SPACE AGE CONCRETE AND MASONRY, INC.

OSHRC Docket Nos. 13878; 13879; 13884 (Consolidated)

Occupational Safety and Health Review Commission

February 7, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Reg. Sol., USDOL

T. H. Brousseau, Jr., 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 Judge's decision. [*2] 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.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I agree with the Judge's decision in this case except insofar as it affirms violations of 29 U.S.C. 654(a)(2) for noncompliance with the occupational safety and health standard codified at 29 C.F.R. 1926.500(b)(1). Those charges should be vacated because the evidence does not establish that respondent, a masonry 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. Anning-Johnson Company, OSAHRC Docket Nos. 3694 & 4409, May 12, 1976 (concurring and 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 [*3] 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 Brady's decision, his decision is attached hereto as Appendix A So that the law in this case may be known.

APPENDIX A

DECISION AND ORDER

Anthony B. Cuviello, Office of the Solicitor, U.S. Department of Labor, on behalf of complainant

T. H. Brousseau, Jr., on behalf of respondent

STATEMENT OF THE CASE

BRADY, Judge: This consolidated proceeding is brought pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq., 84 Stat. 1590 (hereinafter referred to as the Act) to contest certain citations issued by the Secretary of Labor (hereinafter referred to as the Secretary) pursuant to section 9(a) of the Act.

The citations alleged that as a result of inspections of the respondent's workplace located at 2400 Gulfshore Blvd., Naples, Florida, respondent violated section 5(a)(2) of the Act by failing to comply with specific occupational safety and health standards promulgated by the Secretary pursuant to section 6 thereof. Notification of proposed penalties were issued with the citations. [*4]

The hearing was held October 6, 1975, at Naples, Florida, and no additional parties sought to intervene.

There was no dispute that, at the time of each inspection, respondent was engaged in masonry work in the construction of a multi-story building.

ALLEGED VIOLATION OF 29 C.F.R. 1926.25(a)

This standard, which relates to housekeeping, states as follows:

"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."

Complainant alleges that respondent failed to keep debris cleared from work areas, and that loose concrete rubble (overpours) was not kept clear from the edges of forming decks at the west side of the eighth level. Also, cement finishers' tools were not kept clear of the edges of the fifth level pouring deck.

Mr. Francis Silverburg, compliance officer, testified that in the course of his inspection on May 14, 1975, some of respondent's employees were engaged in concrete placing and finishing operations (Tr. 28). The inspection revealed that loose concrete rubble (overpours) was not kept [*5] clear of the edges of forming decks, and the loose material could fall to the areas below (Tr. 31).

At the close of complainant's case, the respondent moved to dismiss the citation with reference to the alleged violation of this standard. On the basis of the record, the motion to dismiss is granted.

The standard in question requires the clearing of debris from certain areas while work is being performed. The presence of debris is not in dispute in this case. However, the size of the rubble and type of hazard was not established, nor was the exposure of respondent's employees shown. Also, there was no adequate showing the the tools present constituted debris within the meaning of the standard. Although the inspecting officer observed respondent's employees performing masonry work, complainant failed to prove the employees were working in an area with debris present which respondent was required to clear.

ALLEGED VIOLATION OF 29 C.F.R. 1926.500(b)(1)

This standard, which relates to the guarding of floor openings and floor holes, states as follows:

"Floor openings shall be guarded by a standard railing and toe boards or cover, as specified in paragraph (f) of this section. [*6] In general, the railing shall be provided on all exposed sides, except at entrances to stairways."

It is alleged that the respondent failed to provide standard guardrails or proper covers for elevator shaft openings in the area of concrete placing and finishing at the east wing of the fifth level, in violation of the standard.

The compliance officer testified that during the May 14, 1975, inspection he found, in the area of concrete placing and finishing on the fifth level, an elevator shaft opening and a trash-chute uncovered and unguarded. He indicated that anyone engaged in the placing or finishing operation could fall through the openings because of the lack of guardrails (Tr. 31, 32). The testimony showed that respondent's employees were observed working in the placing and finishing area (Tr. 28).

The evidence clearly shows that the openings were unguarded and without proper cover, in violation of the standard as alleged. Also, the evidence sufficiently establishes that respondent's employees were in such proximity to the openings to be exposed to the fall hazard.

The compliance officer testified to the factors considered in determining the proposed penalty for the non-serious [*7] violation. It is held that pursuant to section 17(j) of the Act, the proposed penalty in the amount of $35 is appropriate under the circumstances of this case.

Mr. David Norris, compliance officer, testified that he made a follow-up inspection of respondent's worksite on May 30, 1975 (Tr. 45). During the course of the inspection, he found respondent's employees working in close proximity to unguarded and uncovered elevator shaft openings (Tr. 47-49). It was indicated, however, that one shaft was partially covered (Tr. 48, 60). As a result of the inspection, respondent was issued a citation alleging a willful and repeated violation of the standard.

There is no dispute that the elevator shaft openings were not guarded with rails; some were only partially covered. Mr. Walter Curry, superintendent for respondent, testified that it was his understanding that the general contractor provided guardrails (Tr. 37). He pointed out the problems involved with guarding the elevator shafts which were being used for the supplying of materials (Tr. 72, 74). He stated the shaft openings are uncovered several times per day and that employees under his supervision perform the duties to which [*8] they are assigned and, for the most part, use their own discretion in matters of safety (Tr. 80).

Mr. Norris testified to the computation of the proposed penalty. He stated the alleged violation is considered non-serious because the shafts were covered at the lower elevation and the fall exposure was limited to one level. He stated that he used the same method that was explained by Mr. Silverburg and arrived at the penalty of $85, but in view of the repeat violation, the amount was doubled (Tr. 53).

The proposed penalty was determined as a result of consideration given to the factors set forth in section 17(j) of the Act. However, since there was no evidence that the Commission has previously found the respondent in violation of the standard, there is no basis for considering the violation repeated. The record shows that the respondent had covered some of the shaft openings and partially covered others, thus indicating an attempt at compliance and an absence of willfully violating the standard. Therefore, it is held that the proposed penalty in the amount of $85 is appropriate for the violation found to exist May 30, 1975.

ALLEGED VIOLATION OF 29 C.F.R. 1926.28(a), 1926.104(a) [*9] AND 1926.105(a)

These standards, which relate to the use of protective equipment by employees, provide as follows:

1926.28(a): "The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees."

1926.104(a): "Lifelines, safety belts, and lanyards shall be used only for employee safeguarding. Any lifeline, safety belt, or lanyard actually subjected to in-service loading, as distinguished from static load testing, shall be immediately removed from service and shall not be used again for employee safeguarding."

1926.105(a): "Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical."

It is alleged that respondent failed to provide and to insure the use of appropriate personal protective equipment, such as safety belts and/or safety nets, during trash removal operations at the unguarded perimeter of [*10] the fourth level, in violation of the above standards. Mr. Silverburg testified that he observed respondent's employee leaning over the edge of the perimeter at the fourth level passing matches below, apparently for the purpose of lighting a cigarette. Also, he indicated that respondent's employees were shoveling rubble, which consisted of broken concrete blocks and mortar over the side at the edge of the unguarded fourth level (Tr. 33).

Mr. Curry testified that he is familiar with the requirement for guardrails. He stated that portable guardrails were in use at the jobsite but had to be removed in order for the masons to lay block (Tr. 71). Mr. Curry provided two safety harnesses for the employees, but they refused to wear them, believing they were more dangerous because of the possibility the line could snag on the masonry (Tr. 73). He had not attempted use of safety nets for his employees, as usually the general contractor is responsible for safety matters of this kind (Tr. 73-74).

The testimony of the compliance officer, with reference to the conditions he found to exist, is not disputed. Mr. Curry stated that removal of trash could not be performed with guardrails in [*11] place (Tr. 75).

There was no evidence offered on behalf of respondent to refute complainant's contention that employees were exposed to hazardous conditions which could have been reduced with the use of personal protective equipment. Although it was indicated that the use of safety belts presented problems in laying blocks, this was not shown to be true for the removal of trash as alleged. The employer, in this case, must be held responsible for requiring the wearing of such personal protective equipment in conformance with the standard at 29 C.F.R. 1926.28(a). Therefore, respondent has violated the standard as alleged.

The inspecting officer testifed to the factors considered in determining the proposed penalty (Tr. 43). It is held that the proposed penalty in the amount of $110 is deemed appropriate under the circumstances of this case.

As a result of the inspection on May 30, 1975, complainant issued a citation alleging willful and repeated violation of the foregoing standards, in addition to the standard at 1926.500(d)(1), which provides in pertinent part as follows:

"Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded [*12] by a standard railing, or the equivalent. . ."

It is alleged that respondent failed to provide guardrails or insure use of proper personal protective equipment for employees working on a balcony at the fifth level.

Mr. Norris testified that respondent's employees were placing blocks at the perimeter areas on a balcony at the fifth level (Tr. 47). The balcony was unguarded, and safety belt protection was not being utilized (Tr. 48). The fifth level was approximately 40 feet from the ground

Mr. Curry testified that it was not possible to lay blocks on the outside perimeter of the building with guardrails present. Also, his employees have indicated it is more dangerous to wear safety belts while laying blocks because of the possibility the line could snag on a block or on the masonry (Tr. 72, 73). The testimony showed that employees could tie to columns approximately 10 to 15 feet away (Tr. 81).

The evidence indicates possible difficulty with compliance, but there was no adequate showing that compliance is impossible, or that it would result in a more hazardous situation.

The evidence established a violation of the standard at 29 C.F.R. 1926.28(a) as alleged; however, the [*13] record fails to disclose that a willful or repeated violation occurred. Upon due consideration of the factors set forth in section 17(j) of the Act for determining penalties, it is held that a penalty in the amount of $350 is reasonable and appropriate.

ALLEGED VIOLATION OF 29 C.F.R. 1926.251(b)(3)

The standard, which pertains to rigging equipment for material handling, states as follows:

"Job or shop hooks and links, or makeshift fasteners, formed from bolts, rods, etc., or other such attachments, shall not be used."

It is alleged that respondent failed to insure that makeshift fasteners (formed from reinforcing rods) were not used as load-bearing lifting devices for crane transfer of a flying thrustout scaffold, in violation of the standard.

Complainant's evidence consisted of the inspecting officer's testimony that reinforcing rods were used in lifting devices for landing concrete blocks and materials (Tr. 34). Complainant's evidence does no establish that the reinforcing rods were actually being used by respondent's employees for the purpose alleged, nor does the evidence show who was responsible for the rigging of equipment operation of the crane. The evidence, therefore, [*14] fails to establish that the respondent violated the standard as alleged, and the motion to dismiss is sustained.

ALLEGED VIOLATION OF 29 C.F.R. 1926.451(a)(2)

This standard, which relates to general requirements of scaffolding, states as follows:

"The footing or anchorage for scaffolds shall be sound, rigid, and capable of carrying the maximum intended load without settling or displacement. Unstable objects such as barrels, boxes, loose bricks, or concrete blocks, shall not be used to support scaffolds or planks."

It is alleged that the respondent failed to insure that unstable objects, such as concrete blocks were used to support a scaffold platform, in violation of the standard. Complainant's evidence consists of Mr. Silverburg's testimony that loose concrete blocks and half blocks stood on end were used to support a scaffold platform for concrete block layers, at the west side of the fifth floor. The platform was used for the laying of concrete blocks and for storing same. He indicated that the blocks did not constitute a stable, safe, support for the plywood platform (Tr. 36, 37).

Again the complainant's evidence fails to establish that the respondent was responsible [*15] for the construction of the scaffold, and that its employees were using same, or exposed to any hazards whatsoever. Respondent's motion to dismiss the alleged violation is sustained.

ALLEGED VIOLATION OF 29 C.F.R. 1903.16(b)

This standard, which relates to the posting of citations, states in pertinent part:

"Each citation, or copy thereof, shall remain posted until the violation has been abated, or for three working days, whichever is later . . . ."

It is alleged that respondent failed to insure that the citation issued on May 23, 1975, remained posted for at least three working days or until all violations were abated.

Mr. David Norris testified that he conducted the inspection of May 30, 1975, but did not see the original citation posted. He stated that Mr. Roy Curry advised him that he had posted the original citation, but noted approximately a-half-hour later, it had been removed. No attempt was made to secure a copy for posting (Tr. 50).

In view of the record in this case, it is clear that the standard was violated as alleged.

ALLEGED VIOLATION OF 29 C.F.R. 1926.100(a) and (6)

These standards, which relate to head protection equipment, states as follows: [*16]

"(a) Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, shall be protected by protective helmets."

"(b) Helmets for the protection of employees against impact and penetration of falling and flying objects shall meet the specifications contained in American National Standards Institute, Z89.1-1969, Safety Requirements for Industrial Head Protection."

It is alleged that respondent failed to insure the use of proper personal protective equipment (helmets) by employees, in violation of the standard. Mr. Norris testified that he observed two employees wearing what is commonly known as bump-caps (hat protection) which is not designed for the type of exposure experienced on a construction site. He indicated that the employees were reasonably well protected for the area in which they were working at the time of the inspection, however, such headwear did not offer adequate protection while moving about the building under construction as in this case.

At the time of the inspection, herein, it was not shown that respondent's employees were working in areas specifically requiring [*17] head protection as set forth in the standards. Therefore, on the basis of the evidence, it will not be held that respondent violated the standards as alleged.

FINDINGS OF FACTS

1. Space Age Concrete and Masonry, Inc., is a corporation doing business in Naples, Florida, where at all times hereinafter mentioned, it was engaged in masonry construction work.

2. On May 14, 1975, May 30, 1975 and June 11, 1975, respondent was engaged in masonry work at 2400 Gulfshore Blvd., Naples, florida, - the construction site of a multi-story building.

3. On the aforementioned dates authorized representatives of the Secretary conducted inspections of respondent's worksite. As the result of the inspections, citations were issued with notices of proposed penalties.

4. Loose concrete rubble and cement finishers' tools were found to be present at the worksite. Respondent's employees were not exposed to a hazard due to the presence of the rubble, and the finishers' tools are not of such a nature to come within the purview of the standard at 29 C.F.R. 1926.25(a).

5. At the time of two inspections, elevator shaft openings, in the area of concrete placing and finishing, were not provided [*18] with guardrails or proper covers.

6. Personal protective equipment was not provided employees during trash removal operation at the unguarded perimeter on the fourth level and employees working on the unguarded balcony on the fifth level.

7. Respondent's employees were not shown to use reinforcing rods as make-shift fasteners for load-bearing lifting devices.

8. The citation issued may 23, 1975, did not remain posted for at least three working days or until all the alleged violations were abated.

CONCLUSIONS OF LAW

1. Space Age Concrete and Masonry, Inc., at all times pertinent hereto, was an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970, the Commission has jurisdiction of the parties in the subject matter herein, pursuant to section 10(c) of the Act.

2. Respondent is, and at all times pertinent hereto, required to comply with safety and health regulations promulgated by the Secretary pursuant to section 6(a) of the Act.

3. Respondent was not in violation of the standard at 29 C.F.R. 1926.25(a) as alleged in the citation.

4. Respondent was in violation of the standard at 29 [*19] C.F.R. 1926.500(b)(1), but such violation was not repeated or of a willful nature as alleged in the citation.

5. Respondent was in violation of the standard at 29 C.F.R. 1926.28(a), but such violation was not repeated or of a willful nature as alleged in the citation.

6. Respondent was not in violation of the standard at 29 C.F.R. 1926.251(b)(3) as alleged in the citation.

7. Respondent was in violation of the standard at 29 C.F.R. 1903.16(b) as alleged in the citation.

8. Respondent was not in violation of the standard at 29 C.F.R. 1926.100(a) and (b) as alleged in the citation.

9. Respondent was not in violation of the standard at 29 C.F.R. 1926.451(a)(2) as alleged in the citation.

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record, it is ORDERED:

1. That the citations alleging violation of the standard at 29 C.F.R. 1926.500(b)(1) is affirmed, and a penalty in the amount of $120 is assessed.

2. The citations alleging violation of the standard at 29 C.F.R. 1926.28(a) is affirmed, and a penalty in the amount of $460 is assessed.

3. The citation alleging violation of the standard at 29 C.F.R. [*20] 1903.16(b) is affirmed.

4. The citation alleging violation of the standard at 29 C.F.R. 1926.25(a) is vacated.

5. The citation alleging violation of the standard at 29 C.F.R. 1926.251(b)(3) is vacated.

6. The citation alleging violation of the standard at 29 C.F.R. 1926.100(a) and (b) is vacated.

7. The citation alleging violation of the standard at 29 C.F.R. 1926.451(a)(2) is vacated.

Dated this 6th day of july, 1976.

PAUL L. BRADY, Judge