L. H. SOWLES COMPANY

OSHRC Docket Nos. 13781; 13853; 14710 (Consolidated)

Occupational Safety and Health Review Commission

January 7, 1977

  [*1]  

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Henry Mahlman, Regional Solicitor

L. H. Sowles, Pres., L. H. Sowles Company, for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review.   The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review.   Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest.   Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance of an unreviewed [*2]   Judge's decision.   Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.  

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

I would vacate all the charges because the evidence does not establish that respondent, a steel subcontractor, created or caused the alleged violative conditions or was otherwise responsible for them.   Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975); Secretary v. Hayden Electric Services, Inc., OSAHRC Docket Nos. 4034 & 4147, July 28, 1976 (dissenting opinion); Secretary v. Otis Elevator Company, OSAHRC Docket No. 8468, May 14, 1976 (dissenting opinion); Secretary v. Anning-Johnson Company, OSAHRC Docket Nos. 3694 & 4409, May 12, 1976 (dissenting opinion).   Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges.

Since my colleagues do not address any of the matters covered in Judge Carlson's   [*3]   decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

APPENDIX A

DECISION AND ORDER

Donald R. McCoy, for the Complainant

Gerold G. Hirtz, for the Respondent

Carlson, Judge, OSAHRC:

This is a proceeding brought under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. §   651, et seq.), hereafter referred to as "the Act".   The three separate dockets were consolidated by consent of the parties and heard together on November 6, 1975 at Sioux Falls, South Dakota.   Each case arose at a separate construction site at which respondent was performing work as a contractor. In each case complainant Secretary of Labor alleges that as a result of inspections made at the worksites in question, respondent was determined to have violated Section 5(a)(2) of the Act through noncompliance with certain specified general industry standards published in 29 CFR, Part 1910.   The character of the charges pertaining to each docket number will be detailed later herein.

No affected employee nor representative thereof at any time sought party status.   Neither party submitted a post-hearing brief, although respondent did make certain post-hearing [*4]   submission which will be later discussed.

Jurisdiction of the Commission was conceded by respondent by the pleadings in all three dockets.

DOCKET NO. 13853

Facts and Discussion

The violations in this matter arose at an electric plant construction site near Stanton, North Dakota which was inspected by a representative of complainant on May 20, 1975.   Two nonserious items were alleged.   The first concerned accumulation of scrap and debris on walkways in violation of 29 CFR 1926.25(a); and the second charged that debris from cutting operations was being dropped, contrary to 29 CFR 1926.252(b), through floor holes (rather than waste chutes) onto unbarricaded floor space below.   The pertinent portions of the citation read:

Item no. 1 - 29 CFR 1926.25(a) - Scrap lumber, sheet metal, pipe, electrical cords, welding cable, insulation boxes, cardboard containers, other scrap material, and planking were scattered across walkways and not kept clear in the work areas throughout the plant thereby exposing employees to the hazards of tripping and falling.

Item no. 2 - 29 CFR 1926.252(b) - Debris from cutting operations was being dropped through holes in the floors without   [*5]   the use of chutes; the area near the passageway around the bottom of the air heater hoppers onto which the material was dropping was not completely enclosed with barricades; and signs were not posted to warn of the hazard of falling materials.

The cited standards read:

29 CFR 1926.25 - Housekeeping

(a) During the course of construction alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures.

29 CFR 1926.252 - Disposal of waste materials

(b) When debris is dropped through holes in the floor without the use of chutes, the area onto which the material is dropped shall be completely enclosed with barricades not less than 42 inches high and not less than 6 feet back from the projected edge of the opening above.   Signs warning of the hazard of falling materials shall be posted at each level.   Removal shall not be permitted in this lower area until debris handling ceases above.

The items were originally contested in full but at the opening of of the hearing it was stipulated (Tr. 5-8) by the parties that the factual allegations contained [*6]   in paragraphs IV and V of complainant's formal complaint (the only paragraphs previously unadmitted) were true.   Thus it was conceded that 25 of respondent's employees were exposed to tripping and falling hazards posed by the item 1 walkway debris violation, and that 2 employees were exposed to the falling debris described in item 2.

Respondent did not, however, concede that the described facts constituted a violation.   This contention was based on an assertion that respondent was not the general contractor and had no part in the creation of the hazards or responsibility for their abatement.   The Commission has adhered to the position that an employer whose employees are exposed to a danger which violates a standard may not successfully defend on the basis that the danger was created by someone else or that another party had a contractual obligation to prevent or correct it n1.

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n1 See, for example, Secretary v. R.H. Bishop Co., 8 OSAHRC 930 (1974); Secretary v. Savannah Iron and Fence Corp., 10 OSAHRC 1 (1974).

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In a case decided in 1975 n2 the United States Court of Appeals for the Seventh Circuit came to a contrary conclusion where nonserious violations are concerned.   The Court held that subcontractors should not be liable to citations for such infractions where the violative conditions were not created by them or were otherwise their responsibility.   The decision implies that complainant would bear the initial burden of showing that the conditions were under respondent's control.

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n2 Anning-Johnson Co., et al, v. OSAHRC, 516 F2d 1081 (7th Cir., 1975).

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Since Anning-Johnson represents such a significant departure from prior Commission precedent and has not to date been followed by the Commission, I decline to follow it here.   The violations in the instant case are sustained upon the basis of current Commission precedent.

The matter of appropriate penalty must be determined upon the basis of the pleadings.   Respondent admits that 25 employees were exposed to tripping and falling hazards n3 by the presence of [*8]   clutter and debris in walkways.   On the basis of these facts it would appear that the $45 penalty as proposed for item 1 is appropriate and should be assessed.

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n3 The sole testimony presented on any issue in Docket No. 13853 was the opinion of a compliance officer, who had no other connection with that case, that the conditions stipulated to posed a falling danger.

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The same cannot be said for item 2.   The admitted allegations show 2 employees were exposed (as against 25 in item 1), and too little is known about other factors concerning the gravity of the violation - including the duration of exposure or the character of the falling debris - to make an informed determination of a proper penalty sum.   No penalty is therefore assessed for item 2.

Findings of Fact

Upon the entire record in Docket No. 13853 the following facts are found:

(1) On May 20 and 21, 1975 respondent was engaged in construction work at an electric plant site near Stanton, North Dakota.

(2) At that time and place 25 of respondent's employees [*9]   were exposed to the tripping and falling hazards posed by the presence of scrap and debris in walkways used by such employees.

(3) At the same time and place 2 of respondent's employees were exposed to possible injury from cutting operation debris which was allowed to fall through floor holes to an unbarricaded floor area.

Conclusions of Law

It is therefore concluded:

(1) That respondent on May 20 and 21, 1975, at its jobsite near Stanton, North Dakota, was in violation of 29 CFR 1926.25(a) and that $45 is an appropriate penalty for such violation.

(2) That respondent was, at the same time and place, in violation of 29 CFR 1926.252(b), and that no penalty is established to be appropriate for such violation.

ORDER

In accordance with the foregoing, it is ORDERED that the citation in Docket No. 13853 is affirmed; that a civil penalty of $45 is assessed in connection with item 1 thereof; and that no penalty is assessed in connection with item 2 thereof.

DOCKET NO. 13781

Facts and Discussion

A multi-story steel and masonry bank building construction site at Sioux Falls, South Dakota at which respondent was doing steel work was inspected on June 5, 1975 by two   [*10]   of complainant's compliance officers, Mr. John Mitchell and Mr. Clarence G. Hansen.   As a result of that inspection the following serious violation was charged by citation issued June 6, 1975:

Standard

Description of Alleged Violation

29 CFR 1926.500(f)(1)

Guardrails erected in the following areas where

(vi)(b)

employees were working or passing through did not

29 CFR 1926.500(f)(1)

meet the requirements of these standards:

(vi)(c)

1.   At the first floor, approximately 90 feet of

open-sided floor was not provided with an inter-

mediate rail and the existing single cable de-

flected excessively under little pressure;

2.   At the second floor, approximately 100 feet

of open-sided floor was not provided with an

intermediate rail and the existing single cable

deflected excessively under little pressure;

2.   (a) The railings around the lobby area and

stairwell did not meet the requirement for

withstanding 200 pounds of top rail pressure and

was not provided with an intermediate rail;

3.   At the third floor, approximately 30 feet of

open-sided floor was not provided with an inter-

mediate rail and the existing single cable de-

flected excessively under little pressure;

3.   (a) The railings around the stairwell and

elevator shaft did not meet the requirement for

withstanding 200 Pounds of top rail pressure;

4.   At the fourth floor, approximately 350 feet

of open-sided floor was not provided with an

intermediate rail and the existing single cable

deflected excessively under little pressure.

  [*11]  

In his formal complaint complainant made unopposed technical amendments to additionally allege violation of the more general parts of the standard at 1926.500(b) and (d)(1).   The pertinent parts of 1926.500 provide:

29 CFR 1926.500 - Guardrails, handrails, and covers.

(b) Guarding of floor openings and floor holes.   (1) Floor openings shall be guarded by a standard railing and toe boards or cover, as specified in paragraph (f) of this section.   In general, the railing shall be provided on all exposed sides, except at entrances to stairways.

29 CFR 1926.500 - Guardrails, handrails, and covers.

(d) Guarding of open-sided floors, platforms, and runways.   (1) 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, as specified in paragraph (f)(1) 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 equipment with which falling materials could create a hazard.

29 CFR 1926.500 - Guardrails, handrails, and covers. [*12]  

(f) Standard specifications.   (1) A standard railing shall consist of top rail, intermediate rail, toeboard, and posts, and shall have a vertical height of approximately 42 inches from upper surface of top rail to floor, platform, runway, or ramp level.   The top rail shall be smooth-surfaced throughout the length of the railing. The intermediate rail shall be halfway between the top rail and the floor, platform, runway, or ramp.   The ends of the rails shall not overhang the terminal posts except where such overhang does not constitute a projection hazard. Minimum requirements for standard railings under various types of construction are specified in the following paragraphs: (vi) Other types, sizes and arrangements of railing construction are acceptable, provided they meet the following conditions: (b) A strength to withstand at least the minimum requirement of 200 pounds top rail pressure with a minimum of deflection.

29 CFR 1926.500 - Guardrails, handrails, and covers.

(f)(1)(vi)(c) Protection between top rail and floor, platform, runway, ramp, or stair treads, equivalent at least to that afforded by a standard intermediate rail.

Complainant sought a $500 penalty in connection [*13]   with the alleged violation. n4

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n4 A citation for nonserious violation issued at the same time was not contested by respondent.

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The undisputed evidence which was adduced by complainant at the trial of respondent's contest sustained all the factual assertions set out in the part of the citation describing the alleged violations.   The testimony and supporting photographs showed that along segments of the first, second, third and fourth outside floor edges, where no other sources of protection existed, single steel cables were strung between vertical columns.   The cables were attached at the proper height at the columns but were not drawn taut.   The cables crossed large spans without support and as a result sagged loosely.   They could easily be deflected two feet or more by little more than a touch.

The undisputed evidence also shows that floor edges on the interior of the building surrounding ladderways and a large second floor opening overlooking the first floor lobby were provided with either cables in the same condition [*14]   as those above described or with wooden guardrails which failed in a number of respects to conform to standard rail requirements specified in 29 CFR 1926.500.   Specifically, the wooden rails lacked intermediate rails as required by 1926.500(f) or 1926.500(f)(1)(vi)(c), and the supports for the 2X4 inch toprails were uniformly spaced far in excess of the 8 feet, on centers, required by 1926.500(f)(1)(i).   The latter condition, coupled with the fact that a number of the toprail spans had been pieced together of more than one length of 2X4 led both compliance officers to conclude that the rails could not withstand 200 pounds of pressure as required by 1926.500(f)(1)(iv) or (vi)(a).

Compliance officer Mitchell learned that 17 Sowles employees were at work on the project, and he saw such employees using the ladderways which were the only means of access to the various floor levels in the part of the building here in question.   Men were observed working on the third and fourth floor levels where they were engaged generally in completing final steps in the steel work - "torqueing up bolts and lining steel".   (Tr. 44-47).   Their activities necessarily took them close to the various unguarded [*15]   floor edges (Tr. 51-52, 58).

The factual and opinion testimony of the compliance officers was not subjected to cross-examination by respondent's representative, nor was it disputed by any contrary evidence because respondent elected to present none.   Respondent's position, as stated in its notice of contest and reiterated at trial, was that (1) the wrong standards had been cited and (2) the lack of proper rails was attributable to the general contractor, not Sowles.   These contentions will be considered in the order raised.

Relative to the standards respondent maintains that it could not properly be cited with 29 CFR 1926.500 and its various subsections dealing with standard rails because respondent was engaged in steel erection and hence was covered by 29 CFR 1926.750(b)(1)(iii) which provides:

29 CFR 1926.750 - Flooring requirements.

(b) Temporary flooring - skeleton steel construction in tiered buildings.   (1)(iii) Floor periphery - safety railing. A safety railing of 1/2-inch wire rope or equal shall be installed, approximately 42 inches high, around the periphery of all temporary-planked or temporary metal-decked floors of tier buildings and other multifloored structures [*16]   during structural steel assembly.

Complainant did, without objection, include in its formal complaint an alternative plea that if the outside floor areas were not required to be guarded by standard rails under 1926.500, the cables were nonetheless inadequate under 1926.750.   But complainant maintained at trial that the proper standard had been cited at the beginning since by the time of inspection permanent flooring of hollow precast concrete was already in place throughout all parts of the building included in the citation.   Thus the "steel erection phase" of the project was complete (Tr. 52, 55).   Some uncertainty has existed as to precisely when the steel erection phase of a project ends (and the single cable allowed in 1926.750 ceases to be adequate) and a standard rail - including a midrail - becomes necessary.   The steel erection standard is phrased in terms of protection around temporary floors n5.   In the instant case the testimony and photographs clearly show that permanent flooring was fully installed, and complainant's contention that 1926.500 applies must be upheld n6.   Were this not so, it should be noted that respondent would nonetheless have been derelict under the [*17]   specific steel erection standard.   The single cable there required must obviously be maintained at a sufficient tension to keep it close to the specified 42-inch height.   If allowed to sag, as in the present case, it becomes as much a tripping hazard as a protection against falls.

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n5 See Secretary of Labor v. The Ashton Co., Inc., Docket No. 5111 (January 26, 1976) and cases cited therein.

n6 Moreover, the use of precast concrete floor slabs makes it doubtful that temporary floors were used at all; thus 1926.750(b)(1)(iii) may never have been applicable here.

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Respondent's second defense also lacks merit.   The fact that the prime contractor had some responsibility to furnish railings does not diminish respondent's duty to protect its employees from falls which would likely result in serious physical harm.   This is true under the Anning-Johnson case as well as existing Commission precedent.   The principle espoused in Anning-Johnson does not apply to "serious" violations n7.   The undisputed testimony of   [*18]   compliance officer Mitchell was that a fall from any of the inadequately guarded floor edges would probably result in serious physical injury or death.   This testimony was wholly plausible since minimum fall distances would have been as far as 15 feet from the first floor to the basement (or similar one-floor distances through interior floor openings such as ladderways) to as far as from the fourth floor to ground level along the outside of the building.   Neither can there be any doubt as to the employer's knowledge of the manifest deficiencies of the rails. The violations must therefore be classified as "serious" within the meaning of the Act.

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n7 Section 17(k) of the Act provides: "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 unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."

  [*19]  

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Turning to the matter of penalty, Section 17(j) of the Act requires consideration of four factors: the employee's size, good faith, prior history of violation, and the gravity of the violation.   In proposing the $500 penalty in this case, complainant gave "maximum" credit under internal agency guidelines for the first three factors mentioned above.   Having independently considered the evidence of record it is concluded that $500 is an appropriate penalty.

Findings of Fact

Upon the entire record in Docket No. 13781 the following facts are found.

(1) On June 5, 1975 respondent was engaged in steel work at a bank building construction site in Sioux Falls, South Dakota, which was inspected by two of complainant's compliance officers.

(2) At the time of inspection the sides of the building were not enclosed, but permanent floors of precast concrete were in place.

(3) Lengthy expanses of the otherwise unguarded outside edges of the first four levels were guarded only by single metal cables which were attached to structural columns at a height 42 inches above the floor, but which were not drawn taut [*20]   and consequently sagged and were subject to 2 feet or more of deflection under light hand pressure.   Beneath these cables was no equivalent of a mid or intermediate rail.

(4) Interior floor openings in the various floors of the building structure were surrounded by wooden guardiails which lacked midrails.   The top rails were made of 2X4 stock which in many places had been pieced together and which were supported by upright members at intervals which substantially exceeded 8 feet. The top rails could not be expected to withstand a pressure of 200 pounds.

(5) Respondent had 17 employees on the project, some of whose duties at the time here material caused them to work close to the edge of the periphery cables and whose sole means of access to the various floor levels was through ladderway openings guarded by the rails described above.

(6) The cable and wooden guardrails described above did not meet the requirements prescribed in the standards cited in the citation and complaint herein, either in terms of configuration or barrier strength.

(7) Respondent's employees were exposed to a risk of falling from floor edges owing to the inadequate guarding thereof.   The distances of such [*21]   falls would have been 15 feet or more, depending upon location, and would likely have caused serious physical injury or death.

(8) Respondent, through its supervisory personnel, knew or should have known of the inadequate guarding.

Conclusions of Law

It is therefore concluded:

(1) That on June 5, 1975 respondent at a bank building construction jobsite at Sioux Falls, South Dakota was in violation of 29 CFR 1926.500(b)(1), (d)(1), (f)(1)(vi)(b) and (f)(1)(vi)(c), as alleged in the citation and complaint.

(2) That such violation was servious within the meaning of the Act.

(3) That $500 is an appropriate penalty for such violation.

ORDER

In accordance with the foregoing it is ORDERED that the citation for serious violation in Docket No. 13781 is affirmed and that a civil penalty of $500 is assessed in connection therewith.

DOCKET NO. 14710

Facts and Discussion

On August 11, 1975 complainant inspected a construction site in Sioux Falls, South Dakota where respondent was engaged as a subcontractor in the erection of a large concrete building.   As the result of the inspection, which was conducted by compliance officer John Mitchell, respondent was issued two citations.   [*22]   Citation number 1, for nonserious violation, described the alleged violation, for which a $25 penalty is sought, as follows:

Standard

Description of Alleged Violation

29 CFR 1926.450(a)(6)

The bottom landing for the access ladder be-

tween the ground level and the first floor was

obstructed by a pile of reinforcing steel.

 

The standard cited therein provides:

29 CFR 1926.450 -- Ladders.

(a) General requirements.   (6) Portable ladder feet shall be placed on a substantial base, and the area around the top and bottom of the ladder shall be kept clear.

Citation number 2 for serious violation, described the alleged violation, for which a $500 penalty is sought, as follows:

Standard

Description of Alleged Violation

29 CFR 1926.500(d)(1)

An employee was exposed to approximately 80 feet

of unguarded open-sided floor 14 feet high while

placing reinforcing steel in the completed portion

of the form for the penthouse floor.

 

(The cited portion of the standard was earlier set out herein in connection with Docket No. 13781.)

As in the previous dockets, respondent's defense in this docket was quite limited.   In its answer respondent denied liability on the basis [*23]   that it was "simply . . . not the party responsible for the safety violations described".   At the outset of the hearing respondent's representative acknowledged that no response had been filed to complainant's pretrial request for admissions because respondent intended to admit all matters contained therein (Tr. 81).   Respondent did not avail itself of the right of cross-examination.   Near the close of the hearing, however, it became clear that respondent did strongly wish to place of record certain facts concerning respondent's relationship with the prime contractor on the project.   Respondent's representative at the hearing was permitted to testify but had no first-hand knowledge of the matters sought to be introduced.   Respondent was therefore invited, if post-hearing efforts to stipulate to such facts were unavailing, to submit a motion to reopen in order to present evidence through competent witnesses.   Such a motion was filed, but was denied since counsel for complainant stipulated to the truth of the factual assertions. n8

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n8 See ruling, exhibit J-8.   Respondent at the same time asked to reopen the other docket numbers.   That request was in no wise consistent with respondent's position at the hearing (for which respondent had ample opportunity to prepare) and was therefore rejected.

  [*24]  

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With respect to the nonserious citation the testimony and photographic evidence of Mr. Mitchell, together with the admissions by respondent, show that a ladder used for access from ground level to the next higher floor by all persons in the building structure, including respondent's employees, was so positioned that the ground-level access was obstructed by bundles of steel reinforcing rod. The location of these materials was such as might cause employees coming up or down the ladder to suffer twisted ankles or similar injuries.

By the stipulations above referred to it is established that respondent's contract to install reinforcing rod for poured concrete did not include all concrete, and the particular steel rod near the foot of the ladder was not for respondent's use or under its control.   Also, the ladder, while used by respondent's employees, was under the control of the prime contractor for all crafts working in the building.

Here, as in the other nonserious violations earlier ruled upon, the evidence shows that a violative condition existed and that respondent's employees were exposed to the [*25]   hazards thereby created n9.   Again, the Commission decisions must be considered dispositive, rather than the Anning-Johnson case.

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n9 The situation differs somewhat since here the stipulations furnish proof that the conditions were not of respondent's creation or under its control.   In Docket No. 13853 these were essentially unsupported assertions.

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In this case complainant again (despite some evidence of prior violation) gave respondent "full credit" for prior history, good faith and small size.   The overall gravity of the violation is clearly within the low range.   It is therefore concluded that no penalty is warranted.

Turning now to the serious charge, the evidence shows that respondent was installing a "mat" of steel reinforcing rod for a concrete slab which was to be poured on a third-floor penthouse area.   The rods, which were criss-crossed and tied, extended to the edge of the slab area.   The work surface was 14 feet above the concrete third floor. There was no guarding at the edge. Approximately 6 employees [*26]   of respondent were at work on the entire project, and the inspecting officer saw one of them working 4 to 5 feet from the exposed edge. Accomplishment of tying operations required work less than 2 feet from the edge, and the location of the ladder used to get to the slab area required the employees to be at the edge when going up or down (Tr. 89-90).   Respondent's employee was thus exposed to a potential 14-foot fall to a concrete surface or construction materials resting thereon, with consequent likelihood of serious physical injury (Tr. 90).

By means of the earlier mentioned stipulation, it is established that the general contractor, rather than respondent, bore the responsibility, as between contractors, for erection and maintenance of guardrails. Because the general contractor was preoccupied with a labor relations controversy, it failed to provide the railing in question.   Respondent nevertheless went forward with its work, fearing that the general contractor would invoke completion date requirements and discharge Sowles for non-performance.

There is no question that the hazard created by the absence of a rail or equivalent barrier led to the probability of serious injury [*27]   or death, should a fall occur, nor is there a question that respondent's supervisory personnel knew of the condition.   The violation was therefore "serious".

No authority exists in Anning-Johnson or elsewhere which would suggest that the considerations of worker safety embodied in the Act may be thrust aside because of economic considerations of the character which motivated respondent here.   Where employees are confronted with hazards which pose a threat of probable serious harm, should an accident occur, safety considerations must be accorded primacy.   The defense advanced by respondent cannot prevail, and the serious violation is found to be sustained by the record.

Neither, upon the evidence in this case, do I believe that the contract matter should tend to mitigate the penalty.   For other reasons, however, the $500 penalty sought is found to be too great.   The gravity of the present violation was obviously of a lower magnitude than that in Docket No. 13781 for which the same penalty was asked.   Here exposure was clearly less since a small work area was involved, in contrast to the large expanses of unprotected floor edge in the other case.   Also, only one employee was shown [*28]   to be involved here.   Therefore, equal penalties cannot be justified.   Giving due consideration to the statutory criteria, it is concluded that $250 is a proper penalty for the instant violation.

Findings of Fact

Upon the entire record in Docket No. 14710 the following facts are found:

(1) On August 11, 1975 respondent was engaged in installing steel reinforcing rod at a building construction site at Sioux Falls, South Dakota.   The site was inspected on that date by a representative of complainant.

(2) At the time of inspection the landing area for a ladder used by all workers at the site, including respondent's employees, was obstructed by building materials in such a way as to expose users to the risk of minor injury.

(3) One of respondent's employees was installing steel reinforcing rod preparatory to the pouring of a concrete slab.   The area of his work was 14 feet above the subjacent concrete floor, and the edge was not protected by a standard guardrail or its equivalent.   Tying of the rods and climbing to the work area necessitated the employee's presence close to the unguarded edge, thus exposing him to the danger of a fall which would result in probable serious injury.   [*29]  

(4) Respondent, through its supervisory personnel, knew or should have known of hazardous condition described in the finding immediately preceding.

Conclusions of Law

It is therefore concluded:

(1) That on August 11, 1975, respondent at a building construction site at Sioux Falls, South Dakota, was in nonserious violation of 29 CFR 1926.450(a)(6).   No monetary penalty is warranted for such violation.

(2) That at the same time and place respondent was in violation of 29 CFR 1926.500(d)(1), which violation was serious within the meaning of the Act.

(3) That a penalty of $250 is appropriate for the last mentioned violation.

ORDER

In accordance with the foregoing it is ORDERED that both citations in Docket No. 14710 are affirmed; that no penalty is assessed in connection with citation number 1; and that a penalty of $250 is assessed on connection with citation number 2.

John A. Carlson, Judge, OSAHRC

Dated: March 31, 1976