URBAN BUILDERS, INC.

OSHRC Docket No. 4626

Occupational Safety and Health Review Commission

September 9, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, COMMISSIONER: A July 29, 1974, decision of Review Commission Judge Donald K. Duvall is before this Commission for review pursuant to 29 U.S.C. 661(i). At issue is whether the Judge erred in holding that no prejudicial error resulted because the citation erroneously misidentified the respondent as Urban Developers, Incorporated, rather than Urban Builders, Incorporated. We find that he did not and affirm his decision.

The respondent's president was present at the conferences which preceded and terminated the inspection. He also received the citations which resulted from the inspection and duly filed a notice of contest thereto. Thus, it is clear that the respondent's president knew that the citations pertained to his corporation. We therefore find that the misidentification does not constitute prejudicial error.

Accordingly, the decision of the Judge is affirmed.

[The Judge's decision referred to herein follows]

DUVALL, JUDGE: This is a consolidated proceeding pursuant to sections 9 & 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter called [*2] "the Act") contesting alleged serious and non-serious violations and proposed penalties therefor contained in citations and notifications of proposed penalty issued on August 23, 1973, by complainant to respondents, to-wit:

As to Dorey Electric Company: [Became Final Order on August 28, 1974. See 11 OSAHRC 227.]

Citation Number 1 (Serious)

Item No. 1 -- 29 CFR 1926.500(d)(1)

(Standard guardrails) -- $650.00

Citation Number 1 (Non-Serious)

Item No. 1 -- 29 CFR 1903.2(a)

(Posting OSHA Notices) -- $50.00

Item No. 2 -- 29 CFR 1926.25(a)

(Housekeeping/lumber & other debris) -- $30.00

As to Urban Developers (Builders), Inc.:

Citation Number 1 (Serious)

Item No. 1 -- 29 CFR 1926.500(b)

(Guarding floor openings) -- $750.00

Citation Number 2 (Serious)

Item No. 1 -- 29 CFR 1926.500(d)

(Standard guardrails -- open sided floors) -- $750.00

Citation Number 1 (Non-Serious)

Item No. 1 -- 29 CFR 1903.2(a)

(Post OSHA Notice) -- $50.00

Item No. 2 -- 29 CFR 1904.2

(Log of injuries) -- $100.00

Item No. 3 -- 29 CFR 1904.4

(Supplementary record of injuries) -- $100.00

Item No. 4 -- 29 CFR 1926.25(a) -- $35.00

Item No. 5 -- 29 CFR 1926.552(b)(1)(ii) -- $45.00 [*3]

Item No. 6 -- 29 CFR 1926.552(b)(2) -- $0

Item No. 7 -- 29 CFR 1926.552(b)(3) -- $0

Item No. 8 -- 29 CFR 1926.552(b)(4) -- $45.00

Item No. 9 -- 29 CFR 1926.552(b)(5) -- $0

Item No. 10 -- 29 CFR 1926.150(c)(1)(i) - $50.00

Item No. 11 -- 29 CFR 1926.150(c)(1)(iv) -- $50.00

Item No. 12 -- 29 CFR 1926.500(e) -- $35.00

Item No. 13 -- 29 CFR 1926.450(a)(5) -- $45.00

Item No. 14 -- 29 CFR 1926.550(a)(2) -- $0

Item No. 15 -- 29 CFR 1926.252(a) -- $35.00

As to Craft Construction Company: [Became Final Order on August 29, 1974. See 11 OSAHRC 227.]

Citation Number 1 (Serious)

Item No. 1 -- 29 CFR 1926.500(d)(1)

(Standard guardrails -- open sided floor) -- $700.00

Citation Number 1 (Non-Serious)

Item No. 1 -- 29 CFR 1903.2(a) -- $50.00

Item No. 2 -- 29 CFR 1904.2 -- $0

Item No. 3 -- 29 CFR 1904.4 -- $0

Item No. 4 -- 29 CFR 1926.25(a) -- $35.00

At the hearing in this matter, held at Norfolk, Virginia, on March 5, 1974, the parties stipulated that with respect to Urban Builders, Inc., the only issue is whether the citations for alleged serious & non-serious violations issued to Urban Developers, Inc., constitute service of valid citations upon respondent (Urban [*4] Builders, Inc.) where (1) the President of respondent, Alan Hoffman, was present at the opening and informal (closing) conferences conducted by complainant's Compliance Officer, Joseph N. Cleary, Sr., on the date of inspection (August 20, 1973) of respondent's workplace at 5631 Tidewater Drive, Norfolk, Virginia, where the Lakewood Plaza Apartments were under construction; (2) Mr. Hoffman received a copy of the citations herein addressed mistakenly to Urban Developers, Inc.; (3) Mr. Hoffman contested said citations on behalf of Urban Builders, Inc.; the complaint herein was addressed to and served upon Urban Builders, Inc. and said respondent answered said complaint. By this stipulation the parties agreed that if the foregoing legal issue is decided affirmatively in favor of complainant then the citations and proposed penalties as amended, against respondent, Urban Builders, Inc., should be affirmed and if decided adverse to complainant then said citations and proposed penalties, as amended, should be dismissed, without the introduction of any additional evidence or proof.

Respecting respondent Dorey Electric Company, it was stipulated, inter alia, that this respondent was engaged [*5] as a subcontractor installing electrical connections at the aforestated workplace; that it was engaged in business affecting commerce within the meaning of section 3(5) of the Act; that it was a small to medium sized business with 25 employees, 3 of whom were affected employees herein, and gross receipts of approximately $700,000 for 1973. It was further stipulated that Dorey's employees were required to work and did work at or near the edge of the fourth floor of the apartment building under construction at said workplace; that said fourth floor was open sided and not equipped with standard guardrails at the time Dorey's employees were working at or near the edge of said floor; that Dorey was properly served with one serious and one non-serious citation and notification of proposed penalty totaling $730.00; and that Dorey has no history of previous violations under the Act.

Respecting respondent Craft Construction Company, the parties stipulated, inter alia, that this respondent was engaged as a subcontractor at the aforestated workplace; that it was engaged in business affecting commerce within the meaning of section 3(5) of the Act; that it had 54 employees, 5 of [*6] whom were affected employees herein, and gross receipts of $250,000 for 1973. It was further stipulated that respondent's employees, including Thomas Reider, laborer, and Leonard Smith, superintendent, were required to and did work at or near the edge of the fifth floor of the apartment building under construction at said workplace; that said fifth floor was open sided and not equipped with standard guardrails at the time and place respondent's employees were required to and did work at or near the edge of said floor; that respondent was properly served with one serious and one non-serious citation and notification of proposed penalty in the total amount of $785.00; and that Craft has no history of previous violations under the Act.

On motion of the parties, the citations and proposed penalties herein were amended as follows. As to respondent Urban, non-serious citation number 1, item no. 11 and the corresponding proposed penalty, were deleted, the penalties proposed for items nos. 1 thru 3 were reduced to $25.00 each, and the proposed penalty for item no. 8 reduced to $25.00. As to respondent Craft, respondent was granted leave to withdraw its notice of contest rejecting item [*7] nos. 1 thru 3 of the non-serious citation number 1 and the corresponding proposed penalties, as amended. At the same time, on motion of the parties, the proposed penalty for item 1 of the same non-serious citation number 1 was reduced to $25.00.

The foregoing stipulations and motions leave the following issues to be decided herein:

1. Did the serious citations numbered 1 and 2 and the non-serious citation number 1 issued to Urban Developers, Inc., constitute proper service of a valid citation upon respondent Urban Builders, Inc., under the Act in the circumstances of this case?

2. On August 20, 1973, did respondent Dorey Electric Company violate the occupational safety and health standards set forth in serious citation number 1 (1 item) and non-serious citation number 1 (2 items), and are the proposed penalties therefor (total $730.00) appropriate under section 17 of the Act?

3. On August 20, 1973, did respondent Craft Construction Company violate the occupational safety and health standards set forth in serious citation number (1 item) and non-serious citation number 1 (1 item), and are the proposed penalties therefor (total $735.00) appropriate under section 17 [*8] of the Act?

Three motions to dismiss on constitutional grounds, subsequently supported by respondent's brief, were denied at the hearing by the undersigned Judge.

DISCUSSION

Validity of Urban Citations

Respecting the first issue of proper service of a valid citation upon respondent Urban, respondent asserts that complainant's failure to issue a citation to the proper respondent, i.e., to Urban Developers, Inc., rather than to Urban Builders, Inc., the proper designation of respondent, constitutes non-compliance with section 9(a) of the Act sufficient to render said citation defective and ineffective as to respondent.

The pertinent parts of section 9 relied on by respondent are as follows:

Sec. 9(a) -- If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of this Act, of any standard, rule or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a citation to the employer. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a [*9] reference to the provision of the Act, standard rule, regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation. The Secretary may prescribe procedures for the issuance of a notice in lieu of a citation with respect to de minimis violations which have no direct or immediate relationship to safety or health. Sec. 9(c) -- No citation may be issued under this section after the expiration of six months following the occurrence of any violation.

Specifically, Urban argues that complainant did not issue the three citations "to the employer" since Urban Developers, Inc., to whom the citations were issued, is a separate legal entity unconnected with the respondent, Urban Builders, Inc. (Respondent's Brief, p. 27). Respondent further argues that the aforesaid defect was never corrected by complainant, although the Secretary could have amended the citations or issued new citations to show the correct respondent. Indeed, respondent alleges that the subsequently issued complaint, while properly addressed to the respondent, incorporated the defective citations by reference, so that even if the complaint [*10] could stand alone and be served on an employer without there first having been served on the employer proper citations, the complaint here is still defective because it rests on the improperly issued citations (Respondent's Brief, p. 28).

Complainant supports the validity of the citations on two main grounds: first, that, consistent with the legislative history of the Act, the complaint rather than the citation constitutes the basis of adjudicatory enforcement proceedings, the citation being merely the basis of "primary consensual administrative enforcement" (Complainant's Brief, pp. 6-8); second, that even if the citation is more than mere notice of alleged violations, the defective citation herein is not fatal because in the circumstances here, respondent was given adequate notice and opportunity to prepare and plead, was not prejudiced, and the procedure as a whole was fair (complainant's brief, pp. 9-11). In the circumstances of this case, I find complainant's second argument most persuasive.

In reviewing the adequacy of the original notice, the fairness of the whole procedure is the principal consideration. See Davis, Administrative Law Treatise, sec. 8.04, p. 523, 525. [*11] Here the record shows that Urban's President, Mr. Hoffman, personally and through his superintendent, Mr. Gester, was aware of the inspection. Subsequent to issuance of the citation but before Urban contested, Mr. Hoffman attended an informal conference with complainant's representatives to discuss the alleged violations (Stipulation paragraph 2). Following the opportunity to review the citation with the OSHA Area Director, Mr. Hoffman signed the notice of contest letter dated September 12, 1973, as President, Urban Builders, Inc. In these circumstances, where there is no substantial evidence that the misdirected citation prejudiced the respondent (Urban Builders, Inc.), I would deem said citation to have been constructively amended by the subsequent complaint which was properly directed to respondent Urban. See Commission Rules of Procedure, Rule 33(a)(3).

Such amendment would conform to the evidence and subserve the presentation of the merits of the action without prejudicing respondent Urban's defense on the merits. Federal Rules of Civil Procedure, Rule 15. Indeed, an amendment changing the party against whom a claim is asserted relates back if the defense asserted [*12] arose out of conduct set forth in the original pleading and within the period provided by law for commencing the action against respondent, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. Federal Rules of Civil Procedure, Rule 15(c).

My ruling in complainant's favor on this issue specifically does not include or depend on any endorsement of complainant's theory that the complaint and not the citation is the basis for enforcement of violations under the Act, as set forth in its brief, pp. 6-8.

Guardrails

Passing to the next issue, respondents Dorey and Craft were both cited for violation of 29 CFR 1926.500(d)(1) which provides:

(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)(i) of this section, on all open sides, [*13] except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

The paragraph (f) referred to in the standard quoted above gives the specifications for standard railing and acceptable equivalents.

With respect to Dorey, it was stipulated that its employees worked at or near the edge of an open-sided fourth floor which was not equipped with standard guardrails at the stated time and place. The fourth floor was 40-45 feet above ground and the area in which Dorey's employees worked was not an entrance to a ramp, stairway, or fixed ladder and afforded no other means of protection equivalent to guardrails (Complainant's Exhibit C-5). Dorey's principal defense is that it was difficult if not impossible for its employees to perform the work required to construct the building in question with standard guard rails in place (Respondent's Brief, p. 29).

In support of this defense, Mr. Nash, Dorey's electrical foreman, testified that stubbing in electrical switches [*14] on the fourth floor of this workplace, as shown in photograph C-5, could not have been accomplished with the C-clamp type of guardrails used on this job since the electrical conduit had to be stubbed in within 9 inches of the outer edge of the concrete floor slab and the C-clamp of the guardrail required 4 inches from the slab's outer edge and the stubbed in electrical conduit and switch would be destroyed where the guardrail was taken down in order to make room for the brick mason to put up the outer wall. But on cross examination, Mr. Nash did not make clear how installation or removal of a guardrail installed within 4 inches of the outer edge of the slab could hinder stubbing up an electrical receptacle more than 4 inches in from the edge, as shown in photograph C-5.

The testimony of Mr. Lucas, a credible indentured apprentice electrician, was more explicit in showing how the midrail of the standard railing would have obstructed this particular electrical installation (Respondent's exhibit R-2).

Complainant further contends that respondent's defense of impracticability or impossibility of compliance must be rejected because the Commission has no jurisdiction to entertain what [*15] is in effect a petition for a variance (Complainant's Brief, p. 18, citing Joseph Bucheit & Sons Company, John Knoells & Sons, Inc., On the other hand, the Commission has held in several cases that non-compliance with the requirements of an occupational safety and health standard is justified when necessary to permit the accomplishment of required work. Dic-Underhill, Masonry, Inc., La Sala Contracting Company, Inc., De Luca Construction Corp., Even accepting the latter as the current position of the Commission, complainant asserts through the testimony of Mr. Ewing, complainant's Area Director, that the C-clamp type of guard rail could have been taken down without damaging the electrical conduit shown in photograph C-5. This experienced safety engineer also testified that the cited standard required a standard railing or equivalent, [*16] such as metal pipe or tubing or wire rope, and that the latter type, supplemented with an appropriate toe board, where needed, would clearly not have interferred with the electrical installation. While the requirements of 29 CFR 1926.500(d)(1) and (f) include the requirement that protection must be afforded between the top rail and the floor at least equivalent to that afforded by the standard intermediate rail ( Lipsky & Rosenthal, Inc., San Jose Crane & Rigging, Incorporated,

In any event, the record clearly establishes that there were no obstructions or other reasons justifying non-compliance with the cited standard as to the balcony side of that part of the fourth floor shown in photograph C-5. Mr. Nash's testimony that the closest electrical installation to the outer edge of that [*17] balcony was six feet four inches does not eliminate the possibility of Dorey employee exposure to the hazard of falling off said balcony since Dorey stipulated that its employees did work at or near the edge of the fourth floor at this worksite. As to this part of its charge against Dorey, therefore, complainant has met its burden of proof of violation of the guardrail standard.

With respect to respondent Craft, there was a similar stipulation, namely, that on the date of inspection (August 20, 1973) its employees were working at or near the edge of an open-sided fifth floor which was not equipped with standard guardrails at the stated workplace. Compliance Officer Cleary testified that the fifth floor was 50-55 feet above ground, that a fall from that height would have been unimpeded and would have resulted in serious harm or death, and that there were no other means of protection equivalent to guardrails being used. As shown on complainant's exhibit C-6, Craft's employees at this location were flying a form, i.e., removing a wood form used in laying concrete by use of jacks and cables suspended from a crane.

According to Craft's President Green, who regularly visited [*18] the worksite, the forms used weigh 5,000-6,000 pounds and tilt when fulled free of the rollers by the crane so that guard rails are removed during this operation to avoid having them knocked down by the flying form. While Mrs. Green's testimony was somewhat confusing respecting how close to the floor the form would likely tilt upon removal, her references to the heavy weight and bulkiness of the form, its unpredictable movements due to suspension by cables from the crane and possible wind pressures, the hazard resulting from guardrails possibly knocked over, and Craft's practice of replacing guardrails after flying the form constitute very persuasive arguments in the circumstances here presented.

However, notwithstanding President Green's evident knowledge about the pertinent on-site operations of respondent, her lack of construction experience relative to that of Compliance Officer Cleary and Area Director Ewing renders her testimony that forms cannot be flown (removed) with guard rails up of lesser probative value than the contrary testimony of Mr. Ewing. On the merits, President Green's contradictory or confused testimony as to the usual degree of tilt of a flying form and hence [*19] the likelihood of risk or hazard to employee safety falls short of establishing by credible evidence that non-compliance with the guard rail standard was necessary in order to perform that construction operation at the time and place and in the circumstances cited. Consequently, I believe complainant has met its burden of proof on this alleged violation with respect to Craft.

Ruling on Complainant's Motion to Amend Serious Citation

In the course of direct examination of its first witness at the hearing, complainant's counsel moved to amend the serious citations against Dorey and Craft by adding to the standard railing alleged violation the alleged violation of 29 CFR 1926.28(a), which provides as follows:

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

After hearing arguments of both counsel I denied the motion at the hearing, and, in view of complainant's reargument of the motion in its brief, I hereby confirm my prior ruling. Complainant [*20] argues that under Rule 15 of the Federal Rules of Civil Procedure (Commission Rules of Procedure being silent on the matter of amendment of citations, except for the reference in Rule 33(a)(3) in effect authorizing the Secretary to amend the citation in his complaint), as construed by the courts, administrative pleadings are easily amended, even at the hearing itself in order to subserve the merits of the action so long as such amendment does not prejudice the objecting party and that even then a continuance may be granted to afford the objecting party time to meet the additional charge (Complainant's Brief, pp. 27-35). Respondent's basic defense is that the proposed amendment amounted to a substantial change in the cause of action, and not merely a change of legal theory, which was contrary to the provision of sec. 9(c) of the Act which precludes the issuance of any citation after the expiration of six months following the occurrence of the cited violation. (The proposed amendment here on March 5, 1974, followed the alleged violation on August 20, 1973, by almost 6-1/2 months.) Respondent alleged further prejudice in that it was surprised and the trial in this matter would be unduly [*21] delayed by the granting of such motion to amend the fundamental cause of action in mid-hearing, after full disclosure and stipulations respecting the substantive issues by the parties on the basis of the original citations.

I am very sympathetic to the thrust of complainant's arguments, namely, that administrative civil litigation should properly and completely deal with all relevant issues so as to adjudicate each case in conformity with the remedial purpose of the Act. But none of the supporting citations of authority, including court and Commission cases, the Federal Rules, and statements of legal writers involve the particular circumstances found in the present case. For example, none involve a statute of limitations, such as sec. 9(c), which I consider applicable to amendments of citations which add one or more separate standards as additional or alternative alleged violations even though the underlying citation was issued well within the six months rule. Legislative History of the Occupational Safety and Health Act of 1970, Sen. Committee on Labor and Public Welfare, 92nd Congress, 1st Session, p. 1202 (June 1971). It is certainly not unreasonable or likely to [*22] cripple enforcement of the Act to expect legal professionals of complainant to review and plan its cases within 9 months of an OSHA finding of violation. Also, citing the broad language of the Court in National Realty and Construction Company, Inc. v. OSAHRC, 1 OSAHRC 1422 (December 13, 1973), to the effect that "So long as fair notice is afforded, an issue litigated at an administrative hearing may be decided by the hearing agency even though the formal pleadings did not squarely raise the issue" is a specious argument tantamount to legal overreaching when applied to the case at bar, since National Realty involved a general duty (non-specific) violation and clarification of an unfortunately worded charge, not an entirely separate specific standard relating to essentially the same factual situation.

It has also been held that sec. 9(a) of the Act requires that such a substantial amendment of the citation must be in writing. Secretary of Labor v. Masonry, Inc., And at least two Judges of the Commission have held the standard set forth at 29 CFR 1926.28(a) to be unenforceable due to vagueness.

Complainant's argument on this [*23] motion are also defective from a due process standpoint. I cannot subscribe to complainant counsel's highly compartmentalized, narrow view of pre-hearing discovery and discussion which, by definition, encourages the parties to identify, simplify and, if possible, resolve all issues to be litigated by the parties and, on the basis of mutual assessments of the total legal situation prior to trial to stipulate or settle those issues of fact or law as to which evidence should not reasonably be required in the interest of justice. That forthright pre-hearing process occurred in this case and resulted in substantial stipulations by the parties, as stated previously, on the basis of the citations issued of record. To accede to complainant's motion to add a distinctly different and broader alleged serious standard violation to the citations after the pre-hearing process upon which the latter was based and in mid-hearing clearly offends due process and is contrary to the intent of both the Act and the Commission's pre-hearing procedures and discovery provisions. Commission's Rules of Procedure, Subpart D. Such resort to legal gamemanship tends to prostitute or abuse the flexible, [*24] less formal advantages of the administrative process for dispute settlement and bespeaks complainant's undue preoccupation with and subscription to an unsubstantiated procedural theory designating the citation as the basis for enforcement in OSHA cases which I have previously rejected (See Discussion of Validity or Urban Citations, supra). I think the unacceptable prejudicial effect of granting complainant's motion to amend was well summarized by respondent's counsel:

It would prejudice us, my clients, by requiring them to defend a new action, an action that they would not, but for the amendment, have had to defend. It will require a continuance. It will require a reevaluation of the entire posture of that case. It will require a request to the Court, most likely, to withdraw the stipulations regarding these particular Defendants. I really am surprised that this question of an amendment came up. On the basis of attempting to enter into a stipulation, the entire defense was discussed and the issues presented to counsel beforehand, and I think it is a great injustice to require us, after the Secretary, who is prohibited by the Act itself, from issuing a new citation, based on [*25] these given facts, and to have to come back down and have to defend it.

Housekeeping

Respondents Dorey and Craft were both cited for alleged violations of the housekeeping standard (29 CFR 1926.25(a)) because their employees were allegedly exposed to debris, including parts of forms, scrap lumber with protruding nails, broken cinder blocks, wire, soda cans and the like which Compliance Officer Cleary observed littered around the perimeter of the building, together with loose gravel below the fourth floor on the only usable stairway inside the building (Complainant's Exhibits C-1 and 2). The largest accumulation of debris was at one of the entrances to the building (Exhibit C-2). Similar debris, including electrical wires which should have been strung above ground, littered the area around the main entrance to the building (Exhibit C-3) causing hazards of tripping, puncture wounds, and electrical shock.

Taking into consideration the stage of construction of this building and taking judicial notice of the debris normally to be expected at about 10:30 a.m. on site of such a building under construction, I believe that complainant has carried its burden of proving by a [*26] preponderance of the evidence that employees of both Dorey and Craft were exposed to the tripping and injury hazards of the debris cited in violation of 29 CFR 1926.25(a). President Green's testimony concerning clean-up crews she personally led at the site several days before the inspection appeared to be primarily concerned with the salvage of usable form lumber and her statement that such clean-up efforts were, to the best of her knowledge, made on a daily basis was not wholly convincing viewing the evidence as a whole, including Mr. Cleary's stated opinion that the debris observed was more than one day's accumulation.

In its brief (pp. 31 & 33), respondent's counsel alleges, in effect, that the standards set forth at 29 CFR 1926.500(d) and 1926.25(a) are unenforceably vague in that they fail to give employers sufficient or clear direction as to how to comply when the use of standard railing interferes with the work being done, or what "kept cleared" means with respect to debris around buildings.

Respecting the railing standard, if in the circumstances of a particular case compliance with the standard railing is not possible, the wording "or the equivalent, as specified in paragraph [*27] (f)(i) of this section" would seem to put a reasonable man on notice to explore paragraph (f) for other equivalent means of compliance that would satisfy the standard. Such exploration would reveal that paragraph (f)(i) relates to wood railings only, giving the range of acceptable dimensions of top and mid-rails (which may or may not have accommodated the electrical installation by Dorey's employees in this case). It may be that the standard should also have referred to paragraph (f)(vi) (or simply to (f)(1), which would have been more inclusive) since (vi) refers to other types, sizes, and arrangements of railing construction (other than wood, pipe and structural steel, presumably, since they are specifically described in (i), (ii), and (iii), respectively) which are acceptable if they meet certain stated conditions, including a 42-inch smooth-surfaced top rail, 200 pounds minimum top rail pressure resistance, and protection between top rail and floor at least equivalent to that afforded by a standard mid-rail. Subparagraph (vi) does not specify the "other types", so that, for example, the wire rope referred to by complainant's Area Director as an equivalent alternative [*28] to the standard railing used in this case is not even mentioned. To this extent, the employer is, as contended by respondent, "left to his own devices as to how to remedy the situation" (Respondent's Brief, p. 31).

While, for the reasons and in the ways above noted, the subject standard might be clarified to give better guidance to employers, I do not consider the standard in its present form to be so vague or obtuse as a matter of law, as to reasonably preclude a diligent employer from providing a standard railing or equivalent in compliance with the standard. In my opinion, the standard is clear enough to put employers on notice that guards equivalent to standard railing as specified in (f)(i), are acceptable so long as they meet the conditions specified in (vi). Thus, in this case, when Dorey and Craft found it not possible to comply with the standard railing requirement, they had the duty of at least attempting to provide an equivalent guard, rather than simply not putting up any guard rail at all, even if this meant contacting OSHA for alternative guard rail suggestions.

Respecting the housekeeping standard, the directory language "kept cleared" is reasonably clear (although [*29] certainly subject to varying degrees of clearness as applied by different inspectors) when applied consistent with the purpose of the standard, namely, to provide employees a place of employment under working conditions which are not unsanitary, hazardous or dangerous to their health or safety, such as, in this case, the hazards of tripping and injuries from debris surrounding the building under construction. Applicable synonyms for "cleared" in the sense used here include to free from or get rid of obstruction, Webster's Seventh New Collegiate Dictionary, 154 (1972). In Dorey's and Craft's case, this standard could have been met consistent with the existing stage, intensity and work patterns of construction by collecting the debris in orderly piles away from the building under construction so as to provide their employees access reasonably free from the aforesaid hazards.

Posting OSHA Notice

Based on Compliance Officer Cleary's unrebutted, credible testimony that Dorey had no OSHA poster or notice informing employees of their rights under the Act posted in its material trailer or otherwise at the worksite, Complainant has sufficiently proved Dorey's violation [*30] of 29 CFR 1903.2(a).

Penalties

Respecting the guardrail standard violation against Dorey, the record establishes that this was a serious violation within the meaning of section 17(k) of the Act in that a substantial probability existed that death or serious physical harm could result from an employee falling due to absence of guardrails. Section 17(k) only requires proof of a substantial probability that the consequences of an accident from a violative condition will be death or serious physical harm. Crescent Wharf & Warehouse Company, Computation of the proposed penalty of $650.00 reasonably took into consideration Dorey's good faith (average safety program), size (25 employees), and no history of previous violations under the Act. Similar adjustments were made with respect to Dorey's non-serious violations of 29 CFR 1926.25(a) and 29 CFR 1903.2(a) and the proposed penalties therefor of $30.00 and $50.00, respectively, are appropriate under section 17(j) of the Act.

Respecting Craft, the proposed penalty of $750.00 and $35.00 for its violation of 29 CFR 1926.500(d)(1) and 1926.25(a), respectively, is appropriate, considering Craft's [*31] size (54 employees), good faith (ineffective safety program), no history of prior violations under the Act, and the relative gravity of the hazard cited.

Respecting Urban, having found that it is deemed to have been duly served with valid citations, by stipulation the proposed penalties, as amended, relative to said citations, as amended, should be affirmed in the total amount of $1,845.00. These amended penalties are appropriate under section 17 of the Act (Complaint, p. 4).

Since all of the serious violations alleged against Dorey, Craft and Urban involved their employees working at or near the edge of unguarded open-sided floors or floor openings on floors ranging from the second through the sixth floors of the workplace (Citations Nos. 1 and 2 (serious) against Urban and Stipulations) there was a substantial probability that death or serious physical harm could result (e.g., through the fall of an employee) from such conditions. Since the superintendents for each of the respondents participated in the opening conference with the compliance officer, and had the opportunity of participating in his inspection of the workplace, Respondents are deemed to have known or [*32] with the exercise of reasonable diligence could have known of the presence of said violations.

FINDINGS OF FACT

The record herein as a whole contains reliable, probative and substantial evidence to support the following findings of fact:

Dorey Electric Company (Dorey)

1. Respondent Dorey is a Virginia corporation which at all times relevant hereto maintained a workplace at 5631 Tidewater Drive, Norfolk, Virginia, where it was engaged as a subcontractor installing electrical connections at the Lakewood Plaza Apartments then under construction.

2. At all times material hereto, Dorey, a medium sized firm with 25 employees and 1973 gross receipts of approximately $700,000, was engaged in a business affecting commerce.

3. On August 20, 1973, Complainant's agents officially inspected Dorey's aforestated workplace and subsequently cited Dorey for one alleged serious violation and two alleged non-serious violations of occupational safety and health standards at 29 CFR 1926.500(d)(1), 29 CFR 1903.2(a), and 29 CFR 1926.25(a), respectively, under section 5(a)(2) of the Act (Serious Citation No. 1, Non-Serious Citation No. 2, Notification of Proposed Penalty).

4. On August [*33] 20, 1973, three of Dorey's employees were required and did work at or near the edge of an open-sided and unguarded fourth floor in the aforestated building under construction.

5. At the time of the inspection on said date, Dorey's employees were stubbing in electrical switches and conduits close to the non-balcony edge of that part of the fourth floor of said building as shown in complainant's exhibit C-5. Neither the non-balcony edge of the open-sided floor or the balcony edge of the open-sided floor behind the employee shown were guarded with standard railing or the equivalent and no ramp, stairway, or fixed ladder were located there.

6. No standard railing of the C-clamp type available was installed on the non-balcony edge of this part of the fourth floor because it would have obstructed, damaged or otherwise prevented installation of said electrical switches and/or conduits as required at that location by Dorey's employees.

7. Other guards equivalent to standard railing such as pipe and wire rope could have been used to guard the edge of the open-sided fourth floor which would not have obstructed, damaged, or otherwise prevented installation of said electrical switches [*34] and/or conduits by Dorey's employees.

8. At the cited time and place, an accumulation of debris, including pieces of form and scrap lumber, protruding nails, broken cinder blocks, and wires, littered the perimeter of the building under construction, and loose gravel was on the only usable stairway to the first four floors inside the building, thus exposing Dorey's employees to the hazards of tripping, injuries, and electrical shock (Complainant's Exhibits C-2 & 3).

9. At the cited time and place, Dorey had no OSHA notice posted, although it had a materials trailer at the worksite which served as an office and place for employees to change clothes.

10. In determining proposed penalties for Dorey's cited violations, Complainant reasonably rated Dorey's safety program as borderline between average and ineffective, its housekeeping as ineffective, and its employee participation training and first aid as average. In determining Dorey's proposed penalties, complainant reasonably deemed a possible fall from the fourth floor (a distance of 45 feet) as likely to result in serious injury of death and made reasonable adjustments in the proposed penalties for the serious and non-serious [*35] violations based on Dorey's good faith (average to ineffective safety program), size (25 employees), and no prior history of violations under the Act.

Craft Construction Company (Craft)

1. Respondent Craft is a Virginia corporation which at all times relevant hereto maintained a workplace at 5631 Tidewater Drive, Norfolk, Virginia, where it was engaged as a subcontractor at the Lakewood Plaza Apartments then under construction.

2. At all times material hereto Craft, a construction firm with 54 employees and 1973 gross receipts of approximately $250,000, was engaged in a business affecting commerce.

3. On August 20, 1973, complainant's agents officially inspected Craft's aforestated workplace and subsequently cited Craft for one alleged serious violation and four alleged non-serious violations of the occupational safety and health standards set forth as 29 CFR 1926.500(d)(1), 1903.2(a), 1904.2, 1904.4, and 1926.25(a), respectively, under section 5(a) of the Act (Serious Citation No. 1, Non-Serious Citation No. 1, and Notification of Proposed Penalty).

4. Complainant's motion to reduce the proposed penalty to $25.00 for item no. 1 of non-serious citation no. 1 and respondent's [*36] motion to withdraw its notice of contest to item nos. 1, 2 and 3 of said non-serious citation no. 1 were granted by the undersigned Judge at the hearing herein.

5. On August 20, 1973, at least two of Craft's employees were required to and did work at or near the edge of the open-sided and unguarded fifth floor of the aforestated building under construction at a place where no ramp, stairway or fixed ladder were located.

6. At the time of the inspection on said date, two of Craft's employees were flying or removing heavy and bulky forms from the fifth floor of said building by means of jacks, rollers and cables suspended from a crane and when said form would clear the rollers moving out from the edge of the floor it would usually tilt down within 5 feet of the floor on which Craft's employees were standing, but due to wind or other variable factors, it could tilt down sufficiently for it to strike a standard railing if one were erected at that location on the edge of said fifth floor (Complainant's Exhibits C-6 & 7).

7. At the cited time and place, an accumulation of debris, including pieces of form and scrap lumber, protruding nails, broken cinder blocks, and wires, [*37] littered the perimeter of the building under construction, and loose gravel was on the only usable stairway to the first four floors inside the building, which were used by Craft's employees. (Complainant's Exhibits 2 & 3).

8. In determining proposed penalties for Craft's cited violations, complainant reasonably rated Craft's safety program as ineffective and its protective equipment and first aid as average. In further determining Craft's proposed penalties, complainant reasonably deemed a possible fall from the fifth floor (a distance of 55 feet) as likely to result in serious injury or death and made reasonable adjustments in the proposed penalties for the serious and non-serious penalties based on Craft's size (54 employees), no record of previous violations under the Act, and no adjustment for good faith due to a safety program deemed ineffective.

Urban Builders, Inc. (Urban)

1. By stipulation of respondent Urban and Complainant the only issue herein concerns the adequacy of the service and validity of two citations for alleged serious violates of the Act, to wit: 29 CFR 1926.500(b) and (d), respectively, and one amended citation for 14 alleged non-serious violations [*38] of the Act, as set forth in the Statement of the Case, supra, all of which alleged violations and the amended proposed penalties therefor Urban has duly contested (Urban's Notice of Contest).

2. Respecting that issue, Urban and complainant stipulate that Alan Hoffman is president of respondent Urban Builders, Inc.; that said Mr. Hoffman was present at the opening and an informal conference wherein the alleged violations were discussed by the parties; that Mr. Hoffman received the stated citations, which had been mistakenly issued to Urban Developers, Inc.; and that Mr. Hoffman, on behalf of Urban Builders, Inc., duly contested said citations; and a complaint issued by Complainant was directed to and served upon and answered by Urban Builders, Inc.

3. The parties further stipulated amendments of the non-serious citation and pertinent proposed penalties, to wit, item nos. 1 through 3 and 3 reduced to $25.00 each and item no. 11 and proposed penalty therefor deleted, resulting in proposed penalties for serious violations totaling $1,500.00 and for non-serious violations totaling $345.00 for a grand total of $1,845.00 (Citations and Notification of Proposed Penalty).

4. [*39] The proposed penalties for the two alleged serious violations herein occurred on floors numbered 2 through 7 in the building under construction at 5631 Tidewater Drive, Norfolk, Virginia, where Urban was engaged as general contractor in a business affecting commerce on all dates material hereto.

5. In determining penalties proposed against Urban, Complainant gave due consideration to the gravity of the violation, the size of Urban's business, its good faith, and its history of previous violations under the Act (Complaint, p. 4).

CONCLUSIONS OF LAW

1. Respondents Dorey, Craft and Urban were and are at all times material hereto employers engaged in businesses affecting commerce within the meaning of section 3(5) of the Act, and the Commission has jurisdiction of the parties and the subject matter herein.

2. Said respondents were and are at all times material hereto subject to the requirements of the Act.

3. Respondents' motion to dismiss the respective complaints herein on constitutional grounds, including Article III and the Fourth, Fifth and Sixth Amendments to the Constitution of the United States, should be denied since neither the Commission nor its Judges have the authority [*40] to rule on the constitutionality of the Act. American Smelting & Refining Company,

4. The alleged serious violations for which respondents Urban, Dorey, and Craft were cited involved conditions which constituted serious violations within the meaning of section 17(k) of the Act.

5. Citations for serious violations nos. 1 and 2 and for non-serious violations no. 1 mistakenly issued to Urban Developers, Inc., were valid citations and duly served on Urban Builders, Inc., the respondent, under the provisions of the Act including section 9(a), within the circumstances herein.

6. The total penalties of $1,845.00 proposed against Urban in the event the aforestated citations were found to be valid and duly served are appropriate under section 17 of the Act.

7. On August 20, 1973, respondent Dorey violated the occupational safety and health standards set forth at 29 CFR 1926.500(d)(1), 1926.25(a), and 1903.2 under section 5(a)(2) of the Act.

8. The penalties proposed against respondent Dorey for violation of the aforesaid standards in the total amount of $730.00 are appropriate under section 17 of the Act.

9. On August [*41] 20, 1973, respondent Craft violated the occupational safety and health standards set forth at 29 CFR 1926.500(d)(1) and 1926.25(a) under section 5(a)(2) of the Act.

10. The penalties proposed against respondent Craft for violation of the aforesaid standards in the total amount of $785.00 are appropriate under section 17 of the Act.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law and the record as a whole, good cause appearing, it is hereby ORDERED, that:

1. Respondent's motion to dismiss the complaints herein, supported by its brief, is hereby denied.

2. Complainant's citations nos. 1 and 2 for serious violations and citation no. 1 for non-serious violation as amended, all issued on August 23, 1973, and the notification of proposed penalty, as amended, in the total amount of $1,845.00, issued on the same date, all contested by Urban Builders, Inc., are affirmed.

3. Complainant's citation no. 1 for serious violation and citation no. 1 for non-serious violations, both issued on August 23, 1973, and the notification of proposed penalty in the total amount of $730.00, issued on the same date, all contested by Dorey Electric Company, are affirmed. [*42]

4. Complainant's citation no. 1 for serious violation and citation no. 1 for non-serious violations, as amended, both issued on August 23, 1973, and the notification of proposed penalty, as amended, in the total amount of $785.00, issued on the same date, all contested by Craft Construction Company, are affirmed.