THE ASHTON COMPANY, INC.

OSHRC Docket No. 5111

Occupational Safety and Health Review Commission

January 26, 1976

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

John M. Orban, Assoc. Regional Solicitor

Russell E. Jones, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

A decision of Review Commission Judge Harold A. Kennedy, dated November 12, 1974, is before this Commission for review pursuant to 29 U.S.C. 661(i). At issue is whether Judge Kennedy correctly vacated a citation which alleged that the respondent violated 29 U.S.C. 654(a)(2) by failing to comply with the occupational safety standard codified at 29 C.F.R. 1926.500(d)(1). n1 We affirm.

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n1 That standard provides in pertinent part:

"Every opensided floor or platform 6 feet or more above the 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."

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The charge arose from an inspection of a multi-story construction project where respondent was the general contractor. The [*2] complainant alleged a violation of 1926.500(d)(1) for respondent's admitted failure to provide standard railing around the second and third floors of the skeletal building where respondent's employees were engaged in laying flooring. The respondent contends that it was wrongly charged because 29 C.F.R. 1926.750(b)(1)(iii) n2 was the standard applicable to the working conditions at the worksite and it was in compliance therewith.

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n2 The standard pertains to flooring requirements for temporary flooring in skeletal steel construction of tiered buildings and provides as follows:

"Floor periphery -- safety railing. A safety railing of 1/2-inch wire rope or equal shall be installed, approximately 42 inches high, around the periphery of all temporary-planked or temporary metal-decked floors of tier buildings and other multifloored structures during structural steel assembly."

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At the time of the inspection, the building was still in the steel erection stage and respondent's employees had begun the work of putting the [*3] floors in. On the second level some employees of the respondent were engaged in installing temporary plywood decking and some were pouring concrete. About three-fourths of the floor area was covered. On the third floor, the employees were installing plywood decking.

The respondent contends that it had read the pertinent regulations before the inspection, compared the applicability of the two standards, and found that 1926.750(b)(1)(iii) must apply while the construction was still at the steel erection stage and until permanent floors were installed. Respondent reasoned further that the requirements of 1926.750(b)(1)(iii) were more applicable than 1926.500(d)(1) since it would have been hazardous to require employees to construct the standard railings, required by 1926.500(d)(1), around perimeters without flooring. Respondent accordingly installed the wire railing required by 1926.750(b)(1)(iii) on three sides when the floors were completed in order to protect employees who would be doing work on the opensided floors thereafter.

Upon a review of the record, we agree with the Judge's conclusion that 1926.750(b)(1)(iii) applied to the working conditions at the worksite. [*4] The building was still in the steel erection stage, and the installation of permanent flooring had not been completed. Thus, the respondent was not required to install standard railings. In this regard we note that the Judge's decision herein is consistent with reports issued by other Commission Judges. See: San Jose Crane and Rigging, Inc., 3 OSAHRC 760, 1 OSHC 3069, OSHD# 15791 (1973); Stone and Webster Engineering Corp., 8 OSAHRC 103, 1 OSHC 3382, OSHD# 17610 (1974).

Respondent fully complied with 1926.750(b)(1)(iii) by placing wire railings along three sides of the building. The complainant does not contend that respondent violated 1926.500(d)(1) as to the remaining side.

Accordingly, the Judge's decision is affirmed.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I agree with this disposition. However, since it does not fully state the matters covered by Judge Kennedy's decision, the same is attached hereto as Appendix A.

Appendix A

DECISION AND ORDER

Theresa Kalinski, for the Secretary

Russell E. Jones, for the Respondent

Harold A. Kennedy, Judge:

Following an inspection of Respondent's workplace on September 18, 1973, at the corner of Church and Congress [*5] Streets in Tucson, Arizona, where Respondent was engaged as the general contractor in the construction of the new Pima County Courts Building, the Complainant Secretary issued under date of September 27, 1973, five separate citations charging violation of the Occupational Safety and Health Act of 1970. Four of the citations were designated "serious" n1 Citations No. 1, 2, 3 and 4, and charged violation of Section 5(a)(2) n2 of the Act for failing to comply with promulgated occupational safety and health standards as follows: n3

Citation No. 1 - 29 C.F.R. 1926.500(d)(1) -Failure to guard on open sided floor or platform 6 feet or more above adjacent floor or ground level with a standard railing or equivalent. Railing should guard all open sides, except entrance to a ramp, stairway, or fixed ladder. Railing should be provided with a toeboard whenever falling materials could create a hazard. Location: East side of 2nd floor with no guardrails and 2nd and 3rd floor without intermediate rails on all sides. n4

Citation No. 2 - 29 C.F.R. 1926.500(b)(1) -Failure to provide floor openings with a cover or standard railing and toeboards as specified in paragraph (f) of this section. [*6] Location: Bottom of stairs in N.E. corner of 2nd floor and west of same stairs.

Citation No. 3 - 29 C.F.R. 1926.500(e)(1)(iv) - Failure to equip open sided stairways with standard stair railings. Locations: All four corners of building and center of north side on all floors, throughout one through three.

Citation No. 4 - 29 C.F.R. 1926.750(a)(2) -Employer allowed employees to work on, under and near a nine (9) story steel building under construction, on which there were more than four floors or 48 feet of unfinished bolting and welding of the steel structure. n5

The fifth citation, designated Citation No. 5 (Non-serious), contained two separate charges, called "Items," which read as follows:

1. 29 CFR 1926.304(f)

Employer allowed operation

Adopting American

of table saw without blade

National Standards

guard and splitter. Location:

Institute Safety

4th level, Rockwell 10" table

Code for Woodwork-

saw #FH4971.

ing Machinery ANSI

01.1-1961

2. 29 CFR 1926.500(b)

Failure to provide proper

(1)

standard railings at eleva-

tor shaft openings. Location:

3 elevator shafts without

intermediate rail portion of

standard railings, 2nd floor.

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n1 Section 17(k) of the Act provides that "serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."

n2 Section 5(a)(2) of the Act provides that each covered employer "shall comply with occupational safety and health standards promulgated under this Act."

n3 Section 6 of the Act provides for promulgation of such standards by the Secretary.

n4 The text of 1926.500(d)(1) and the other cited standards appears later in this decision.

n5 Citation No. 4 was amended by issuance of an amended citation, which was identical to the original Citation No. 4 except for its issue date (October 10, 1973 instead of September 27, 1973) and the abatement date (changed from October 10, 1973 to November 2, 1973). Citation No. 1 and non-serious Item No. 2 called for abatement within one day; Citation No. 2 and non-serious Item No. 1 called for immediate abatement; and Citation No. 3 called for abatement within three days.

[*8]

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Penalities were proposed as follows:

(Serious) Citation No. 1

$700

(Serious) Citation No. 2

$700

(Serious) Citation No. 3

$700

(Serious) Citation No. 4

$700

(Non-serious) Item No. 1

45

Item No. 2

40

Total

$2885

Respondent did not dispute the facts alleged in any of the citations except those asserted in Citation No. 1. It has contested all penalties proposed. n6

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n6 In contesting the Secretary's proposed penalties Respondent asserted that none of the violations charged were "serious" (Tr. 15-19).

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Respondent's employees are represented by authorized representatives, but none requested party status in the proceeding (Tr. 5). The case was heard at Tucson, Arizona on June 11, 1974. The Secretary called his inspecting official, Acting Area Director Frank T. Walsh, a structural engineer, to testify in support of the complaint. Respondent offered the testimony of John Coston, its Job Superintendent; James E. Dunn, its Paymaster [*9] and Safety Engineer; and Harold Ashton, its President.

* * *

Respondent does not dispute the fact that it is an employer subject to the Occupational Safety and Health Act of 1970. As indicated at the outset, Respondent was engaged as the general contractor in the construction of the Pima County Courts Building in downtown Tucson at the time of the Secretary's inspection. The building was to be 196 feet long and 134 feet wide (Tr. 70). Respondent had engaged Reppel Steel to furnish the steel. Reppel Steel in turn had engaged Pima Construction to erect the steel. Pima County had employed architects Place & Place and Gordon Luepke Associates to supervise construction of the building. Construction of the building was also approved by Pima County and Mann & Associates, structural engineers (Tr. 68-9; 74, 84). The building, which was to rise 10 stories high (plus a 11th floor penthouse), was erected by raising steel beams a few stories at a time in stair-step fashion, moving from the west side to the east (Tr. 37, 68, 77). Steel had been erected for several floors on the west and at the northeast and southeast corners. The building was, thus, at the time of the inspection in [*10] a "U" shape, with the center of the building (columns "D", "E", and "F") being open (Tr. 29, 36, 78; SX 1). A mobile crane, capable of raising steel up as high as ten or so stories, was stationed on the first floor on the east side (Tr. 69, 77). None of the floors were in, although the second floor was partially in place. It was estimated that about 75% of the second floor had been installed (Tr. 38, 83, 130-1). Respondent had employees on the first, second and third floors (Tr. 124). Employees on the second floor were involved primarily in the pouring of concrete. Other employees were involved with the installation of temporary plywood decking, primarily on the third floor (Tr. 24, 36-43; 71-3, 79, 110-11, 131). n7 The Secretary's inspector agreed with Respondent's job superintendent that Respondent's employees were working in the middle of the building on the third floor. The two witnesses apparently disagreed as to the position of the employees on the second floor. Inspector Walsh stated that there were some employees of Respondent within six feet from the edge of the second floor (Tr. 24, see also Tr. 43). Mr. Coston put Respondent's workmen near the middle of the building [*11] on the second floor, 13 to 14 feet from the edge (Tr. 131), as well as on the third (25-30 feet away "at the least", Tr. 80). n8 The only persons working above the third floor were structural iron workers, who were not employed by the Respondent (Tr. 41-2, 73, 90).

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n7 Job Superintendent Coston testified that Respondent's employees on the job were carpenters, laborers and cement finishers (Tr. 100).

n8 "We were at that time pouring the third section of the second floor. * * * * We were probably up into about the midpoint of the building with the wood decking on the third floor. * * * *" (Tr. 72). Mr. Coston also testified that Respondent's employees worked within 10 or 12 feet of an opening near a stairway (Tr. 85).

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A one-half inch wire railing had been erected on the second and third floors on the north, south and west sides. No railing was in place on the east on either floor (Tr. 27-8, 41; 78-80, 93; 142). According to Respondent's evidence, a wire rope on the east would have interfered with the hoisting and [*12] placing of the steel beams and rebar (Tr. 79, 81, 95).

Stairways were in place and in use between the first and third floors at the southwest and northwest corners of the building. A one-half inch cable railing was in place about 42 inches high on the right side of each as one would ascend. Stairways at the northeast and southeast corners were in the process of installation between the first and third floors. There was no cable railing on either side of the northeast stairway, and apparently this was the case of the southeast stairway. Rebar was lying across two openings n9 at the northeast stairway at the second floor level (SXs 2-6, 8-11; Tr. 46-51; 73, 83-8, 94,112-17, 131-3; 142-3).

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N9 One opening was the stairway landing measuring about four feet by nine feet. The other, approximately twenty inches by five feet, was about five feet west of the stairway (Tr. 47-8, 83-4, 114, 132).

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Respondent's witnesses testified that the stairways on the east were closed off and were not to be used (Tr. 73, 87; 143), but [*13] Inspector Walsh testified that the northeast stairs were at least used by the inspecting group (Tr. 52-3, 151, 154-7).

There were five elevator shafts in the building. There were top and bottom railings around the shafts on the second and third floors and some diagonal bracings around the openings but no mid-rails (SX 13; Tr. 54, 151-3; 92, 98, 129).

The inspection followed a "dust devel" windstorm which caused the top structure of the steel members on the west to list approximately five degrees. The listing of the steel members was corrected without structural damage in a matter of hours, although the dust devel occurred on a weekend (Tr. 96, 123-9; 133-6; 145-7). n10

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n10 The steel members at the top were being held in place primarily by guys and bolts at the time of the dust devel. Steel in the building would not be permanently in place until necessary welding and pouring of the concrete had been completed (Tr. 43-4; 88-9, 96, 127-8; 134, 146).

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There was a table saw at the inspection site without a guard. [*14] Inspector Walsh did not see it in operation but was told by an employee it had been used (Tr. 53-4). Job Superintendent Coston opined that the guard was off so that a 45 degree stripping could be cut (Tr. 91-2).

Mr. Walsh, the inspecting official, testified that in his opinion Citations 1 through 4 involved situations which presented risk of death and serious physical injury and were, therefore, designated "serious" (Tr. 30). Testifying with respect to Citation No. 4, he expressed the opinion that the building could collapse (Tr. 26-9, 51-2). Respondent's witnesses disputed such testimony (Tr. 74-5, 89-91, 96-7, 124-5, 133, 145-7). Mr. Walsh went on to state that in proposing penalties for these as well as the non-serious items the Secretary applied a 20% credit for "history" (the maximum allowed under the Secretary's guidelines), 10% for "good faith" (one-half of the maximum allowable by the Secretary) and zero for "size" because Respondent had over 100 employees n11 against certain unadjusted penalty amounts (Tr. 31-4, 54-62). n12

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n11 The record indicates that Respondent had approximately 300 employees (Tr. 31). The record also indicates that Respondent grossed approximately $11 million in 1973 (Tr. 150).

n12 Section 17(j) of the Act provides that all civil penalties shall take into account the gravity of the violation, the employer's size, good faith, and history or previous violations.

[*15]

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* * *

The standard cited in Citation No. 1 (Serious), 1926.500(d)(1), 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, 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. n13

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n13 1926.500(f) states that a standard railing is to include a rail 42 inches from the floor, an intermediate rail, toeboard and posts. Specifications are given for such railings, depending on whether made of wood, pipe or steel.

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According to Citation No. 1, the above standard was allegedly violated [*16] in that (a) there was no guard rail on the east side of the second floor, and (b) intermediate rails were missing "on all sides" on the second and third floors.

Respondent's answer pleaded to this charge as follows (Para III):

That as to paragraph A of paragraph III of the Complaint, admits that respondent failed to guard all open-sided floors or platforms on all open sides except where there is entrance to a ramp, stairway or fixed ladder with standard railings or the equivalent as specified in (f)(1) of 29 C.F.R. 1926.500 and failed to provide said railing with a toeboard whenever falling materials could create a hazard and that such failure occurred on the east side of the second floor where no rail was provided and on the second and third floors where no intermediate railing was provided on all sides; in this connection, alleges: that respondent, as the general contractor in connection with the Pima County Court House building project, complied with 29 C.F.R. 1926.750(b)(iii) by installing a safety railing of 1/2 inch wire rope or equal, approximately 42 inches high around the periphery of the second and third floors of said building with the sole exception of the east side [*17] of said second floor; that the steel erector, Pima Construction, a division of Machinery Erection Service, Inc., a subcontractor of respondent, was at the time of the inspection of September 18, 1973 in the process of working on such east side and railings on that portion of the periphery of the second floor would have interfered with the work of said subcontractor; that the Rules and Regulations issued by the Secretary of Labor are unclear and ambiguous as to when an employer must comply with 29 C.F.R. 1926.500(d)(1) when it has complied with Section 1926.750(b)(iii) during the process of steel erection; that it was the understanding of respondent that so long as it complied with Section 1926.750(b)(iii) during the period of steel erection as to the portion of said building involved in connection with the matters alleged in said paragraph A, that respondent was not required to also comply with Section 1926.500(d)(1); that it was the intention of respondent upon completion of the steel erection to comply with Section 1926.500(d)(1); that last said section was not applicable to respondent at the time of said inspection on September 18, 1973 and, therefore, said failure did not constitute [*18] any violation of the Act; * * * *

1926.750(b)(iii), the standard cited and relied on by Respondent, provides:

(iii) Floor periphery-safety railing. A safety railing of 1/2 inch wire rope or equal shall be installed, approximately 42 inches high, around the periphery of all temporary-planked or temporary metal-decked floors of tier buildings and other multifloored structures during structural steel assembly.

Respondent's answer concedes non-compliance with 1926.500(d)(1) and asserts compliance with 1926.750(b)(iii) except on the east side where steel work was in process. The evidence of record supports the assertions made in Respondent's answer. The Secretary contends that Respondent cannot rely on 1926.750(b)(iii) because its employees were not engaged in steel erection. However, the Secretary's steel erection regulation applies, by its terms, whenever there are temporary floors during the assembly of structural steel work. And, when applicable, a periphery one-half inch wire rope safety railing at a 42 inch height is sufficient. It is unnecessary to hold, as Respondent urges, that 1926.500(d)(1) can only apply to open sided permanent floors. While much of [*19] the concrete floor was in on the second floor, the floor remained essentially in a temporary stage. Plywood decking was being installed on the third floor, so it was unquestionably in a temporary stage. Steel work had not yet been completed on these floors. See Tr. 39-40. Thus, the Secretary did not establish that 1926.500(d)(1) was applicable to Respondent's operations on the second and third floor. n14 The failure of Respondent to erect a railing on the second and third floors or the east as required by 1926.750(b)(iii) is excused by the fact that there was no place to put a railing plus the fact that the area had to remain open so steel could be hoisted and placed. See Consolidated Engineering Co., Inc. and Otis Elevator Company, OSAHRC Dockets 394 and 471, dated October 17, 1974 and cases cited therein. Citation No. 1 and the $700 penalty proposed therefor will be vacated.

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n14 The Commission has indicated But the Respondents in these cases had not relied on perimeter guarding requirements of 1926.750(b)(iii), and the Commission did not hold that that standard's less demanding requirements must give way to the requirements of 1926.500(d)(1) in a situation such as is presented here. Furthermore, the Commission has refused enforcement of standards not written in language readily understandable to employers. See, for example, California Stevedore & Ballast Company, 1 OSAHRC 366 (1972).

The employer in that case also pleaded the same defense as this Respondent on similar facts.

Quoting from the decision, which became final on July 2, 1973: "* * * * The question under the quoted regulations is: When must the single wire rope be replaced by a standard railing. In my opinion the regulations do not set forth the stage of construction at which such change is required with sufficient clarity to warrant affirming the citation as to this item. This is so because there is no provision in the regulations specifying the time or stage of construction where the standard railing is required. On the other hand, 750(b)(iii) specifically approves a single wire 'around the periphery of all temporary-planked floors' and a temporary-planked floor is precisely what we have here. The provisions with respect to temporary-planked floors is more specific than the broad provision in 500(d)(1) with respect to floors generally; as such 750(b)(iii) must take precedence with respect to temporary-planked floors. Section 500(d)(1) as now provided can only apply to open-sided, permanent floors. In this connection, the compliance officer testified that the single wire rope was not adequate protection for employees working around the periphery, who were not engaged in structural steel erection and who were not wearing safety belts. That may well be so and if it is so then the regulations might reasonably provide that the standard railing shall be erected as soon as the temporary floor has been installed, or at some other point in the construction. The point is that the regulations as now provided do not so require and respondent was in full compliance with the regulations as promulgated.

[*20]

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* * *

1926.500(b)(1), the standard cited in Citation No. 2 (Serious), provides as follows:

(b) Guarding of floor openings and floor holes. (1) Floor openings shall be guarded by a standard 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.

Citation No. 2 and the complaint allege this standard was violated due to the lack of a cover or standard railings as specified in 1926.500(f) for openings near the bottom of the stairs at the northeast corner of the second floor. Respondent admits these allegations (Answer, Para. III), but disputes the assertion in the complaint (Para. IV) that such a violation was "serious" (Tr. 15-18).

With respect to the latter point, it is enough to say that a fall from the second floor could produce serious physical harm. n15 According to the Commission, Section 17(k) requires only a showing of a possibility of an accident that could result in death or serious physical harm. The emphasis, according to the Commission's interpretation, is upon [*21] the harm that could occur rather than the likelihood of any accident occurring. Granted the Respondent makes a strong argument for a different interpretation of the statute, but I must, of course, adhere to Commission precedent.

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n15 Inspector Walsh estimated the second floor to be approximately 17 feet above the ground (Tr. 25).

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As stated supra, any civil penalty imposed under the Act must take into account the gravity of the violation, Respondent's size, good faith and history. It is apparent that the Secretary has given no meaningful consideration to the gravity of any of the alleged serious violations; an unadjusted penalty of $1000 was arbitrarily assessed for each. Compare Nacirema Operating Co., Inc., 1 OSAHRC 33 (1972) with pp. 31-34 and 54-62 of the transcript. And gravity is usually the most important factor to consider. [*22] Nacirema Operating Co., Inc., supra. The evidence of record does not show affirmatively that employees of Respondent were exposed for any significant period so the gravity of the admitted serious violation referred to in Citation No. 2 cannot be considered as particularly high. n16 See National Realty & Construction Company, Inc., 1 OSAHRC 731 (1972), order vacated on other grounds, 489 F.2d 1257 (D.C. Cir. 1973). Respondent's volume of business and number of employees make it a moderate size employer. Respondent was cooperative at all times with the Secretary, and it is entitled to high marks with respect to good faith (Tr. 56-60; 97-8; 139-44; 147-50). Also, there is no unfavorable evidence with respect to Respondent's history. Having considered all of the statutory factors concerned with assessing of civil pealties under the Act, it is determined that a $130 penalty is an appropriate penalty for Citation No. 2.

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n16 There was undoubtedly some employee exposure, but the evidence is not as clear cut as it might be. See esp. Tr. 133, also 52-3, 151, 154-7; 85, 93-5; SXs 2-6. The Commission has held that employee exposure cannot be inferred.

[*23]

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* * *

1926.500(e)(1)(4), the standard cited in Citation No. 3 (Serious), provides:

(e) Stairway railings and guards.

(1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified below, the width of the stair to be measured clear of all obstructions except handrails: * * * *

(iv) On stairways more than 44 inches wide but less than 88 inches wide, one handrail on each enclosed side and one stair railing on each open side * * * *

Citation No. 3 (Serious) and the complaint allege this standard was violated at stairways running between first and third floors located in the center on the north side and at all four corners of the building. Here again, Respondent has admitted these allegations (Answer, Para. III) but has disputed the charge that the violation was "serious" (Answer, Para. IV). As indicated, supra, the Commission's interpretation of Section 17(k) requires me to reject the Respondent's position as the violation could well involve serious physical harm. Crescent Wharf & Warehouse Co., supra.

This [*24] leaves only for determination what penalty should be assessed for Citation No. 3. The photographs in evidence suggest a real potential of physical injury (SXs 8-11). But the record, again, does not affirmatively establish any significant exposure to the hazard (Tr. 49-50, 52, 63, 73, 85-8, 93, 96, 116-21; 143; especially 151, 154-57). See Otis Elevator Company, supra. In view of the extent of exposure (gravity) shown, Respondent's good faith, moderate size and favorable history, a penalty of $130 is assessed for Citation No. 3.

* * *

1926.750(a)(2), cited in (Amended) Citation No. 4 (Serious), provides:

(2) At no time shall there be more than four floors or 48 feet of unfinished bolting or welding above the foundation or uppermost permanently secured floor.

Citation No. 4 and the complaint allege this standard was violated because Respondent "allowed" its employees to work under and near four floors or 48 feet of unfinished steel structure. Respondent admitted these allegations but denied that the violation was "serious" as alleged. Here again, serious physical harm was a possibility, so under Commission precedent the violation must be considered "serious". See [*25] Crescent Wharf & Warehouse Co., supra.

Only a determination as to the amount of the penalty remains to be made with respect to Citation No. 4. The record does not permit the gravity of the violation to be easily assessed. The complaint and citation allege a violation only on September 18, 1973, several days after the "dust devel" occurred. While the violation is admitted, the evidence is contradictory as to the extent of the risk of any collapse. Inspector Walsh, a structural engineer, apparently felt that there was a real chance that the building would collapse even on September 18, the day of the inspection (Tr. 29, 51-2). Respondent's experienced witnesses, however, were impressive in testifying that Mr. Walsh's fears were unfounded (Tr. 90-1, 96-7, 125, 133, 145-7). I am not persuaded that there was a serious likelihood that any part of the upper steel work would fall on Respondent's employees. There was a violation, however; and having considered its gravity and Respondent's good faith, size, and history, a penalty of $130 is assessed for Citation No. 4.

* * *

It only remains to consider the assessment of a penalty for the admitted violations of 29 C.F.R. 1926.304(f) [*26] and 1926.500(b)(1) as alleged in Items 1 and 2 of Citation No. 5 (Non-serious).

1926.304(f), cited in non-serious Item No. 1, provides:

(f) Other requirements. All woodworking tools and machinery shall meet other applicable requirements of American National Standards Institute, 01.1-1961, Safety Code for Woodworking Machinery. n17

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Item No. 1 and the complaint alleged that this standard was violated because Respondent "allowed" a Rockwell 10-inch table saw to be used without a blade guard and splitter. No significant employee exposure was shown with respect to this non-serious violation (Tr. 29, 53-4, 91-2). Having considered all of the statutory criteria referred to in Section 17(j) of the Act, a penalty of zero is assessed for non-serious Item No. 1.

1926.500(b)(1), cited [*27] in non-serious Item No. 2 (and Citation No. 2, supra) provides:

(b) Guarding of floor openings and floor holes. (1) Floor openings shall be guarded by a standard 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.

Item No. 2 and the complaint allege that the above standard was violated because Respondent failed to have intermediate railings on three elevator shafts on the second floor. n18 A hazard of falling through a shaft opening unquestionably existed, but, again, the evidence shows only a minimum of exposure. See SX 13, 152-3; also Tr. 30, 54, 92, 129). Having considered the gravity of the violation, Respondent's good faith, history and size, a penalty of $40 is assessed, as proposed by the Secretary, for non-serious Item No. 2.

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n18 The complaint also refers to missing "toeboards or cover" (Para. III.F).

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Based on the foregoing, and the record, the following conclusions [*28] of law are entered:

1. Respondent is now, and at all times mentioned herein, an "employer" within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and the subject matter.

2. It was not established that Respondent failed to comply with 29 C.F.R. 1926.500(d)(1).

3. It was established that Respondent violated section 5(a)(2) of the Act by failing to comply with 29 C.F.R. 1926.500(b)(1); 1926.500(e)(1)(iv); 1926.750(a)(2); 1926.304(f); and 1926.500(b)(1).

4. The violations of 29 C.F.R. 1926.500(b)(1), 1926.500(e)(1)(iv), and 1926.750(a)(2) were "serious" within the meaning of section 17(k) of the Act.

ORDER

Based on the foregoing, and the whole record, it is ORDERED that:

1. Citation No. 1 (Serious) dated September 27, 1973, and the penalty proposed therefor, be VACATED;

2. Citation No. 2 (Serious) dated September 27, 1973, Citation No. 3 (Serious) dated September 27, 1973, (Amended) Citation No. 4 (Serious) dated October 10, 1973, and non-serious Items 1 and 2 of Citation No. 5 (Non-serious) dated September 27, 1973 be AFFIRMED;

3. The penalties proposed for said Citation No. 2 (Serious), [*29] Citation No. 3 (Serious), (Amended) Citation No. 4 (Serious) are vacated and in lieu thereof, a penalty of $130 for each is ASSESSED.

4. The penalty proposed for said non-serious Item No. 1 is VACATED; and

5. The penalty proposed for said non-serious Item No. 2 is AFFIRMED.

Dated: November 12, 1974

Harold A. Kennedy, Judge, OSAHRC