of the Act if, at the time of the alleged repeated
violation, there was a Commission final order against the same employer for a substantially
similar violation.* Potlatch Cop., 7 BNA OSHC 1061,1979 CCH OSHD 123,294, p. 28,171
(No. 16183, 1979). For this item and the others in Citation No. 2, the Secretary presented
no testimony establishing that Southern had a Commission final order against it for a
substantially similar violation. He did introduce C-4, which is a settlement agreement
between the Secretary and Southern to which is attached copies of citations issued to
Southern on June 25, 1991. These citations are the ones referenced in the current Citation
No. 2 for willful and repeat violations. Item la states at the bottom of the citation:
6
The Southern Form& Inc./Sun-bte construction a., Inc., was previously
.
cited fix a violation of this OccupationalSafety and Health standard or it’s
[sic] equkaknt standard 29 CF.R. 0 1926500(d)(1) which was contained in
OSHA Inspectiun No. 110143229, Citation No. 1, Item No. 6, issued on
June 2!5,1991.
Section 1926.5OO(d)(
1) provides:
Every open-sided floor or platform 6 feet or more above adjacent floor or
ground level shall be guarded by a standardrailing, or the equivalent, as
specified in paragraph (f)(l)(i) of this se&on, on all open sides, except where
there is entrance to a ramp, stairway, or fixed ladder. The railing shall be
provided with a standard toeboard whenever, beneath the open sides, persons
can pass, or there is moving machinery, or there is equipment with which
falling materials could create a hazard.
Section SOO(d)(1) is not the same standard as 8 1926.104(b), nor is it substantially
similar to it. The Secretary has failed to establish a repeated violation of 3 1926.104(b).
The violation is classified as serious.
Item lb: S 1926.105(a)
The Secretary charges Southern with the willfuland repeat violation of 8 1926.105(a),
which provides:
Safety nets shall be provided when workplaces are more than 25 feet above
the ground or water surfaces where the use of ladders, scaffolds, catch
platforms, temporary floors, safety lines, or safety belts is impractical.
The inspection revealed that a Southern employee standing on some form work over
one of the stairwells. The lanyard tied to his safety belt also was placed around a piece of .
reinforcing steel. The employee was exposed to a 30-foot fall (Tr. 126; Exh. C-U). The use
of the lanyard around the piece of reinforcing steel does not provide adequate fall
protection. Southerndid not provide any alternative means of fall protection. The violation
is established
The Secretary alleges that the violation is willfi& or, in the alternative, repeat. He
failed to adduce evidence establishing that the violation belonged in either of these
classifications. The violation is serious.
Jtem lc: 9 192&1052(cX1~
The Secretary charges Southern with a violation of 0 1926dO52(c)(1), which prwid~:
Stainwayshaving four or more risers or rising more than 30 inches (76 cm),
whicheveris less, shall be equipped with at least one handrailand one staimil
system along each unprotected side or edge. However,when the top edge of,
a stairrail system also serves as a handrail, paragraph (c)(7) of this section
appears.
Neale observed employees using the stairwells at various times with no rails and
unprotected sides (Tr. 127). Photograph, e&i&it C-24, was taken from the steps where the
deceased employee fell. No railing is on the stairway (Tr. 128).
The Secretary has established a violation of 8 1926.1052(c)(l). He adduced no
evidence showing that the violation was either willful or repeated. The violation is serious.
Item Id: 4 1926.1052(c)(4)@
Southern is charged with a violation of 0 1926.1052@)(4)(i),which provides:
Midrails, when used, shall be located at a height midway between the top edge
of the stairrail system and the stairway steps.
Neale observed a chain midrail which was not at midpoint but was sagging within six
inches of the floor (Tr. 131). The Secretary has established a serious violation of 8
1926.1052(c)(4)(i).
Item le: 5 1926.1052fc~~
.
Southern was charged with a violation of 0 1926.1052(c)(S),which provides:
Handrails and the top rails of stairrail systems shall be capable of
withstanding, without failure, a force of at least 200 pounds (89019 applied
within two inches (km) of the top edge, in any downward or outward
direction, at any point along the top edge.
When asked how he determined there was a violation, Neale stated that he
demonstrated to one of Southern’s foreman that the railing that Southern had installed was
inadequate for the purposes of the standard: “I kicked one of the chains that they had in
place as rails, and it came out of the wall along with the stanchion and some other members
8
that were there to support it” (‘I’r.132). Prior to the demonstration, kale @a&d “1 toOk
him up to see because he didn’t understand.”
Clearly, the railing provided by Southern did not adequately meet the terms of &e
standard. But the foreman’s lack of understanding cannot be equated with a %onsciou~
disregardor plain indifference”to the standardor the safety of employees. The violation
was not willful.
The evidence also fails to show that the violation was of a repeat nature.
Item If: B 1926.1052fc~~8)
Southern is charged with a violation of Q 19266.1052(c)(8), which prwides:
Stairrail systems and handrails shall be so surfaced as to prevent injuryto
employees from punctures or lacerations, and to prevent snagging of clothing.
Neale testified that Southern was using a twisted type chain ‘tvhich was stretched or
deformed” whereby could get an employee “caught or snag” his clothing. (Tr. 132). The
Secretary has established a violation of 9 1926.1052(c)(8). The violation is serious.
Item In: B 1926.1052(~)(12\
The Secretary alleges that Southern violated 0 1926.1052&)(12), which provides:
Unprotected sides and edges of stairway landings shall be provided with a
guardrail system. Guardrail system criteria are contained in subpart M of this
Pm .
On January 28,1992, compliance offker Neale noticed several different areas where
the guardrails were inadequate. On February 6 and 26, Neale observed that there were no
railings at all between some of the elevations and the floor in the stairwell (Tr. 133). The
Secretary has established a serious violation of 0 1926.1052@)(12).
Item 2: d 1926.500(d)(l)
The Secretary charged Southern with a violation of 0 1926500(d)(l) which provides:
Every open-sided floor or platform 6 feet or more above adjacent floor or
ground level shall be guarded by a standard rar’ling, or the ‘equivalent,as
specified in paragraph (f)(l)(i) of this section, on all open sides, except where
9
there is entrance to a ramp stairway, or fixed laddc~ The railing shall be
providedwith a smdard toeboardwherever, beneath the OPCII SPECS,~rsons
CTB~ p8ss, 01 t&e h m&g machinery, or there is equipment with whicfi
fag materials could create a he
Nealc observed several areas where Southern’s guardrailswere inadequate. Exhiiiit
C-25 shows such a~ area. Neale described the photograph: “This is a typical stanchion that
they had at various bcations, the two-by-fours that [were] nailed into the side of the
concrete with the chain running around the back of it with a single nail bent over to hold
the chain guardrail upm(Tr. 134). Neale explained that if an employee fell against the chain,
the two-by-four nails could easily pull out of the concrete pr. 135). ExhiiWtC-26 was taken
on January 28. The midrail chain is shown sagging within 6 inches of the de& The top rail
is 4l%to 5 feet high and is attached to a free-standingelectrical box at the other end, which
is sitting on the stanchion (Tr. 135-136). Exhl’bitC-27 shows the electrical panel and Exhiiiiit
C-28 shows that the electrical panel to which the midrail was attached is free standing, and
at the edge of the fourth elevation (Tr. 137). Exhibit C49 is a January 28 photograph that
shows a top-rail at eye-level. No midrail is provided (Tr. 138). Exhiiiit C-30 sh-
employees at the fifth and sixth stories of the staifwell where the employee fell to his death.
No guardrails were provided (Tr. 139).
Exhibit C-31 is a photograph taken from the fourth elevation of the stairwell. The
south stairwell has no guardrails. The chain guardrails along the perimeter of the north
stairwell are sagging (Tr. 140). Exhibit C-32 is a close-up showing how the chain railing was
attached to the anchor point. A double-headed nail was placed through one of the loops
of the chain and bent over (Tr. 141). Exhibit C-33 shows “a typical anchor point into one
of the concrete coh~mnswhere [Southern) would use cut nails and drive a piece of i-inch
plywood into the concrete column. Then they would take a two-by-fourand nail that to the
plywood, and they would take a single double-headed nail and put the loop of the chain over
it and bend it to support the chain” (Tr. 141).
The Sezretaq has proven a violation of g 1926SOO(d)(l). Southern had previously
been cited for a violation of the same standard on June 25, 1991 (Exh. C-4, Citation No. 1,
10
item 6). The Secretary has established that Southern’s violation of $ l-c!)(l) h k
instantcaseis qeated
CitationNo. 3
Items 1. 2 add 3
In item 1, Southernwas charged with the repeated violation of 0 1926.59(e)(l) which
provided:
Employersshall develop, implement, and maintain at the workplace, a written
hazard communicationprogramfor their workplaces which at Icast descrii
how the criteria specified in paragraphs(f), (g), and (h) of this section for
labels and other forms of warning,material safety data sheets, and employee
information and trainingwill be met. . l
Item 2 alleges a violation of 6 1926.59(g)(l), which provides:
Chemical manufacturers and importers shall obtain or develop a material
safety data sheet for each hazardous chemical they produce or import.
Employers shall have a material safety data sheet for each hazardous chemical
which they use.
Item 3 alleges a violation of 0 1926.59(h), which provides:
Employers shall provide employees with information and training on
hazardous chemicals in their work area at the time of their initial assignment,
and whenever a new hazard is introduced into their work area.
Neale found that Southern did not have a written hazard communication program at
the site (‘I?. 146). His investigation also revealed that there was no material safety data
sheets (MSDS’s) available on the site, even though employees were rquired to handk
hazardous substance concrete, form oils, release agents, and a curing compound The
employees had received no information or training with respect to the use of hazardous
chemicals (Tr. 147). The Secretary has established a violation of the standards cited in items
1, 2 and 3.
The violations were cited as repeated items. The Secretary adduced no evidence
showing that Southern had previously violated the same or similar standards. The copies
of the citations attached to the settlement agreements introduced as exhibits C-2, C-3, and
11
C-4 do not contain citations of the 0 1926.59 ~taadatd, The violations are af6rmcd (BS
.
Serious,
Jtem 4: 6 1926 4@Ubu
l
The Secretmy charged a violation of 8 1926.404@)(1), which provides:
The employer shall use either ground fault circuit interruptersas specified in
paragraph (b)(l)@) of this section or an assured quipment grounding
conductor program as specified in paragraph @)(l)(E) of this section to
protect employees on constructionsites. These requirementsare in addition
to any other rquirements for equipment grounding conductors.
Neale testtied that Southern “did not have any ground fault circuit interrupterson
the site, portable or fixed, and their contention was that they were under an assured
equipment grounding program, but they didn’t have any” of the rquired records (Tr. 147).
He found that Southern’s “cords were broken, were missing groundprongs,frayed,the strain
release pulled out,” indicating that the cords had not been inspected (Tr. 148). Southern
had been previously cited for a violation of this standard on June25, 1991,(Ed. CA,
Citation No. 1, item 3). Southern’s violation of 8 1926.404(b)(l) was repeated.
Docket No. 92-2672
The citation issued under Docket No. 92-2672 resulted from an inspection conducted
by OS-IA compliance officer Joseph DeMartino on May 5,1992, at Southern’sworksite at
Delray Beach, Florida, where a three-story research facility was being constructed
(Tr. 158459).
Citation No. 1
Items 1 and 2
In item 1, the Secretary alleges that Southern violated 8 1926.403(d)(l), which
provides:
Means shall be provided to disconnect all conductors in a building or other
structure from the se&e-entrance conductors. The disconnecting means shall
plainly indicate whether it is in the open or closed position and shall be
12 \
installed at a readily accessl%k location nearest the point of entrance of the
senric=*mance conductors.
Item 2 alkgcs a violation of 0 1926.404@)(1)@),which provides:
All 1204t, single-phase, 15 and 2Oampcre receptacle outlets on construction
sites, which are not a part of the permanentwiringof the buildingor structure
and which are in use by employees, shall have approved ground-faultcircuit
interruptersfor personnel protection. Receptacles on a two-wire, single-phase
portable or vehicle-mounted generator not ore than SkW, where the circuit
conductors of the generator arc insulated Eromthe generator frame and all
other grounded surfaces, need not be protected with ground fault circuit
interrupters.
DeMartino observed a “four-prong box laying on the ground, not mounted. It had
four extension cords coming from it. Two of the cords were missing ground pins, and the
box failed to test for . . . ground fault circuit interrupters.” The box was located =at tbe
immediate access entrance on the east side of the building” (Tr. 164).
The Secretary has established serious violations of $ 1926.4@(d)(l), and
0 1926.404@)(
l)(ii).
Item 3: 6 1926.451(aM4) .
Item 3 alleges a violation of 8 1926.451(a)(4),which provides:
Guardrails and toeboards shall be installed on all open sides and ends of
platforms more than 10 feet above the ground or floor. . . Scaffolds 4 fett
l
to 10 feet in height having a minimum horizontal dimension in either direction
of less than 45 inches, shall have standard guardrails installed on all open sides
and ends of the platform. .
Mr. DeMartino explained that the photograph, exhibit C-42, shows part of the
southeast portion of the building. ‘The second and third levels have no full rail system,
single stranded chain at the second and third levels attached on widely spaced stanchions in
b
Y
excess of 15, 18 ftet” (Tr. 165).
Southern was in serious violation of 0 1926.451(a)(4).
Item 4: 8 1926.1053(bb
Item 4 alleges a violation of 8 1926SO53@9(6),which provides:
13
Ladders shall be used only on stable and level stices unless secured to
. prevent accidentaldisplacement.
D&artino observeda Southernempbyee working from a ladder on unstabk ground
(&b. C-43; Tr. 168). Tbe ladder was resting on dug-up ground. Tbe ladder was unsecured
(Tr. 177).
‘Ibe Secretaryhas established a serious violation of 3 1926.1053@)(6).
Citation No. 2
Item 1: S 1926SWbyU
Item 1 alleges a repeated violation of 8 1926.500(b)(l), which provides:
Floor openings shall be guardedby a standardrailing and toeboards or cwer,
as specified in paragraph(f) of this section. In general, tbe railing sb&llbe
provides on all exposed sides, except at entrances to stainways.
The inspector explained that exhibit C-44 is a photograph wbicb shows ua floor
opening with the beginning of the reinforcing rod columns in place and a single strand of
chain rail deflected two feet fkom the horizontal on two sides” (‘I?.169). Exbiiit CaS shows
a third level unguarded floor opening, exposing employees to a fall of 14 feet (Tr. 171).
The Secretary has established a violation of 8 1926.500@)(l). Southern was
previously cited for a violation of this standard on June 25, 1991 (Ed. C-4, Citation No. 1,
item 4). The violation is repeated.
Item 2: d 1926SXKdXl~
Item 2 alleges a violation of 0 1926.500(d)(l), previously quoted in the section under
Docket No. 92-2674. Exhiiit C-47 shows the northeast comer of the building. No perimeter
guarding is at tbe comer where employees gained access to the top landing (Tr. 173).
Southern was previouslycited for a violation of 9 1926.500(d)(l) on June 25,199l (Exb. C-4,
Citation No. 1, item 4). The violation is repeated.
14
Jtem 30 6 1926 7ol4bJ
l l
Item 3 ages a repeated violation of 8 1926.701(b), which provides:
All protruding reinforcing steel, onto and into which employees could fall,
shall be guarded to eliminate tbe hazard of impalement.
Exhiiit C-49shows rebar laying horizontally on an accessway,creating the hazard of
impalement (‘I?. 1X-175). southern was previouslycited for a violation of thisstandard
on
June 25,199l (Exb. C-4; Citation No. 1, item 7).
The violation is repeated.
PENALTY DETERMINATION
Section 17(j) of the Act authorized the Commission to assess appropriate penalties
after giving “due consideration” to the size of the business of the employer being charged,
the gravity of the violation, the good faith of the employer, and the history of prtious
violations. Upon consideration of these factors, it is determined that appropriate penalties
for the affirmed items are as follows:
Docket No. 92-2674
Citation No. 1
Item Penaltv
la { $4,500.00
lb 1
2 $4,500.00
3 $1,350.00
4a i
4b {$900.00
4c {
4d i
ha
la
lb
lc
Id
1C
lf
Ig
2
CitationNo. 3
peaaltv
$1,ooo.00
s~oooeoo
$1,ooo.00
S6$00.00
Citation No. 1
Item Penalty
1 $ 900.00
2 $ 900.00
3 $2J00.00
4 $1,500.00
Citation No. 2
Item Penalty
1 $4,200.00
2 $4,200.00
3 $5400.00
FINDINGS OF FACIS AND CONCLUSIONS OF LAW
The foregoing decision constitutes the tidings of fact and conclusions of law in
accordance with Federal Rules of Cii Procedure 52(a).
16
Based on the foregoing decision, it is hereby ORDERED that the items of the
citations of Docket Noa 92m2674and 92.2672 be disposed of as follcnws:
Citation No. 1.
Item standard
la 8 1%6a20@x2)
lb s 1926.21(b)(2)
2 9 1926.100(a)
3 8 1926.251(b)(l)
4a ~1=6J@vx~
4b 0 192&405(a)(2)(ii)(J)
4c 0 1926.qg)(2)(~)
4d 0 1926.416(e)(l)
Citation No. 2
Item Standard Disrmsition Penaltv
la 0 1926.104(b) Affirmed as serious 1
lb 0 1926.105(a) Affirmed as serious {
lc 0 1926.1052(c)(l) Afhx!d as serious f
ld 0 1926.1052@)(4)(l) Affirmed as serious { $1,ooo.00
le 9 1926.1052(c)(5) Affirmed as serious {
If 0 1926.1052(c)(8) Affirmed as serious f
lg 8 1926.1052@)(12) Aflimed as serious {
2 9 l=t=qq( 1) Affirmed $31,500.00
Citation No. 3
Item Standard Dismsition Penalty
1 0 1~~9(e)(l) Affirmed as serious $1,ooo.00
2 5 192d590(1) Affirmed as serious $1,ooo.00
3 9 l=-v9 Affirmed as serious $1,ooo.00
4 0 1=404@)(l)(i) hubmxi $~200.00
17
+ Docket No. 92-2672
Citation NO. 1
Item $B, Dim&ion Penalty
1 0 192&403(d)( 1) Affirmed s 900.00
2 8 1~.404@)( l)(fi) Affirmed s 900.00
3 0 @26.451(a)(4) Affirmed $2,100.00
4 8 1926.1053(b)(6) Affirmed s1,500.00
Citation No. 2
Item Standard .
Dwos ition Penalty
1 0 1926SOO(b)(91) Affirmed $4,200.00
2 8 1926SOO(d)(1) Affirmed $4,200.00
3 0 1926.701(b) Aflirmed $2+mo.00
/s/ Paul L Bradv
PAUL L BRADY
Judge
Date: December 28, 1993
18
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