VECCO CONCRETE CONSTRUCTION OF D.C., INC.

OSHRC Docket No. 15579

Occupational Safety and Health Review Commission

October 11, 1977

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Harold Engel, Reg. Sol., USDOL

Charles A. Roberts, Safety Dir., Vecco Concrete Const. Co., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

A decision of Administrative Law Judge Benjamin Usher is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ("the Act"). The Judge vacated a citation issued to respondent alleging a serious violation of section 5(a)(2) of the Act for failure to comply with the standard at 29 CFR 1926.500(d)(1), because the Secretary failed to prove that an unguarded side for a platform on a tower crane was a hazard. n1 We reverse the Judge's decision, and affirm the citation.

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n1 The standard in pertinent part, reads:

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. . . .

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The citation was issued [*2] as a result of an inspection conducted at a construction worksite in Washington, D.C. In performing its work at this site, respondent was using a Linden-Alimak hammerhead tower crane. Respondent did not own the tower crane; it was leased from Heede International, Incorporated. However, the crane was being operated by an employee of respondent.

The operator's cab of the crane was located on the crane's boom, about 98 feet above the ground. The crane operator reached the cab by climbing a ladder, located inside the mast structure of the crane, to a point above the cab. He then descended another ladder attached to a four-foot square platform abutting the cab. As the operator descended the ladder to the platform, the cab was to his rear. The platform side to his right was protected by a guardrail. The side to his left was unguarded. The platform side to which the ladder was attached was guarded by the ladder and a guardrail, except for an open section abutting the unguarded edge. n2 The unguarded side of the platform faced the crane's mast structure. The compliance officer estimated that the open space between the platform and the mast was about two feet. A serviceman for Heede [*3] estimated that the open space was about one foot to one and one-half feet.

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n2 See Exhibit C-2. The Judge's decision does not specifically discuss this unguarded section of the platform. It is, however, clearly relevant to the alleged violation.

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When the operator reached the platform, he would turn around, cross the platform, open the door to the cab, n3 and enter. He had no duties to perform on the platform itself.

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n3 The cab door opened toward the unguarded side of the platform.

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Judge Usher held that the Secretary did not meet his burden of proving that respondent failed to comply with 1926.500(d)(1). Although the Judge acknowledged that the evidence established the absence of guardrails on the platform, he concluded that the Secretary had failed to prove that the lack of guarding on the mast side constituted a hazard. The Judge stated:

Clearly [*4] the record does not show the existence of a hazard at the tower side of the operator's platform on the crane in question. If a hazard exists, the complainant could have produced witnesses with sufficient expertise to prove that fact (emphasis added). n4

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n4 Judge's decision at 17.

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The Judge cited testimony by respondent's crane operator and construction superintendent, and the crane manufacturer's vice-president and one of its servicemen, to the effect that they perceived no hazard posed by the absence of guarding. The Judge believed that this testimony by respondent's witnesses was persuasive on the question of whether a hazard existed in light of the First Circuit's decision in Cape & Vineyard Div. v. O.S.H.R.C., 512 F.2d 1148, 1150 (1st Cir. 1975). For these reasons, Judge Usher concluded that the platform "was not 'opensided' as contemplated" by 1926.500(d)(1), and that the absence of the railing "presented no hazard to respondent's employees". n5

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n5 Judge's Finding of Fact No. 8.

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The Secretary petitioned the Commission for review of this decision and an order granting the petition was issued. In his petition, the Secretary argues that the Judge erred in requiring the Secretary to present additional independent proof of the hazard presented by the unguarded platform. In the Secretary's view, to prove a violation for failure to comply with 1926.500(d)(1), it need only be shown that respondent's employees were exposed to noncomplying conditions. The Secretary also argues that the holding in Cape & Vineyard Div., supra, is inapposite to the present case and that the Judge's reliance on this decision was erroneous. We agree with the Secretary's arguments.

By the express terms of 1926.500(d)(1), the standard contemplates the existence of a hazard when its terms are not met. Dic-Underhill, A Joint Venture, 76 OSAHRC 41/A2, 4 BNA OSHC 1051, 1975-76 CCH OSHD para. 20,563 (No. 3257, 1976). Cf. Lee Way Motor Freight, Inc. v. Sec. of Labor, 511 F.2d 864 (10th Cir. 1975); Gene L. Willison, [*6] d/b/a Gene L. Willison, Contractor, (No. 13603, July 25, 1977). To paraphrase the court's statement in Lee Way, supra, the standard presupposes the obvious, namely, that an opensided platform presents the hazard that an employee may fall from the platform.

The cited standard is different from the standard interpreted in Cape & Vineyard, supra. In Cape & Vineyard, the court was reading 29 CFR 1926.132(a), which, in pertinent part, reads:

Protective equipment, including personal protective equipment . . . shall be provided, . . . whenever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury . . . (emphasis added).

The court observed that the language of this standard "affords little if any concrete guidance," and concluded that, "[a] regulation without ascertainable standards, like this one, does not provide constitutionally adequate warning to an employer unless read to penalize only conduct unacceptable in light of the common understanding and experience of those working in the industry" (emphasis added). 512 F.2d at 1152. [*7]

The text of 1926.500(d)(1) does not present similar problems. The standard expressly provides that "[e]very opensided . . . platform 6 feet or more above adjacent floor or ground level shall be guarded". It clearly gives notice to an employer of the proscribed conduct.

The evidence establishes that the crane's platform was not guarded on all sides and that respondent's employee was exposed to this condition. This proves a violation of section 5(a)(2) of the Act. See Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1197, 1975-76 CCH OSHD para. 20,690 (Nos. 3694 & 4409, 1976). n6 The Secretary alleged that the violation was "serious" within the meaning of section 17(k) of the Act. n7 We agree. Respondent knew that the platform was not guarded on all sides. That there is a substantial probability that death or serious physical harm would result from a 98-foot fall is obvious. n8

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n6 That the mast was up to two feet from the platform is significant. The mast cannot be said to be the "equivalent" of a railing because of the distance from the platform. Also, the distance is in any event a hazard. Cf. Marshall v. Western Waterproofing Co., No. 76-1703 (8th Cir. Aug. 23, 1977) (a distance of 14 to 18 inches between a scaffold and building was a fall hazard).

n7 Section 17(k) 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.

n8 The Judge erred in requiring the Secretary to prove the likelihood of an employee falling off of the platform. The likelihood of an accident occuring is not the relevant inquiry in a section 5(a)(2) serious violation case. Rather, the question is whether there is a substantial probability that death or serious physical harm would occur in the event that an accident occurred. California Stevedore & Ballast Co., 1 BNA OSHC 1305, 1973-74 CCH OSHD para. 16,520 (No. 14, 1973), aff'd, 517 F.2d 986, 988 (9th Cir. 1975); Coastal Pile Driving, Inc., 5 BNA OSHC 1649, 1977-78 CCH OSHD para. 22,027 (No. 14458, 1977). The probability of an accident occurring is relevant only to the gravity of the violation. Id.

To the extent that the possibility of an accident occurring is relevant under section 17(k), we conclude that the possibility of a person falling from the involved platform is clear. See Exhibit C-2.

[*8]

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The Secretary proposed that a $600 penalty be assessed for this violation. Respondent employed more than 200 employees. On the dates of the involved inspection respondent had between 15 and 23 employees at the worksite. The operator was exposed to the violative condition for brief periods when entering and leaving the cab. Respondent appears to have been acting in good faith and the condition was abated following the inspection. On balance, we conclude that a $100 penalty is appropriate.

Accordingly, it is ORDERED that the Judge's decision vacating the citation for failure to comply with 1926.500(d)(1) is reversed, the citation for serious violation of section 5(a)(2) of the Act is affirmed, and a penalty of $100 is assessed.