UNDERHILL CONSTRUCTION CORP. & DIC CONCRETE CORP., d/b/a DIC-UNDERHILL, A JOINT VENTURE

OSHRC Docket No. 3725

Occupational Safety and Health Review Commission

October 16, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners

OPINION:

BY THE COMMISSION: This matter is on review by order of a Commissioner. The order raised additional issues * not urged before the administrative law judge. And although the Secretary has briefed such added issues on review, Respondent has not. On review Respondent makes the same objections to the Secretary's citation and proposed penalty that it made before the administrative law judge.

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* The dissenting opinion is directed to one such issue, reasonable promptness as to the issuance of the citation. And it states that it "was not until 18 days later . . . that any attempt was made . . . to force correction" of the hazard. The record shows to the contrary. An attempt "to force correction" was made on the inspection date, March 2, 1973, and abatement was effected.

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We have considered the entire record, and conclude that the administrative law judge properly disposed of the matter. Accordingly, we adopt his proposed findings of fact and conclusions [*2] of law. Any error that may appear in his report as a consequence of his vacation of the notice of proposed penalties does not result in prejudicial error. Respondent has shown no prejudice resulting from the delay in the issuance of the notice of proposed penalties. In any event the administrative law judge properly applied the statutory factors in assessing penalties.

Accordingly, the administrative law judge's report is adopted as the final decision of the Commission, and it is so ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, COMMISSIONER, dissenting: The citation should be vacated because it was not issued until 18 days after the inspection on which it was based. In the absence of exceptional circumstances, which are not established in this case, that is 15 days longer than Congress intended.

As respondent aptly points out in its brief:

The legislative history for the Act indicates that the House in its Conference Report considered reasonable promptness in the absence of special circumstances, not to exceed 72 hours from the time the violation is detected. n1

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n1 Overlooking the fact that this point is made in respondent's brief, the majority opinion contains the incorrect assertion that ". . . although the Secretary has briefed such added issues on review, Respondent has not."

[*3]

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The reason for inclusion of this time period was to implement the congressional purpose of rapid abatement of hazardous working conditions. Such a worthwhile purpose will not be achieved so long as this Commission continues to affirm citations issued after the 72-hour time limit has expired. There is no incentive for complainant to observe this time limit unless it will lose its case by nonobservance -- just as there was little incentive for prosecutors to bring imprisoned alleged offenders to early trial until Congress enacted a speedy trial law compelling dismissal of the charges when prosecutors ignored the time limits.

The facts of this case offer a good example of the results which occur when no time limit is enforced. Forty employees of respondent were engaged in the construction of formwork for what was going to be the 25th story of a high-rise building. They were observed by complainant's safety inspector while working near an edge of the building not equipped with railings to protect against falls. He felt so strongly about the situation that he immediately advised the employees that an [*4] "imminent danger" existed. 29 U.S.C. 662(c).

This was done on March 2, 1973.

It was not until 18 days later, however, that any attempt was made by complainant to force correction of this supposed hazard by the initiation of process. n2 This demonstration of disregard to the employees working under such conditions was further compounded by complainant's failure to complete the service of process until June 28, 1973 -- nearly 4 months after the inspector advised the employees that they were working under conditions which were imminently dangerous. n3

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n2 The asterisked footnote in the Commission's decision quotes part of this sentence but pointedly omits therefrom the key phrase "by the initiation of process." Under law, no employer is compelled to take any action until properly served with process. See the discussion in Secretary v. Pleasant Valley Packing Co., Inc., 2 OSAHRC 185 at 188-189.

n3 In a recent case in which the constitutionality of the Act's penalty scheme was aruged, complainant took the position that the purpose of the enforcement scheme was to force employer compliance with its safety regulations -- not to punish employers. Frank Irey, Jr., Inc. v. OSAHRC,    F.2d    (3d Cir., decided July 24, 1975). One might well wonder how this purpose is to be achieved in construction projects in the face of the delays demonstrated by complainant in this case. The construction project may well have been completed by the time the service of process was effectuated. Under such circumstances, one might be hard pressed to maintain that the objective sought was compliance by the cited employer at the cited job site.

[*5]

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The Commission responds to the above with one sentence: "Respondent has shown no prejudice resulting from the delay." I submit that the insertion into the Act of a reasonable promptness requirement in an effort to effect the early abatement of hazardous conditions was not conditioned upon prejudice (or lack thereof) to any litigant in any legal proceeding. Not one word of the legislative history supports such a conclusion. The reason for the reasonable promptness language was to require early action to force abatement of working conditions hazardous to employees. That objective will not be achieved so long as the common law doctrine of "prejudice" is engrafted upon this rather explicit statutory provision.

My views on this matter are set forth in greater detail in Secretary v. Plastering, Inc., 8 OSAHRC 150 (1974), and Secretary v. Advance Air Conditioning, Inc., 7 OSAHRC 736 (1974).

[The Judge's decision referred to herein follows]

DITORE, JUDGE: This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereinafter called the [*6] Act), contesting a serious citation issued by the Complainant against the Respondent under the authority vested in the Complainant by section 9(a) of the Act (29 USC 685(a)).

The citation alleges that as a result of the inspection of a workplace under the ownership, operation and control of the Respondent, located at 245 East 40th Street, New York, New York, and described as a "High Rise Apt Bldg.," the Respondent violated section 5(a)(2) of the Act (29 USC 654(a)(2) by failing to comply with an occupational safety and health standard promulgated by the Secretary of Labor pursuant to section 6 thereof (29 USC 655).

The citation issued March 20, 1973, alleges that a serious violation resulted from Respondent's failure to comply with a standard promulgated by the Secretary by publication in the Federal Register on December 16, 1972 (37 F.R. 27543) and codified in 29 CFR 1926.500(d)(1).

The description in the citation of the serious violation, and the standard as promulgated by the Secretary are as follows:

Serious citation -- Description -- 29 CFR 1926.500(d)(1)

Failure to provide every open sided floor 6 feet or more above adjacent floor or ground level, guarding [*7] by a standard railing or the equivalent, as specified in pagraph (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 toe-board wherever, beneath the open sides persons can pass, or there is equipment with which falling materials could create a hazard. Location:

24th Floor: All sides.

Standard as promulgated:

(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 toe-board 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.

Pursuant to the enforcement procedures set forth in Section 10(a) of the Act (29 USC 659(a)), the Respondent was notified by letter dated March 20, 1973, * from Nicholas A. DiArchangel, area director of the New [*8] York City area, that the Occupational Safety and Health Administration, United States Department of Labor, proposed to assess a $950.00 penalty for the serious violation of 29 CFR 1926.500(d)(1).

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* Although the copy of the letter in the record folder is dated March 20, 1973, there is evidence in the record that the notification of proposed penalty was not served on Respondent until June 28, 1973 (item 3 of file).

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The case was heard at New York, New York, on November 12, 1973.

ISSUES

1. Whether 29 CFR 1926.500(d)(1) is applicable to the work being performed by Respondent on March 2, 1973.

2. If 29 CFR 1926.500(d)(1) is applicable to Respondent, whether Respondent violated 29 CFR 1926.500(d)(1).

3. If Respondent violated 29 CFR 1926.500(d)(1), whether the violation was serious.

4. Whether the notification of proposed penalty was timely served on Respondent.

5. If the notification was timely served, whether the proposed penalty is reasonable and proper.

STATEMENT OF THE EVIDENCE

It was stipulated [*9] between the parties at the hearing that Respondent Underhill Construction Corp., is a New York corporation located at Bayside, New York; that Respondent Dic Conrete Corp., is a New York corporation located at Elmont, New York; that Respondents traded as Dic-Underhill, a Joint Venture (Respondents hereinafter will be referred to as Dic-Underhill); and that Respondents regularly used cement imported from Norway, cranes manufactured in Wisconsin, and trucks manufactured in Michigan.

On March 2, 1973, Peter H. Richardson, a compliance officer for the Occupational Safety and Health Administration, inspected Dic-Underhill's job site, a high rise apartment building at 245 East 40th Street, New York, New York.

On the completed 24th floor of the building, Officer Richardson observed 40 of Dic-Underhill's employees engaged in setting up columns, forms and shoring for the 25th floor. Eleven of these employees were working within two to three feet of the unguarded edge of the floor, forming columns and carrying lumber. Aside from lumber that was on the 24th floor, bundles of lumber from lower floors were lifted by one crane and deposited on the east side of the 24th floor. The [*10] eleven employees were identified as employees of Dic-Underhill by a sub-foreman, Roddy Pagan.

There were no perimeter guards on any of the sides of the floor; there were no safety nets installed, and the employees wore no protective equipment. The drop from the 24th floor to ground level was approximately 200 feet.

Officer Richardson contacted his area director concerning the hazardous situation on the 24th floor, and was instructed by the area director to immediately post an imminent danger notice on the floor. Richardson did this.

Officer Richardson thereupon contacted Dic-Underhill's general superintendent, a Mr. Polsinello, and advised this representative of the dangerous condition on the 24th floor, and of the imminent danger notice. Mr. Polsinello advised Mr. Richardson that Dic-Underhill could not erect the perimeter guards but would remove its employees from the 24th floor which was done subsequent to lunch time.

Officer Richardson returned to the jobsite on March 13, 1973, when the general contractor had abated the violation on the 24th floor. Richardson returned again on March 20, 1973, and personally served on Dic-Underhill's general superintendent, Mr. Polsinello, [*11] the citation for a serious violation of 29 C.F.R. 1926.500(d)(1).

Officer Richardson deemed the violation to be serious in that an accident occurring due to the violation would probably result in serious or fatal harm to an employee. Respondent Dic-Underhill knew of the standard and its requirements from prior experiences at other job sites.

A penalty of $950.00 was recommended for this violation. No credit for good faith or prior history was allowed but a 5% credit for size was given. The notification of proposed penalty was not served upon Dic-Underhill until June 28, 1973.

Respondent Dic-Underhill rested at the end of Complainant's case and presented no evidence on its behalf. The cross examination of officer Richardson by Respondent was directed almost exclusively to the service of the complaint, the factors considered in arriving at the proposed penalty, and the delay in issuing the notification of proposed penalty. Respondent has raised certain legal defenses in its brief as to the applicability of 29 C.F.R. 1926.500(d)(1), the failure of complainant's proof, and the timeliness of the service of the notification of proposed penalty (Brief, pp. 5-11).

OPINION [*12]

Complainant established at the hearing that eleven of Dic-Underhill's employees were exposed to the occupational hazards of an unguarded open-sided floor at the job site on March 2, 1973; that the violation was serious; and that Respondent Dic-Underhill knew or with reasonable diligence should have known, of the existence of the violation of 29 CFR 1926.500(d)(1). This evidence was unrefuted and uncontroverted by Respondent Dic-Underhill.

Respondent raises two legal defenses to the citation and one to the notification of proposed penalty.

1. Respondent raises the defense that 29 CFR 1926.500(d)(1) which requires perimeter protection for open-sided floors is not applicable to the work being performed by their employees. *

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* This identical defense has been raised in prior cases by Respondent before this and other Judges. This Judge found the defense without merit in Secretary v. Dic-Underhill, Docket No. 3042, on review. The determination therein is set forth herein.

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It is Respondent's position that it was [*13] engaged in structural concrete construction work; and that this work is specifically covered by Subpart Q of 29 CFR Part 1926 and the specific standards therein. Therefore the general standard 29 CFR 1926.500(d)(1) found in Subpart M is not applicable. (Brief pp. 5-9)

Respondent states that Subpart Q sets forth standards which are applicable to all equipment and materials used in concrete construction work, and provides a standard to protect concrete construction employees placing and typing reinforcing steel. Respondent reasons that since Subpart Q provides protection for some concrete construction employees working at heights (29 CFR 1926.700(b)(1)) but not for protection against unguarded floor perimeters, it follows that no safety protection in the form of perimeter guarding was deemed necessary. Therefore Subpart Q required no perimeter protection for employees who were performing, as were Respondent's employees, concrete forming and stripping work. (Brief, pp. 5-7)

Respondent claims that the Rule of 29 CFR 1910.5(c)(2) is inapplicable because 29 CFR 1926.500(d)(1) is a general standard which must give way to 29 CFR 1926.701(a), a specific standard. Further [*14] 29 CFR 1910.5(c)(2) is not controlling because that section requires that "none" of the specific standards apply whereas Subpart Q does have "some" specific provisions for perimeter protection. (Brief, pp. 7-9).

29 CFR 1910.5(c)(2) provides:

. . ., any standard shall apply according to its terms to any employment and place of employment in any industry, even though particular standards are prescribed for the industry, as in Subpart B [Section 1910.12(a) Construction] or Subpart R of this part [special industries], to the extent that none of such particular standards applies. To illustrate, the general standard regarding noise exposure in Section 1910.95 applies to employments and places of employment in pulp, paper and paper board mills covered by Section 1910.261.

It is clear from the above section that the safety and health standards found in 29 CFR Part 1926 are particular standards applicable to the construction industry as a whole. There are occasions when these specific standards do not cover or give protection to construction employees engaged in certain specialties of work. Where these instances occur other specific standards are set forth to cover the work being performed. [*15] To illustrate, 29 CFR 1926.500(d)(1) dealing with perimeter floor guarding in the construction industry does not afford protection to concrete construction employees working 6 or more feet above any adjacent working surface, placing and tying reinforcing steel in walls, piers, columns, etc. To protect the employees working in this specialty, 29 CFR 1926.700(b)(1) requires that these employees use safety belts or equivalent devices. In steel construction work where there is temporary flooring in a skeleton steel building, a special type of perimeter guarding is required (29 CFR 1926.750(b)(iii)).

These specialty safety standards promulgated to protect a class of construction employees, not otherwise protected, do not by inference, logic or context, defeat the application of other specific construction standards to protect construction workers not engaged in a specialty category of construction work.

29 CFR 1926.500(d)(1) is applicable to Respondent.

2. Respondent also claims that Complainant did not meet its burden of proof by failing to establish that Respondent could continue with its work if perimeter guards were installed. (Brief, pp. 9-10)

In support of its [*16] bare contention, Respondent states without any record references that "[i]t is clear that the construction activities could not have been performed had perimeter protection been installed in the area where the men were working. It would have interfered with the moving of materials from one floor to the other". (Brief p. 9)

The burden of proof as to the impossibility of work performance by complying with a safety and health standard, is Respondent's responsibility. Respondent offered no evidence on this issue at trial. Respondent elicited from Officer Richardson on cross examination that bundles of lumber were raised from a lower floor and deposited on the east side of the 24th floor by a crane. There is evidence that the boom of the crane was higher than the 24th floor; and that the crane would have lifted the loads of lumber six or more feet above the 24th floor. This leaves the clear inference that perimeter guards would not have interfered with the movement of lumber or material from one floor to another. There is neither evidence nor merit to Respondent's contention that perimeter guards would have interfered with its work.

3. Respondent attacks the validity of the notification [*17] of proposed penalty on the ground that it was not served within "a reasonable time after the termination of" the inspection by Officer Richardson, as required by section 10(a) of the Act. (Brief, pp. 10-11)

The record establishes that the inspection of Respondent's worksite was made on March 2, 1973; that the inspection terminated on March 13, 1973; that the citation was personally served on Respondent's representative on March 20, 1973; and that the notification of proposed penalty was served on Respondent on June 28, 1973.

There is no explanation or evidence in the record for the inordinate delay of approximately four months from the date the citation was served, in serving the notification of proposed penalty. The Act requires the notification of proposed penalty to be served within a reasonable time after the termination of the inspection or investigation (Section 10(a)).

The unexplained delay of four months in serving the notification of proposed penalty is not within the "reasonable time" mandate of the Act. The notification of proposed penalty is invalid and will be vacated.

Respondent, however, is not relieved from a penalty assessment. A proposed penalty [*18] in a contested case is merely advisory. The Commission or its Judges in the exercise of their discretion, applying the factors specified in section 17(j) of the Act (29 USC 666(j), determine on the basis of the record, the penalty, if any, to be assessed. Brennan v. Occupational Safety & Health Review Commission, 487 F2d438, 441-442 (8th Cir., 1973). There is sufficient evidence in the record for this Judge to make a penalty determination.

Eleven of Respondent's employees on the 24th floor of the worksite and some 200 feet above ground level, were exposed to the hazards of an unguarded open-sided floor. An accident due to this violation could only result in fatal harm to an employee. Under the circumstances, the gravity of the violation was high. Credit is given for size, and for no prior history, as none was established, Respondent had no safety program or safety supervision for its employees. Respondent did remove its employees immediately from the work site upon notification by Officer Richardson of the violation.

Considering the gravity of the violation, Respondent's size and lack of prior history, and positive and negative elements of good faith, a penalty of $650.00 [*19] is assessed for this violation.

FINDINGS OF FACT

The credible evidence and the record as a whole establishes preponderant proof of the following specific findings of fact:

1. Respondent Dic-Underhill is a Joint Venture of Respondent Underhill Construction Corporation, a New York Corporation, and of Respondent Dic Concrete Corporation, a New York Corporation. Respondent Dic-Underhill maintains a business office at Bayside, New York. (Respondents Underhill Construction and Dic Concrete will herein after be referred to as Respondent Dic-Underhill).

2. Respondent Dic-Underhill is in the concrete construction business.

3. Respondent Dic-Underhill regularly uses in its business cement manufactured in Norway, cranes manufactured in Wisconsin, and trucks manufactured in Michigan.

4. At all times material herein, Respondent Dic-Underhill controlled and operated a construction work site at 245 East 40th Street, New York, New York.

5. On March 2, 1973, compliance officer Peter H. Richardson of the United States Occupational Safety and Health Administration, inspected Respondent Dic-Underhill's job site at 245 East 40th Street, New York, New York.

The Work Site

6. [*20] On March 2, 1973, Respondent Dic-Underhill's work site was located on the 24th floor of a high rise apartment construction site at 245 East 40th Street, New York, New York. Forty employees of Respondent Dic-Underhill were working on this floor setting up columns, forms and shoring for the construction of the 25th floor.

7. Eleven of the forty employees were working, forming columns and carrying lumber, within two to three feet of the unguarded edge of the 24th floor.

8. All sides of the 24th floor of the construction site lacked protective perimeter guards. The distance from the 24th floor to ground level was approximately 200 feet.

9. The eleven employees of Respondent Dic-Underhill, were exposed to the occupational hazards of an unguarded open-sided 24th floor.

10. The violation was serious, and Respondent Dic-Underhill knew, and with reasonable diligence should have known, of the existence of the violation. (See Opinion)

11. Respondent Dic-Underhill was personally served with the serious citation on March 20, 1973.

12. Respondent Dic-Underhill was not served with the notification of proposed penalty until June 28, 1973.

13. Respondent Dic-Underhill maintained [*21] no safety program or safety supervision for its employees at the work site.

CONCLUSIONS OF LAW

1. The Respondent Dic-Underhill is, and at all times material herein was, engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.

2. The Occupational Safety and Health Review Commission has jurisdiction over the subject matter and parties to this action.

3. Respondent Dic-Underhill was in violation of Standard 29 CFR 1926.500(d)(1) on March 2, 1973.

4. The violation was serious within the meaning of the Act.

5. The notification of proposed penalty was not timely served upon Respondent as required by section 10(a) of the Act.

6. A penalty of $650.00 is assessed for the serious violation of 29 CFR 1926.500(d)(1).

ORDER

Due deliberation having been had on the whole record it is hereby

ORDERED that the citation for a serious violation of 29 CFR 1926.500(d)(1) is affirmed, it is further

ORDERED that the notification of proposed penalty of $950.00 is vacated, and a penalty of $650.00 is assessed.