2-1901-9253-2

LaVon Regan

Subscribed and sworn to before me

this 22nd day of March, 1995

Notary Public

2-1901-9253-2

OSH DIV No. 4219

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE OCCUPATIONAL SAFETY AND HEALTH REVIEW BOARD

John E. Lennes, Jr., Commissioner, Department of Labor and Industry, State of Minnesota,

Complainant,

vs.

Parson’s Electric Company,

Respondent.

FINDINGS OF FACT, CONCLUSIONS AND ORDER

The above-entitled matter came on for hearing before Administrative Law Judge Bruce D. Campbell at 9:30 a.m. on February 15, 1995, at the University of Minnesota Law School, Minneapolis, Minnesota.

Appearances: Christopher C. Cain, Student Attorney, 190 Law Center, 229 - 19th Avenue South, Minneapolis, Minnesota 55455, and Jean M. Gerval, Supervising Attorney, 190 Law Center, 229 - 19th Avenue South, Minneapolis, Minnesota 55455, appeared on behalf of the Complainant, Occupational Safety and Health Review Division of the Minnesota Department of Labor and Industry (Agency or Department); and Timothy Floeder, Secretary-Treasurer, Parson’s Electric Co., 5960 Main Street Northeast, Fridley, Minnesota 55432-5480, appeared on behalf of Parson’s Electric Co. (Parson’s, Company or Respondent).

The record herein closed on February 23, 1995, upon receipt by the Administrative Law Judge of a post-hearing memorandum of law.

Notice is hereby given, pursuant to Minn. Stat. § 182.664, subd. 5, that the Findings of Fact, Conclusions and Order of the Administrative Law Judge may be appealed to the Minnesota Occupational Safety and Health Review Board by the Employer, Employee or their authorized representatives within thirty (30) days following the publication of these Findings, Conclusions and Order.

STATEMENT OF ISSUES

1. On April 27, 1993, Parson’s Electric Company was a subcontractor at a multi-employer worksite located at the Orpheum Theater, 910 Hennepin Avenue, Minneapolis, Minnesota. The general contractor with overall responsibility for the construction work was Knutson Construction Company. Parson’s Electric Company was installing electrical wiring and fixtures at various locations throughout the theater. Parson’s Electric Company was at the Orpheum worksite from approximately December 1992 until January 1994. Ex. 1.

2. The welding contractor at the jobsite was Newmech Companies. As of April 27, 1993, Newmech had been at the jobsite for approximately three months. The welding was performed on an irregular basis and not conducted according to any set schedule. Part of the job of the Newmech workmen was to weld “tie-ins”, which were prefabricated structures that were to be incorporated into the fixtures at the Orpheum Theater.

3. Laurence Aker, a Newmech welder, had been welding in or near a “mechanical room”, which was the operational center for the building’s mechanical and electric systems. The room was a common thoroughfare, accessible from multiple entrances. The mechanical room provided the primary access to the lunchroom used by the contractors and subcontractors workmen at the Orpheum Theater. It was also necessary to traverse the mechanical room to reach the general contractor’s office and office areas maintained by the various subcontractors.

4. Mr. Aker, a Newmech employee, had been welding in the mechanical room or control center a total of about 25-40 hours over a three-month period. At any one time, he might be in the mechanical room welding a very short period of time or for a longer period. Less than 50% of the time he used welding shields while performing arc welding. On other occasions, he performed his welding tasks without using canvas welding shields.

5. A welding shield, required by OSHA regulations, is a canvas collapsible shield approximately six feet high and six feet long on a solid frame to protect passersby from the intense light of arc welding and from sparks. Newmech provided its own sheeting or shielding. Mr. Aker decided to proceed without shielding because he was performing what he considered to be quick welds in various portions of the control room and, apparently, did not wish to be hampered by the necessity to place and replace the shields.

6. Parson’s Electric Company and its foreman had no supervisory control over the Newmech welders and the Parson’s Electric employees had no knowledge of when Newmech would be welding in proximity to the locations where Parson’s Electric Company employees were performing electrical work. The welding was not done according to any particular, identified schedule.

7. It would have been common practice for the Parson’s Electric Company foreman or supervising employee to go through the control room at various times during the day to reach either the lunchroom or the general contractor’s office or the office location maintained by Parson’s at the jobsite.

8. On April 27, 1993, a senior Minnesota-OSHA safety inspector, Robert Bastyr, conducted an announced inspection at the Orpheum Theater worksite, 910 Hennepin Avenue, Minneapolis, Minnesota. Mr. Bastyr had the normal preinspection meeting with supervisory personnel. While walking through the mechanical room, Inspector Bastyr observed Laurence Aker, the Newmech employee previously discussed, doing arc welding without using shields. There were two Parson’s Electric Company employees 10-12 feet away from the unprotected arc welding. One of the Parson’s Electric Company employees was looking directly at the light from the arc welding. The other Parson’s Electric Company employee was up on a ladder, off the working surface. See, Ex. 3 and Ex. 4.

9. When Inspector Bastyr observed the unshielded arc welding, he immediately stopped Mr. Aker from continuing to weld without protective screening. One of the Parson’s Electric Company employees was heard to say, “It‘s about time,” when Inspector Bastyr halted the unshielded arc welding.

10. Inspector Bastyr met with the foreman of Newmech and Parson’s and conducted a closing conference. He informed Newmech Companies and Parson’s Electric Company that OSHA citations would be issued against Newmech for welding without safety shields and against Parson’s Electric Company for failing to protect its employees from the danger created by Newmech employees, when the danger to the Parson’s Electric employees should have been obvious to Parson’s supervisory personnel.

11. On May 12, 1993, the Company was served with a citation. Ex. 5. The citation alleged a violation of 29 C.F.R. § 1926.351(e). The violation was termed serious and an adjusted penalty of $396 was imposed. The violation had to be abated immediately upon receipt of the citation.

12. With respect to the citation for unshielded arc welding, the $396 adjusted penalty was calculated as follows. Based on his assessment of the circumstances, Mr. Bastyr determined that it involved a D-3 violation. He assigned a D rating to the severity of the situation based on the consequences that could result to the Parson’s employees who were exposed to the unshielded arc welding. Mr. Bastyr assigned a “1” for the following factors: exposure; proximity; and control. Based on the penalty chart contained in Ex. 6, the unadjusted penalty for a D-3 violation is $1,100.

13. Mr. Bastyr adjusted the $1,100 penalty as follows: 24% out of a possible 30% reduction was given for good faith of the Company; a 30% reduction was given for the size of the Company; and a 10% reduction was given for the violation history of the Company. The credits, therefore, amounted to 64% or $704, for an adjusted penalty of $396.

14. On May 25, 1993, Parson’s Electric Company served a Notice of Contest on the Department and the employee representatives of all affected employees and posted the Notice with the contested citation and notification of penalty.

. 15. On August 23, 1993, the Complainant served a Summons, Notice and Complaint upon Respondent.

16. On September 8, 1993, Parson’s Electric Company submitted to the Department its Answer to Complaint.

17. On November 22, 1994, the Department, through counsel, filed with the Administrative Law Judge, the Complainant’s Notice of and Order for Hearing and Notice to Employees.

Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS OF LAW

1. The Minnesota Occupational Safety and Health Review Board and the Administrative Law Judge have jurisdiction herein and authority to take the action proposed pursuant to Minn. Stat. §§ 182.661, subd. 3, 182.664, and 14.50 (1994).

2. The Board gave proper notice of this hearing and the Complainant and the Board have fulfilled all relevant substantive and procedural requirements of law and rule.

3. The Respondent is an employer as defined by Minn. Stat. § 182.651, subd. 7 (1994).

4. The Respondent, Parson’s Electric Company, violated the Occupational Safety and Health Standards published at 29 C.F.R. § 1926.351(e) and, therefore, violated Minn. Stat. § 182.653, subd. 3 (1994), by allowing its employees at a multi-employer jobsite to be exposed to unshielded arc welding by another subcontractor’s employee when Parson’s Electric Company personnel knew or should have known of the violation by Newmech.

5. For the reasons set forth in the Memorandum, incorporated by reference, such a violation was a serious violation within the meaning of Minn. Stat. § 182.651, subd. 12 (1994).

6. The Respondent has failed to establish an affirmative defense to the violation found in Conclusion 4, supra.

7. The proposed adjusted penalty for the violation found in Conclusion 4, supra, is reasonable based on the severity of the violation and its probability when appropriate credits are applied for the good faith of the Company, its size and the absence of an adverse violation history.

8. As a consequence of Conclusions 3-7, supra, the proposed penalty for the violation found in Conclusion 4, supra, of $396 is reasonable.

9. Any Finding of Fact more properly termed a Conclusion and any Conclusion more properly termed a Finding of Fact is hereby expressly adopted as such.

Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:

ORDER

The Citation herein is AFFIRMED.

The Respondent, Parson’s Electric Company, shall forthwith pay to the Department of Labor and Industry the sum of $396.

Dated this ____ of March, 1995

BRUCE D. CAMPBELL

Administrative Law Judge

Reported: Taped; No Transcript Prepared.

MEMORANDUM

The Respondent in this proceeding contests the violation for citation to the wrong OSHA standard. 29 C.F.R. § 1926.351(e) prohibits arc welding without shielding when such shielding is “practicable”. The flameproof screens are meant to protect employees of the person welding and other persons working in the vicinity from the direct rays of the arc. Parson’s argues that this is not the appropriate regulation to cite for a violation, since no Parson’s employee was engaged in an arc welding or cutting operation. If no Parson’s employee was actually arc welding, Parson’s argues that it cannot be cited for a violation of the arc welding standard.

What Parson’s overlooks, however, is that this worksite was a multi-employer worksite within the meaning of the standard. The Respondent, as a participant at the multi-employer worksite, is liable for failing to protect its employees from the hazard of unshielded arc welding of which it had actual or constructive notice. On multi-employer worksites, an employer violates a standard when a violative condition affects its employees. Secretary v. R.H. Bishop Co., 1973-74 OSHD 17,930 (1974); Secretary v. Robert E. Lee Plumbers, Inc., 1974-75 OSHD 19,594. An employer must protect its employees from violations it did not create but that it reasonably could have detected. Anning-Johnson 1975-76 OSHD 20,690; Secretary of Labor v. Grossman Steel & Aluminum Corp., 1975-76 OSHD 20,691; Bratton Corp. v. OSHRC, 590 F.2d 273, 276-77 (8th Cir. 1979).

Here, the Commissioner applied the proper standard to Parson’s Electric Company. Because the Orpheum Theater was a multi-employer worksite and the Respondent’s employees were exposed to unprotected arc welding with the actual or constructive knowledge of the Respondent, it had a duty under the welding shield standard as if it had created the hazard.

In this case, the standard was violated. Mr. Bastyr observed ongoing, unshielded arc welding in the presence of Respondent’s employees. It certainly was “practicable” under the facts to provide shielding. This is obvious because the welding later continued after shielding had been provided. The cited standard states that welding must be shielded “whenever practicable” to protect employees and others. “Practicable” implies a reasonable expectation of protection rather than an assurance of successful protection. Secretary of Labor v. Parsons & Whittemore Alabama Pine Construction Corp., 1992 OSHD 29,821. Here, shielding would have been feasible given the site layout and the high traffic area where the unshielded welding occurred. Since it was feasible to use shielding for the welding operation, the standard required Parson’s to protect its employees from an obvious hazard, even though it did not itself create that hazard. It is beyond dispute that Respondent’s employees were exposed to the unshielded arc welding. Ex. 3; Ex. 4.

Finally, the Administrative Law Judge finds that the Respondent knew of the violation or could have known of the violation with the exercise of reasonable diligence. Grossman Steel & Aluminum Corp., supra. Reasonable diligence should uncover readily apparent hazards. See, Austin Building Code v. OSHRC, 647 F.2d 1063, 1067-68 (10th Cir. 1981); Kenneth P. Thompson Co., 1980 OSHD 24,593.

In this case, there is evidence to show that Respondent had at least constructive notice of the ongoing unshielded arc welding. Mr. Aker testified that he did the majority of his 25-40 hours of welding in the area Mr. Bastyr observed him in on April 27, 1993. He testified that more than half the time he did not use a welding shield. He further testified that he was in that location on an unscheduled basis. The location provided primary access to the construction employees’ lunchroom and to the office area of the subcontractors and general contractor. The foreman for Parson’s Electric will be held to have observed what should have been obvious, bright and noticeable unshielded arc welding.

The Administrative Law Judge concludes that the Commissioner has established a prima facie case of a violation of the cited standard. The Employer here could avoid liability for a hazard it neither created nor controlled if it establishes that its exposed employees were protected by realistic measures in lieu of literal compliance with the standard or that it did not, nor with the exercise of reasonable diligence could not, have had notice that the condition was hazardous. The Respondent did not raise affirmative defenses in its Answer or during the hearing.

The Respondent does argue that the Commissioner apply the cited standard in a discriminatory fashion since it did not site the general contractor for a violation. Parson’s Electric Company has not established the type of invidious discrimination which would avail it of a defense of selective prosecution. Moreover, Mr. Bastyr did not observe any Knutson employees exposed to the hazard. The Administrative Law Judge, therefore, concludes that it is appropriate to uphold the adjusted penalty of $396 for a D-3 violation as reasonable.

B.D.C.

STATE OF MINNESOTA)
)	ss
COUNTY OF HENNEPIN)