CONSOLIDATED ENGINEERING, INC.; AND OTIS ELEVATOR COMPANY

OSHRC Docket Nos. 394; 471 (consolidated)

Occupational Safety and Health Review Commission

October 17, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN CHAIRMAN: These cases, which were consolidated for hearing, are before this Commission for review of September 29, 1972, decisions of Review Commission Judge William E. Brennan. Those decisions held that each respondent had violated the general duty clause, 29 U.S.C. 654(a)(1). The Judge assessed penalties of $550.00 and $500.00 against the Consolidated Engineering Company (hereinafter referred to as Consolidated) and the Otis Elevator Company (hereinafter referred to as Otis), respectively. For reasons which follow, we reverse both decisions.

Each respondent was charged with failing to install guardrails at an elevator shaftway while the elevator was undergoing speed tests within the shaft. In addition, Otis was charged with failing to post a notice warning that the elevator was being so tested.

In the Consolidated case, the Judge predicated his affirmance of the violation on the basis that the respondent had neither prohibited its "employees from working in or around an elevator doorway by which an operable, nearly silent running elevator could move" nor required that the elevator be "effectively [*2] locked out of operation" before "allowing such work." In the Otis case, he found that the respondent had neither prevented the movement of the elevator "in its shaft while any of its employees were working in or around said shaft by a suitable and effective system of locking this elevator out of operation" nor equipped "this silently operating elevator with suitable and effective audible warning devices."

It is readily apparent that the above factual findings of the Judge concerned derelictions which were not alleged in the charges against the respondent. Since these matters were not tried at the hearing by the express or implied consent of the parties, they cannot be the basis for affirming violations of the general duty clause. See National Realty and Construction Company, Inc. v. OSAHRC, 489 F.2d 1257 (D.C. Cir. 1973); Fed. R. Civ. P. 15(b). Thus, we are left with the question of whether the evidence is sufficient to establish the violations as charged.

Consolidated was the general contractor for building an addition to a hospital. Otis was Consolidated's subcontractor for the installation of elevators.

The evidence established a general practice used by Consolidated [*3] and Otis for installing elevator doors at the worksite. First, a steel door frame was installed by Otis' employees. They would place the frame loosely in the opening to the elevator shaft provided for this purpose. Then employees of Conslidated would "form out" the door by installing wooden forms around the gap left between the steel frame and the edge of the shaft opening. These forms were place for the purpose of retaining concrete that would be poured to fill in the gap. The concrete was then poured. After it was set, the forms were stripped off by Consolidated's employees.

On the day of the fatal accident, Otis' employees Scott and Herbert went to elevator number 1 where they were to install the elevator door frame. There was a plywood barrier 4' X 8' across the elevator shaft opening. The words "Danger -- Keep Out" and a skull and cross bones had been placed on the piece of plywood. The two Otis employees removed this barrier and placed it against the wall adjacent to the elevator door with the warning visible. After the steel door frame was installed, Otis' foreman, Scott, told Consolidated's foreman that elevator number 1 was ready for forming.

Subsequently, Scott [*4] and Herbert began work on elevator number 2. They were both working with their backs to elevator number 1 when Consolidated's carpenter, Stevens, arrived to work on the door form. Although they did not see Stevens before he was injured, the evidence tends to indicate that Stevens was fatally struck by the elevator as it descended in the shaft.

The only employees shown to have been exposed to the hazard of the open shaftway were Scott, Herbert, and Stevens, and uncontroverted evidence establishes that they could not have performed their assigned jobs with guardrails installed at the opening of the elevator shaft. Noncompliance with the requirements of a safety standard is justified when necessary to permit the accomplishment of required work. Secretary v. W.B. Meredith, II, Inc., Secretary v. Masonry, Inc., Secretary v. La Sala Contracting Company, Inc., 2 OSAHRC 976 (1973); Secretary v. DeLuca Construction Corporation, 2 OSAHRC 435, 444-445 (1973). Furthermore, the Act is not violated by an employer unless his employees are actually exposed to a hazard as [*5] the result of a failure to observe the law's requirements. Secretary v. Hawkins Construction Company, Secretary v. City Wide Tuckpointing Service Co.,

To prove a violation of 654(a)(1) complainant must establish that the allegedly violative condition constitutes "recognized hazard that [is] causing or [is] likely to cause death or serious physical harm" to the respondent's employees. A condition may be recognized as such a hazard only when the evidence shows that it is commonly known by the public in general or in the cited employer's industry as a hazard of such type. See National Realty and Construction Company, Inc. v. OSAHRC, supra at n. 32.

In this case, there was no evidence that the failure to post a sign warning of the elevator testing was a recognized hazard. The complainant's inspector testified that it was "a George D. Barlow [his own] standard." Of course, this is not sufficient to establish that it was a recognized hazard.

As to each of the respondents, the Judge's affirmance of violation of 29 U.S.C. 654(a)(1) and the penalty assessments therefor are set aside.

CONCURBY: VAN [*6] NAMEE

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: As I understand the Chairman's opinion the trial Judge erred in finding violations that had not been alleged and had not been tried, and the Secretary's citations must be vacated because he has failed to carry his burden of proof. To that extent and that extent only, I join in his opinion.

According to the undisputed facts employees of both Respondents were engaged in the process of installing elevator doors and the frames for such doors. It follows that entrances to the elevator shafts had to be open and unbarricaded. Barricades would have prevented performance of the work. It also follows that Respondents' employees were exposed to the hazard of falling. Meanwhile other employees were test running an elevator car in one of the shafts. Clearly, an employee working in the doorway of a shaft would be exposed to the hazards created by moving an elevator car in the shaft. The hazards were obvious, and reasonably prudent employers would take appropriate steps to prevent accidental occurrences. Brennan v. OSHRC and Vy Lactos Laboratories, Inc., 494 F.2d 460 (8th Cir., 1974); Brennan v. OSHRC and [*7] American Smelting & Refining Co.,    F.2d   , No. 73,1721 (8th Cir., July 15, 1974). It may well be that we would have affirmed citations charging such violations.

But these Respondents were alleged to have violated the Act because they failed to barricade the entrances to the elevator shafts. The entire case proceeded on this theory, and no other theory was presented, tried, or understood to be in the case. Clearly, the Secretary's citations must stand or fall on the theory presented. As indicated the work could not have been performed with barricades in place. Indeed, it is difficult to see how elevators could have been constructed if the Secretary's theory of the case is to be accepted. Since I do not believe Congress intended the general duty clause to go so far I concur in the vacation of the citations.

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER, dissenting: In this case, tests on Elevator #1 were being conducted by Otis Elevator, a subcontractor to Consolidated Engineering Company, the general contractor. These were speed tests. The lobby doorway to the shaft was barred only by a 4 by 8 foot piece of plywood. On the plywood was drawn a skull and crossbones with the words [*8] "Danger -- Keep Out." The drawing was done with "keel" which is similar to blue crayon. The employees of both Otis and Consolidated were required to work in and around the doorway. When the elevator was to be run, one of Otis' employees would shout down the shaft that he was bringing down the car. There is evidence suggesting that the lobby was noisy. Otis' employees in the lobby did not hear Consolidated's employee Stevens enter the lobby to work at the doorway of Elevator #1 on the day when Stevens was fatally injured by the descending elevator.

Both Otis and Consolidated were cited for violations of section 5(a)(1) of the Act. Otis was charged with a failure to install guardrails at the elevator shaftway entrance in the lobby and a failure to post a warning notice "that this elevator was undergoing a test." Consolidated was also charged with a failure to have guardrails.

The citations were not artfully drawn. More could have been alleged and proved. Nevertheless, what has been alleged should not be narrowly read. See National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973), wherein Judge Wright noted that the enforcement of the [*9] Act would be "crippled" if citations were to be narrowly construed and that it is proper to consider the fact that they are drawn by non-legal personnel acting with dispatch.

Considered in this light, the charges were adequate, and have been proved.

Otis' own employees were working in and around the shaft, and therefore were entitled to protection from the hazard of the moving elevator. n1 This is an obvious "recognized hazard," as noted by the concurring opinion. Also, the severity of the hazard is demonstrated by the fatality.

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n1 The lead opinion of the Chairman describes the failure to barricade as the hazard. This is plainly wrong. It is the moving elevator itself that is the hazard.

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Further, Otis created the hazard, and therefore had an obligation to protect any other workmen like those of Consolidated exposed to the hazard. See, Morey, The General Duty Clause of the Occupational Safety and Health Act of 1970, 86 Harv. L. Rev. 988, 999 (1973). Such other workmen should be considered "employees" [*10] of Otis for the purpose of section 5(a)(1) of the Act if the essential statutory objective is to be served. The statutory definition of the term "employee" in section 3(b) is not restrictive concerning the employer-employee relationship. Rather, it is concerned with the breadth of coverage under the Commerce Clause.

Consolidated, both in its capacity of immediate employer and as general contractor controlling the worksite, had a duty of protecting employees that might be exposed to the hazard of the moving elevator.

My colleagues miss the mark when they note that guardrails or barriers would have to be removed so that employees of Otis and Consolidated could do their work at the doorway. Of course they would. The thrust of the citations is, however, on the need to keep the employees out of the shaft at least while the elevator is being tested. The citation of Otis properly noted the inadequacy of the sign that was used as a warning. Absent other effective measures, the sign would have indicated when the elevator was being tested. The skull and crossbones and general warning that were given were not enough. About that much is expected on a bottle of iodine. [*11]

In short, I would affirm the Judge's decision.

[The Judge's decision referred to herein follows]

BRENNAN, JUDGE: This is an action arising under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, Pub. Law 91-596; 29 U.S.C. 651 et seq.; (hereinafter Act), to review a Citation for Serious Violation issued by the Secretary of Labor (hereinafter Secretary) pursuant to Section 9(a) of the Act, and a penalty based upon the alleged violation proposed by the Secretary pursuant to Section 10(a) of the Act.

On December 30, 1971, the Secretary, pursuant to Section 9(a) of the Act, through the Occupational Safety and Health Administration, issued to Consolidated Engineering Company, Inc., 20 East Franklin Street, Baltimore, Maryland, (hereinafter Respondent), a Citation Alleging a serious violation of Section 5(a)(1) of the Act in that Respondent "failed to furnish his employees working in the elevator lobby of section B1 of the Holy Cross Hospital Complex a place of employment which was free from recognized hazards that were causing or likely to cause death or serious harm to his employees in that he failed to install guard rails at the elevator shaftway [*12] entrance in the elevator lobby of section B1 while the elevator was undergoing at test. This test required that the car move automatically vertically in the shaftway at high speeds."

By his Notification of Proposed Penalty also dated December 30, 1971, the Secretary, pursuant to Section 10(a) of the Act, notified the Respondent of his intention to propose a penalty in the amount of $550.00 for the alleged violative conditions.

The Respondent pursuant to Section 10(c) of the Act, through a letter from its President dated January 7, 1972, gave notice of its intention to contest both the Citation and proposed penalty.

Pursuant to Section 10(c) of the Act, this case was thereafter referred to the Occupational Safety and Health Review Commission, (hereinafter Commission) for hearing, notice of receipt thereof being given to the parties of record by the Commission on January 12, 1972.

On January 14, 1972, the Secretary filed his Complaint with the Commission and on January 26, 1972 the Respondent filed its Answer. On February 8, 1972, this case was assigned to the undersigned for hearing notice thereof being given the parties of record by the Commission the same date.

By [*13] notice dated February 11, 1972, this case was scheduled for hearing in Fort Lauderdale, Florida for February 23, 1972. By notice dated March 7, 1972, this case was rescheduled for consolidated hearing in Miami, Florida for April 6, 1972.

This consolidated hearing was held as scheduled and on May 18, 1972, the Secretary filed his consolidated proposed findings, conclusions and order as to both the Respondent herein and Otis Elevator Company Docket No. 471. No proposed findings, conclusions or brief has been received from Respondent.

Having considered the entire record herein, the representations, stipulations and admissions of the parties, the testimony and demeanor of all witnesses, and exhibits, it is concluded that the substantial evidence on the record considered as a whole, supports the following;

FINDINGS OF FACT

This case arose from a fatal accident to one of Respondent's carpenters, John R. Stevens, [*14] which occurred shortly after 1 p.m. on December 15, 1971, at a construction site, a six-story addition to the Holy Cross Hospital, located at 4725 North Federal Highway, Fort Lauderdale, Florida (hereinafter workplace).

Among the 47 employees Respondent employed at this workplace was carpenter Stevens, labor foreman Kelson and general foreman Harrington. Otis employed 4 employees on this project, foreman Scott, and his helper Herbert, adjuster and mechanic Wilburn and his helper Klein.

The installation and testing of 6 of the 7 new elevators had been completed by December 15, 1971, as well as the installation of permanent doors on the doorways of four additional elevator shafts in this addition, which were constructed for future elevator installation. The site of the accident was in Elevator Lobby B-1 (hereinafter lobby) on the ground floor of the addition, and involved a freight elevator denominated FE-1 [*15] (hereinafter elevator #1), which is marked with an X on Government Exhibit 1. (Adjacent to elevator #1 is another elevator, as depicted in Exhibit G-1, which is hereinafter referred to as elevator #2).

In completing the installation of elevator #1, it was necessary for Otis employees to install a stainless steel door jamb or frame within the rough doorway opening at the lobby level. After completion of this task, it was necessary to "form out" this doorway. This was to be done, as it had been on all the other elevator doorways by a carpenter employee of Respondent. It consisted of erecting wooden forms on both sides of that space existing between the poured concrete walls and the stainless steel door frame into which other employees of Respondent poured concrete to form a continuous wall up to the door frame. When the concrete dried, a Respondent carpenter would strip or disassemble the forms and then Otis employees would install automatic permanent outside doors. In erecting and disassembling these concrete forms, it was necessary for the carpenter to work with all or part of his body or extremities within the elevator shaft.

In constructing the eleven elevator [*16] shaftways, each of which had a doorway opening on each of the six floors, a method was devised by Respondent to barricade each doorway opening with a removeable 2" X 4" piece of lumber at waist height until the permanent outside doors were installed. Toeboards were also installed at some doorways upon the "suggestion of the State." Respondent sent employees around the job site daily to see that these barricades were in place. However on some doorways, the usual barricade was not installed, but the crates in which the elevator doors were delivered to the site were used by both Otis and Respondent employees to block the open doorways. In practice, the barricading of open doorways evolved into a joint effort between Otis and Respondent's employees. The elevator doorway in question was not barricaded by the 2" X 4" type of barricade on the day of the accident.

In accomplishing the forming out of the elevator doorways, a procedure was worked out by and between Otis' foreman Scott and Consolidated's labor foreman Kelson. After Otis had installed the stainless stell door frame, Scott would notify Kelson that the doorway was ready to be formed out, and Kelson would then send a Consolidated [*17] carpenter to the location to perform this task. A number of different Consolidated carpenters were used in forming out the 66 elevator doorway openings at this project.

Otis' adjuster Wilburn and his helper Klein were involved in adjusting and test running the elevator cars once installed. During the test running the elevator was controlled and operated from a machine room located on the sixth floor of the building. Otis' foreman Scott and his helper were involved, in pertinent part at least, with the installation of the stainless steel door frames and outside automatic doors at the various elevator doorways.

It appears that no general orders or instructions were given by Otis to its employees nor was any prearranged plan established by the Respondent general contractor on safety procedures to be followed in moving elevators in shafts before the permanent outside doors were installed.

Otis' helper Klein testified that he was instructed by adjuster Wilburn that, "If somebody was working in the shaft, usually talk to him and advise him that you are going to run a car down or that you are going to do this and that, and normally they would be out of it. They would stop [*18] their work and do something else" (Tr. 109). He further testified, ". . . Every time I ran this car (elevator #1) I knew that Bill Scott and his helper were working near the opening or on the other car, (elevator #2) and I yelled down to tell them that I was going to do this or that" (Tr. 110). Although it appears that for 5 of the 7 new elevators, the usual procedure was to conduct formal tests (in the presence of an inspector) only after the permanent outside elevator doors had been installed, it further appears that at least elevators #1 and #2 were moved and/or tested prior to the installation of permanent doors at the lobby level. The safety procedure followed by Otis adjusting employees was to speak to any worker who was known to them to be working in or near a shaft of any intended elevator car movement and/or to "yell" down the elevator shaft from the sixth floor to warn that the elevator car was coming down.

There was no standard or formal procedure followed by Otis to inform Consolidated that any given elevator was going to be moved or tested. On the day of the accident, no Otis employee or representative notified anyone with Consolidated that elevator #1 was to be [*19] moved or tested on that day.

On December 15, 1971, the four Otis employees reported to work at this work place at 8 a.m. Foreman Scott and adjuster Wilburn discussed the work planned for the day which included some work by Scott and Herbert on elevator #2 as well as setting the stainless steel door frame in place on elevator #1. Scott informed Wilburn that a carpenter would be forming out the doorway on elevator #1 that day and Wilburn asked Scott to advise him when the carpenter arrived, "-- so that we could shut the elevator down" (Tr. 217), as Wilburn intended to run elevator #1 that day to make adjustments thereto. The evidence reveals that no one advised Wilburn when the carpenter did arrive.

Scott and his helper, upon arriving at the lobby that morning removed from the doorway of elevator #1, a 4' X 8' sheet of plywood which they had placed there the afternoon before upon completion of that days work. They placed this piece of plywood against the wall adjacent to elevator #1, marked "Elevator Lobby B-1" on Exhibit G-1, where it remained until sometime after the accident. It was necessary for this plywood to be removed to allow these two employees to erect the [*20] stainless steel door frame in the rough doorway of elevator #1, which task they accomplished by about 10:30 a.m. At this time, the plywood was not replaced in front of this doorway nor was any other barricade put in place. At some earlier date, Scott or his helper had drawn a skull and crossbones on this plywood and the words "Danger -- Keep Out" with "keel," which is similar to blue crayon.

There is no evidence of record indicating that Respondent had ever installed the usual 2" X 4" type of barricade or any other type at the doorway to elevator #1 at the lobby level.

During the approximate 2-1/2 hours in which Scott and his helper were installing the door frame, elevator #1 was not operated. At approximately 11 a.m. Klein, who with the adjuster Wilburn had been working in the machine room on the sixth floor of the building since 8 a.m., yelled down elevator shaft #1 that he was bringing the car down, brought the car down to the lobby, advised Scott that this elevator was going to be moved to make necessary adjustments and speed tests, and loaded some weights into this car for such purposes.

Upon completing the door frame installation, Scott and his helper Herbert worked on, [*21] in and around elevator shaft #2 installing and adjusting wiring therein and preparing the doorway for the installation of the automatic outside doors. This work required them to reach or physically go into both elevator shafts #1 and #2 through the doorways at the lobby level.

At 12:15 p.m. both Scott and his helper went away from the lobby for lunch returning at 12:45 p.m. During this period, the open doorway of elevator #1 did not have any barricade or barrier of any description in place. From 12:45 p.m. until the time of the accident shortly after 1 p.m. these two employees were engaged in working on the automatic doors to be installed in elevator shaft #2, at an improvised work bench adjacent to the wall opposite the elevator shafts in the lobby. They had their backs to the elevators in question while so engaged. Neither heard Consolidated carpenter Stevens enter the lobby, or anything else, until the accident according to their testimony.

Prior to his lunch, Scott notified Consolidated's general foreman Harrington that the doorway of elevator #1 at the lobby level was ready for forming. Immediately after lunch he also notified Consolidated's labor foreman Nelson [*22] of the same. The labor foreman thereupon directed Consolidated's carpenter Stevens, who at the time was on the third floor of the building to go to the lobby and form out elevator door #1. Stevens went to this location shortly after 1 p.m. and was fatally injured when struck by elevator #1.

Earlier during the morning of December 15, 1971, Stevens was engaged in stripping or disassembling the forms on the lobby doorway of elevator #2 which he had erected a day or two previously. He had completed this task and left the lobby area during the early work hours of the December 15th.

According to their testimony, neither Conslidated's general foreman Harrington nor labor foreman Kelson were notified by anyone that elevator #1 was to be under going tests or being moved on December 15, 1971.

Otis employees Wilburn and Klein, working in the machine room on the sixth floor of this building, took their lunch in this room from 12 noon to 12:30 p.m. Shortly after 12:30 p.m. helper Klein again "yelled" down elevator shaft #1, brought that elevator to the lobby level, loaded some additional weights inside the car and returned in that car to the sixth floor. From that time until the accident, [*23] Wilburn and Klein were involved in testing elevator car #1 which required its movement up and down elevator shaft #1, the elevator car being operated and controlled from the machine room. The evidence reveals that no one advised either of these two employees of the arrival of carpenter Stevens in the lobby area. Further, no one from either Otis or Consolidated advised these two employees not to run, i.e. to shut down elevator #1 after the lunch period on the day of the accident.

The exact procedures followed by Otis employees in circumstances wherein a Consolidated employee was to be working in or around elevator doorways is not clear in the evidence. Foreman Scott testified that "amongst ourselves" (Tr. 43) the procedure was to "shut down" any elevator when Scott notified Consolidated that a door was ready for forming, ". . . if the other man that was doing the other part of the job in our business (the adjuster) knew that I had notified these people" (Tr. 44). However, Scott further testified that after notifying Consolidated on the day of the accident that the lobby door of elevator #1 was ready for forming he ". . . never gave it a thought at the time, . . ." i.e. [*24] to shutting down elevator #1 (Tr. 45). Further, the evidence is clear that both Otis' adjuster Wilburn and his helper Klein knew, prior to lunch, that a carpenter would be forming the lobby doorway of elevator #1 on the day of the accident, although they did not know the exact time when the carpenter would begin this work, and did not know when carpenter Stevens actually did commence this job. Hence elevator #1 was not "shut down" at any time on the day of the accident because, as adjuster Wilburn testified, ". . . we were sure that no one could get into the area without our knowledge. . ." (Tr. 222) the precise circumstance which did in fact occur according to the evidence of record.

In response to a telephone report of the accident on December 15, 1971, Safety and Health Compliance Officer Barlow went to the site on that day arriving sometime around 2:45 p.m. He interviewed foreman Scott in the presence of a State Inspector, spoke with investigating police officers, viewed the scene of the accident, had an exit conference with a management representative of Respondent and returned to his office. He testified that upon his arrival at the accident scene, the 4' X 8' sheet of plywood [*25] was located in front of the doorway of the entrance to the elevator lobby, that there was not barricade or any sign of any barricade having been in place across the doorway of elevator #1 and that there was no evidence of any signs or warning devices present indicating that elevator #1 had been undergoing tests at the time of the accident.

As a result of his inspection he recommended that a Citation for Serious Violation be issued to both Otis and Consolidated, the Citation to Otis based upon the lack of guarding at elevator #1 and the lack of any warning device to warn persons that elevator #1 was undergoing tests, the Citation to Consolidated based upon the lack of guarding or barricading at elevator #1.

Inspector Barlow, an experienced safety professional and former member of a number of safety standard committees, further testified to his opinion that the hazardous conditions he observed constituted a serious violation of the general duty clause of the Act, Section 5(a)(1), in that there was a substantial probability of serious physical harm or death to employees from unguarded elevator doorways behind which an elevator was undergoing tests, and to the computation [*26] of the penalty proposed as to Respondent Consolidated pursuant to the Secretary's instructions, reducing the maximum statutory civil penalty of $1000, 5% for the number of employees, 20% for no prior violations and 20 % for the cooperative attitude of Respondent, i.e. good faith, resulting in the proposed penalty of $550.00 (Exhs. G-3, 5, 6).

He further testified that he did not recommend that Respondent be cited for violation of any specific Occupational Safety and Health Standard because the applicable standards were not effective on the date of the accident. He did recommend the Citation herein under Section 5(a)(1) of the Act because in his opinion the general contractor had the responsibility of erecting barricades at the joint work site involved in this case.

The evidence of record further establishes that no affected employees or authorized representatives of affected employees of Respondent expressed any desire prior to or at the hearing held herein to participate as a party.

Consolidated is a Maryland Corporation having its principal place of business at 20 East Franklin Street, Baltimore, Maryland. It operates in various states and does business with suppliers and subcontractors [*27] located outside of the State of Maryland. At all times relevant herein it maintained a workplace at the Holy Cross Hospital addition in Fort Lauderdale, Florida, and was engaged in a business affecting commerce within the meaning of Section 3 of the Act.

RESPONDENT'S POSITION

Respondent's position, in the absence of any brief or proposed findings or conclusions, must be gleaned from the opening statement of its counsel (Tr. 18-20), and from the testimony of the one witness it produced, its labor foreman Kelson. It appears to be that on December 15, 1971, Respondent's employees ". . . erected the guard rails before the commencement of work," (Tr. 19) and no guard rail was in evidence after the accident because of the local police investigation at the scene. Further, that on all elevators except elevator #1, the testing thereof was done behind the closed permanent outside doors and Consolidated's employees ". . . were completely excluded from the area" (Tr. 142).

DECISION

The substantial and creditable evidence of record does not support Respondent's position. This evidence clearly establishes that on the morning of the accident, Otis employees removed the 4' X 8' [*28] sheet of plywood from in front of the lobby doorway to elevator #1. This piece of plywood was leaned against, not nailed to, this opening by Otis employees the preceeding late afternoon. It was furnished by Otis, not by Respondent. Further, the usual 2" X 4" type of barricade, utilized by Respondent on some, but not all, of the 66 elevator doorways in this addition, was not in place on the morning of the accident, and there were no visible signs that such type of barricade had ever been installed by Respondent at this elevator doorway. The absence of a barricade at the lobby doorway of elevator #1 after the accident during the police investigation, while no employees were performing any work in this area, in view of the fact that the entire elevator lobby was blocked off to employees or unauthorized persons, is not relevant to the violation alleged herein.

The findings of fact detailed supra leads me to the conclusion that Respondent herein Consolidated, on December 15, 1971, was in violation of Section 5(a)(1) of the Act as alleged by failing to furnish each of its employees employment and place of employment which was free from recognized hazards that were likely to cause death [*29] or serious physical harm to its employees.

The testimony of Respondent's witness Kelson establishes that its carpenter Stevens, up to the time of the fatal accident on December 15th, had done no actual construction on the forming task on the lobby door of elevator #1. He had reported to this site to do this task and most probably was engaged in taking measurements in preparation to begin the actual construction when he was killed. No barrier was in place at the doorway to elevator #1 at any time later than shortly after 8 a.m. on this day.

The evidence further establishes that the Respondent herein, as the general contractor, who constructed the elevator shafts and whose carpenters and laborers were involved in forming out the elevator doorways did not establish any effective system by which it was to be notified by Otis, without exception, when an elevator was to be tested within an elevator shaft which had any open doorways thereto. Respondent knew that the assigned tasks of forming the elevator doorways by its carpenters, and the pouring of concrete into these forms by its laborers, required these employees to work with their bodies and or arms and heads within the [*30] elevator shafts. There is no evidence of record that Respondent instituted any effective procedure to lock out operation of any elevator around which it sent its carpenters or labor employees to perform work tasks.

The evidence further establishes that there was no general rule or order either established or enforced by Consolidated prohibiting its employees from working in or around open doorways to elevator shafts in which elevator cars could move.

It is this failure upon the part of Respondent, the general contractor, at the workplace involved including the joint worksite-the elevator lobby, to establish an organized, coordinated and effective safety program in connection with the interrelated work projects of the installation and finishing of the elevator doorway in question and the testing of elevator #1 at this site, which is an additional reason, supported by the evidence, leading me to conclude that Respondent was in violation of the general duty clause of the Act, Section 5(a)(1) on December 15, 1971.

Under the circumstances revealed in this record, Respondent had a choice of either prohibiting any of its employees from working in or around an elevator doorway by which [*31] an operable, nearly silent running elevator could move, or allowing such work only after the operable elevator had been effectively locked out of operation. Respondent's failure to do either resulted in its failing to furnish its employees with a place of employment which was free from hazards likely to cause death or serious physical harm to them.

The violation herein found to have existed at this workplace on December 15, 1971, was a serious violation within the meaning of Section 17(k) of the Act as there was a substantial probability that death or serious physical harm could result from the conditions which existed and from the practices and operations adopted and in use by Respondent herein.

The testimony of record reveals that the violative condition existing at this workplace on December 15, 1971 was immediately corrected as required by the Citation herein.

CONCLUSIONS OF LAW

At all times involved in this case, Respondent herein was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.

At all times involved in this case, Respondent furnished employment to its employees at a workplace located at 4725 North Federal [*32] Highway, Fort Lauderdale, Florida and the Act is applicable to such employment within the meaning of Section 4(a) of the Act.

On December 30, 1971, the Secretary, pursuant to the provisions of Sections 9(a) and 10(a) of the Act, issued to this Respondent a Citation for Serious Violation and a Notification of Proposed Penalty in the amount of $550.00.

On January 7, 1972, pursuant to the provisions of Section 10(c) of the Act, this Respondent timely filed with the Secretary his notification of intent to contest the citation and proposed penalties. The Secretary thereupon transmitted this case to the Commission which, pursuant to the provisions of Section 10(c) of the Act, has jurisdiction of the parties and of the subject matter herein.

The Citation, Notification of Proposed Penalty and Notice of Contest were served by and upon the respective parties hereto consistent with the provisions of Section 10 of the Act and notice was given employees of their right to participate in these proceedings.

On December 15, 1971 the Respondent herein, at a workplace located at the Holy Cross Hospital, 4725 North Federal Highway, Fort Lauderdale, Florida violated Section 5(a)(1) of the [*33] Act by failing to furnish to each of its employees employment and a place of employment which was free from recognized hazards that were causing or were likely to cause death or serious physical harm to its employees.

The violation herein found to exist at this workplace on December 15, 1971 was a serious violation within the meaning of Section 17(k) of the Act in that there was a substantial probability that death or serious physical harm could result from the conditions which existed and the practices and operations which were in use, which were known or could have been known by Respondent with the exercise of reasonable diligence.

Due consideration having been given to the provisions of Section 17(j) of the Act as applicable to the evidence of record, and weighing particularly the gravity of the violation herein found to exist, it is concluded that the proposed civil penalty in the amount of $550.00 is not inappropriate.

Based upon the foregoing findings and conclusions, and pursuant to the provisions of Sections 10(c) and 12(j) of the Act, it is hereby

ORDERED:

That the Citation for Serious Violation and civil penalty proposed thereon, dated December 30, 1971, directed to [*34] the Respondent herein, be AFFIRMED.

Pursuant to Section 17(j) of the Act, said civil penalty in the amount of $550.00 is hereby accessed against the Respondent herein based upon the serious violation herein found to exist, payment thereof to be made to the Secretary within thirty days of the entry of the final order herein.

BRENNAN, JUDGE: This is an action arising under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, Pub. Law 91-596; 29 U.S.C. 651 et seq.; (hereinafter the Act), to review a Citation for Serious Violation issued by the Secretary of Labor, (hereinafter Secretary) pursuant to Section 9(a) of the Act, and a penalty based upon the alleged violation proposed by the Secretary pursuant to Section 10(a) of the Act.

On December 30, 1971, the Secretary, pursuant to Section 9(a) of the Act, through the Occupational Safety and Health Administration, issued to Otis Elevator Company, 1330 Northeast First Court, Miami, Florida, (hereinafter Respondent), a Citation alleging a serious violation of Section 5(a)(1) of the Act in that Respondent ". . . failed to furnish his employees working in the elevator lobby of section B1 of the [*35] Holy Cross Hospital complex a place of employment which was free from recognized hazards that were causing or likely to cause death or serious harm to his employees in that he failed to install guard rails at the elevator shaftway entrance in the elevator lobby of section B1 and also failed to post a warning notice that this elevator was undergoing a test. This test required that the car move automatically and vertically in the shaftway at high speeds."

By his Notification of Proposed Penalty also dated December 30, 1971, the Secretary, pursuant to Section 10(a) of the Act, notified the Respondent of his intention to propose a penalty in the amount of $500.00 for the alleged violative conditions.

The Respondent pursuant to Section 10(c) of the Act, by a telegram dated January 24, 1972, gave notice of its intention to contest both the Citation and proposed penalty.

Pursuant to Section 10(c) of the Act, this case was thereafter referred to the Occupational Safety and Health Review Commission, (hereinafter Commission) for hearing, notice of receipt thereof being given to the parties of record by the Commission On January 28, 1972.

On February 4, 1972, the Secretary filed his Complaint [*36] with the Commission and on February 14, 1972, the Respondent filed its Answer.

On February 25, 1972, this case was assigned to the undersigned for hearing, notice thereof being given the parties of record by the Commission the same date. motion was granted over the objection of the Respondent herein by Order dated March 7, 1972.

By notice dated March 7, 1972, this case scheduled for consolidated hearing in Miami, Florida for April 6, 1972.

On April 4, 1972, the Respondent herein filed a Motion to Dismiss and a Demand for July Trial. The Motion was taken under advisement and the Demand noted in the record.

The consolidated hearing was held as scheduled and on April 7, 1972, the Secretary filed his Motion to Strike Respondent's Demand for July Trial, which motion was granted by Order dated April 18, 1972.

On May 3, 1972, Respondent filed its proposed Findings of Fact and Conclusions of Law with a request to extent the time for filing reply briefs, which was granted. After [*37] an extension of time granted upon the Secretary's request, the Secretary on May 18, 1972, filed his consolidated proposed findings, conclusions and order as to both the Respondent herein and Consolidated Engineering Co., Inc. (Docket No. 394). On June 12, 1972, the Respondent herein filed its Reply Brief which included a request for separate findings and conclusions as to the Respondent herein and Consolidated Engineering Company, Inc.

Having considered the entire record herein, the representations, stipulations and admissions of the parties, the testimony and demeanor of all witnesses, and exhibits, it is concluded that the substantial evidence on the record considered as a whole, supports the following:

FINDINGS OF FACT

This case arose from a fatal accident which occurred shortly after 1 p.m on December 15, 1971, at a construction site, a six-story addition to the Holy Cross Hospital, located at 4725 North Federal Highway, Fort Lauderdale, Florida (hereinafter workplace). The respondent [*38] herein, Otis Elevator Company, was a subcontractor involved in furnishing and installing 7 elevators in this addition. It employed 4 employees on this project, foreman Scott, Herbert his helper, Wilburn a mechanic and adjuster and his helper Klein.

The installation and testing of 6 of the 7 new elevators had been completed by December 15, 1971, as well as the installation of permanent doors on the doorways of four additional elevator shafts in this addition, which were constructed for future elevator installation. The site of the accident was in Elevator Lobby B-1 (hereinafter lobby) on the ground floor of the addition, and involved a freight elevator denominated FE-1 (hereinafter elevator #1), which is marked with an X on Government Exhibit 1. (Adjacent to elevator #1 is another elevator, is depicted in Exhibit G-1, which is hereinafter referred to as elevator #2).

In completing the installation of elevator #1, it was necessary for Otis employees to install a stainless steel door jamb or frame within the rough doorway opening at the lobby level. After completion of this task, it was necessary to "form out" this doorway. This was to be done, as it had been on all [*39] the other elevator doorways, by a carpenter employee of Consolidated. It consisted of erecting wooden forms on both sides of that space existing between the poured concrete walls and the stainless steel door frame into which other Consolidated employees poured concrete to form a continuous wall up to the door frame. When the concrete dried, a Consolidated carpenter would strip or disassemble the forms and then Otis employees would install automatic permanent outside doors. In erecting and disassembling these concrete forms, it was necessary for the carpenter to work with all or part of his body or extremities within the elevator shaft.

In constructing the eleven elevator shaftways, each of which had a doorway opening on each of the six floors, a method was devised by Consolidated to barricade each doorway opening with a removeable 2" X 4" piece of lumber at waist height until the permanent outside doors were installed. Toeboards were also installed at some doorways upon the "suggestion of the State." Consolidated sent employees around the job site daily to see that these barricades were in place. However on some doorways, the usual barricade was not installed, but the crates [*40] in which the elevator doors were delivered to the site were used by both Otis and Consolidated employees to block the open doorways. In practice, the barricading of open doorways evolved into a joint effort between Otis and Consolidated employees. The elevator doorway in question was not barricaded by the 2" X 4" type of barricade on the day of the accident.

In accomplishing the forming out of the elevator doorways, a procedure was worked out by and between Otis' foreman Scott and Consolidated's labor foreman Kelson. After Otis had installed the stainless steel door frame, Scott would notify Kelson that the doorway was ready to be formed out, and Kelson would then send a Consolidated carpenter to the location to perform this task. A number of different Consolidate carpenters were used in forming out the 66 elevator doorway openings at this project.

Otis' adjuster Wilburn and his helper Klein were involved in adjusting and test running the elevator cars once installed. During the test running the elevator was controlled and operated from a machine room located on the sixth floor of the building. Otis' foreman Scott and his helper were involved, in pertinent part at [*41] least, with the installation of the stainless steel door frames and outside automatic doors at the various elevator doorways.

It appears that no general orders or instructions were given by Otis to its employees on safety procedures to be followed in moving elevators in shafts before the permanent outside doors were installed. Otis' helper Klein testified that he was instructed by adjuster Wilburn that, "If somebody was working in the shaft, usually talk to him and advise him that you are going to run a car down or that you are going to do this and that, and normally they would be out of it. They would stop their work and do something else" (Tr. 109). He further testified, ". . . Every time I ran this car (elevator #1) I knew that Bill Scott and his helper were working near the opening or on the other car, (elevator #2) and I yelled down to tell them that I was going to do this or that" (Tr. 110). Although it appears that for 5 of the 7 new elevators, the usual procedure was to conduct formal tests (in the presence of an inspector) only after the permanent outside elevator doors had been installed, it further appears that at least elevators #1 and #2 were moved and/or tested [*42] prior to the installation of permanent doors at the lobby level. The safety procedure followed by Otis, adjusting employees was to speak to any worker who was known to them to be working in or near a shaft of any intended elevator can movement and/or to "yell" down the elevator shaft from the sixth floor to warn that the elevator car was coming down.

There was no standard of formal procedure followed by Otis to inform Consolidated that any given elevator was going to be moved or tested. On the day of the accident, no Otis employee or representative notified anyone with Consolidated that elevator #1 was to be moved or tested on that day.

On December 15, 1971, the four Otis employees reported to work at this workplace at 8 a.m. Foreman Scott and adjuster Wilburn discussed the work planned for the day which included some work by Scott and Herbert on elevator #2 as well as setting the stainless steel door frame in place on elevator #1. Scott informed Wilburn that a carpenter would be forming out the doorway on elevator #1 that day and Wilburn asked Scott to advise him when the carpenter arrived, "--- so that we could shut the elevator down" (Tr. 217), as Wilburn intended [*43] to run elevator #1 that day to make adjustments thereto. The evidence reveals that no one advised Wilburn when the carpenter did arrive.

Scott and his helper, upon arriving at the lobby that morning, removed from the doorway of elevator #1, a 4' X 8' sheet of plywood which they had placed there the afternoon before upon completion of that day's work. They placed this piece of plywood against the wall adjacent to elevator #1, marked "Elevator Lobby B-1" on Exhibit G-1, where it remained until sometime after the accident. It was necessary for this plywood to be removed to allow these two employees to erect the stainless steel door frame in the rough doorway of elevator #1, which task they accomplished by about 10:30 a.m. At this time, the plywood was not replaced in front of this doorway. At some earlier date, Scott or his helper had drawn a skull and crossbones on this plywood and the words "Danger -- Keep Out" with "keel," which is similar to blue crayon. Respondent maintains that this plywood constituted the barricade or barrier for elevator #1 at the lobby level.

During the approximate 2-1/2 hours in which Scott and his helper were installing the door frame, elevator [*44] #1 was not operated. At approximately 11 a.m. Klein, who with the adjuster Wilburn had been working in the machine room on the sixth floor of the building since 8 a.m., yelled down elevator shaft #1 that he was bringing the car down, brought the car down to the lobby, advised Scott that this elevator was going to be moved to make necessary adjustments and speed tests, and loaded some weights into this car for such purposes.

Upon completing the door frame installation, Scott and his helper Herbert worked on, in and around elevator shaft #2 installing and adjusting wiring therein and preparing the doorway for the installation of the automatic outside doors. This work required them to reach or physically go into both elevator shafts #1 and #2 through the doorways at the lobby level.

At 12:15 p.m. both Scott and his helper went away from the lobby for lunch returning at 12:45 p.m. During this period, the open doorway of elevator #1 did not have any barricade or barrier of any description in place. From 12:45 p.m. until the time of the accident shortly after 1 p.m., these two employees were engaged in working on the automatic doors to be installed in elevator shaft #2, at an improvised [*45] work bench adjacent to the wall opposite the elevator shafts in the lobby. They had their backs to the elevators in question while so engaged. Neither heard Consolidated carpenter Stevens enter the lobby, or anything else, until the accident according to their testimony.

Prior to his lunch, Scott notified Conslidated's general foreman that the doorway of elevator #1 at the lobby level was ready for forming. Immediately after lunch he also notified Consolidated's labor foreman Kelson of the same. The labor foreman thereupon directed Conslidated's carpenter Stevens, who at the time was on the third floor of the building, to go to the lobby and form out elevator door #1. Stevens went to this location shortly after 1 p.m. and was fatally injured when struck by elevator #1.

Earlier during the morning of December 15, 1971, Stevens was engaged in stripping or disassembling the forms on the lobby doorway of elevator #2 which he had erected a day or two previously. He had completed this task and left the lobby area during the early work hours of the December 15th.

According to their testimony, neither Consolidated's general foreman Harrington nor labor foreman Kelson were [*46] notified by anyone that elevator #1 was to be undergoing tests or being moved on December 15, 1971.

Otis employees Wilburn and Klein, working in the machine room on the sixth floor of this building, took their lunch in this room from 12 noon to 12:30 p.m. Shortly after 12:30 p.m. helper Klein again "yelled" down elevator shaft #1, brought that elevator to the lobby level, loaded some additional weights inside the car and returned in that car to the sixth floor. From that time until the accident, Wilburn and Klein were involved in testing elevator car #1 which required its movement up and down elevator shaft #1, the elevator car being operated and controlled from the machine room. The evidence reveals that no one advised either of these two employees of the arrival of carpenter Stevens in the lobby area. Further, no one from either Otis or Consolidated advised these two employees not to run, i.e. to shut down elevator #1 after the lunch period on the day of the accident.

The exact procedures followed by Otis employees in circumstances wherein a Consolidated employee was to be working in or around elevator doorways is not clear in the evidence. Foreman Scott testified that "amongst [*47] ourselves" (Tr. 43) the procedure was to "shut down" any elevator when Scott notified Consolidated that a door was ready for forming, ". . . if the other man that was doing the other part of the job in our business (the adjuster) knew that I had notified these people" (Tr. 44)). However, Scott further testified that after notifying Consolidated on the day of the accident that the lobby door of elevator #1 was ready for forming, he ". . . never gave it a thought at the time, . . ." i.e. to shutting down elevator #1 (Tr. 45). Further, the evidence is clear that both Otis' adjuster Wilburn and his helper Klein knew, prior to lunch, that a carpenter would be forming the lobby doorway of elevator #1 on the day of the accident, although they did not know the exact time when the carpenter would begin this work, and did not know when carpenter Stevens actually did commence this job. Hence elevator #1 was not "shut down" at any time on the day of the accident because, as adjuster Wilburn testified, ". . . we were sure that no one could get into the area without our knowledge. . ." (Tr. 222), the precise circumstance which did in fact occur according to the evidence of record. [*48]

In response to a telephone report of the accident on December 16, 1971, Safety and Health Compliance Officer Barlow went to the site on that day arriving sometime around 2:45 p.m. He interviewed foreman Scott in the presence of a State Inspector, spoke with investigating police officers, viewed the scene of the accident, had an exit conference with a management representative of Consolidated and returned to his office. He testified that upon his arrival at the accident scene, the 4' X 8' sheet of plywood was located in front of the doorway of the entrance to the elevator lobby, that there was no barricade or any sign of any barricade having been in place across the doorway of elevator #1 and that there was no evidence of any signs or warning devices present indicating that elevator #1 had been undergoing tests at the time of the accident.

As a result of his inspection he recommended that a Citation for Serious Violation be issued to both Otis and Consolidated, the Citation to Otis based upon the lack of guarding at elevator #1 and the lack of any warning device to warn persons that elevator #1 was undergoing tests, the Citation to Consolidated based upon the lack of guarding at [*49] elevator #1.

Inspector Barlow, an experienced safety professional and former memeber of a number of safety standard committees, further testified to his opinion that the hazardous conditions he observed constituted a serious violation of the general duty clause of the Act, Section 5(a)(1), in that there was a substantial probability of serious physical harm or death to employees from unguarded elevator doorways behind which an elevator was undergoing tests, and to the computation of the penalty proposed as to Respondent Otis, pursuant to the Secretary's instructions, reducing the maximum statutory civil penalty of $1000, 10% for less than 10 employees, 20% for no prior violations and 20% for the cooperative attitude of Respondent, i.e. good faith, resulting in the proposed penalty of $500.00 (Exh. G-4, 7, 8).

He further testified that he did not recommend that Respondent be cited for violation of any specific Occupational Safety and Health Standard because the applicable standards were not effective on the date of the accident. He did recommend the Citation herein under Section 5(a)(1) of the Act because in his opinion some warning should have been given of the testing [*50] of elevator #1 because the elevators are nearly silent in operation and a guard rail type of barricade, even if one had been in place, would not eliminate the possibility of injury in that it would not prevent a person from putting his head or arms into the shaft which could be struck by a moving elevator. He further stated that if he had known that the task of forming out the doorway of elevator #1 had required the removal of any barricade, he still would have issued a Citation to Otis for failure to lock this elevator out of operation while the carpenter was working on this task.

The evidence of record further establishes that no affected employees or authorized representatives of affected employees of Otis expressed any desire prior to or at the hearing held herein to participate as a party.

Otis Elevator Company is a New Jersey corporation having its principal place of business in "New York" (Tr. 6). It is engaged in the sale and installation of elevators throughout the United States, has a place of business in Miami, Florida and, during all times relevant herein, was engaged in a business affecting commerce within the meaning of Section 3 of the Act.

RESPONDENT'S POSITION [*51]

Respondent Otis takes the position that it was not in violation of the Act on December 15, 1971, because the doorway to elevator #1 was barricaded with the 4' X 8' sheet of plywood, that there was no Occupational Safety and Health Standard effective on that day requiring any barricading and that its employees Scott and Herbert, who were working in the lobby involved knew that elevator #1 was to be moved to conduct adjustments and tests that day and there was no standard requiring the posting of signs warning its employees of the testing of elevator #1. (See Respondent's Proposed Findings and Conclusions and its Reply to the Secretary's Proposed Findings.) Respondent further raises what it considers legal defenses in its Motion to Dismiss, filed just prior to the hearing, ruling upon which was reserved (R. p. H-20, H-21).

DECISION

The findings of fact detailed supra leads me to the conclusion that the Respondent herein, Otis, on December 15, 1971, was in violation of Section 5(a)(1) of the Act as alleged by failing to furnish each of its employees employment and a place of employment which was free from recognized hazards that were likely to cause death or serious physical [*52] harm to its employees.

The evidence of record establishes that the make-shift barricade, the 4' X 8' plywood sheet, was removed from the doorway to elevator #1 at the lobby level by Otis employees shortly after 8 a.m. on the day of the accident and this open doorway was not thereafter guarded by any form of barricade. It is established that it was necessary to remove the plywood in order for the two Otis employees to install the door frame. This task, however, was completed by mid-morning and the doorway was left unguarded thereafter, including the luncheon period from noon until 12:30 p.m. when the two Otis employees left the elevator lobby. This open, unguarded elevator doorway represented a hazard to other Otis employees or anyone else who may have come into this area.

The evidence further establishes that two of Otis' employees, in performing their work tasks on the adjoining elevator shaft #2, did go into and around elevator shaft #1, at times when elevator #1 was being prepared to undergo and was undergoing testing, which required its movement within elevator shaft #1.

The system used by Otis employees of yelling down the elevator shaft from the sixth floor to warn its [*53] employees below that the elevator was coming down, although not resulting in injury or death to any Otis employee in this case, created a hazardous condition which could very probably result in such injury or death to its employees, if for any reason, the employees below did not or could not hear the warning yell, i.e., if an employee was out of the lobby at the precise moment of the yell to obtain a tool or equipment, going to the rest room, etc., or if other construction noise made the yell inaudible. The unreliability of a shouted warning is confirmed on the evidence of this record which reveals that neither of Otis' employees working in the lobby which reveals that neither of Otis' employees working in the lobby which measured 12' by 20' heard the carpenter enter the lobby, nor did they hear anything else. The Otis employee involved in testing elevator #1, had yelled down the shaft from the sixth floor on two earlier occasions when moving this elevator to the lobby level, which was the accepted procedure and may well have yelled prior to the fatal trip, although he could not recall whether he had yelled prior to the fatal trip.

Respondent's failure to utilize effective [*54] warnings, either a sign and/or a warning device such as a bell or some other type of constant and audible noise maker, actuated by any movement of the elevator to which it was attached when moving the elevator in a shaft which had unguarded doorways around which its employees were to be working, created a hazardous condition for its employees in violation of Section 5(a)(1) of the Act. Further, its practice of allowing an elevator to be moved and tested in a shaft while its employees were engaged in tasks requiring them to enter into the shaft or work in close proximity to an unguarded doorway thereto, was a practice which created a hazardous condition to said employees.

Under the circumstances revealed in this record, Respondent had a choice of either not allowing the movement of elevator #1 in its shaft while any of its employees were working in or around said shaft by a suitable and effective system of locking this elevator out of operation, or in the alternative, equipping this silently operating elevator with suitable and effective audible warning devices. Respondent herein did neither and thus failed to furnish its employees with a place of employment which was free from [*55] hazards likely to cause death or serious physical harm to them.

The hazards thus created, to wit, the danger of falling through an unguarded doorway into an elevator shaft, at the bottom of which was located steel fixtures such as buffers, shivs and pit channels, and the danger of an employee being struck by an elevator undergoing tests and moving in a shaft by an unguarded doorway around which employees were performing work tasks, the evidence establishes were hazards recognized by Respondent in view of what barricading was utilized and the shouted warning of intended elevator movement.

The violation herein found to have existed at this workplace on December 15, 1971, was a serious violation within the meaning of Section 17(k) of the Act as there was a substantial probability that death or serious physical harm could result from the conditions which existed and from the practices and operations adopted and in use by Respondent herein.

Respondent's Motion to Dismiss is bottomed on a basic misconception of those provisions of the Act pursuant to which this case was brought by the Secretary, is unsupported by any citations to case law, is without merit and must therefore [*56] be denied. Basically Respondent argues that since the Act provides for criminal sanctions, it is a criminal statute and is thus subject to the usual strict Constitutional safeguards historically imposed under criminal statutes.

The Act can best be described as "remedial legislation" designed to correct conditions burdening commerce by assuring, ". . . so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources ---" (Section (2)(b) of Act). The means chosen by Congress to effect this purpose are clearly delineated in the thirteen subparagraphs of Section (2)(b) of the Act.

As remedial legislation, primarily civil in nature, the Act must be construed in the light of "the policy of the legislation as a whole," U.S. v. American Trucking Association, 310 U.S. 534,543 (1940) drawing "substance from the policy and purposes of the Act, the circumstances and background of particular employment relationships, and all of the hard facts of industrial life." NLRB v. Adkins Co., 331 U.S. 398,403 (1947).

Section 5(a)(1) of the Act, pursuant to which this case was initiated, contrary to Respondent's allegation, [*57] is not fatally vague and ambiguous. This "general duty" provision is, in many respects, a statement of the common law duty of employers that they must take care to avoid harming their employees. It establishes objective requirements, to which employers must adhere, with a reasonable degree of certainty. It conforms to the principal annunciated by the Supreme Court in the Boyce Motor Lines case:

--- But few words possess the precision of mathematical symbols, most statutes deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded. Boyce Motor Lines, Inc., v. U.S. 342 U.S. 337, 340 (1952). n1

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n1 For a full exposition of Congressional rationale underlying Section 5(a)(1) of the Act, see Senate Report No. 91-1282 91st Congress 2d Session, p.9. For an explanation of "recognized hazard" see the comments of Senator Javits at page 58 of the above identified Senate Report.

[*58]

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This action was brought by the Secretary pursuant to Section 9(a) of the Act. Respondent, having contested the Secretary's Citation, was afforded an opportunity for a hearing by the Commission pursuant to Section 10(c) of the Act and a full evidentiary hearing was held in accordance with Section 554 of Title 5, U.S. Code. At this hearing, in which Respondent was represented by counsel, the Secretary produced evidence to support the allegations of his Citation and proposed penalty, his witnesses were subject to full cross-examination and Respondent presented the testimony of its witnesses. The Commission, an adjucatory body established under Section 12 of the Act, totally separate and apart from the Secretary of Labor and his department, will, pursuant to Section 10(c) of the Act, issue the final order herein, which order is subject to review in appropriate United States Courts of Appeals pursuant to Section 11 of the Act. This process of administratively determining the presence of an alleged violation of the Act comports with due process requirements of the Constitution.

The Secretary in this case [*59] proposes the assessment of a "civil penalty" under Section 17(b) of the Act. Congress very clearly differentiated in Section 17 between "civil sanctions" and "fines." Compare Section 17(a)(b)(c)(d)(j) and (1) to 17(e)(f)(g).

The assessment of monetary civil penalties through administrative proceedings, as a means of securing efficient performance in carrying out Congressional policy has long been held to involve a remedial, civil sanction not abridging Constitutional due process. See, Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320 (1909); Helvering v. Mitchell, 303 U.S. 391 (1938); Olshausen v. Commissioner of Internal Revenue, 273 F.2d 23 (CA 9, 1959); Speten v. Bowles, 146 F. 2d 602 (CA 8, 1945).

Respondent's argument that "Sections 5 and 6 of the Act provide an unconstitutional delegation of legislative and judicial powers to the Secretary of Labor to prosecute and force standards of conduct with penal sanction." (para 2. Motion to Dismiss), has been succintly answered by the Supreme Court in YAKUS v. U.S., 321 U.S. 414, 64 S. Ct. 660, 667-668, (1944) where it stated:

The Constitution as a continuously operative charter [*60] of government does not demand the impossible or the impracticable. It does not require that Congress find for itself every fact upon which it desires to base legislative action or that it make for itself detailed determinations which it has declared to be prerequisite to the application of the legislative policy to particular facts and circumstances impossible for Congress itself properly to investigate. The essentials of the legislative function are the determination of the legislative policy and its formulation and promulgation as a defined and binding rule of conduct ---.

These essentials are preserved when Congress has specified the basic conditions of fact upon whose existence or occurrence, ascertained from relevant data by a designated administrative agency, it directs that its statutory command shall be effective. It is no objection that the determination of facts and the inferences to be drawn from them in the light of the statutory standards and declaration of policy call for the exercise of judgment, and for the formulation of subsidiary administrative policy within the prescribed statutory framework.

Only if we could say that there is an absence of standards for the [*61] guidance of the Administrator's action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed, would we be justified in overriding its choice of means for effecting its declared purpose. . .

Detailed standards to guide the Administrator of this Act are clearly set forth therein, and Congress, through this Act, has acted within accepted Constitutional limits.

The Act does not delegate any "judicial" powers to the Secretary of Labor. As pointed out supra, adjudicatory functions under the Act are carried out by the independent Review Commission, not the Department of Labor (Section 10(c)).

The remaining arguments set forth in Respondent's Motion to Dismiss are not supported by either citation to case law or a reading of the clear terms of the Act. They raise questions clearly outside of the factual and legal posture of this case and thus do not present a case or controversy requiring resolution herein.

The testimony of record reveals that the violative condition existing at this work place on December 15, 1971, was immediately corrected as required by the Citation herein.

CONCLUSIONS OF LAW

At all times involved [*62] in this case, Respondent herein was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.

At all times involved in this case, Respondent furnished employment to its employees at a workplace located at 4725 North Federal Highway, Fort Lauderdale, Florida, and the Act is applicable to such employment within the meaning of Section 4(a) of the Act.

On December 30, 1971, the Secretary, pursuant to the provisions of Sections 9(a) and 10(a) of the Act, issued to this Respondent a Citation for Serious Violation and a Notification of Proposed Penalty in the amount of $500.00.

On January 24, 1972, pursuant to the provisions of Section 10(c) of the Act, this Respondent timely filed with the Secretary his notification of intent to contest the citation and proposed penalty. The Secretary thereupon transmitted this case to the Commission which, pursuant to the provisions of Section 10(c) of the Act, has jurisdiction of the parties and of the subject matter herein.

The Citation, Notification of Proposed Penalty and Notice of Contest were served by and upon the respective parties hereto consistent with the provisions of Section 10 of the Act and [*63] notice was given employees of their right to participate in these proceedings.

On December 15, 1971 the Respondent herein, at a workplace located at the Holy Cross Hospital, 4725 North Federal Highway, Fort Lauderdale, Florida violated Section 5(a)(1) of the Act by failing to furnish to each of its employees employment and a place of employment which was free from recognized hazards that were causing or were likely to cause death or serious physical harm to its employees.

The violation herein found to exist at this workplace on December 15, 1971 was a serious violation within the meaning of Section 17(k) of the Act in that thers was a substantial probability that death or serious physical harm could result from the conditions which existed and the practices and operations which were in use, which were known or could have been known by Respondent with the exercise of reasonable diligence.

Due consideration having been given to the provisions of Section 17(j) of the Act as applicable to the evidence of record, and weighing particularly the gravity of the violation herein found to exist, it is concluded that the proposed civil penalty in the amount of $500.00 is not inappropriate. [*64]

Based upon the foregoing findings and conclusions, and pursuant to the provisions of Sections 10(c) and 12(j) of the Act, it is hereby

ORDERED:

That Respondent's Motion to Dismiss filed herein on April 4, 1972 be denied.

That the Citation for Serious Violation and civil penalty proposed thereon, dated December 30, 1971 directed to the Respondent herein, be AFFIRMED.

Pursuant to Section 17(j) of the Act, said civil penalty in the amount of $500.00 is hereby accessed against the Respondent herein based upon the serious violation herein found to exist, payment thereof to be made to the Secretary within thirty days of the entry of the final order herein.