OSHRC Docket No. 15540

Occupational Safety and Health Review Commission

September 21, 1977


Before CLEARY, Chairman; and BARNAKO, Commissioner


Baruch A. Fellner, Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor

Jeremiah F. Healy, III, for the employer




Administrative Law Judge Gold's decision affirming two citations for "repeated" violations of 29 U.S.C. section 654(a)2 by respondent Vappi & Company for failure to comply with the fire protection requirements of 29 CFR 1926.151(b)(2) n1 and open-sided floor guarding requirements of 29 CFR 1926.500(d)(1) n2 is before us for review under 29 U.S.C. section 661(i) in view of the filing of respondent's brief in response to a general order for review issued by former Commissioner Moran. See paragraph 2 of Commission Policy Statement, 41 Fed. Reg. 53015 (Dec. 3, 1976).

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n1 The standard reads as follows:

29 CFR 1926.151 Fire Prevention.

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(b) Temporary buildings

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(2) Temporary buildings, when located within another building or structure, shall be of either noncombustible construction or of combustible construction having a fire resistance of not less than 1 hour.

n2 The standard reads as follows:

29 CFR 1926.500 Guardrails, handrails, and covers.

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(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)(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.


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The sole issue before us is whether Judge Gold correctly concluded that respondent had committed "repeated" violations.

The facts were stipulated. Respondent is a Massachusetts building contractor with its principal office in Cambridge, Massachusetts. The immediate violations occurred at a worksite at the Charlestown Savings Bank in Boston. The two cited standards had been previously violated on two occasions at other worksites in Boston and East Boston. In concluding that the current violations were "repeated" Judge Gold observed that respondent does not operate fixed work establishments, but in its work moves from one worksite to another performing work of varying duration. It operates a single establishment overseeing construction work from its principal office in Cambridge.

Respondent asserts difficulties in supervision and coordination of different worksites, and argues that there is nothing in the record to support a finding that respondent has flouted the statutory requirements.

The Commission has recently addressed the single issue in this case in George Hyman Construction Co., 77 [*3] OSAHRC 67/C7, 5 BNA OSHC 1318, 1976-77 CCH OSHD para. 21,774 (No. 13559, 1977), appeal docketed, No. 77-1591 (4th Cir., May 2, 1977), wherein the several members disagreed as to the elements of a "repeated" violation.

The present two members have re-examined the issue in this case, and adhere to their opinions separately stated in George Hyman Construction Co. Chairman Cleary would affirm the Judge's decision, whereas Commissioner Barnako would reverse and remand. Therefore official action by an affirmative vote is not possible. 29 U.S.C. section 661(e). Accordingly, the Judge's decision becomes final. See Vappi & Co., 77 OSAHRC 72/D7, 5 BNA OSHC 1358, 1977-78 CCH OSHD para. 21,787 (No. 8282, 1977).