Document omk07G8kXnm0MLzvKJnyoBKOR

FILE NAME Insulation Contractors & Distributors ICD DATE 1974 Aug DOC ICD031 DOCUMENT DESCRIPTION Trade Journal - NICA Outlook Vol 19 No. B 957324 a National Insulation Cupirators Cupirators Assotr^/sk^n Momgomery Momgomery Conter 86 30 Ferraz Siret - Suite 506 Alver Sprog Marciana Marciana 29919 29919 teiephone 301-585-8441 Jony ( Pollock Expert Expert ve Director AR Wotherspoon Chairman 37 A Puble ations Conimated Conimated Officers 1974 Waham A Bayer Herbert Madean Prodent FloetFloet Vice President 10 Long finisarei finisarei B. Wheade Secretary Board of Directors Terms Ending 1974 Ronee: htop da ' xeb 4 Dent Dent MOON Paimer CoA SERCA Toyoy Whuaker VXIT Terms Ending 1975 Walter Shipp Shipp ETNICA ETNICA reeebe ce Vib eaph les Np sioe Wayne Wayne i Kallion SPCA N. DilonDillon WICA WICA Ralph Sartor WICY WICY James & Fuddel AcLanter AcLanter Terms Ending 1976 ' Rerdusss Phopthe C810 4 Chiliton makinson BASIC k WilliamO. stqualis SCA Monet e Wang poor NA ICA NA ICA NA ICA rsOnOn a er Ringe bee Immediate Past President TY fF Maaaecy - q Annual Subscription 10 which is included in the 50 Membership Dues Three year rate at Single copy 23 US & Canada Foreign subscriptions add $ to doove rates Controlled circulation paid at Silver Spring Md Statements of fact and opinion are made on the responsibility of the author alone and do not necessaniy express the opinions of the Association Material may not be reproduced without written consent Copyright National Insulation ContractorsContractors Association Association - 1973 TABLE OF CONTENTS VOL 19 AUGUST 1974 NO 8 2 PRESIDENT'S LETTER 4 YOUR EXECUTIVE DIRECTOR'S REPORT 6 WORKING WITH YOU AND FOR YOU 10 REMEMBER THAT FAMOUS DAY AND YEAR 12 URETHANE PIPE INSULATION HELPS MAINTAIN TEMPERATURE IN SOLAR HEATING SYSTEM 15 EASICA LETTER GOVT 16 CONTRACTORS MUST HIRE HANDICAPPED DOL 18 HAVE WE REACHED OUR LIMITS 20 ENERGY INDEPENDENCE - FACT OR FICTION 21 PROGRAM REGISTRATION 26 CONVENTION PROGRAM 30 33 GEORGE MAHARIS 33 CALENDAR OF COMING EVENTS 34 OSHA AND CONSTRUCTION 42 CITY CAPSULE 44 WHAT'S NEW FROM MANUFACTURERS 45 SEICA SPRING MEETING 45 45 NORTH BROS ANNOUNCES CHANGES 46 NICA CONVENTION HEADQUARTERS on Address by Occupational Safety and Health Review Commission Chairman Moran at National Construction Industry Conterence When | accepted the kind invitation to address this conference which was extended to me several weeks ago by my staunch friend John Church I was unaware that its theme would be Delays and Disputes in Building Construction It's totally coincidental therefore that my remarks cover this subject area That the Occupational Safely and Health Act of 1970 can ead to delays and disputes in building construction may not be be readily readily readily readily readily apparent to persons not intimately conrected with application I am unaware that it has actually core so up to this point However the potential is there And though it has deeply concerned me for a long period of time | haven't yet been able to think of any judicial solution which is consistent with the law and would not lead to unintended and potentially adverse consequences Of course there is practical solution If every contractor contractor and supplier - and each of his employees complied with every joo safety effect and health requirement would not be felt in the aw's adverse the constuction industry Until the millennium arrives however the problem or at least its potential will be there The Act was passed as you are well aware in order to ensure the safety and health of the American worker while on the ob A good Na understand concept and purpose he means to this end which have 4 develope 20% loy be are snowing themselves not to E> # in some cases not even so good when simp of of a number and are subject to the hazards which may exist hazards which may or may not on their own employar -- or someora other employees of 10733 ~ 3 unrelated and a known employer employer of seemed to be focusing its attentier g Congress g dustrial or commercial workpla on the typical m single where a single employer has one in furthering the employe'semplo- ye's A . They therefore framed framed the tee so as to place providing providing on con such the safety the duty an employer Foe and health of his ce TThahta'ts's ekex his 2 Eloyer his Fe, requires requires | employme place of place place provis provis applicable enforcement 3 employers comply with occupanc safety and nea standards promulgated 2 -1 the Act | LL, | od.uld the standards existed independent of the law problems arising out of an Act compelling an mmployer to watch out only for his own employees od.uld possibly be avoided -- for many of the standards are written to cope with the situation ctually existing on a building job site Regret- is own employees -- not to someone else's or to the general public Cases which arise under the law therefore must apply it This can only be done when both the standard and the law are read together The former has no legal force or effect without the latter but unfortunately there are any situations where the latter frustrates the oyer purposes which the standards had in mind oyer when they framed the rules One reason for this of course is that the construction safety standards were 1970 when written long before December 29 this law was enacted Despite this 3 V~ SA tion They were promulgated by the Secretary of Labor under this law without change You shouldn't get the idea from the foregoing the law has gaps or oopholes in its intended effect of employee protection It doesn't It says employer is in violation whenever his und Employees are exposed to a hazard covered by a Standard it says nothing about who created the .00 AUGUST 1974 hazards Simple enough Every worker is taken care of therefore because every employer musi safeguard his employees from whatever the hazard's source might O.K. That's fine But now let's all hazards be consider the case of a subcontractor on a job whose employees are exposed to a hazard which was created by a fellow subcontractor or by the prime contract^r Let me give you some examples of this through actual Review Commission cases The Review Commission I think you know provides the court system for trial of actions under the Act were were gg ven vgeggn ven vevnen buildings the job of doing masonry work on three buildbuildngsings They formed an agreement whereby one firm would construct two buildings with loaned people from the other firm This other firm would have charge of the third building with loaned employees for equivalent time from the first firm Each paid the wages of its own employees An OSHA inspector came to the first building and found men working on a faulty scaffolding device Both firms were cited because both had employees working at the site who were exposed to the hazard even though only one firm was in a work supervision position or was receiving money for the work When this case came to the Commission the Judge said it didn't matter who was 35 excessive penalties and as applied to the subcontractors herein is not appropriate in the circumstances of this particular case The sole violation described above is to pull his men off the job and thereby risk future loss of business boycott or litigation He cannot because of union restrictions correct violations outside of his particular field of operation Conceding that the subcontractors involved here were technical violators it is nevertheless my view that the penally should fit the crime and should not be determined by any hard and fast formula as promulgated in the OSHA Compliance Operation's manual Other problems arise when the parties have contracted with each other as to who takes the responsibility responsibility in complying with the Job Safety Act Ore employer a carpentry firm was subcon- tracted to provide labor only for the outside framing and trim work on an apartment complex His men were found working on a scaffold owned by the prime contractor which was faulty The Subcontractor was charged and found in viciation fact that he did not own the rejected by the judge -- his primary determinant being that the sub's men were toa serious nazard which only the sub are skilled in resolving construction problems such as thosein this Another thing that tends prime problem is in foundin Construction Safety Standards reads .in no case shall relieved of overallresponsiblity requiremenrtespsonsibility with the the be performed under the crime contractor responsibility for complame this part for all contract contract that In another part of the standards it says section is not an official standard Commission has called this an interpean control interpan ruling and concludedthat it does not the prime contractor's liabilityfor safety on have participated in decisions which hold prime contractor is responsibicuncer the law for those hazards to which his own employees anyewmpaloyyees exposed and at this point in time happens to be the rule of law I therefore be that OSHA should throw this provision with some other standards Words such as while they out ale are graca graca compounding it language his men from the scaffold sible theprime contractor have been respon- because he owned the scaffold even though his employees were exposed to the hazard created created created by a faulty scaffold The Commission has ruled negatively because the duty under the Act runs from an employer to his own employees -- not somebody else's Indeed if we fail to keep This in mind decisions may eventually produce a National Building Code which certainly woult unintended be an unintended quigrowth of the Occupational Safery and Health Act On the other hand if we don't recognize any liability on the prime contractor such situations the only remedy for the hazard is to require the subcontractor to prevent its people from entering the unsafe area and refusing to work until the party in controolf the condition here We run head into corrects it Anc union contract problems possible work stoppages and who the knows what As you may imagine handlingof this type of case requires the utmost delicacy in balancing all the conflicting fields of law and other legal relationships We're working on the problem but I would certainly welcome relevant suggestions or advice from people who 38 starcards tion written aw safetystarcards -- the Contract were Work don't to Standards Act Many of themjust within the mandate andjurisdiction don't seem spelled the Occupational Safety Safety and Hea Act of 1970 - Acti I think youcan see why the Joc Safety Acti the standards must be read -- together neither CS emcloverrules exposed to The Commission Commission of of cited cited emclover emclover then no has ** ** emclover though charged against that employer even the employer may havecreated condition condition which is variance with the safety standards Many case 5g Departmeni case have been thrown out becausethe Labor failed to show that any employees exposed to a standard condition for example an unshored trench which employe excavated by machire which which exposure hazaro must the problems established jurisdiction snowball on ad infinitum and the responsibi respronessipbionsibi for abating cited hazards may never rec rec fixed As the Commission said one NICA CUTLOOK 1 LT iction diencsion a different rule would make operation for 20 years and will remain so for the ETN diencesion diencesion who subcontracts while next 20 A reading of the standard would give you complica .an ceomnptlroolyeorf the job site responsible for a clear affirmative answer -- but when the law and Ee > taining wn and health of working men and the standard are read together it's something safety 1926.1 1926.1 who do not work for him who are not else SNE omen to his direction and control who are not ubject There are some other unique provisions of this law which are 1 think particularly important for his payroll and who cannot be discharged by construction industry and the employees who it imposes liability outside the employ- the im ... work therein One involves the amount of time relationship hent This problem also came up in a slightly ferent but nonetheless similar kind of case a which asked the question -N what if an causes a hazard which does not affect Sployer own employees but does affect the public The employer was charged with failure to the law ployee nyway.alfold nyway.alfold fore fore be ovide a screen on a scaffold a requirement of nstruction safety standard which was developed the purpose of protecting people beneath the nyway.alfold from getting hit by falling objects which men working on the scaffold might drop y yout oyu out t a | are a are in It was admitted that the standards specify a reen and that this employer had none but the rearing produced no evidence that the respondent in e the ad any employees working beneath the scaffold me only people below it were passers on the Street Street A Was there a failure to comply comply with the Standard Yes A violation of the aw No. This law would not permit the employer to be ound liable for a job safety violation on these acts because the purpose of the Act as well as exclusively of ecifica 2 Government ' he employer's duty pursuant thereto is specif- cally and the protection employees not the general public The courts will not permit a agency to overstep its jurisdictional Act Act ther mandate And just as OSHA cannot enforce safety adopt mines cannot legal y regulations regulations in coal mines it cannot legally adopt national building code or enforce rules to a 93 " protect the general public from hazards arising out of work situations So the standard -- by itself ah tna ah tna not the law Can OSHA require an employer in ind properly guard a machine which has been out of between the OSHA inspection and the issuance of of the citation When this law was being debated in Congress the Senate enacted a bill which contemplated that the inspector wouid issue the citation at the conclusion of his inspection while still on version the employer's was different premises The House There was ---- such provision and no time limitation between inspection and issuance of a citation I was a Labor Department official at this time and we in the Department favored the House version We wanted to be allowed plenty of time between inspection and citation so that the inspector could return from his rounds consult with his supervisors on policy and where necessary consult with the legal staff on the issuance of the citation When the two versions got into conference committee a compromise was struck The citation didn't have to be issued on the spot the conferees agreed but it had to issue with reasonable promptness The term was not defined in the law but the conferees stated in their report to the Congress that the term meant that the citation had to be issued within 72 hours of the completion of the inspection exccpt where there were unusual circumstances I believe there was ample justification for this requirement A violating employer is not in jeopardy until cited If the violation is an trench scaffold of trench a defective a defective or lack scafold scaffold lack lack unshored unshored conmeter conmeter conmeter protection for example a delay of 4 to 6 weeks weeks in issuance of the citation may cost lives or serious serious serious A Complete Quality Line since injuries or it may render the problem moot since since the trench may be filled or the work completed PRODUCTS FOR THE THERMAL a INSULATION by that time which exists citations with employers are Nevertheless that is the situation today OSHA is not issuing its reasonable promptness and many raising this fact as a defense to the CMC C M CMC SEALERS ADHESIVES- - COATINGS and Sheets Technical Fen Assist You With Your Pruulem MlMly y ent va INSULATION ADHESIV^ DIVISION Hla Office and Plants CHICAGO MASTIC COMPANY Branch Angeles 7100 N. Mannheim Rd Rosemont Des Plaines Illinois 60018 Branch Offices & Warehouses New York Nanuet Los Son Francisco Atlanta Miami Kansas City Mo. action against them Now there are those who will nelp to employees when a cited employer is let off the hook because OSHA didn't issue the citation with reasonable promptness Perhaps we shouldn't let an indicted person go free when the State's evidence was obtained by wiretapping OK AUGUST 1974 39 either However the speedy abatement of hazardous conditions will never be accomplished in my judgement so long as OSHA is permitted to get away with defying such a clear Congressional mandate A collateral problem arises in many cases because the OSHA citation does not specify what the employer must do to correct the hazard I recall one case where there were four pits in the ground in which the employer stored liquids of various kinds Three of them were surrounded by 12 inch railings The fourth had none He was cited for not having standard guardrails to protect against accidental fails into the pits Upon receiving the citation he erected a guardrail around pit number four Later upon reinspection he was again cited for failing to abate the condition initially cited OSHA claimed that none of the pits had a standard guardrail difficulty Construction sites seem to be quite high list There of course is some a legal inspection party when many manage contrac and many trade unions have men at work single site The problems which = arise The walkaround rights are not accorded greater however for they often affect atrhe e : purpose for this law's existence contractor gets cited for example wes because wes inspector thought the mer on the unsafe scafiog <E actua worked for the cement mason when they worked for the window installation 24 a pickup truck with improperly storecodntractor 3 flamma liquids in the cack is parked near the flamma site prime contractor is cited but the offending owner was a supplier These problems would fing? Bens j We o~, specify was a railing 24 inches high around all four pits It seems the term standard guardrail is a term of art which is specifically defined in another section of the standards but to which this citation did not refer Citations so worded may trap employers and pave the way for higher penalties but they won't save many employees from injury or death One of the most innovative features of this law was and the a walkaround It representative authorizes the employer of his employees to accompany an inspector on his rounds The purpose benind it is to allow the employee representative to call the inspector's attention to potentially hazardous conditions and the employer to see what the inspector is concerned about so he can be in a position to explain it or correct it I think the walkaround is one of the better features features of have have bebn een this law but I regret confronted confronted with with with a a OSHA conducted insipnsepecttionisons inspections in the i aiz [| L ( ine vt tr oo ; AN lle hn wet Clea am i ne \ VN fal ! Tt 4 f H 1 Se iia A rd AMA PV {ous 4a ! Wer g y 1 ES 1 oGge oe a4 cok j i ce | been avoided if OSHA had accorded the part their walkaround walkaround agrits Of course you can't get hazardous condition abated when you cite the wrong employer And If you arent i556 E citations with reasonable promptness by the time you realize that you cited the wrong contracto the problem may have become mcot in my opinion Health Act is a the Occupational laudatory and it achieving those purposes lems were not contempleted the law main dratted very soundly is interrelated and are dependent upon The problems which have arisen principally the result of the failure of t people MANAG MANG PEST MANAG FORTY INSULATIONS INC 40 opin.ons more experience and time itself ** cure much of this Laws don't make angels cutgenefica devils overnight but they can have a genefica influence on our conduct This law has alre**a* made people more careful and more conscious Al the need for worker safety and health problems it has created are little ones when are compared with the overall reasons for the the the -- reducing the appalling casualty toll that been an an uunfonrtufnatoe rtunate unfortunate result of our industral y commercial progress ser CUTLOCK NICA NICANICA CUTLOCK CUTLOCK CUTLOCK CUTLOCK