ROBERT J. LZICAR

OSHRC Docket No. 1126

Occupational Safety and Health Review Commission

June 26, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Jerry W. Mitchell, dated July 19, 1973, is before this Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590).

Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, the Judge's decision is hereby affirmed in all respects.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: In the Chairman's Direction for Review of the Judge's decision, submissions by the parties were invited on the following issues:

(1) With regard to the occupational safety and health standard published at 29 C.F.R. 1926.401(i):

a. What are the "precautions" required to be taken pursuant to this standard?

b. How and by whom is the determination to be made as to what "necessary" open wiring is?

c. What constitutes "unauthorized personnel" as used in this standard?

d. Whether it is so vague as to be unenforceable.

(2) Whether the citation was issued with "reasonable promptness" as required by section 9(a) of the Act.

In finding no prejudicial [*2] error in the Judge's decision, the majority does not describe with specificity its disposition of the issues upon which submissions were invited. I wish to express my views concerning these issues as well as the additional exceptions raised by the respondent. The general thrust of the questions under the first issue is whether the standard published in 29 C.F.R. 1926.401(i) is so vague as to be unenforceable. I find merit in the argument of the Secretary that this issue is inappropriately raised in the Direction for Review. Although my colleagues have concluded differently, in my view the Commission is without power to pass upon an issue of vagueness. Santa Fe Trail Transportation Co., No. 331 (December 18, 1973). Nevertheless, it is implicit from the majority opinion in this case, which has the same majority as Santa Fe Trail Transportation Co., that the standard involved is precise enough to pass muster under that decision.

It is unnecessary to belabor the "reasonable promptness" issue. It was not raised before the Administrative Law Judge, and cannot be raised now, because the issue is not jurisdictional. See Advance Air Conditioning, No. 1036 (April [*3] 4, 1974).

In addition to the matters raised in the Direction for Review, the respondent argues that the perimeter guarding requirements of 29 C.F.R. section 1926.500(d)(1) do not apply here. Essentially, the same argument was unsuccessfully raised before the Administrative Law Judge and found lacking. I agree with the Judge in his rejection thereof. The respondent was doing carpentry work, steel framing and cement finishing in the construction of a large building known as the Tupperware Project near Jerome, Idaho. As a result of an inspection by a compliance officer, the respondent was cited, among other things, for a violation of section 1926.500(d)(1). The standard reads in its pertinent part as follows:

. . . Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent . . . .

The cited violation was for a "failure to provide guarding of the open-sided floor on the second floor of building B. The drop to the lower level is 22 feet."

The Administrative Law Judge has adequately summarized the facts. For easy reference, his summary is set forth here:

. . . Respondent's employees [*4] were constructing a concrete floor at the second floor level of the building. Construction of the floor involved several distinct operations commencing from one side of the building and progressing, bay by bay, to the other in successive tiers. The first operation is accomplished by the carpenters when they install 4 X 6 wooden beams across a bay from the iron frames on one side to the same on the other side of the bay. Additional wooden stringers are placed on top of the wooden beams at right angles to the first beams. The entire area in a bay is then decked over solidly with 3/8 inch plywood making a firm floor.

The iron workers follow the carpenters. They place a solid flooring of core forms (corrugated iron) on the plywood base and then wire reinforcement bars and rods in place two and one half to three inches above the core forms. The reinforcement bars and rods form an open lattice work above the core forms.

The final step in constructing the floor is pouring the concrete over the core forms. The cement finishers accomplish this part of the construction process. A "pour" is always stopped in the middle of a "bay," leaving a space of approximately four and one half [*5] feet of core form and reinforcing rod exposed extending from the side of the poured concrete to the side of the bay. Note that this exposed area is not a smooth surface but has a lattice work of reinforcing rods suspended two and one half to three inches above the corrugated iron core forms.

In my view, the Judge properly found that, when the solid plywood surface was in place, it was a "floor" within the meaning of the standard. It was a working service for carpenters, iron workers and cement finishers. The respondent observes that the exposure of these crafts to the risk of fall was brief. Nevertheless, the risk was there. The respondent further asserts that compliance within the standard would result in considerable hardship. It should be noted, however, that the compliance officer did make some suggestions on how the standard could be complied with. In addition, the respondent may wish to explore the possibility of a variance from the standard under section 6(d) of the Act whereby a different method would be used, so long as the employees would be as safe thereunder.

Finally, the respondent has not been prejudiced by consideration of the Secretary's late brief [*6] in view of its opportunity to file a reply brief and the careful consideration that brief has received.

[The Judge's decision referred to herein follows]

MITCHELL, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq ) (the Act hereinafter) contesting citations issued by the Secretary of Labor (Complainant) against Robert J. Lzicar Construction (Respondent) under the authority vested in Complainant by Section 9(a) of the Act.

A workplace described as a "construction site" located at "Tupperware Project, Jerome, Idaho," was inspected on May 16 and 17, 1972 by a Compliance Safety and Health Officer (CSHO). The workplace was allegedly under Respondent's ownership, operation or control. During the inspection certain alleged violations of safety standards were noted. Four separate Citations for Serious Violations and one Citation covering two items of non-serious violations were issued on June 15, 1972. The safety standards allegedly violated were promulgated by the Secretary of Labor pursuant to Section 6 of the Act by publication in the Federal Register and are now codified at 29 CFR [*7] 1926 and 29 CFR 1910.

The alleged violations are described in the Citation as follows with each standard allegedly violated quoted immediately thereafter:

Citation for Serious Violation One -- Inspection May 16-17, 1972 Failure to provide guarding of the open-sided floor on the second floor of building 'B'. The drop to lower level is 22 feet.

Abate by "June 21, 1972."

Standard -- 29 CFR 1926.500(d)(1) --

Subpart M -- Floor and Wall openings, and Stairways 1926.500 Guardrails, handrails, and covers.

(d) Guarding of open-sided floors, platforms, and runways. (1) Every opensided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides except where there is entrance to a ramp, stairway or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass or there is moving machinery, or there is equipment with which falling materials could create a hazard.

Citation for Serious Violation Two -- Inspection May 17, 1972 Failure to provide guarding for the sides of the lower exposed portion [*8] of the saw blade on a radial saw.

Abate by "June 26, 1972."

Standard -- 29 CFR 1910.213(h)(1) --

1910.213 Woodworking machinery requirements.

(h) Radial saws. (1) . . . The sides of the lower exposed portion of the blade shall be guarded to the full diameter of the blade by a device that will automatically adjust itself to the thickness of the stock and remain in contact with the stock being cut to give maximum protection possible for the operation being performed.

Citation for Serious Violation Three -- Inspection May 17, 1972 Failure to provide guarding for the exposed part of the saw blade above the table and that part of the saw blade above the material being cut on the table saw.

Abate by "June 26, 1972."

Standard -- 29 CFR 1910.213(d)(1) --

1910.213 Woodworking machinery requirements.

(d) Hand-fed crosscut table saws. (1) Each circular crosscut table saw shall be guarded by a hood which shall meet all the requirements of paragraph (c)(1) of this section for hoods for circular rip saws.

(Paragraph (c)(1) provides -- Each circular hand-fed ripsaw shall be guarded by a hood which shall completely enclose that portion of the saw above the table and that [*9] portion of the saw above the material being cut. . . .)

Citation for Serious Violation Four -- Inspection May 17, 1972 Failure to provide guarding for the live 220 volts, 200 amp. meter base on the power pole by the saw shack as specified in Article 110-17; National Electrical Code, NFPA 70-1971, ANSI C1 -- 1971.

Abate "Immediately."

Standard -- 29 CFR 1926.401(i)

Subpart K -- Electrical

1926.401 Grounding and bonding.

(i) Construction site. Precautions shall be taken to make any necessary open wiring inaccessible to unauthorized personnel.

Citation for Non-Serious Violations -- Inspection May 17, 1972 Item 1 -- Failure to provide a splitter on a table saw.

Abate by "June 26, 1972."

(At the opening of the trial Complainant and Respondent stipulated that the word "splitter," should be "spreader". After this stipulation Respondent withdrew the contest with regard to this item. Complainant concurred in the withdrawal upon the assurance of Respondent's counsel of abatement and continued compliance. Thus the standard is not quoted here.) Item 2 -- Failure to install the radial saw in such a way as to cause the cutting head to return to the starting position when [*10] released by the operator.

Abate by "June 26, 1972."

Standard -- 29 CFR 1910.213(h)(4) --

1910.213 Woodworking machinery requirements.

(h) Radial saws.

(4) Installation shall be in such a manner that the front end of the unit will be slightly higher than the rear, so as to cause the cutting head to return gently to the starting position when released by the operator.

Pursuant to the enforcement procedure provided in Section 10(a) of the Act, Respondent was duly advised by a "Notification of Proposed Penalty" dated June 15, 1972 of the proposal to assess a penalty of $550 in connection with each of the Citations for Serious Violations and $0 in connection with each Item of the Citation for non-serious violations for a total penalty of $2200. In a timely manner Respondent contested all of the "proposed citations as well as the proposed penalties to be issued thereunder." A complaint was filed by Complainant and answered by Respondent.

The case was assigned to this Judge on August 1, 1972. Initially the trial was set for September 28 in Twin Falls, Idaho. On motion of Complainant and without opposition from counsel for Respondent, that date was changed to October 18 at Boise, [*11] Idaho. The trial was held at Boise on October 18, 1972.

PROCEEDINGS AND EVIDENCE

When the hearing convened Complainant and Respondent were each represented by legal counsel. Counsel for Respondent stated that all necessary documents and notices were properly posted and all employees notified of the proceedings. There was no appearance by or on behalf of the affected employees. Neither Complainant nor Respondent were aware of the intent of any affected employees to appear.

Immediately prior to convening the trial, counsel for the parties participated in an informal discussion. The agreements reached were placed in the record as stipulations. The parties stipulated that Respondent is an employer within the meaning of the Act and that OSAHRC has jurisdiction of this proceeding.

Counsel for the parties also agreed that the word "splitter" used in the first item under the non-serious citation has the same meaning as the word "spreader" used in the cited standard. The citation and complaint were amended accordingly by substituting the word "spreader" for "splitter." Respondent stated that it did not object to the amendment. After the amendment, Respondent moved to [*12] withdraw its contest of the first item of the non-serious violation, stating that the violation had been abated and that Respondent continued compliance with the standard. Counsel for Complainant concurred in the withdrawal, noting that no penalty was proposed in connection with the item. The motion was granted.

Counsel for Complainant next moved to amend the Citation for Serious Violation Number 4 by striking the reference to the National Electrical Code. Respondent objected. Ruling on the motion was held in abeyance with each side given the right to submit legal arguments in their briefs. For record purposes Respondent objected to the submission of any evidence on alleged Serious Violation Number 4. The objection was noted, but denied.

Complainant called the CSHO as a witness. He described the procedure followed in making the two day inspection. The worksite is described as a large construction project involving a two story steel and concrete structure divided into four buildings. Respondent is one of ten sub-contractors working at the site. During the inspection Respondent had approximately sixty three employees working at the site.

Upon his arrival at the [*13] worksite, the CSHO met with the representative of the general contractor and asked him to assemble representatives of all of the subcontractors. When they were assembled the CSHO was introduced and identified. He explained his reason for being at the construction site and described the manner in which he would make the inspection. A representative of Respondent was present at this opening conference. The representatives of all the subcontractors, including Respondent's representative, appointed the representative of the general contractor to represent them during the walkaround inspection. Each of the sub-contractors was given the opportunity to accompany the CSHO but elected to be represented by the general contractor.

The witness described the various items of violation observed by him during the inspection. His testimony was detailed and specifically covered the four items of serious violation and the single item of non-serious violation which are the subject matter of this contest. Two photographs of the alleged failure to guard the open-sided second floor of one of the buildings were place in evidence. He also described the manner in which he arrived at the penalty recommended. [*14] The basic serious violation penalty of $1,000 was reduced by the maximum 20 per cent for previous history and the maximum 20 per cent for good faith as well as by 5 per cent for the size of Respondent's business. The CSHO was Complainant's only witness.

The first witness called by Respondent was Mr. Lzicar who testified that he is the respondent in this proceeding. He was not present at the worksite during the inspection and actually only visited it once a week. He testified that he was aware of the requirements of the Act and that he had read all of the standards and had attended meetings relative to the Act. He also described safety meetings held at least once a month with his employees.

His testimony covered the manner in which the concrete floors were framed and poured. He insists that there is no way to guard the open sides of the floors as the work progresses. He admits that at the time of the inspection neither of the saws was equipped with the required guard. He also admits that the radial saw would "hang up on occasion" because of some bearings that went bad rather than return to its starting position as required by the standard. With regard to the pole [*15] on which the open meter base was mounted, he insists that none of his employees walked past it during the regular course of their work.

Respondent called the man employed as its superintendent at the work site as its concluding witness. He testified that he was present during the opening conference and participated in choosing the general contractor's superintendent as the representative of all the sub-contractors for the walkaround. He states that the carpenter's union business agent was employed by Respondent and was at the workstie on the day of the inspection but did not participate in the walkaround. He admits that everyone at the worksite knew that an inspection was going on but denies that the CSHO offered any employee representatives the opportunity to join the walkaround. He admits that Respondent was not prejudiced by the fact no employee representatives participated in the walkaround.

He described the manner in which large wooden stringers are first placed on the steel framework of the building. Additional wooden stringers are placed at right angles on top of the first stringers. A solid surface of 3/8 inch plywood is then placed over the stringers. Core [*16] forms (corrugated metal) are installed on top of the plywood after which reinforcing rods and bars are wired in place. Pouring of the concrete is the final operation. In the view of this witness, guarding of the sides of the floor is precluded because of the manner in which the work proceeds. He insists that a rail would not protect the men because they would be working on both sides of the guardrail. Another factor making guarding impossible in the mind of this witness is Respondent's inability to estimate how far the work will progress during each workday.

The witness admits that neither of the saws covered by the citation were equipped with the required guards at the time of the inspection. Guards were promptly procured and were installed about one week after the inspection. Subsequently the employees balked at using the guards. The witness testifies that he threatened to fire the employees who refused to use the guards.

His testimony concerning the open meter-base admits its presence and admits that a walkway passed within three feet of the pole on which the meter base is mounted about six feet above ground. A rough sketch drawn by this witness locates the pole between [*17] the saw shed and the walkway with the open meter base on the side of the pole towards the saw and thus not readily accessible to employees passing along the walkway. As soon as the CSHO identified the open meter base as a violation, the witness covered it with cardboard. On the same or the following day the cardboard was replaced with two layers of plywood nailed together so they could not be moved.

At the conclusion of Respondent's evidence Complainant recalled the CSHO for testimony in rebuttal. He testifies that during the opening conference he queried the representatives of the subcontractors as to whether the employees had appointed an authorized representative to accompany him on the walkaround The sub-contractors answered "no."

In contravention of the testimony of Respondent's two witnesses the CSHO testifies that he in fact talked to a cement finisher and some carpenters during the walkaround. Each of them told him, the CSHO, that they worked for Respondent.

Due to delay in receipt of the transcript by the parties the briefing period was extended. The parties stipulated to six necessary corrections to the transcript. Each party submitted initial simultaneous [*18] briefs and proposed findings of fact and conclusions of law. Reply briefs were also submitted by each party.

DISCUSSION

Jurisdiction does not present any problem in this proceeding. In its Answer Respondent admits the jurisdiction of the Occupational Safety and Health Review Commission. The parties also stipulate that Respondent is an employer within the meaning of Section 3 of the Act.

During the course of the trial Respondent questioned the validity of the inspection. The question was based on the fact that no employee representative accompanied the CSHO on the walkaround. Respondent cited the Drake-Willamette Joint Venture case (Docket No. 117, CCH para. 15,142, July 10, 1972) as authority that failure to have employee representatives accompany the CSHO on the walkaround invalidated the inspection. Testimony of the CSHO is that he queried the assembled representatives of the sub-contractors as to whether the unions had designated employee representatives. Their response was "no." Accordingly the CSHO consulted with a number of Respondent's employees during the walkaround in compliance with Section 8(e) of the Act. At the conclusion of this testimony Respondent [*19] stated that it was his intention to have all of the facts concerning the non-participation of the employees in the walkaround in the record. He would then deal with the question in his brief.

Respondent does not mention the question concerning the walkaround in its original brief or proposed findings and conclusions, nor does he allude to or attack the validity of the inspection in the reply brief. In short Respondent has apparently abandoned the original theory. Perhaps this abandonment is caused by the testimony of Respondent's superintendent to the effect that Respondent's position in this proceeding was not prejudiced by the absence of employee representatives on the walkaround. Or perhaps Respondent realizes that the alternative requirement of Section 8(e) was complied with by the CSHO in his consultations with Respondent's employees. Regardless of the reason why Respondent has not pursued the argument, it must be disposed of at this point to clear the record.

The Commission review of Drake-Williamette, supra has reversed the holding of the Administrative Law Judge with regard to the Section 8(e) question. The Commission holds that in the absence of a showing that [*20] the employer was prejudiced by the absence of employee representatives, the inspection conducted without employee representatives is valid. See Drake-Willamette Joint Venture, Docket No. 117, CCH para. 15,655. Respondent's cited authority thus falls on a reversal occurring after the hearing herein. The evidence is clear. Respondent's supervisor agrees there was no prejudice to Respondent in the absence of employee representatives on the walkaround. In addition the testimony established that the CSHO consulted with some of Respondent's employees during the walkaround. The Section 8(e) alternative has thus been met. It is concluded that the inspection herein was valid.

Serious Violation Under Section 17(k)

There is disagreement between the parties as to what constitutes a "serious violation." Respondent argues that Complainant must prove two separate theories or parts in connection with a violation in order to bring a given violation within the definition of Section 17(k)

(1) That there is a "substantial probability" that the violation will lead to an accident, and

(2) That if an accident occurs there is a substantial probability that death or serious physical [*21] harm will result.

Complainant argues that only the second part must be proved in order to establish that a violation is "serious." Each party has explored the question in depth in its brief. Disposition of this disagreement as a preliminary matter will facilitate discussion of the individual items of violation.

Under the Act violations are separated into a number of different classes or categories. Each category is clearly defined. The serious category, under consideration here, is defined in Section 17(k) as follows:

(k) For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is 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 place of employment . . . (Emphasis added.)

The "substantial probability" language of this section is interpreted differently by Complainant and Respondent. I conclude that the language supports Complainant's position -- not Respondent's. The "substantial probability" mentioned is that death or serious [*22] physical harm could result from the condition existing at the place of employment -- not that an accident could happen. The language of Section 17(k) does not refer in any way to the probability of an accident occurring. To hold otherwise would be an unwarranted broadening of Section 17(k) to include instances more appropriately covered by Section 12(a) as instances of imminent danger. Complainant's argument must prevail. If there is a "substantial probability" that death or serious physical harm could result from the violation, it is a "serious," violation. See Baltz Bros. Packing Company, Docket No. 91 (Feb. 8, 1973); Crescent Wharf and Warehouse Company, Docket No. 1 (April 27, 1973); and Standard Glass and Supply Company, Docket No. 585 (April 27, 1973). In each of these cases the Commission, after full review, has held that Complainant need only establish that there is a "substantial probability" that death or serious physical harm could result from the violation in order to prove that a violation is serious.

In its brief, Respondent relies on two decisions reported in the CCH Employment Safety and Health Guide. Each of these decisions as cited and relied [*23] on is the decision of an Administrative Law Judge which has not become a final decision of the Commission. The Commission ordered review of each of the cited cases prior to Respondent's citation of them in the brief. The stronger case, Lundell Manufacturing Co., Inc., (Docket No. 714, CCH para. 15,299) was called for review on the very question at issue here. McDevitt and Street Co. (Docket No. 319, CCH para. 15,187) is also under review, but on a different issue. In view of the present procedural status of these two cases they are not persuasive authority on the question here. They certainly do not overcome the rule established by the three cases cited in the preceding paragraph.

The foregoing discussion leads to the only conclusion possible. A violation is "serious" if there is "substantial probability that death or serious physical harm could result from the violation." This is the criteria which will be applied hereinafter.

Citation for Serious Violation Number One

The violation alleged here is "failure to provide guarding of the open sided floor on the second floor of building B. The drop to the lower level is 22 feet." The "open sided" floor involved [*24] is the second floor in a large building under construction. Respondent's employees working at the site of the inspection by the CSHO included carpenters, iron workers and cement finishers. At the time of the inspection the vertical and horizontal iron framing of the building had been completed. The vertical framing extended from the main floor through the second floor to the roof. The horizontal iron frames or beams formed "bays" or rectangular openings that were nine feet wide and somewhat longer. The floor in some of the bays had been completed at the time of the inspection.

When the CSHO inspected the worksite on May 16 and 17, 1972 Respondent's employees were constructing a concrete floor at the second floor level of the building. Construction of the floor involved several distinct operations commencing from one side of the building and progressing, bay by bay, to the other in successive tiers. The first operation is accomplished by the carpenters when they install 4 X 6 wooden beams across a bay from the iron frames on one side to the same on the other side of the bay. Additional wooden stringers are placed on top of the wooden beams at right angles to the [*25] first beams. The entire area in a bay is then decked over solidly with 3/8 inch plywood making a firm floor.

The iron workers follow the carpenters. They place a solid flooring of core forms (corrugated iron) on the plywood base and then wire reinforcement bars and rods in place two and one half to three inches above the core forms. The reinforcement bars and rods form an open lattice work above the core forms.

The final step in constructing the floor is pouring the concrete over the core forms. The cement finishers accomplish this part of the construction process. A "pour" is always stopped in the middle of a "bay," leaving a space of approximately four and one half feet of core form and reinforcing rod exposed extending from the side of the poured concrete to the side of the bay. Note that this exposed area is not a smooth surface but has a lattice work of reinforcing rods suspended two and one half to three inches above the corrugated iron core forms.

Respondent argues that the floor described above is not an open-sided floor within the meaning of the cited standard. The standard is clear. It states:

(d) Guarding of open-sided floors, platforms and runways. (1) Every [*26] open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) (sic) of this section, on all open sides . . .

A floor is the bottom or lower part of any room; the part of a room upon which one stands; the surface or platform of a structure on which to walk, work or travel. (Emphasis added.) Webster's Third New International Dictionary (Unabridged) 1963.

Until such time as the carpenters complete their work in a bay by laying the stringers and solid surface of plywood, there is obviously no floor and thus no requirement to guard the open sides of the bay. Once the solid plywood surface is in place there is a floor. The carpenters as well as the iron workers and cement finishers walk on it and work on it. It is a working surface -- a floor. The open sides must, under the cited standard, be protected or guarded. Respondent's employees who follow thereafter in the construction process are exposed to the danger of falling from the open side just as surely as is anyone else who follows Respondents completion of the floor. An employee can fall from [*27] the plywood floor as easily as from the finished concrete floor. In fact, it actually appears that the iron workers are exposed to an even greater danger because of the ripping hazard posed by the raised lattice work of reinforcing rods and bars. While wiring them in place they are required to move about on the floor formed by the core forms and plywood. It takes an iron worker about two days to place and wire the reinforcing rods in each bay. He frequently approaches the side of the bay since the rods and bars are placed in sequence. He will actually work in close proximity to the open side as is shown in Exhibit one. During this period of time and up until the concrete is poured the workers are walking on an uneven surface formed by the corrugations in the core forms. The corrugations and lattice work of rods and bars are obvious on Exhibits two and one respectively and clearly make moving about hazardous because of the uneven surface.

Suffice it to say that there is a period of more than two days after the carpenters complete a bay during which the other two groups of Respondent's employees use that bay as a walking surface -- a floor. During that period these [*28] workers are exposed to the hazard which the required guardrail protects against. It is concluded that the standard applies to Respondent's operations here, at least to those operations occurring after the solid plywood floor is in place. From thence forward there is an opensided floor which requires guarding under the cited standard. The fact that the actual location of the open side will change as work progresses does not remove the danger to the workers nor excuse Respondent's non-compliance. One of Respondent's employees will be as surely injured or killed in a twenty-two foot fall from the open side of the partly finished floor as he will from the open side of a finished floor. To hold otherwise would be to ignore the clear Congressional purpose expressed in Section 2(b) of the Act. (It is noted from Exhibits one and two that there is no railing or guarding around the periphery of the second floor.)

In its brief Respondent argues that it is inconceivable as to how wood railings could be installed. This argument arises from a literal reading of a portion of the cited standard and ignores the testimony of the CSHO. (The CSHO suggested at least two types of railings which [*29] could be used.) The portion of the standard relied on by Respondent is obviously a typographical error or misprint. The standard specifically refers to "a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section . . ." It is true that paragraph (f)(i) describes a wooden railing only but this is not a "standard railing or equivalent" as provided in the standard under question here. It seems apparent that the internal reference is intended to be to paragraph (f)(1) which describes a "standard railing" and specifies its parts and their relative locations. The sub-paragraphs under (f)(1) specify the minimum requirements for various types of construction. Reading the reference to "standard railings, or the equivalent" in paragraph (d) makes it clear that the intended reference is to (f)(1) rather than (f)(i), since (f)(i) only discusses one type of railing and does not allow for an "equivalent." A clear misprint.

Respondent's brief demonstrates the ease with which such a misprint can occur. Respondent commences discussing paragraph (f)(i) and then inadvertently states ". . . Paragraph (f) (1) relates to wood railings." (Emphasis added. [*30] See page 9 of Respondent's original brief.) In the context of the brief this is unquestionably a typographical error. Yet it occurred at the very point in the brief which relies on a similar obvious misprint. So likewise is the internal reference to "paragraph (f)(i)" in paragraph (d) of the cited standard.

It is concluded that the cited standard applies to Respondent's operation here. The evidence described at least two possible methods of guarding the open sides. Without the guarding Respondent's iron workers and cement finishers are exposed to the dangers inherent in an un-guarded open-sided floor twenty-two feet above the next surface below. The unevenness of the surface and the elevated lattice work of reinforcing bars and rods only adds to the danger.

The foregoing discussion establishes the very clear possibility of a fall by Respondent's employees at the worksite. The iron workers are especially vulnerable. They must work on an uneven surface (the corrugated core forms) overlaid with a lattice work tripping hazard. The very nature of their work requires them to approach the sides of the bays as they wire the reinforcing bars and rods in place. When near [*31] the unguarded sides they are particularly vulnerable to tripping and falling. Even though there is no evidence of a past history of falls it would seem that this dearth results more from fortuity than the safe character of the construction operation. Respondent's carpenters and cement finishers are also endangered by the absence of guard railings on the open-sided floor. They are required to move about the floor in obtaining materials and performing their work. Their danger may not be as great as the iron workers, but it still exists.

The question of whether the violation is a "serious" one is less difficult to analyze. In this instance any fall from the open-sided floor goes twenty-two feet. The landing area is either a concrete floor or an area covered with the elevated reinforcing bars and rods. In either case there can be no question. Obviously serious injury or death will result. Thus, in line with my earlier discussion it is concluded that Respondent's violation of the standard set forth at 29 CFR 1926.500(d)(1) is serious.

In arriving at an appropriate penalty in connection with this serious violation it is necessary to consider the criteria set forth in Section [*32] 17(j) of the Act. The record here does not show any prior history of violations under the Act. There is no indication of any lack of good faith -- in fact the record is to the contrary. Respondent's business is moderate in size with sixty-three employees at the worksite. The gravity of the violation is considered to be moderate since there is no showing that any but a small number of Respondent's employees are exposed to the danger. Another factor considered here is that compliance will be somewhat costly in comparison with the present operation where no railings are installed. After consideration of all of these factors I conclude that a penalty of $275 is appropriate on these facts and will serve to effectuate the purpose of the Act.

Citations for Serious Violation Numbers Two and Three

These two Citations deal with Respondent's failure to guard the exposed portions of the blades of two saws. In the case of the radial saw (Citation Number Three) there was no guard over the portion of the saw blade protruding above the surface of the table or of that portion protruding above the material being cut. The CSHO testified to the absence of the guards and Respondent, [*33] in his testimony, admits that they were unguarded as alleged. Respondent testified, however, that the table saw had been guarded on occasion but insisted that in his opinion the guard made the saw more dangerous. He also testified that even though he had read the standards he was completely unaware of the standard requiring a guard on the radial saw.

The evidence is conclusive. Each saw was unguarded as alleged. The cited standard was violated. The CSHO observed the radial saw in use and observed fresh sawdust around the table saw indicating current use of each.

Any accidental contact with either unguarded saw blade would undoubtedly result in serious physical harm. I do not hesitate in finding such to be the potential of contact with a spinning saw. Amputation and loss of a finger, fingers, hand or arm is certainly serious physical harm within the meaning of Section 17(k). Accordingly, it is concluded that each of these violations are serious in nature.

The criteria set forth in Section 17(j) must again be weighed in connection with these Citations in order to arrive at a penalty that will be appropriate under the Act. As discussed earlier, there is no prior [*34] history of violations. Respondent has shown good faith in regard to these violations by prompt abatement. The gravity here is of a lesser degree because of the relative lesser number of employees (six or seven) using these saws. Considering all of these factors it is concluded that a penalty of $200 on each of these serious violations will serve to effectuate the purpose of the Act in encouraging Respondent's compliance.

Citation for Serious Violation Number Four

This Citation alleges Respondent's failure to provide guarding for a live 220 volt, 200 amp meter base mounted on a power pole. It includes a reference to a specific Article of the National Electrical Code. The Citation is repeated verbatim in the Complaint. At the onset of the trial Complainant's counsel moved to amend the Citation by deleting the reference to the National Electrical Code. Counsel did not mention any amendment to the complaint. Respondent argues that the standard cited, 29 CFR 1926.401(i), is a general standard whereas the Article of the National Electrical Code is a specific standard. In this context Respondent urges that both must fall because Complainant must elect which standard, general or [*35] specific, is being relied upon. Complainant's motion to amend the Citation and Respondent's counter argument that the complaint should be stricken were taken under advisement with each party reserving the right to develop its supporting argument in its brief.

It is well to note here that the purpose of a pleading, especially a complaint, is to fully and fairly advise the other party (Respondent here) of the allegations against him. The Commission's rules of procedure are simple but explicit in this regard. Rule 30 requires that a pleading contain ". . . a clear and plain statement of the relief that is sought, together with the grounds therefor." In short Respondent must understand what the alleged violations is. This presents no problem here. Respondent's counsel summarized the problem rather clearly when he said,

Q. Well now you have cited, as I understand counsel's position at the outset of this case, the employer is cited with the failure to take all necessary precautions to make that wire inaccessible to unauthorized person . . . .

(Transcript pg 83)

From this it is apparent that Respondent has not been prejudiced, surprised or misled in any way by the proposed [*36] amendment. Throughout the entire proceeding -- from the issuance of the Citation to the present -- the sole issue has been whether the open meter base was properly protected and guarded. The original Citation, as well as the Citation after amendement, clearly alleges Respondent's failure. There is no possibility of confusion. Counsel's failure to mention amendment of the complaint when moving amendment of the Citation appears to have been a simple inadvertent oversight.

The Citation is the initial and primary document which gives Respondent notice of the allegations against him. The complaint is based on the Citation and depends on it for validity. Amendment of the Citation changes the basis of the Complaint. After consideration of this entire matter it is concluded that Complainant's motion to amend should be granted since there is no apparent prejudice to Respondent. The Citation, as amended, will stand. It clearly advises Respondent of the alleged violation.

There is no disagreement on the existence of the meter base with the opening located in its face. Respondent's witnesses concede its existence. The evidence of its location offered by each side agrees. [*37] It was mounted on a temporary power pole. The meter base and the electrical wiring was installed by an electrical contractor who was also working on the construction site. It had been in place with the exposed opening for a period of several months. The meter base was mounted on the side of the pole facing the "saw shop" where Respondent's two electric saws were located. The base was approximately five and one half feet above the ground. There was an uncovered opening about six inches in diameter in the face of the meter base. Four electrodes (large metal clips) were located approximately two and one half inches inside the opening and were open to touch. The meter base was the source of power for the various electrical tools in the immediate area. There were no receptacles for plugging in electric supply cords on the side of the pole on which the meter base was mounted. There were several other electrical control boxes and panels on the same side of the pole as the meter base. Power source receptacles for plug-ins were on the opposite side of the power pole from the meter base. A regularly used walkway passed the power pole on the side opposite the meter base. It would [*38] be difficult, but possible, to walk between the saws and the side of the power pole on which the meter base was mounted because of scrap lumber from the saws. This was not a usual path for the workmen to use.

The presence of the meter base with the uncovered opening giving direct access to the energized electrodes is certainly a violation of the standard cited, 29 CFR 1926.410(i). Being open, it was accessible to anyone approaching the pole. There was no guard what-so-ever. Anyone approaching the power pole from the saw side of the pole in search of a power receptacle could very easily make accidental contact with the exposed electrodes. The location of the meter base five and one half feet above the ground and behind the saw tends to make this occurrence somewhat remote but nevertheless possible. This is especially true because of the fact that the power pole is the source of electrical power for the surrounding machines and tools. It is concluded that the cited standard has been violated.

In passing, it is well to note that the installation of the open meter base was also in violation of the Article of the National Electrical Code which was stricken by Complainant's [*39] amendment. That Article requires that live parts of electrical equipment operating at fifty volts or more shall be guarded against accidental contact. It then specifies various means of accomplishing such guarding. Obviously none of the proposed means were employed. So in this regard, Respondent was also in violation as set forth in the original Citation. Thus, whether the amendment stands or falls, Respondent is in violation as alleged in the Citation.

Is the violation found, a serious violation? The evidence is not sufficiently clear and precise on this point to sustain a conclusion that it is serious. In the opinion of the CSHO it was serious. However, his description of the potential injury which could result from accidental contact does not establish a potential which would justify holding that this is a serious violation. (See the Compliance Operations Manual, page VIII-5 for the guidelines followed by the CSHO with regard to serious accidents.) It is concluded that this violation is non-serious rather than serious.

The gravity of this violation is of a relatively low order because of the height at which the meter was installed and because of its location [*40] behind the saw in such a location as to be difficult to approach. The remaining considerations under Section 17(j) are given the same weight as under the previous violations discussed herein. Accordingly, after giving appropriate weight to each of the criteria and particularly because of the instant abatement, I conclude that $50 will be an appropriate penalty for this non-serious violation.

Citation for Non-Serious Violation -- Item 1

This Item deals with Respondent's failure to have a "splitter" installed on the table saw. At the outset of the hearing counsel for the parties stipulated that the term "spreader" should be substituted for "splitter." Counsel agreed that the terms had the same meaning and stipulated to the substitution so that the Citation and the cited standard would read the same.

Following the stipulated change Respondent moved to withdraw its contest of this item based on representations that abatement was achieved prior to the trial, compliance was continuing and no penalty was proposed. There was no showing of posting or notice to employees of this motion to withdraw. However, in this instance there is no need for such a showing since none of Respondent's [*41] employees made any appearance prior to or during the trial. The motion to withdraw was properly granted during the trial. This Item is affirmed.

Citation for Non-Serious Violation -- Item 2

This Item alleges failure to install a radial saw in such a way as to cause the cutting head to return to the starting position when released by the operator (Emphasis added). The standard cited, 29 CFR 1910.213(h)(4), also deals with installation of a radial saw. Respondent's witnesses testify that as originally installed the saw met the requirements of the standard. However, they concede that at the time of the inspection the saw would hang up on occasion because of some faulty bearings. The bearings were on order.

Even though the original installation may have been in compliance with the standard, (there is no evidence to the contrary) the standard is not satisfied in this instance. A standard requiring a certain method of installation, as here, would be meaningless unless continued compliance were required. Note that the standard specifies ". . . so as to cause the cutting head to return gently to the starting position when released by operator." The hang up of the [*42] saw on occasion is conceded by Respondent. If the saw does not always return to the starting position -- and here it doesn't -- the standard is violated. Installation that does not continue to fulfill its purpose is not compliance. This is the conclusion reached here.

The low range of gravity of this violation, considered in concert with the other Section 17(j) criteria, leads to the conclusion that the Secretary has correctly identified this as a non-serious violation. Respondent's good faith is well demonstrated by the prompt order of replacements for the faulty bearings. The proposal of a $0 penalty is appropriate.

Consequently, based upon the evidence adduced and after consideration of the briefs and other submissions by each party, I make the following:

FINDINGS OF FACT

1. Robert J. Lzicar, doing business as Robert J. Lzicar Construction, is an individual proprietorship maintaining a principal place of business in Ontario, Oregon. Respondent is engaged in the construction industry and at all times material hereto maintained a place of business and employment at the Tupperware construction project at Jerome, Idaho (Complaint and Answer. Also Record, pg. 8). [*43]

2. On may 16 and 17, 1972 Respondent was engaged in the erection and construction of certain buildings at the Tupperware construction site at Jerome, Idaho. Respondent employed sixty-three employees at the site and was an employer within the meaning of the Occupational Safety and Health Act (Stipulation -- Record pg. 8, 36 and 107).

3. As the result of an inspection of Respondent's workplace on May 16 and 17, 1972, Respondent was issued Citations dated June 15, 1972 alleging violation of six specific safety and health standards. On the same date a Notification of Proposed Penalty was also sent Respondent proposing the assessment of a penalty of $550 in connection with each of the four alleged serious violations and a penalty of $0 in connection with each of the two items of alleged non-serious violation. The violations are as set forth above at pages two, three and four (File -- Citation, Notification of Proposed Penalty and Record pg. 19).

4. On July 5, 1972 Respondent contested all of the Citations and proposed penalties (File).

5. On May 16 and 17, 1972 a Compliance Safety and Health Officer (CSHO) inspected Respondent's worksite. Respondent was one of ten subcontractors [*44] working at the site. Each of the subcontractors, including Respondent, was represented at the opening and closing conferences. They designated a general contractor's superintendent to represent them on the walkaround (Record pgs. 52 and 174). The subcontractors advised the CSHO that the employees had not designated an employee representative to accompany him during the walkaround (Record pgs. 55 and 196). During the walkaround the CSHO talked to several of Respondent's employees (Record pgs. 95-96 and 197-198). Respondent was not prejudiced by the absence of an employee representative accompanying the CSHO during the walkaround (Record pg. 173).

6. On May 16 and 17, 1972 Respondent's employees were engaged in constructing the second floor of a large building at the Tupperware Project. Respondent's Carpenters placed wooden beams and stringers in place across the iron frames and covered them with a solid surface of plywood. Respondent's ironworkers placed core forms (corrugated iron) on top of the plywood and wired reinforcing rods and bars in place about two and one half to three inches above the core forms. Respondent's cement finishers then completed the floor [*45] by pouring concrete (Record pgs. 150-152).

7. On May 16 and 17, 1972 the open periphery of the second floor at the Tupperware project was not provided with guarding. The open sides of the portion of the floor under construction were also not provided with guarding. Some of Respondent's employees worked adjacent to the unguarded sides (Exhibits one and two and Record pgs. 20-21 and 30). This floor was twenty-two feet above the surface below. The surface below was partly a concrete floor and partly reinforcing rods (Exhibit one and Record pg. 21). A fall of twenty-two feet onto such a surface will result in serious physical harm or death.

8. On May 17, 1972 the lower exposed portion of the saw blade of the radial arm saw was not provided with a guard (Record pgs. 26 and 125). This condition was corrected about a week after the inspection (Record pgs. 138 and 165).

9. On May 17, 1972 the portion of the blade of the table saw protruding above the table and above the material being cut was not provided with a guard (Record pgs. 26 and 125). This condition was corrected within three or four days (Record pgs. 165).

10. On May 17, 1972 an electrical meter base with [*46] an open hole about six inches in diameter was mounted about five and one half feet above the ground on a temporary power pole. The power pole was located between Respondent's saws and a nearby walkway. The meter base with the open hole was on the side of the pole toward the saws and away from the walkway. Respondent's employees would not ordinarily walk between the pole and the saws. Four electrodes were located about two and one half inches inside the open hole (Exhibits A and C and Record pgs. 28-29, 113, 183-184 and 191). This condition was corrected immediately by covering it with cardboard and by the installation of two thicknesses of plywood within a day (Record pg. 165).

11. On May 17, 1972 there was no spreader on the table saw. Correction of this violation was achieved prior to the trial (Record pgs. 9-11).

12. The radial saw was originally installed with a "slope" so that it would return. It also had a couterweight attached. Prior to the inspection on May 17, 1972 some of the bearings had gone bad and the saw would "hang up on occasion." It failed to return when operated for the CSHO (Record pgs. 58, 141-142). Respondent ordered the bearings necessary for repairing [*47] the saw prior to the inspection (Record pg. 142).

13. Respondent was aware of the requirements of the Act. Respondent also conducted safety meetings with its employees on a monthly basis. About twenty five of its sixty-five employees on the job had first aid cards. As a contractor Respondent had a better than average safety rating in Oregon and Idaho (Record pgs. 108-110).

CONCLUSIONS OF LAW

1. At all times material hereto, Respondent, Robert J. Lzicar doing business as Robert J. Lzicar Construction, was an employer engaged in a business affecting interstate commerce within the meaning of Section 3 of the Occupational Safety and Health Act of 1970. On July 5, 1972 Respondent filed a letter contesting all of the Citations and penalties proposed in connection with the six violations herein. Respondent thereby brought itself and the subject matter of this proceeding within the jurisdiction of the Occupational Safety and Health Review Commission. Respondent has stipulated to this jurisdiction.

2. The walkaround inspection conducted by the Compliance Safety and Health Officer at Respondent's workplace on May 16 and 17, 1972 was in substantial compliance with the [*48] requirements of the Act. The fact that no representative of Respondent's employees participated in the walkaround does not invalidate the inspection.

3. The condition described in Finding of Fact 7 was a violation of the standard published at 29 CFR 1926.500(d)(1). It is a serious violation within the meaning of Section 17(k) of the Act. Under the circumstances here a penalty of $275 is appropriate and will serve to effectuate the purpose of the Act.

4. The conditions described in Findings of Fact 8 and 9 were violations of the standards published at 29 CFR 1910.213(h)(1) and 29 CFR 1910.213(d)(1) respectively. These violations are serious violations within the meaning of Section 17(k) of the Act. Under the circumstances here a penalty of $200 for each violation is appropriate and will serve to effectuate the purpose of the Act.

5. The condition described in Finding of Fact 10 is a violation of the standard published at 29 CFR 1910.401(i). It is a non-serious violation. Under the circumstances here a penalty of $50 is appropriate and will serve to effectuate the purpose of the Act.

6. The condition described in Finding of Fact 11 is a violation of the standard [*49] published at 29 CFR 1910.213(d)(2). It is a non-serious violation. Respondent had withdrawn contest of this violation. Since it was abated and Respondent assures continuing compliance, Respondent's motion to withdraw is granted. The proposed penalty of $0 is considered appropriate. This item of the non-serious Citation and the proposed penalty is affirmed.

7. The condition described in Finding of Fact 12 is a violation of the standard published at 29 CFR 1910.213(h)(4). It is a non-serious violation. The proposed penalty of $0 is deemed appropriate under the circumstances of relatively low gravity and prompt abatement. This item of the non-serious Citation and the proposed penalty is affirmed.

ORDER

Based upon the foregoing Findings and Conclusions and for good cause shown, it is hereby

ORDERED that:

1. Citations for Serious violations One, Two and Three be, and the same hereby are, AFFIRMED;

2. Citation for Serious Violation Four is hereby modified to a non-serious violation and as such found proved; and

3. Citation for non-serious violations, Items 1 and 2 be, and the same hereby are AFFIRMED; and it is further

ORDERED that a total penalty of $725 be, [*50] and the same hereby is, assessed against Respondent.