Morse Diesel International, Inc.

Plain-English summary

Morse Diesel International (MDI) was the general contractor on the "Wedge One" phase of the Pentagon Renovation Program in Arlington, Virginia. During a September 1999 inspection, OSHA cited MDI for two serious guardrail items (a wire-rope guardrail around a second-floor opening had sagged below the required 42-inch top-rail and 21-inch mid-rail heights) and one "other" item (two temporary light bulbs on the fifth floor were missing their protective guards). MDI contested, and the case turned on employer knowledge, one of the four things the Secretary must prove. Judge G. Marvin Bober found the guardrail defect had been detected and fixed by MDI during its 4 a.m. daily walk-through, was confirmed compliant around 9 a.m., and reappeared (apparently from a steel subcontractor lowering a beam) only shortly before the 10:30 a.m. inspection, so MDI neither knew nor should have known of it. On the unguarded bulbs, the judge credited testimony that MDI ran through about 1,000 bulbs a week with a full-time employee dedicated to checking them, plus a daily safety walk-through, showing reasonable diligence and no knowledge. Because an employer's duty is reasonable diligence, not a guarantee of catching every hazard, all three citation items were vacated and no penalties were assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.502(b)(1) and (b)(2) (guardrail top-rail and mid-rail heights); 29 C.F.R. § 1926.405(a)(2)(ii)(E) (protection of temporary lamps)
• Outcome: Vacated. All three citation items (Serious Citation 1, Items 1(a) and 1(b); "Other" Citation 2, Item 1) were vacated with no penalties.
• Key point: The Secretary failed to prove employer knowledge; MDI's daily walk-throughs and prompt correction showed reasonable diligence, which is all the Act requires.

Full text (OSHRC public release)

                        UNITED STATES OF AMERICA
            OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION




 SECRETARY OF LABOR,
               Complainant,
                        v.                                                   Docket No. 99-1937
 MORSE DIESEL INTERNATIONAL, INC.,
               Respondent.



APPEARANCES:

               Melonie J. McCall, Esquire           John J. O'Reilly
               U.S. Department of Labor             Vice-President of Safety and Health
               Office of the Solicitor        Morse Diesel International, Inc.
               Arlington, Virginia                  New York, New York
               For the Complainant.                 For the Respondent.

BEFORE:        G. MARVIN BOBER
               Administrative Law Judge

                                    DECISION AND ORDER

       This case arises under the Occupational Safety and Health Act of 1970, §§ 651-678 ("the
Act"), to review a serious citation and an "other" citation issued by the Secretary to Morse Diesel
International, Inc. (hereinafter "Respondent" or "MDI"). On September 14 and 15, 1999, the
Occupational Safety and Health Administration ("OSHA") conducted an inspection of MDI's work
site, located in Arlington, Virginia, involving the "Wedge One" phase (hereinafter "the project") of
the Pentagon Renovation Program. Following the inspection, OSHA issued a citation to MDI alleging
serious violations of 29 C.F.R. 1926.502(b)(1) and (b)(2) and an "other" violation of 29 C.F.R.
1926.405(a)(2)(ii)(E). MDI filed a timely notice of contest, and an administrative trial was held in
Washington, D.C. on March 14, 2000.1 Both parties have filed post-hearing briefs.


       1
        The parties' exhibits received in evidence during the hearing were GX-1-4 and RX-1-4.
                                             Jurisdiction
       The parties agree that MDI is an employer subject to the Act and that the Occupational Safety
and Health Review Commission ("the Commission") has jurisdiction in this matter.2 (Tr. 7)
                                   Testimony of Beverly Crandell
       CO Beverly Crandell testified that Jamie Hewes and Ronald Clark, MDI's safety manager and
project superintendent, respectively, accompanied her on her walk-around of the project. In regard
to the serious citation, she testified that in a mechanical room on the second floor there was a large
floor opening with a wire rope guardrail system around it which was not in compliance; specifically,
on two opposing sides of the opening the wire rope had sagged significantly, such that it did not meet
either the 42-inch requirement for toprails or the 21-inch requirement for midrails.3 (Tr. 18-22). The
CO described how she measured the wire rope as follows:
       I measured the two sides which appeared to me to be ... sagging the most and found
       them to be out of compliance ... anywhere from 36 inches to 29 inches in height at
       various points along the area that it was sagging. I didn't just measure one location.
       I measured several locations and it varied from 36 inches to 29 inches which is I think
       a significant variance from 42 inches. We allow a three inch deflection. So if the
       height had been 39 inches throughout I would not have cited anything. (Tr. 19).
       The CO said there was a concrete floor approximately 15 to 20 feet below the opening and
that a fall of this distance could have resulted in serious injury or death. She also said employees had
access to the hazard, in that people were working on the second floor and about six employees were
working within 50 feet of the opening. CO Crandell noted that she and the MDI officials observed


       2
        The parties' stipulations, made at the commencement of the trial, are summarized as
follows:
        1. MDI was the general contractor for the project in September of 1999.
        2. As general contractor of the project, MDI was subject to the requirements of the Act.
        3. The Commission has jurisdiction over this matter.
        4. On September 14 and 15, 1999, OSHA compliance officer ("CO") Beverly Crandell
inspected the project.
        5. CO Crandell was acting as an authorized representative of the Secretary when she
conducted her inspection of the project.
        6. OSHA issued MDI a citation and notification of penalty on September 27, 1999, for the
violations discovered during the inspection.
       3
        The CO identified GX-3 as her photo of the condition. (Tr. 18).

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the condition at about 10:30 a.m. on September 15, 1999, after which MDI personnel immediately
put up a yellow caution tape so that employees would be aware of it; she further noted that Mr. Clark
informed her just prior to the closing conference that MDI accepted responsibility for the condition.
(Tr. 22-29, 39). With respect to MDI's correction of the condition, the CO stated that:
       I first learned of their corrective action on this particular guardrail at the point in time
       that Mr. Pope was conducting the informal conference ... with Mr. O'Reilly and it was
       brought ... to Mr. Pope's attention that ... they supposedly had done an inspection that
       morning of this particular area and had found a problem with this guardrail and had
       corrected it but that was never brought to my attention during my entire walk around
       nor was it brought to my attention during the closing conference. And if it had been,
       I don't know that it would have made any difference because conditions and situations
       at construction sites change very quickly and ... I ... did my walk around at 10:30 in
       the morning and saw this violation ... as far as I'm concerned employees are still
       exposed to a hazard and it just would have indicated to me that if there is a problem
       with steel coming into this area and ... snagging the guardrails that it will indicate an
       even greater need for this area to be possibly observed and evaluated on a more
       frequent basis than daily. (Tr. 30-31).
       As to the "other" citation, CO Crandell testified that during her inspection she observed two
overhead incandescent-type light bulbs by a stairway on the fifth floor without guards.4 She said the
bulbs were temporary lighting for employees in the area and that such lighting is normally removed
once general illumination is installed. She also said that employees were exposed to the hazard of
contacting the bulbs; the bulbs were 8 feet 2 inches from the ground, employees of the electrical
subcontractor were using ladders and scissor lifts to install conduit in the area, and she saw workers
less than 30 feet away from the bulbs. CO Crandell testified that the unguarded bulbs were clearly
visible upon exiting the stairway and that the condition was cited as an "other" violation because
contacting the bulbs would result in minimal injuries such as burns. (Tr. 32-36, 40-41, 44-47).
                                     Testimony of Ronald Clark
       Ronald Clark, MDI's project supervisor, is responsible for safety at the site. He testified that
the project covers five floors and 1.2 million interior square feet, as well as an exterior area that
consists of about a half acre, and that at the time of the inspection the project had two shifts, from
7 a.m. to 3:30 p.m. and from 6 p.m. to 4 a.m. He further testified that he arrives at the site between


       4
         The CO indicated that the cited lights, shown in GX-4, had previously had the plastic guards
that the other lights at the site had but that the guards had broken or melted off. (Tr. 33-34).

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3 and 3:30 a.m., that he walks the entire job with the night superintendent and the day superintendent
and makes a list of any safety items he sees, and that he gives the list to employees so the items can
be corrected. Mr. Clark said that in RX-2, his written log of his 4 a.m. "walk-through" on September
15, 1999, there was a notation about tightening up the cables in the mechanical room on the second
floor. He stated these were the cited cables, that he had given Paul Miller, the day superintendent, a
list that included these cables, and that Mr. Miller had told him at a 7 a.m. meeting that day that he
had taken care of the items on the list. (Tr. 57-58, 67-72, 81). He also stated that he was "very
surprised" when he and the CO saw the cables later that morning and that he informed her that:
       We just seen this this morning and fixed this. That's exactly what I said when we
       walked up on it on the second floor [to] that mechanical room. That's exactly what
       I said. I said this is ridiculous and at that time no one was in the area. I didn't know
       who done it. I seen a piece of metal deck laying there. I said this is crazy. I said I was
       just down here. That's the exact words I told her....We all stood there and ... we seen
       there was a steel beam lowered in the hole and there was a piece of deck laying there
       but there was no one in the area. We assumed that it was the steel guy. (Tr. 73-74).
       As to the "other" violation, Clark testified that MDI "go[es] through" about 1,000 light bulbs
a week and that he has a full-time employee who does nothing but change light bulbs. (Tr. 80-83).
                                     Testimony of Paul Miller
       Paul Miller testified that during their 4 a.m. walk-through of the project on September 15,
1999, one of the deficiencies he and Ronald Clark had seen was the loose cables that were the subject
of the OSHA citation. He said he himself had corrected the problem by about 4:30 a.m. and that he
walked by that same area around 9:15 a.m. and observed that the cables were still in a "good tight
position" at that time. He also said that RX-1, his log for September 15, reflected the fact that the
subject cables were one of the conditions he had addressed that day. With respect to the "other"
citation, Mr. Miller testified that MDI has a laborer who does nothing but check the light bulbs all
day and that this is necessary because they constantly burn out. (Tr. 57, 84-95).
                                 The Secretary's Burden of Proof
       To establish a violation of a standard, the Secretary must show by a preponderance of the
evidence that (1) the cited standard applies, (2) its terms were not met, (3) employees had access to
the violative conditions, and (4) the employer knew or could have known of the violative conditions
with the exercise of reasonable diligence. New York State Elec. & Gas v. Secretary of Labor, 88 F.3d


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98 (2d Cir. 1996); Carlisle Equip. v. Secretary of Labor, 24 F.3d 790, 792 (6th Cir. 1994); Astra
Pharmaceutical Prod., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981).
       Knowledge is a fundamental element of the Secretary's burden of proof for establishing a
violation of OSHA regulations. Trinity Indus. v. OSHRC, 206 F.3d 539 (5th Cir. 2000); Kokosing
Constr. Co., 17 BNA OSHC 1869, 1871 (No. 92-2596, 1996). The Secretary may establish the
requisite knowledge on the part of the employer through actions of its supervisory employees,
Donovan v. Capital City Excavating Co., 712 F.2d 1008, 1010 (6th Cir. 1983), or by showing it
knew or with the exercise of reasonable diligence could have known of a likelihood of the
noncomplying condition or practice. Milliken & Co., 14 BNA OSHC 2079, 2082 (No. 85-369, 1991).
See also New York State Elec. & Gas, 88 F.3d 98.
                             Serious Citation 1, Items 1(a) and 1(b)
       Item 1(a) of Serious Citation 1 alleges a violation of 29 C.F.R. 1926.502(b)(1), as follows:
       Pentagon, Wedge 1 Renovation Project, 2nd floor, A2 area, 4C-mechanical room
       location. The guardrail system consisting of wire rope cable did not have a top rail
       which was maintained at a 42 inch height; various points of the top rail measured 36
       to 29 inches, throughout the guardrail system surrounding the large floor opening
       exposing employees to a fall hazard of greater than six feet to the next level below.
       Item 1(b) of Serious Citation 1 alleges a violation of 29 C.F.R. 1926.502(b)(2), as follows:
       Pentagon, Wedge 1 Renovation Project, 2nd floor, A2 area, 4C-mechanical room
       location. The guardrail system consisting of wire rope cable did not have a midrail
       which was maintained at a 21 inch height; various points of the midrail measured from
       16 inches to 11 inches, throughout the guardrail system surrounding the large floor
       opening.
       The cited standards, 29 C.F.R. 1926.502(b)(1) and (b)(2), provide as follows:
       (b) Guardrail systems. Guardrail systems and their use shall comply with the
       following provisions:
        (1) Top edge height of top rails, or equivalent guardrail system members, shall be 42
       inches (1.1m) plus or minus 3 inches (8 cm) above the walking/working level. When
       conditions warrant, the height of the top edge may exceed the 45-inch height,
       provided the guardrail system meets all other criteria of this paragraph.
       (2) Midrails, screens, mesh, intermediate vertical members, or equivalent intermediate
       structural members shall be installed between the top edge of the guardrail system and
       the walking/working surface when there is no wall or parapet wall at least 21 inches
       (53 cm) high.


                                                -5-
       The evidence set out above establishes that the wire rope guardrail system around the floor
hole in the second-floor mechanical room did not comply with the cited standards, that people were
working on that floor, and that several employees were working about 50 feet from the opening. I
therefore find that the Secretary has demonstrated the applicability of the cited standards, that the
terms of the standards were not met and that employees had access to the violative condition.
However, for the following reasons, the Secretary has not met her burden of proving that MDI knew,
or in the exercise of reasonable diligence could have known, of the violative condition.
       The testimony of Ronald Clark and Paul Miller was that they had discovered the condition
during their 4 a.m. walk-through of the site that day, that Mr. Miller himself tightened up the
guardrails at about 4:30 a.m., and that he reported to Mr. Clark at about 7 a.m. that he had taken care
of the problem. Mr. Miller also testified that he had walked by the floor hole shortly after 9 a.m. and
that the guardrails were still in satisfactory condition at that time. (Tr. 70-76, 80-81, 84-94).
However, when the CO and Mr. Clark saw the floor hole around 10:30 that morning, the guardrails
were once more sagging and out of compliance. Mr. Clark's testimony about what he said to the CO
when they saw the guardrails is set out supra, and although the CO evidently did not recall his
statement, I observed the demeanor of Mr. Clark as he testified and found him to be a candid and
credible witness. I also observed the demeanor of Mr. Miller as he testified and found him to be
equally candid and credible. Consequently, I find as fact that Mr. Clark and Mr. Miller discovered the
condition early that morning, that it was corrected shortly thereafter, and that Mr. Miller saw the
guardrails again about an hour before the inspection and found them in compliance at that time. I
further find that Mr. Clark conveyed this information to the CO at the time of the inspection.
       In view of the foregoing, MDI did not know about the guardrails being out of compliance.
As to whether MDI should have known of the condition, Mr. Clark's testimony indicates that it was
caused by the steel subcontractor lowering steel into the floor hole and that he was aware that this
work was going on. (Tr. 74-75). However, the testimony of Mr. Clark and Mr. Miller was that they
made an early-morning walk-through of the entire project daily to detect safety problems, that any
such problems were noted on lists for prompt correction, and that there was a 7 a.m. follow-up every
day when supervisory personnel would report their corrective actions to Mr. Clark; in addition, as




                                                 -6-
Mr. Miller testified, he "routinely walk[ed] the whole job all day long."5 (Tr. 68-73; 81, 84-88).
Based on this testimony, plus the evidence that MDI had a safety program that was communicated
to supervisory personnel such as Mr. Clark and Mr. Miller, see GX-1, I conclude that MDI exercised
reasonable diligence in attempting to ensure that safety problems such as the sagging wire rope
around the floor hole were promptly detected and corrected.
        In reaching the above conclusion, I have considered the CO's testimony, when asked how
often inspections of guardrail systems like the one at issue should occur, that they should be inspected
"every hour" and "[a]s often as necessary in order to protect the employees." (Tr. 40). However, the
Act does not impose on employers an absolute duty to detect and eliminate all safety hazards at work
sites; rather, as indicated supra, an employer must exercise reasonable diligence. MDI was not in
violation of the cited standards, and Items 1(a) and 1(b) of Citation 1 are vacated.
                                         "Other" Citation 2
        Citation 2, Item 1 alleges a violation of 29 C.F.R. 1926.405(a)(2)(ii)(E), as follows:
        Pentagon, Wedge 1 Renovation Project, 5th Floor, A1 Area, D-ring, near west side
        stairway. Two overhead incandescent light bulbs were not protected by a guard to
        prevent accidental breakage.
        Section 1926.405(a)(2)(ii)(E), the cited standard, provides as follows:
        (ii) General requirements for temporary wiring ... (E) All lamps for general
        illumination shall be protected from accidental contact or breakage.
        The evidence set out supra establishes that the cited light bulbs were temporary lighting on
the project, that they were not guarded as required, and that employees were working on ladders and
scissor lifts in the area of the unguarded bulbs. The Secretary has thus demonstrated the applicability
of the standard, that the terms of the standard were not met, and that employees had access to the
violative condition. However, like the serious citation, I find the Secretary has not met her burden
of proving that MDI knew or should have known that the light bulbs were unguarded. There is no
evidence that any MDI supervisory personnel were aware of the condition. Moreover, the testimony
of Mr. Clark and Mr. Miller shows there were numerous light bulbs on the project, that about 1,000
bulbs a week were replaced, and that MDI had a full-time employee who did nothing but check light



        5
         Mr. Clark indicated he told the CO about these walk-through practices. (Tr. 73).

                                                  -7-
bulbs and replace them as necessary. (Tr. 80-83, 91-92). Their testimony also shows they made an
early-morning walk-through of the entire project every day to detect safety problems, that any such
problems were noted on lists for prompt correction, and that there was a daily 7 a.m. follow-up at
which time supervisory personnel would report on the corrected items to Mr. Clark; further, Mr.
Miller testified he "routinely walk[ed] the whole job all day long." (Tr. 68-73; 81, 84-88). Finally, the
record shows MDI had a safety program that was communicated to supervisory personnel such as
Mr. Clark and Mr. Miller. (GX-1). In view of the record, I conclude that MDI was not aware of the
subject bulbs and that MDI was reasonably diligent in attempting to ensure that safety problems such
as unguarded light bulbs were promptly detected and corrected. This citation item is vacated.
                                               ORDER
        Based upon the foregoing decision, the disposition of the citation items is as follows:
                Citation 1              Violation                               Disposition
                Item 1(a)               29 C.F.R. 1926.502(b)(1)                Vacated
                Item 1(b)               29 C.F.R. 1926.502(b)(2)                Vacated
                Citation 2              Violation                               Disposition
                Item 1                  29 C.F.R. 1926.405(a)(2)(ii)(E)         Vacated




                                                        G. Marvin Bober
                                                        Administrative Law Judge

Dated: September 18, 2000
       Washington, D.C.

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