NEW ENGLAND TELEPHONE & TELEGRAPH COMPANY
OSHRC Docket No. 9627
Occupational Safety and Health Review Commission
November 3, 1976
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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Chairman:
A decision of Administrative Law Judge Ben D. Worcester is before us for review pursuant to 29 U.S.C. § 661(i). Judge Worcester affirmed an item of a nonserious citation alleging that Respondent violated the Occupational Safety and Health Act of 1970 n1 by failing to comply with the occupational safety standard at 29 C.F.R. § 1926.501(f) n2 in that Respondent failed to assure that the hollow pan-type treads of a permanent metal stairway were filled to the level of the nosing with solid material when the stairway was used during construction. We affirm the Judge's decision except as modified herein.
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n1 29 U.S.C. § 651 et seq., hereinafter "the Act."
n2 The standard states:
Permanent steel or other metal stairways, and landings with hollow pan-type treads that are to be filled with concrete or other materials, when used during construction, shall be filled to the level of the nosing with solid material. The requirement shall not apply during the period of actual construction of the stairways themselves.
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Respondent argues, among other things, that the construction standard, 1926.501(f), does not apply to Respondent because Respondent's activity of installing the telephone wiring in an apartment building under construction was not itself construction work. Respondent contends that the definition of construction work at 29 C.F.R. § 1910.12(b) n3 must be construed restrictively to include only the class of employers which were included in the definition as it was construed for the purpose of the Contract Work Hours and Safety Standards Act. n4 Accordingly, Respondent argues that the installation of telephone lines in a building under construction was merely the leasing of equipment and was work performed to extend the service of a public utility pursuant to tariffs, both of which Respondent avers were not construction work under the Construction Safety Act. A similar argument was made in Bechtel Power Corporation, No. 5064, BNA 4 OSHC 1005, CCH OSHD para. 20,503 (R.C., March 11, 1976), wherein we held that the Secretary did not adopt the interpretative regulations promulgated under the Construction [*3] Safety Act when he adopted the construction safety standards as construction standards under the Act. We also noted that the Act extends the coverage of the construction safety standards to all employers having employees engaged in or performing construction work and it is not limited to contractors and subcontractors. Accordingly, we reject Respondent's arguments in this regard. United Telephone of the Carolinas, No. 4210, 4 OSHC 1644, OSHD para. 21,043 (R.C., August 26, 1976). Moreover, since the installation of telephone wiring in an apartment building is a vital and integral part of the construction of an apartment building, Respondent's employee was engaged in construction work.
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n3 29 C.F.R. § 1910.12(b) states:
For purposes of this section, "construction work" means work for construction, alteration, and/or repair, including painting and decorating.
n4 40 U.S.C. § 327 et seq., hereinafter "the Construction Safety Act."
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Respondent also argues that it was not required to comply with 1926.501(f) [*4] because the stairway was under actual construction and 1926.501(f) states that it does not apply ". . . during the period of actual construction of the stairways themselves." We disagree. The evidentiary record shows that, on the day of the inspection, the contractor who was constructing the stairway was performing shopwork in preparation for installing the railings, but, nonetheless, had removed the planks from the hollow pan-type treads of the stairway. The shopwork performed by the contractor clearly does not constitute "actual construction of the stairways."
Respondent argues that it did not violate 1926.501(f) since it did all that was reasonable to prevent the exposure of its employee to the condition. Respondent also argues that it was not responsible for the violation because it did not create the unsafe condition and did not have control over the area for the purpose of abating it. The record shows that Respondent's employee used the stairway in its noncompliant condition. He was therefore exposed to the hazard. We have held that Respondent may nevertheless be absolved of responsibility if it lacked the expertise or ability to detect the hazard, or if it took reasonable [*5] steps to protect its employee from the hazard. Grossman Steel & Aluminum Corp., No. 12775, BNA 4 OSHC 1185, CCH OSHD para. 20,691 (R.C., May 12, 1976); Anning-Johnson Company, Nos. 3694 & 4409, BNA 4 OSHC 1193, CCH OSHD para. 20,690 (R.C., May 12, 1976). The evidentiary record herein lacks evidence establishing either of these defenses. Accordingly, we adopt the decision of Judge Worcester affirming the item of violation. Nonetheless, since this case was tried prior to our decisions in Grossman and Anning-Johnson, supra, we will afford Respondent an opportunity, if it so desires, to present any additional evidence it may have bearing on this matter.
Accordingly, the decision of Judge Worcester is affirmed unless within ten (10) days of the date of receipt of this decision, Respondent requests in writing a further hearing. In such event, the order is withdrawn and the case remanded for further proceedings consistent with this decision. It is so ORDERED.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
My colleagues' affirmance of the citation for noncompliance with 29 C.F.R. § 1926.501(f) is wrong for two reasons. First, the construction standards contained in 29 [*6] C.F.R. Part 1926 did not apply to respondent because its employees were not engaged in construction work. Secondly, even if respondent's employees were engaged in construction work, complainant has failed to establish that respondent was responsible for the alleged violative condition as required by Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975).
Respondent, a public utility, was responsible only for the installation of telephone equipment at the worksite. Pursuant thereto, its employees were installing telephones and plugging in telephone outlets at the time of the alleged violation. My colleagues conclude that this installation "is a vital and integral part of construction of an apartment building." This conclusion clearly contradicts complainant's own definition of construction work as well as that of Congress.
The standards contained in 29 C.F.R. Part 1926 were promulgated under the Construction Safety Act, 40 U.S.C. § 333, as standards applicable to contractors performing Federal and federally assisted contracts. n5 Subsequently, the scope of the applicability of these construction standards was extended by 29 C.F.R. § 1910.12(a) to include all construction. [*7] 36 Fed. Reg. 10469 (1971). Paragraph (b) of § 1910.12 defines construction work as "work for construction, alteration, and/or repair, including painting and decorating" and refers the reader to the discussion of these terms in 29 C.F.R. § 1926.13. In pertinent part, 29 C.F.R. § 1926.13(a) provides that:
"The terms 'construction,' 'alteration,' and 'repair' used in section 107 of the Act are also used in section 1 of the Davis-Bacon Act (40 U.S.C. 276a), providing minimum wage protection on Federal construction contracts . . . ."
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n5 Although they were initially contained in 29 C.F.R. Part 1518 (36 Fed. Reg. 7340(1971)), that part was redesignated as Part 1926 on December 30, 1971 (36 Fed. Reg. 25232 (1971)).
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The definition of construction work in 29 C.F.R. § 1910.12(b) was obviously taken verbatim from the Construction Safety Act and the Davis-Bacon Act which both apply to "construction, alteration, and/or repair, including painting and decorating." 40 U.S.C. § § 276a(a) and 333(a). More importantly, however, telephone [*8] companies are specifically excluded from the applicability of the Construction Safety Act which provides that "contracts . . . for the transmission of intelligence" are not covered thereby. 40 U.S.C. § 329(b). Since Congress did not consider the words "construction, alteration, and/or repair" to include telephone companies, it is incredible that my colleagues have decided that the Secretary of Labor intended these identical words to include those companies. I therefore conclude that they err in affirming the citation in this case.
Additional support for this conclusion is contained in a letter from the Office of the Solicitor, United States Department of Labor, dated November 13, 1957, which among other things, discusses the applicability of the Davis-Bacon Act to employees of a telephone company. n6 That letter states in part:
"It is our opinion that the employees of the telephone company are engaged essentially in the extension of the distribution system of the telephone company rather than in the development or construction of the building or facilities . . . ."
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"[I]t seems quite clear that the particular employees involved . . . are engaged in occupations necessary [*9] to the furnishing of telephone service . . . and these employees do not come within the scope of the Davis-Bacon Act."
Thus, it is evident that the Secretary's definition of the word "construction" is consistent with the congressional definition as discussed above.
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n6 The letter is an attachment to the respondent's review brief and has not been challenged by complainant.
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Furthermore, the Secretary has promulgated particular regulations for the telecommunications industry which apply to "the installation . . . of conductors and other equipment used for signal or communication service. . . on public or private rights of way, including buildings or other structures." 29 C.F.R. § 1910.268(a). Some of these standards duplicate construction standards. For example, compare 29 C.F.R. § 1910.268(i)(1) with 29 C.F.R. § 1926.100(c). If the installation of telecommunications equipment in "buildings" was "construction work," such duplication would be unnecessary. See also Secretary v. United Telephone Company of [*10]
Assuming arguendo, however, that respondent's employees were engaged in construction work, the charge under 29 C.F.R. § 1926.501(f) should be vacated because complainant did not establish that respondent either created or controlled the violative conditions: a failure to fill hollow-pan-type treads on a stairway. In Anning-Johnson Company v. OSAHRC, supra, The United States Court of Appeals for the Seventh Circuit held that employers at multi-employer construction sites could not be held liable for violations which "they neither created, caused, nor [were] otherwise responsible for." That rule of law is correct and should be followed here. In my dissenting opinions in two subsequent decisions of this Commission, n7 I expressed my agreement with the Seventh Circuit's decision and indicated that complainant has the burden of establishing that the cited employer was responsible for the alleged violative conditions. That burden has not been met in this case.
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Since this decision does not cover all matters discussed in Judge Worcester's decision, the same is attached hereto as Appendix A.
APPENDIX A
DECISION AND ORDER
John S. Casler, for the Secretary
Elizabeth R. Banghart and William J. McDonald, for the Respondent
Ben D. Worcester, Judge, OSAHRC
This proceeding arises pursuant to a notice of contest filed by the Respondent August 21, 1974 under the provisions of section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq.) hereinafter called the Act. On July 31, 1974 a citation was issued alleging that the Respondent had violated section 5(a)(2) of the Act while installing connections with its telephone lines in a building under construction at West Roxbury, Massachusetts on July 25, 1974. The matter came on to be heard in Boston, Massachusetts on November 22, 1974.
THE FACTS
On July 25, 1974 the Secretary inspected a construction site at 30 Rockingham Avenue, West Roxbury, Massachusetts, where the Sturdy Oak Construction Company was erecting two four-story apartment buildings. [*12] One building was nearing completion. In the other building the stairways were only partially completed and, although the concrete contractor had provided space for the installation of telephones, the telephone jacks were not all in on the day of the inspection. The Secretary's compliance officer, Dolan, while inspecting this building met one of New England's installers, Evans, on an unfinished stairway. Evans testified that at the time he and Dolan met he was on his way down to get more material. The stair treads were the pan type which are filled with solid material when completed. On the date of the inspection the pans were not filled to the top of the nosing. On the basis of this observation, New England was alleged to have committed a non-serious violation of 29 CFR 1926.501(f) which provides that:
"(f) Permanent steel or other metal stairways, and landings with hollow pan-type treads that are to be filled with concrete or other materials, when used during construction, shall be filled to the level of the nosing with solid material. The requirement shall not apply during the period of actual construction of the stairways themselves."
A penalty of $55 was proposed.
The [*13] stairway was one which reversed direction at a landing midway between floors. It was enclosed by the building walls which were composed of concrete or cinder blocks that were still uncovered. There was no stair railing or handrail on the stairway.
The Secretary alleged in citation number 2 and in the complaint that there was a violation of 29 CFR 1926.500(e)(1) which is as follows:
"(e) Stairway railings and guards
(1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified below, the width of the stair to be measured clear of all obstructions except handrails:"
The complaint did not say which subsection of paragraph (1) was violated. It is plain to be seen at a glance that this allegation is defective, but New England waited until the matter came on for trial to raise this issue by means of a motion for summary judgment. The Secretary then moved to amend by adding subparagraph (iv):
"(iv) On stairways more than 44 inches wide but less than 88 inches wide, one handrail on each enclosed side and one stair railing on each open side."
This motion was granted over the objection of New England. The Respondent [*14] having failed to diligently and promptly utilize one of the remedies available to it under the rules where there is a patent defect in a pleading does not have good standing to oppose a motion to amend at trial. Moreover, the record shows that New England's defense was not impaired by the late amendment. The Secretary also was permitted to withdraw the allegation that this alleged violation was a repeated one.
THE ISSUES
In its post-hearing brief, New England contends that the installation of telephones is not construction work even when the installer is working in a building under construction and that, for that reason, it cannot be charged with violations of the Construction Standards.
THE LAW
This assertion must be rejected. It cannot be reconciled with the clearly expressed Congressional purpose as stated in 29 U.S.C. 651(b): ". . . to assure so far as possible every (emphasis supplied) working man and woman in the Nation safe and healthful working conditions . . . ." It could not rationally be argued that one of two men working side by side in a building under construction is protected from work site hazards and the other is not simply because the latter is [*15] employed by a public utility company. In addition, the General Industry Standards are not applicable where a specific industry standard exists. See Secretary of Labor v. Stone & Webster Engineering Corporation, 8 OSAHRC 102, 112 (1974); Secretary of Labor v. Isaacson Structural Steel Co., 5 OSAHRC 654, 657 (1973); Secretary of Labor v. W.C. English, Inc., 5 OSAHRC 222, 229 (1973); Secretary of Labor v. Sun Shipbuilding and Drydock Co., 4 OSAHRC 1020, 1021 (1973). For that reason, even though the provisions of section 1910.23(d)(1) of the General Industry Standards are the same as the provisions of section 1926.500(e)(1) of the Construction Standards, the latter section is the proper one under which to allege failure to provide railings and handrails because the work site was a construction site. For obvious reasons, the hazard presented by unfinished stair treads alleged to be a violation of section 1926.501(f) would only exist in a building under construction. At the time of the alleged violations, New England was installing components of its service facilities to be used after the building was completed and occupied. Can a public utility be [*16] charged under the Construction Standards under these circumstances? The answer is yes.
In Secretary of Labor v. Keibler Industries, Inc., 3 OSAHRC 1157, it was held that routine maintenance work performed on electric furnaces in a steel plant was not appropriately charged as a violation of the Construction Standards. There was no construction involved.
In Secretary of Labor v. Grossman Steel & Aluminum Corp., et al, 7 OSAHRC 355 (1974) employees of an architectural firm were on a construction site to observe and report any deviation by the contractors from the terms of their contract. They were inspectors. They were required to be present at all times when construction work was being done. It was held that their employer could not be charged with a violation of the Construction Standards.
Each of these cases is distinguishable from the instant case on the facts. In Keibler the work being performed was periodical maintenance inside a manufacturing plant. In Grossman, the architectural firm's employees were, like the Secretary's compliance officer, inspecting a construction site. They did not perform manual labor. They did not work with tools. They were not [*17] artisans. In the instant case the telephone company installer was in a building where construction contractors were erecting an apartment building. He was putting in telephone jacks so that telephone service could be furnished the occupants when the building was completed. In the present era a building which is to be used for office space or dwelling purposes is not considered to be suitable for occupancy until all of the communication equipment except the telephone itself is installed.
The Secretary, under authority of 29 U.S.C. section 655(a), has promulgated the Federal standards previously adopted under section 107 of the Contract Work hours and Safety Act at 29 CFR section 1926.1 et seq., as Construction Standards applicable to all employers subject to the provisions of the Occupational Safety and Health Act of 1970. Under the provisions of 29 CFR section 1926.32(i) the following definition of the term "employee" appears:
"(i) 'Employee' means every laborer or mechanic under the Act regardless of the contractual relationship which may be alleged to exist between the laborer and mechanic and the contractor or subcontractor who engaged him. 'Laborer and mechanic' [*18] are not defined in the Act, but the identical terms are used in the Davis-Bacon Act (40 U.S.C. 276a), which provides for minimum wage protection on Federal and federally assisted construction contracts. The use of the same term in a statute which often applies concurrently with section 107 of the Act has considerable precedential value in ascertaining the meaning of 'laborer and mechanic' as used in the Act. 'Laborer' generally means one who performs manual labor or who labors at an occupation requiring physical strength; 'mechanic' generally means a worker skilled with tools. See 18 Comp. Gen. 341."
There was no proof of the existence of a contract between New England and the prime contractor or owner of the site, but it is self-evident that New England's employee was sent there to fulfill New England's obligation, pursuant to an agreement for a valuable consideration, to install telephone equipment. If the installer was a mechanic or a laborer, the Construction Standards were applicable.
Whether New England's installer was a laborer or mechanic is determined by what he did, not by what label he was known. Butler Brothers, Inc. v. Alabama Grain Elevator, Inc., 136 F. Supp. [*19] 582, 584 (D.C. Ala. 1955). The word "mechanic" is defined broadly as an artisan, anyone possessed of mechanical skills. Wirtz v. Louisiana Trailer Sales, Inc., 294 F. Supp. 76, 79 (D.C. La. 1968). The court said:
"It may distort a statute to find its meaning by isolating one word from the text and examining it microscopically. Words can be only the skin of thought and they take their force from the muscle of context. . . ."
In United States v. Klinger, 199 F.2d 645, 648 (2nd Cir. 1952), Judge Learned Hand said:
". . . The issue involves the baffling question which comes up so often in the interpretation of all kinds of writings: how far is it proper to read the words out of their literal meaning in order to realize their overriding purpose? It is idle to add to the acres of paper and streams of ink that have been devoted to this discussion. When we ask what Congress 'intended', usually there can be no answer, if what we mean is what any person or group of persons actually had in mind. Flinch as we may, what we do, and must do, is to project ourselves, as best we can, into the position of those who uttered the words, and to impute to them how they would have dealt with the [*20] concrete occasion. He who supposes that he can be certain of the result is the least fitted for the attempt."
I find myself in agreement with Mr. Justice Frankfurter who once said in "Some Reflections on the Reading of Statutes", 47 Column L. Rev. 527, 530 (1947): "I must confess unabashedly that I do not get much nourishment out of them." But rational consideration of the facts, the Congressional purpose, the case law and the rule that remedial legislation is to be liberally construed leads, in my opinion, to the inevitable conclusion that New England's telephone installer was performing work as a mechanic on July 25, 1974, and that the work he was performing was construction work.
Under the provisions of 29 U.S.C. section 655(a) the Secretary was directed to promulgate as an occupational safety and health standard any national consensus standard, and any "established Federal standard", which is defined in 29 U.S.C. section 3(10) as any operative occupational safety and health standard established by any agency of the United States in effect at the time the Act became law, or contained in any Act of Congress in force on the date of enactment of the Act. Pursuant to this authority, [*21] 29 CFR, Chapter XII, Part 1518 was promulgated, 36 F.R. 7340 (April 17, 1971), as sections 1518.1-1518.1051, redesignated as 29 CFR, Chapter XVII, Part 1926, sections 1926.1 through 1926.1051, 36 F.R. 25232 (December 30, 1971).
CONCLUSION OF LAW
When a public utility employee enters a construction site upon which a building which will be occupied by the public is being erected for the purpose of installing telephone equipment which is an integral part of the equipment necessary to provide telephone service when the building is completed, such employee is engaged in construction work. His employer is required to comply with the provisions of the Construction Standards.
Having found that New England is an employer subject to the provisions of the Construction Standards, I now come to consideration of the merits of the citations. The Secretary has shown that there was a violation of section .501(f) as alleged in citation number 1. However, the evidence shows that the hazard was slight. The employer, New England, has been training its employees in safety procedures on construction projects since 1943. n1 The maximum penalty could be as much as $1,000. In a de minimis violation [*22] no penalty is warranted. Upon consideration of the four factors to be utilized in determining the appropriate amount of a penalty set forth in 29 U.S.C. 666(i) - size, history, good faith and gravity, I find that the proposed penalty of $55 to be reasonable. The probability of serious injury is slight.
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n1 Joint Exhibit No. 2 - Safety Code, Plant Department, New England Telephone and Telegraph Co., Section IV, October 1943
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Citation number 2, however, must be vacated. The inspection was very ineptly performed as is shown by the fact that four months after it was made, when the trial date was only two days away, the compliance officer was sent back to the work site to do what he should have done on the day of the inspection, measure the steps. The five subparagraphs of section .500(e)(1) specify different requirements, depending upon the width of the steps. The citation failed to state which was violated and, after the belated measurement, it was revealed that the width of the steps had been erroneously described [*23] in the citation as less than 44-inches wide when actual measurement revealed that the steps were 46-inches wide. The motion of the Secretary to amend the citation and complaint to allege that the steps were 46-inches wide was granted but the Secretary still had not completed the unfinished sentence in the citation which left the specific subsection alleged to have been violated unmentioned. The Secretary was permitted to cure this defect because the prior amendment made it clear that subsection (iv) was the appropriate subsection. The Respondent, as the record shows, had no difficulty in presenting its defense to this citation but the Secretary's inept inspection, careless draftmanship and defective pleading cannot be condoned. The inspector's testimony was replete with uncertainty. His recall of the facts was questionable as was shown by his use of phrases such as: "If I recall" after almost every answer to a question. An employer cannot be expected to guess what violation he has committed. A citation, even if properly drafted, cannot be affirmed on the basis of some indistinct recollection by a compliance officer of some of the things he vaguely remembers from the past. [*24] The burden of proof as to citation number 2 has not been met.
ORDER
Upon consideration of the record as a whole, I find that the citation for violation of 29 CFR 1926.501(f) and the proposed penalty of $55 should be, and hereby are affirmed. Citation number 2 alleging violation of 29 CFR 1926.500(e)(1) and the proposed penalty of $110 are vacated.
BEN D. WORCESTER, Judge, OSAHRC