11-1901-16522-2
STATE OF
OFFICE OF ADMINSTRATIVE HEARINGS
FOR THE DEPARTMENT OF LABOR
|
M. Scott Brener,
Commissioner, Department of Labor and
Industry, State of
Complainant, v. Kraus-Anderson
Construction Company, Respondent. |
FINDINGS
OF FACT, CONCLUSIONS
OF LAW, AND ORDER |
The above-entitled matter came on for
hearing before Administrative Law Judge Barbara L. Neilson on
Rory H. Foley, Assistant Attorney
General,
NOTICE
Pursuant to Minn. Stat. § 182.661, subd. 3, this
Order constitutes the final decision of the Commissioner. Under Minn. Stat. §§ 182.661, subd. 3, and
182.664, subd. 5, this decision may be appealed to the Minnesota Occupational
Safety and Health Review Board by the employer, employee, their authorized
representatives, or any party, within 30 days following the service by mail of
this decision. The procedures for appeal
are set out at Minn. Rule Ch. 5215.
STATEMENT OF ISSUES
This case presents the following issues:
1. Whether
the citations issued by the Department’s Occupational Safety and Health
Division to the Respondent on or about
2. Whether
those violations were properly classified as serious;
3. Whether
the abatement dates and penalties of the citations were appropriate; and
4. Whether
the Respondent, a general contractor on the project, was properly cited for
those violations.
The Administrative Law Judge concludes
that the Respondent did violate 29 C.F.R. § 1926.150(c)(1)(i) and (iv), and 29 C.F.R.
§ 1926.1052(c)(1), that the violations were properly considered to be serious,
that the abatement dates and penalties assigned to the citations were
appropriate, and that the Respondent, as general contractor, was properly cited
for the violations.
Based on the proceedings herein, the
Administrative Law Judge makes the following:
FINDINGS OF
1. In
March 2004, construction began on a senior residential apartment complex,
Woodbridge Senior Cooperative, at
2. Ryan
Nosan is a principal safety investigator for the Minnesota Office of Safety and
Health (MnOSHA).[2] On
3. Mr.
Nosan conducted an opening conference with the Respondent’s project
superintendent, Brian Ovre, in the Kraus-Anderson job trailer. Mr. Ovre was the only on-site employee of
Respondent on the day of the inspection.
During the conference, Mr. Nosan explained the nature, purpose, and
scope of the investigation. Mr. Nosan
thereafter conducted a walk-around inspection of the worksite.[4]
4. Three
subcontractors were on the worksite at the time of the inspection. Approximately 15 employees of J. Eiden Construction,
the framing contractor, were completing interior and exterior wall framing on
the second floor. Approximately four
employees of Doody Mechanical were in the process of hanging water piping
throughout the underground parking garage.
An unspecified number of Collins Electric employees were in the process
of servicing temporary wiring and wiring permanent boxes in the garage.[5]
5. At the
time of the inspection, the basement of the building - an underground parking
garage - was finished with precast walls and a concrete floor. The first floor was fully framed in with
stick (wood) framing but did not yet have doors or windows installed. The deck of the second floor (ceiling of the
first floor) was completed, and the walls on the second floor were being framed
on the day of the inspection. Approximately
40-50% of the second floor framing was complete.[6]
6. Three
sets of stairways were on-site: the
center and south stairways ran from the basement level to the second floor, and
the north stairway ran from the first floor landing to the second floor. An extension ladder was utilized to reach the
basement from the first floor on the north end of the building.[7] Only the center stairway and the south
stairway from the basement to the first floor were equipped with handrails on
the day of the inspection.[8] The open north and south stairways had no
handrails from the first floor to the second floor and were not blocked off. These stairways each had more than four risers
(stairs).[9] In addition, there were no fire extinguishers
within the building.[10]
7. During
the inspection, Mr. Nosan noted that the housekeeping on the project was “not
great,” since cardboard, wood, and other flammable scrap material was left lying
around the worksite.[11] The inspection was conducted on a Thursday,
and general clean-up at the worksite was typically performed on Fridays.[12]
8. Propane
torches were being used in the garage area on the day of inspection, but not on
the first or second levels of the worksite.[13]
9. During
the closing conference, Mr. Nosan discussed the proposed citations for missing
handrails and fire extinguishers with Mr. Ovre, and abatement periods were
agreed upon. Mr. Ovre stated that he
would have fire extinguishers on site by the end of the day and that handrails
would be installed in all stairways immediately.[14] Mr. Nosan also issued citations to
subcontractor Eiden Construction for handrail and fall protection violations
pertaining to workers on the second floor of the project.[15]
10. Mr.
Nosan prepared a penalty worksheet for the three Kraus-Anderson violations.[16] In calculating penalties, both a severity
rating and a probability rating are assigned.
The MnOSHA Field Compliance Manual identifies severity ratings ranging
from “A” (nonserious) to “F” (serious), depending on the severity of injury or
illness that could reasonably be expected to result from an employee’s exposure
to the violative condition. Ratings of “C”
through “F” are considered to be “serious” violations, while ratings of “A” and
“B” are considered to be “non-serious” violations.[17] The probability ratings in the Manual range
from “1” to “8,” and are based on the combined factors of employee exposure,
proximity to the hazard, duration of the hazard, and work conditions.[18] A rating for additional instances may also be
assigned.[19]
Penalties are determined from a penalty
chart which assigns penalty amounts based on the combined severity and
probability ratings.[20] These unadjusted penalties may then be
reduced by credits assigned for good faith of the employer, size of the
business, and history of previous violations.[21]
11. In
determining the penalty for failure to provide fire extinguishers, Mr. Nosan assigned
a severity rating of “C” for the grouped violations, based on the potential for
limited first degree burns which could occur should a fire break out with no
fire extinguishers on site.[22] Mr. Nosan noted that a “C” rating is the
lowest severity rating allowable on the burn scale provided in the MnOSHA Field
Compliance Manual. A probability rating
of “10” was assigned based on the cumulative ratings of the four probability
categories and the additional instances category: 11-20 employees exposed to
the hazard (“3”), close proximity to hazard (“1”), duration of hazard greater
than 50% of normal workday (“2”), work conditions including numerous
combustible items in the building (“2”), and additional instances of multiple missing
fire extinguishers (“2”). The initial combined
severity/probability rating assigned for fire extinguisher violations was
“C10.” As the maximum probability rating
allowable is an “8” for penalty calculations, however, Mr. Nosan reduced the combined
rating to “C8.”[23]
12. The
unadjusted penalty associated with “C8” violations is $2,000.00.[24] In calculating adjustments to the penalty,
Respondent was allotted no credit for employer size due to its employment of
over 250 workers. Mr. Nosan applied the
maximum 40% credit for employer good faith and history, resulting in a final
penalty for fire extinguisher violations of $1,200.00.[25]
13. In
determining the penalty for the handrail violations, Mr. Nosan assigned a
severity rating of “C” due to fall exposure of 6-10 feet, in accordance with the
MnOSHA Citation Rating Guide contained in the Field Compliance Manual.[26] Mr. Nosan assigned a probability rating of
“7,” based on the cumulative ratings of the four probability categories and the
additional instances category: 2-10
employees exposed to the hazard through use of stairways to access upper
working level (“2”), workers within danger zone (“2”), duration of hazard
10-50% of normal workday (“1”), no adverse work conditions (“0”), and multiple
instances of missing handrails in stairways throughout the building (“2”).[27]
14. The overall
severity/probability rating of “C7” for handrail violations produced an
unadjusted penalty of $2,000.00, which was reduced through credits for good
faith and employer history to an adjusted penalty of $1,200.00.[28]
15. On
16. On
17. On March
25, 2005, the Commissioner issued a Notice and Order for Hearing setting this
matter for a contested case hearing. A
continuance of the original hearing date
of
Based upon the foregoing Findings of
Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1. The
Commissioner of Labor and Industry and the Administrative Law Judge have
jurisdiction in this matter pursuant to Minn. Stat. §§ 14.50, 182.661, subd. 3,
and 182.664.
2. The
Department gave proper notice of the hearing in this matter and has fulfilled
all relevant procedural requirements of law or rule.
3. The
Respondent is an employer as defined by Minn. Stat. § 182.651, subd. 7.
4.
5.
6. 29
C.F.R. § 1926.150(c)(1)(i) requires that “[a] fire extinguisher, rated not less
than 2A, shall be provided for each 3,000 square feet of the protected building
area, or a major fraction thereof.
Travel distance from any point of the protected area to the nearest fire
extinguisher shall not exceed 100 feet.” 29 C.F.R. § 1926.150(c)(1)(iv) states that
“[o]ne or more fire extinguishers, rated not less than 2A, shall be provided on
each floor. In multistory buildings, at
least one fire extinguisher shall be located adjacent to stairway.”
7. 29 C.F.R.
§ 1926.1052(c)(1) specifies that “[s]tairways having four or more risers or
rising more than 30 inches (76 cm), whichever is less, shall be equipped with (i) [a]t least one handrail; and (ii) [o]ne stairrail system along each unprotected
side or edge.”
8. The
Complainant has the burden of establishing an
9. A
“serious violation” is defined in Minn. Stat. § 182.651, subd. 12, to mean “a
violation of any standard, rule, or order other than a de minimis violation
which is the proximate cause of the death of an employee” or “a violation of
any standard, rule, or order which creates a substantial probability that death
or serious physical harm could result from a condition which exists, or from
one or more practices, means, methods, operations, or processes which have been
adopted or are in use, in such a place of employment, unless the employer did
not, and could not with the exercise of reasonable diligence, know of the
presence of the violation.”
10. The Complainant has established by the
preponderance of the evidence that there were no fire extinguishers in the
building under construction, that two worksite stairways having four or more
risers had no railings, and that employees on the worksite were exposed to the
cited hazards, and has thereby shown that the Respondent violated the standards
of 29 C.F.R. § 1926.150(c)(1)(i), 29 C.F.R. § 1926.150(1)(iv), and 29 C.F.R. §
1926.1052(c)(1).
11.
The Respondent knew or, with the
exercise of reasonable diligence, should have known of the presence of the
violations.
12. The
Respondent’s violations of 29 C.F.R. 1926.150(c)(1)(i) and (iv) are correctly
classified as severity level “C,” and are appropriately treated as serious
violations within the meaning of Minn. Stat. 182.651, subd. 12.
13.
The Respondent’s violation of 29
C.F.R. 1926.1052(c)(1) is correctly classified as severity level “C,” and is
appropriately treated as a serious violation within the meaning of Minn. Stat.
§ 182.651, subd. 12.
14. Under
15. The
original penalty amounts and adjustments thereto were appropriately calculated
for the violations pursuant to the MnOSHA Field Compliance Guide and Minn.
Stat. § 182.666, resulting in a penalty of $1,200.00 for Citation No. 1, Items
1(a) and 1(b), and a penalty of $1,200.00 for Citation No. 1, Item 2.
16. The
foregoing Conclusions of Law are based on the reasons set out in the Memorandum
that follows. The Memorandum is
incorporated into these Conclusions by reference.
Based upon the foregoing Conclusions
of Law, the Administrative Judge makes the following:
ORDER
IT IS HEREBY ORDERED that:
1. Citation
No. 1, Items 1(a) and 1(b), failure to provide fire extinguishers as required
by 29 C.F.R. § 1926.150(c)(1)(i) and (iv), is AFFIRMED.
2. Citation
No. 1, Item 2, failure to provide handrails as required by 29 C.F.R. § 1926.1052(c)(1),
is AFFIRMED.
2. The
Respondent shall forthwith pay to the Commissioner of Labor and Industry the
sum of $2,400.00.
3. If
the penalty is not paid within 60 days after the fine becomes a final order, it
must be increased to 125 percent of the original assessed amount. After 60 days, unpaid fines shall accrue an
additional penalty of 10 percent per month compounded monthly until the fine is
paid in full, as required by Minn. Stat. § 182.666, subd. 7.
Dated
this 18th day of November, 2005.
s/Barbara
L. Neilson
_____________________________
BARBARA L. NEILSON
Administrative
Law Judge
Reported: Tape recorded (two tapes); not transcribed.
MEMORANDUM
The Respondent admits to the specified
violations but presents a number of arguments regarding the gravity of the
violations and the resulting penalties.
Fire Extinguishers
As to the violation of fire extinguisher standards,
the Respondent presents four arguments
First, the Respondent’s project superintendent maintains that there was
a fire extinguisher in the Kraus-Anderson job trailer on the day of the
inspection. Even if such a fire
extinguisher were present, however, and even if that fact had been communicated
to the safety inspector, the
Second, the Respondent maintains that
a decision was made by its project superintendent and its safety coordinator to
avoid possible vandalism or theft of portable fire extinguishers by deferring
installation of the fire extinguishers until after a security fence had been
constructed around the worksite.[34] Because the goal of the
Third, the Respondent argues that the
For larger buildings, the most significant
requirement is that, regardless of the number of floors or stairways, a fire
extinguisher, rated not less than 2A, shall be provided for each 3,000 square
feet of the protected building area, or major fraction thereof.[38] The Department interprets the phrase “protected
building area” to mean any location where work on the project is taking place.[39] To satisfy this standard, the general
contractor must provide a fire extinguisher as soon as a “major fraction” of
the first 3,000 square feet of the project has been completed, with an
additional fire extinguisher installed for each additional 3,000 square feet of
the project, or major fraction thereof. In
this case, Mr. Ovre’s testimony suggested that the Respondent had completed
approximately 27,000 square feet of construction per floor on the lower level
and the first floor, and approximately 13,000 square feet of the second floor
(40-50%), for a total of approximately 67,000 square feet. Workers were engaged in activity on each of
the three floors. Therefore, it appears
that approximately 22 fire extinguishers were required to meet the regulatory
standard on the day of inspection.
Fourth, the Respondent contends that
the existence of a fire hazard and the availability of means of escape should
be taken into consideration when assessing a penalty for
Further, the severity of a violation
is measured not by the likelihood of an accident, such as a fire, but by the potential
for death or serious physical harm which would probably result if the potential
accident should occur.[41] The purpose of fire extinguishers is to
reduce the probability of serious injury in the event of a fire. When fire extinguishers are not provided, the
likelihood of serious physical harm caused by a fire escalates. The MnOSHA Field Compliance Manual is very
explicit when assigning severity ratings
for conditions which create the potential for burns. Although the MnOSHA Citation Rating Guide does
not provide a severity rating specifically for violations of 29 C.F.R. §§
1926.150(c)(1)(i) or (iv), the Manual does provide a special appendix for
determination of severity levels by type of potential injury. Under the category of “Burns,” the Guide
provides only for ratings of “C” to “F,” all of which are rated “serious.”[42] In this case, the safety inspector assigned a
“C” rating to the violations due to the potential for limited first degree
burns which could result if a fire should break out in the building. The safety inspector also assigned a
probability rating of “10,” a rating literally off the chart, for this group of
violations. The safety inspector’s
ratings for severity and probability were guided by the criteria set forth in
the Field Compliance Manual utilized by MnOSHA charts and were consistent with
those criteria. Because the inspector followed all MnOSHA protocols
in assigning the ratings and the associated penalty, the ratings and penalty
are reasonable and have been shown to be appropriate.
Handrails
As to the violation of handrail standards, the
Respondent presents two arguments. First, the Respondent argues that the
classification of the violation and the resulting penalty should be reduced
because only one of Respondent’s employees was at the worksite on the day of
the inspection, and it was merely the general contractor on the project. It is well-established that the duty of a
general contractor is not limited to the protection of its own employees from
safety hazards, but extends to the protection of all the employees engaged at a
worksite.[43] The Respondent was responsible for the safety
of all on-site employees working on the common undertaking on the day of
inspection. The safety inspector
assigned proper probability ratings according to the number of on-site workers
exposed to the fall hazard through use of stairways to access the second floor
working level, the number of workers within the danger zone, and the duration
of employee exposure to the hazard.
The Respondent further argues that the
handrail penalty should be reduced because only two stairways lacked handrails.[44] The gravity of a violation is the combined
assessment of the severity and probability of the injury which would most
likely occur as a result of the alleged violation. Specific guidelines for rating the severity
of the most frequently cited standards are contained in the MnOSHA Citation
Rating Guide (
In requesting penalty reductions, the
Respondent also noted, in general, its good faith in meeting regularly with
regulators and in attempting to comply with all regulations. The inspector did take the good faith and
regulatory history of the company into consideration when applying the maximum 40%
credit toward reduction of the unadjusted penalties assessed.
Accordingly, the Administrative Law
Judge has ordered that the citations and penalties be affirmed.
B.L.N.
[1] Exs. 1, 2; Testimony of Ryan Nosan, Brian Ovre.
[2] MnOSHA is a division of the Minnesota Department of
Labor and Industry. OSHA is the acronym
for the federal Occupational Safety and Health Act.
[3] Ex. 2; Testimony of Ryan Nosan.
[4]
[5] Ex. 2 at 3; Testimony of Ovre.
[6] Testimony of Ovre, Nosan.
[7] Testimony of Ovre.
[8] Ex. 10; Testimony of Ovre, Nosan.
[9] Ex. 10 at 2, 3, 5.
[10] Exs. 4, 10; Testimony of Nosan, Ovre. The Respondent did not dispute the assertion
by the inspector in his testimony and inspection narrative (Ex. 4) that the
stairways without handrails generally had 12 to 15 risers.
[11] Testimony of Nosan; Ex. 3.
[12] Testimony of Ovre.
[13] Testimony of Ovre.
[14] Ex. 2, p. 3.
[15]
[16] Ex. 3 and Ex. 4.
[17] Ex. 9 at VI-1 through VI-3; Testimony of Nosan.
[18] Ex. 9 at VI-3 through VI-6; Testimony of Nosan.
[19] Ex. 9 at VI-6 through VI-7; Testimony of Nosan.
[20] Ex. 9 at VI-24; Testimony of Nosan.
[21] Ex. 9 at VI-7 through VI-10; Testimony of Nosan.
[22] Ex. 9, Appendix VI-C.
[23] Ex. 3.
[24] Ex. 9, Table VI-2 Penalty Chart, at VI-24.
[25] Ex. 3.
[26] Ex. 9, Appendix VI-A. Mr. Nosan also considered the general
industry standard, 1910.24(h), which rates this hazard a “C+” when there are
more than nine risers.
[27] Exs. 4, 9 at VI-24; Testimony of Nosan.
[28]
[29] Ex. 5; Testimony of Nosan.
[30] Complaint; Testimony of Nosan.
[31] Franklin R.
Lacy (Aqua View Apartments), 9 BNA OSHC 1253, 1981
[32] R. B. Thomas
Electric, Inc., 19 BNA OSCH 1785, 2001 OSHD ¶ 32,486 (No. 00-2333, 2001).
[33] 29 C.F.R. 1926.150(c)(1)(i).
[34] The more likely explanation may be that the Respondent’s project superintendent simply forgot about the fire extinguishers, as reported by the safety inspector in his narrative and testimony.
[35] 29 C.F.R. § 1926(a)(1) (emphasis added).
[36] 29 C.F.R. § 1926.150(c)(1)(iv).
[37]
[38] 29 C.F.R. § 1926.150(c)(1)(i)
[39] Testimony of Ryan Nosan. The Respondent did not provide any authority
supporting a different interpretation, and the Administrative Law Judge has
been unable to find any.
[40] Cornell &
Co., Inc., 5 BNA OSHC 1736, 1977-78
[41] Latite Roofing
& Sheet Metal Co., Inc., OSCH, 2002
[42] Ex. 9, Appendix VI-C.
[43] Marshall v
Knutson Construction Co., 566 F.2d 596 (8th Cir. 1977); Grossman
Steel & Aluminum Corp., 4 BNA OSCH 1185, 1975-76
[44] The safety inspector cited “multiple” stairways
without handrails.
[45] Ex. 9, Appendix VI-A.
[46] Ex. 9 at VI-1.
[47] Ex. 9 at VI-7.
[48] See Ex. 9,
Penalty Chart VI-2 at VI-24. The
unadjusted penalty for violations rated C5 through C8 is considered to be
$2,000.