WILMORITE, INCORPORATED

OSHRC Docket No. 4679

Occupational Safety and Health Review Commission

April 22, 1975

  [*1]  

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

  CLEARY, COMMISSIONER: On May 23, 1974, Judge Joseph L. Chalk issued his decision in this case, vacating one citation for serious violation and one citation for other than serious violation of the Occupational Safety and Health Act of 1970 [29 U.S.C. §   651 et seq., hereinafter "the Act"].   Neither party filed with the Commission a petition to review the Judge's decision.   On June 24, 1974, I directed that the decision be reviewed pursuant to section 12(j) of the Act.

Because of their importance, submissions were invited upon the following issues: Whether the Administrative Law Judge committed reversible error by finding that: (1) complainant has not established employee exposure to the cited hazards; (2) complainant failed to comply with section 8(a) of the Act; (3) it was inappropriate to charge respondent with a violation of 29 CFR 1926.500(d)(1) in the circumstances of this case; and (4) by his interpretation of 29 CFR 1926.25(a).

Judge Chalk, among other things, determined that the Secretary failed to prove his case because he failed to show that respondent's employees were exposed to the alleged [*2]   violative conditions.   On review, respondent filed a lengthy brief, urging affirmation of the Judge.   The Secretary has declined to file a "brief," filing instead a "Memorandum."

The Secretary states that since his position with regard to exposure is well known to the Commission and since the alleged violations in this case have "apparently been abated" that he will not relitigate the issue here.   Indeed, the Secretary calls our attention to briefs he has filed on this important issue in other cases.   It thus appears that he does not want to litigate the issue on the facts of this case.   The memorandum goes on to say: "Moreover, in view of his intention not to challenge the Judge's   findings as to a lack of exposure, the Secretary asserts that the section 8(a) question need not be reached."

We construe his response to be a motion to withdraw the citations with prejudice.   We grant the motion, and therefore do not reach the issues on review.   Genco, Inc., 4 OSAHRC 1146, BNA 1 OSHC 1385, CCH E.S.H.G. para. 16,769 (Rev. Com'n., 1973).

Accordingly, it is ORDERED that the Judge's decision is affirmed.  

CONCURBY: MORAN

CONCUR:

MORAN, CHAIRMAN, concurring: I agree with the disposition because [*3]   Judge Chalk properly decided this case.   However, I do not construe complainant's response to the Direction for Review as a motion to withdraw.   That document clearly states on its face the legal position of complainant and refers this Commission to other briefs in which that position is developed in greater detail.   It concludes with the statement:

Accordingly, the Secretary respectfully declines the invitation to file a brief in the above-captioned proceeding.

In my view, when a party files any document with this Commission, it is entitled to have the same treated for the purposes stated therein.   Accordingly, I base my judgment on the merits of the case, not on any construction placed upon complainant's response to the Direction for Review.

[The Judge's decision referred to herein follows]

CHALK, JUDGE: Respondent's construction worksite on East Washington Street, in Syracuse, New York was inspected by a Department of Labor compliance olfficer on September 4, 1973.   On September 11, 1973, a Citation for Serious Violation, and a Citation for four nonserious violations of Section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq. ) were issued against [*4]   Respondent.   A Notification of Proposed Penalty were also issued the same date.   On September 20, 1973, Respondent duly contested the entire enforcement action.

The charges, as amended by the Complaint, and the related proposed penalties, are as follows:

  SERIOUS

29 CFR 1926.500(d)(1) -- Respondent failed to provide guarding to the open sided 10th floor, which was 6 feet or more above adjacent floor or ground level, by means of a standard railing or the equivalent as specified in paragraph 1926.500(f)(1). -- $650.00

NONSERIOUS

(1) 29 CFR 1926.450(a)(9) -- Respondent failed to provide a suitable ladder with side rails extending not less than 36 inches above the landing.   This condition existed at center of the tenth floor where the side rails of a ladder were found to extend only 20 inches above the floor. -- none

(2) 29 CFR 1926.500(b)(1) -- Respondent failed to provide a standard railing including a mid rail and toe board to guard a floor opening on the southwest end of the tenth floor. The unguarded floor hole measured 8 feet by 11 feet. -- $160.00

(3) 29 CFR 1926.25(a) -- Respondent failed to keep debris, including scrap lumber with protruding nails, cleared from [*5]   work areas, passageways and stairs this [sic] condition existed throughout the work place. -- $65.00

(4) 29 CFR 1926.500(b)(2) -- Respondent filed to properly guard ladderway floor openings with standard toe boards on all exposed sides except at entrance to opening. This condition existed at a ladder opeing on the roof. -- $160.00

The standards involved provide as follows:

29 CFR 1926.500(d)(1)

Every opensided 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, 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.

29 CFR 1926.450(a)(9)

The side rails shall extend not less than 36 inches above the landing.   When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point of access, shall be installed.

29 CFR 1926.500(b)(1)

Floor openings shall be guarded by a standard [*6]   railing and toe boards or cover, as specified in paragraph (f) of this section.   In general, the railing shall be provided on all exposed sides, except at entrances to stairways.

29 CFR 1926.25(a)

During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures.

  29 CFR 1926.500(b)(2)

Ladderway floor openings or platforms shall be guarded by standard railings with standard toe boards on all exposed sides, except at entrance to opening, with the passage through the railing either provided with a swinging gate or so offset that a person cannot walk directly into the opening.

Although it might be argued, as Complainant's attorney did at the hearing, that the two Citations alleged multiple violations on different floors as to each respective charge, the Complaint clearly limited each charge, except item number 3 of the Citation for nonserious charges, to a particular condition on a particular floor. As Complainant must be limited to the allegations in his Complaint, those on which issued was joined by Respondent's [*7]   Answer, the summary of evidence that follows will be limited accordingly.

I

The parties stipulated at the hearing that Respondent, a New York corporation, had incurred no injuries at the jobsite during or previous to the inspection that caused the inspection to be conducted, and that Respondent was engaged in a business affecting the commerce of the United States because of its use of materials purchased out of state.

The worksite in question was an existing four story building on to which Respondent was adding six more floors, including elevators, stairways, "and outside window work." On the date of the inspection, "99 percent" of the concrete work had been completed and Respondent was in the process of "stripping the roof" and "cleaning up the building." Most of that day, the employees were helping to pour concrete "machine pads" on the fourth floor, the original top story of the building.

According to the compliance officer, n1 he arrived at the building site about 9 a.m., accompanied by two trainee-compliance   officers.   Before conducting the inspection, he identified himself at a trailer alongside the building to a Mr. Lenehan and a Mr. Stevens who said they were [*8]   in charge of the operation.   He was informed that Respondent had fourteen employees there -- carpenters and laborers -- who were to strip forms from concrete and remove debris throughout the building.   However, at the time, most of the employees were on the fourth floor doing some other work that took precedence over the former.   He started the inspection on the roof of the building and worked down, accompanied by the trainees, "a representative for the employer," and an employee representative.   He later testified that he was accompanied by both Mr. Lenehan and Mr. Stevens.

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n1 The compliance officer had difficulty in recalling various significant details of the inspection. As examples, he could not recall whether he took the photographs introduced in evidence, or whether he identified himself to both or only one of Respondent's representatives, or whether he held an opening conference in the trailer, or whether the employee representative joined them in the trailer or during the course of the inspection, or whether the closing conference was attended by both Mr. Lenehan and Mr. Stevens.

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Serious Citation. On the tenth floor, the compliance officer observed that the entire west end of the building, about one hundred sixty feet long, lacked a standard railing at its perimeter, although its other perimeters were guarded by rope (Ex. C-1).   The drop from the level to the roof of the original building below was about eighty feet. Respondent had no employees on the tenth floor at the time, although the two individuals in charge "personally went to each floor to examine the work that was being done." However, he was unable to say that there was no perimeter guarding on the west side of this floor when Respondent's employees were on this floor. He believed that such lack of perimeter guarding would subject Respondent's employees to very serious harm or death.

Regarding this charge, as well as the housekeeping charge (item 3, Citation for nonserious charges, infra), he was told by Respondent's representatives that the railing had been taken down to facilitate the removal of the debris over the side of the building, that "they just removed a lot of the forms, ans so on, and this is why [the debris]   [*10]   was there, and they were going to clean it up," but that "something had intervened."

Item 1, Citation for nonserious charges. The Compliance officer observed that the sole means of access to the tenth floor was a ladder, the side rails of which only extended about twenty inches above the floor level, instead of the required thirty-six inches (Ex. C-3).

Item 2, Citation for nonserious charges. On the southwest end of the tenth floor, the compliance officer observed a floor opening   about eight feet by eleven feet that was not guarded by a standard railing with toe board.   The drop to the floor below was about eleven feet.

Item 3, Citation for nonserious charges. The compliance officer described the housekeeping "problem" throughout the new part of the building as "massive" (Exs. C-4, C-6).   The debris consisted of lumber, some with nails protruding, metal fittings, empty buckets, and pieces of concrete.

Item 4, Citation for nonserious charges. The compliance officer observed a floor opening on the roof that lacked any guarding whatsoever (Exs. C-4, C-7).   Respondent had no employees working there at the time of the inspection.

Penalties. In recommending [*11]   penalties, the compliance officer made a downward adjustment of five percent for size; but he later discovered it should have been ten percent.   He also allowed an adjustment of only ten percent for good faith, because he was of the opinion that Respondent had but an average safety program.   He also allowed Respondent the maximum twenty percent for its history of no prior violations and a fifty percent abatement credit for the nonserious charges for which he recommended penalties.

Mr. Joseph A. Stevens, the carpenter foreman on the day of the inspection, testified that Mr. Lenehan, the superintendent on the job, was not at the worksite at any time while the compliance officer was there.   Mr. Stevens first saw the compliance officer on the tenth floor, where the latter identified himself, said that he had already inspected the roof, and asked that a union representative join them on the inspection. Mr. Stevens sent for such representative who appeared shortly thereafter.   He first learned of the compliance officer's presence on the site when someone approached him on the fourth floor, told him that Mr. Lenehan was not on the jobsite, and stated "that [he] had better get down there [*12]   [because the compliance officer] was getting impatient." He then "went down there and the time keeper told [him] that they left, and they went up into the building." Mr. Stevens then went through the building floor by floor until he located the compliance officer on the tenth floor. Mr. Stevens' duties required him to go everywhere in the building, including the roof.

  Mr. Stevens also testified that on the day of the inspection, none of Respondent's employees were on the sixth through the tenth floors of the building, except that its clean-up detail (laborers), when not elsewhere, would have been cleaning up on either the ninth or tenth floor. There was no work being done on the roof that day.   Prior to the inspection, the employees had been in the process of stripping forms from the concrete, separating the usable from the unusable material, and placing the debris in piles preparatory to putting it in large boxes to be lowered over the side of the building by a crane.   The seventh floor was just about cleaned up, the eighth and ninth floors still had some piles of drbris, and there was still some stripping in process on the tenth floor. The usable material was lowered [*13]   to the ground first, and the next step was to clean up and lower the unusable material to the ground.   That was the system that was always employed and the work could not all be accomplished in one day.   As all material was lowered over the west side of the building, the employees would take the rope guard down on that side of the building in order to accomplish the mission.   It was always put back up when the job was completed.   On the day of the inspection, Mr. Stevens testified that as there was so much material to be removed from the tenth floor, he "did not see any sense in putting the rope up and an hour later taking it down again."

Mr. Stevens also took some photographs the day of the inspection that were received in evidence as Exhibits R-1 through R-5.   R-1 and R-2 were taken on the ninth floor. R-3 and R-4 were taken on the tenth floor. R-7 was taken either on the seventh or eighth floor. These photographs reflect the clean-up process, the stacks of usable material ready to be taken over the side of the building, the large box used to lower the trash, and a cardboard carton used to store the rope guard when down.   He also testified that several of Complainant's photographs [*14]   showed dunnage to place reusable material on, reusable items, and stacks of reusable lumber (Exs. C-1, C-4).

II

Four of the five charges in this case -- 29 CFR 1926.500(d)(1), 29 CFR 1926.450(a)(9), 29 CFR 1926.500(b)(1) and 29 CFR   1926.500(b)(2) -- relate exclusively to the tenth floor or the roof, places where the compliance officer never observed any of Respondent's employees working. While I recognize that such a void in the evidence, in varying factual situations, may be and often is filled by other direct evidence, or even by circumstantial evidence, the posture of the Secretary's case in this instance is such that I am left to speculate that at some unknown time some unknown employee was on those levels of the building at a time when the same conditions existed that were later observed by the compliance officer during his inspection.

The burden of proof, of course, falls squarely upon the Secretary (Administrative Procedure Act, 5 USC 556(d); see Secretary v. Deering Milliken, Inc. -- Red Springs Mill, No. 2477, October 10, 1973, and Secretary v. Certain- Teed Saint Gobain, No. 499, October 20, 1972).   Proof that at least one employee was subjected [*15]   to a hazard is absolutely essential to holding an employer in violation of the standard designed to prevent the creation of the hazard ( Secretary v. R.L. Rider & Co., No. 3223, November 15, 1973).   Such an important fact, moreover, may not be left to speculation or conjecture ( Gallaway v. United States, 319 US 372, 395, 63 S. Ct. 1077, 1089 (1943); Moore v. Chesapeake & O. Ry. Co., 340 US 573, 578, 71 S. Ct. 428, 430 (1951); Troutman v. Mutual Life Insurance Co., 125 F2d 769 (6th Cir., 1942)).   Accordingly, the Secretary's case is totally deficient as to these four charges and said charges must be vacated.

The Secretary's case, however, suffers from several other infirmities as to two of the foregoing four charges -- 29 CFR 1926.500(b)(2) and 29 CFR 1926.500(d)(1), the first of which relates to the testimony of Mr. Stevens that he alone was the responsible person present at the worksite at the time of the inspection and that he never saw the compliance officer until after that individual had completed the inspection on the roof and was on the tenth floor. The compliance officer, on the other hand, testified that Mr. Lenehan was also present; and that [*16]   he appropriately identified himself and showed his credentials to both individuals before he ever started the investigation.

  As I find nothing in this record that detracts from Mr. Stevens' credibility, n2 I am bound to apply the rule that where the evidence is in equipoise -- two witnesses, equally credible, contradict each other, and the surrounding circumstances fail to weigh the scales in favor of one and against the other -- the demands of the party upon whom the burden of proof rests must be rejected ( Zurich Insurance Co. v. Oglesby, 217 F. Supp. 180 (D.C.W.D.Va., 1963); Sanders et al, 242 So2d 587 (C.A.La., 1970); B. Stern Co. Ltd. v. Perry, 246 So2d 246 (C.A.La., 1971) Howard v. Coyle et al, 111 So 697 (S.C.La., 1927)).   I am therefore required to find that the inspection of the roof took place before the compliance officer complied with Section 8(a) of the Act, which enjoins the Secretary to present "appropriate credentials to the owner, operator, or agent in charge" before conducting an inspection under the Act.

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n2 The compliance officer's inability to recall certain significant details of the inspection must be considered as diminishing his credibility.

  [*17]  

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Judges Harold A. Kennedy and James D. Burroughs have both so excellently written on the subject of inspections conducted in violation of Section 8(a) of the Act that any further comments by me would be an exercise in futility ( Secretary v. Genco, Inc., No. 920, May 2, 1973; Secretary v. Alsea Lumber Co., No. 1228, February 26, 1973; Secretary v. Accu-Namics, Inc., No. 477, October 25, 1972).   I agree with those opinions and conclude, as the judges did in those cases, that the compliance officer's violation of Section 8(a) of the Act constituted a denial of due process which vitiates the charge relating to the roof, item four of Citation for nonserious violations.

The second infirmity in the Secretary's case relates exclusively to the serious charge alleging the absence of a perimeter guard on the west side of the tenth floor of the building.   As it was unrebutted on this record that the perimeter guard was taken down to facilitate the removal of material from the floor to the ground below, that it was left down so that the laborers performing the work could resume doing so upon [*18]   their return from a more pressing task, and no other employee was exposed to the hazard, it was inappropriate to charge Respondent   with that violation ( Secretary v. Kaywood Construction Co., No. 3068, December 7, 1973).

While the foreoing disposes of the serious charge and item numbers 1, 2, and 4 of the Citation for nonserious charges, it serves only in part to dispose of item number 3 of the latter Citation alleging poor housekeeping conditions, as it relates to the tenth floor and the roof. However, I find that the evidence otherwise is insufficient to support this charge, as it relates to all floors.

Initially, it is important to note that the housekeeping standard purports to keep work areas, passageways, and stairs clear of materials and debris. A fortiori, an accumulation of materials and debris is permissible so long as the accumulation is not located in those limited areas (see Secretary v. C.N. Harrison Construction Co., Inc., No. 413, May 26, 1972).   As the Secretary's proof in no way touches upon such areas in relationship to this charge, it would be pure speculation on my part to conclude that these areas were cluttered with debris.   [*19]   But even if I did, the evidence is still deficient, as it was established that the primary work that had been going on immediately prior to the inspection was the stripping of forms from the concrete, followed by the clean-up detail.   On such facts, I cannot conclude that the standard is so rigid as to require immediate removal of such material piece by piece as it is torn down.   Finally, as the compliance officer never testified that he saw any of Respondent's evidence established that if its employees had been working in those areas their mission would have been to remove the materials and debris, it is inconceivable to me how an employer can be charged with creating something that he was in the process of promptly removing or eliminating.

III

Based upon the entire record, I reach the following findings of fact and conclusions of law.

FINDINGS OF FACT

1.   That at the time and place in question, Respondent was engaged in adding six floors to an existing four story building.

  2.   That although there was no guard railing on the west side of the tenth floor of the building at the time and place in question, the railing had been taken down to facilitate the removal of   [*20]   materials and debris over the side of the building and Respondent had no employees working on the tenth floor while the railing was down.

3.   That although the siderails of the ladder to the tenth floor did not extend thirty-six inches above the landing at the time and place in question, Respondent had no employees working on the tenth floor.

4.   That although the floor opening on the tenth floor was not guarded by a standard railing, including a toe board, at the time and place in question, Respondent had no employees working on the tenth floor.

5.   That at the time and place in question, Respondent did not fail to keep work areas, passageways and stairs throughout the building clear of materials and debris.

6.   That although there was an unguarded ladderway floor opening on the roof at the time and place in question, Respondent had no employees working on the roof.

7.   That at the time and place in question, the compliance officer did not identify himself and show his credentials to the person in charge before inspecting the roof.

CONCLUSIONS OF LAW

1.   That this Commission has jurisdiction over the cause.

2.   That the failure of the compliance officer to identify himself [*21]   and to present his credentials to the person in charge before inspecting the roof contravenes the Act and vitiates the charge affected thereby.

3.   That Respondent did not violate Section 5(a)(2) of the Act by not complying with 29 CFR 1926.500(d)(1), 29 CFR 1926.450(a)(9), 29 CFR 1926.500(b)(1), 29 CFR 1926.25(a), and 29 CFR 1926.500(b)(2).

  The Citation for Serious Violation, and Citation (nonserious charges) and the Notification of Proposed Penalty are vacated. n3

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n3 Because of the reversal of the enforcement action in its entirety, the two motions made by Respondent at the hearing, upon which I reserved judgment, need not be resolved.

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So ORDERED.