JULIUS NASSO CONCRETE CORP.  

OSHRC Docket No. 5926

Occupational Safety and Health Review Commission

April 24, 1975

  [*1]  

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

  MORAN, CHAIRMAN: A decision of Review Commission Judge Joseph Chodes, dated December 12, 1974, in a proceeding initiated under the Occupational Safety and Health Act of 1970, n1 is before this Commission for review pursuant to 29 U.S.C. §   661(i).

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n1 29 U.S.C. §   651 et seq., 84 Stat. 1590.

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Having examined the record in its entirety, the Commission finds no prejudicial error therein.   Accordingly, we affirm the Judge's disposition of the case.  

CONCURBY: CLEARY

CONCUR:

  CLEARY, COMMISSIONER, concurring: I concur in affirming the Administrative Law Judge's decision except as stated below.

Julius Nasso Concrete Corporation, the respondent, was a cement contractor on a construction site at 108th Street and 62d Drive, Forest Hills, New York.   The site was a complex of three 12-story buildings.   Although there was some conflict in testimony, the Judge found that a crane owned by the respondent and located outside of Building Three did not have the (rear)   [*2]   swing radius barricaded. The rear of the crane superstructure would swing sixty degrees in either direction when the crane picked up material for removal from the site.   The rear of the crane picked up material for removal from the site.   The rear of the crane was about thirty feet from the employees entrance to Building Three.   Fmployees of the J.A. Johnson Company were working in Building Three, and were thus potentially exposed to the hazard of the swinging crane. In addition, the respondent's employee in charge of moving and maintaining barricades was exposed to the hazard.

  The Judge found a violation of the standard involved, 29 CFR 1926.550(a)(9), on the strength of the exposure of respondent's single employee.   At page 340 of his decision he explicitly declined to buttress his holding with the potential exposure of employees working in Building Three, because of Commission decisions holding that only where employees of a cited employer are affected by a failure to comply with a standard can the employer be considered in violation of Section 5(a)(2) of the Act.   He expressly relied upon City Wide Tuckpointing Service Co., No. 247 (May 27, 1973).   I submit that [*3]   City Wide Tuckpointing Service Co. should be expressly reversed because of Brennan v. O.S.H.R.C. and Underhill Construction Corp., Nos. 74-1579 & 1568 (2d Cir., March 10, 1975).   Underhill makes clear that a violation of a standard is committed when there are employees of other employers that have access to the resulting hazard as well as when immediate employees have access.

[The Judge's decision referred to herein follows]

CHODES, JUDGE: This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 659) in which the respondent is contesting a citation issued by the complainant under the authority vested in complainant by section 9(a) of the Act (29 U.S.C. 658(a)).   The citation alleges that as the result of the inspection of a place of employment located at the construction site at 108th Street and 62nd Drive, Forest Hills, New York, the respondent is alleged to have violated section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)) by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof (29 U.S.C. 655).

The citation, which was issued on December [*4]   4, 1973, alleged that the violations resulted from a failure to comply with standards promulgated by the Secretary by publication on December 16, 1972, in the Federal Register, Vol. 37, No. 243, and codified in 29 C.F.R., Chapter XVII, Part 1926.   The standards prescribed by Part 1926 were adopted as occupational safety and health standards under the Act at 29 C.F.R. §   1910.12.

  Specifically, the respondent was charged with nonserious violation of the following standards:

1.   29 C.F.R. §   1926.150(c)(1)(i) in that fire extinguishers rated not less than 2A were not provided for each 3,000 square feet of protected building area in building number 1, basement to 8th floor and that the travel distance from points of the protected area to the nearest fire extinguisher exceeded 100 feet.

2.   29 C.F.R. §   1926.500(b)(1) in that floor openings were not guarded by standard railings or covers as specified in 29 C.F.R. §   1926.500(f) on the 7th and 8th floors of building number 1.

3.   29 C.F.R. §   1926.500(a)(9) in that the accessible areas within the swing radius of the rear of the rotating superstructure of a crane on the west side of building number 3 was not barricaded in such a [*5]   manner as to prevent an employee from being struck or crushed by the crane.

Pursuant to the enforcement procedure set forth in section 10(a) of the Act (29 U.S.C. 659(a)), the respondent was notified by letter dated December 4, 1973 from J. Epps, Area Director of the Garden City, New York area.   Occupational Safety and Health Administration, U.S. Department of Labor, of a proposed penalty of $40 for the alleged violation of the standard referred to in item 1 above; $55 for item 2; and $45 for item 3, for a total penalty of $140.

After respondent contested this enforcement action, and a complaint and answer had been filed by the parties, the case came on for hearing at New York, New York, on July 24, 1974.

STIPULATIONS

The complainant and respondent entered into the following stipulations.

1.   The respondent is an employer engaged in a business affecting commerce within the meaning of sections 3(5) and 3(3) of the Occupational Safety and Health Act of 1970 (29 U.S.C. §   652(5) and (3)).

2.   The respondent is a concrete contractor of moderate size as compared to other contractors in the New York metropolitan area.

3.   Proper service of the citation and proposed penalties is acknowledged [*6]   by the respondent.

  SUMMARY OF EVIDENCE

On November 26, 1973, Robert Farronato, one of the complainant's compliance officers, inspected building number 1 of the workplace involved herein, a 12-story building which was at the structured concrete stage.   Each floor was "V" shaped.   The length of one side was 129 feet and the other 100 feet. The width varied from 39 feet to 50 feet (Exhibit R-1).   Egress from the floors was by stairwells.   Mr. Farronato observed that there were no fire extinguishers on any of the floors from the basement to the eighth floor. However, in the center of each floor there was a water riser with a faucet and a drum underneath.   Mr. Farronato testified that some of the faucets were "frozen," that is, when opened no water would come out and that there was no means of dispensing the water in case of fire as there were no buckets or hose available.

Charles Camino, the respondent's job superintendent, testified that there was a 55-gallon water barrel, three-quarters full of water, on each floor. On the seventh and eighth floors there were pails available near the barrels.   The employees were applying cement coating to the ceilings, a process called [*7]   "bond creting" and they had to use the pails for holding water to mix with the "bond crete" mix.   Also, on the seventh floor, there was a 100-foot one inch hose, attached to a faucet, which was capable of spraying water for a distance of about 30 to 40 feet and of discharging more than 5 gallons of water per minute.   The hose was not mounted on any rack or reel, but lay on the floor.

There were approximately 15 floor openings all over the seventh and eighth floors. Most were like the opening depicted in Exhibit C-3 which was "T" shaped and measured 28 inches across the "T" 8 inches in width and 21 inches in depth (Exhibit R-2).   One opening was 9 inches wide and 21 inches in length and another was 21 inches by 20 inches.   The drop through the opening was to the next floor level.   None of the floor openings were covered or guarded by railings.

Sixteen of the respondent's employees were working on the seventh floor and there were two employees working on the eighth floor. On the seventh floor the employees were "bond creting." On the eighth floor the employees were performing   various tasks, such as carrying pails of water and bringing mixing pans from the seventh floor.   [*8]   Employees on the seventh floor came within three feet of any given floor opening. On the eighth floor an employee was observed within two feet of a floor opening which measured 21 by 9 inches.

On November 27, 1973, Mr. Farronato observed a crane being operated in front of building number 3, approximately 30 feet from the entrance to the building.   The crane was picking up material for removal from the site.   The superstructure would swing from a right angle approximately 60 degrees in either direction.   A photograph was taken at a time when the crane had swung to the right causing the rear of the superstructure to swing left over the left crawler track as shown on Exhibit C-5.

Respondent's employees were engaged in loading lumber onto trucks, stacking and banding lumber, and cleaning up debris. One of the employees was observed working in a debris box (shown on Exhibit C-4) and another employee which was about 125 to 150 feet away from the crane was observed working adjacent to a pile of lumber near the debris box.   Mr. Rontinaro, one of the respondent's employees, was observed within six feet of the rear of the superstructure, to the left, as shown on Exhibit C-5.   In the course [*9]   of the employees' normal activities they would come within about 30 to 40 feet of the crane.

There were barricades on the boom side in front of the crane, * but there were no barricades at the rear of the crane (Exhibits C-4 and 5).

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* Barricades are pointed out by an arrow on the left margin of Exhibit C-4.   However, the testimony was that there were barricades about 180 degrees around the front of the crane which are not shown on the exhibit and in Exhibit R-3 Mr. Camino indicated that the barricades surrounded the crane to a somewhat greater degree.

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While Mr. Camino testified that there was a barricade in the rear of the crane, the compliance officer testified that there were no barricades there and the photographs Exhibits C-4 and 5, do not show any barricades in that location.   It may well be that Mr. Camino observed the barricades at a time other than when the inspection was made since he testified that the crane was movable   and at times was set up so that the front of the crane faced building 3.    [*10]   When the crane was moved the barricades would also have to be moved and one of respondent's employees had the job of setting up the barricades to be sure that no one walked into the crane.

The area from the exit of building 3 to the rear of the crane as shown on Exhibit C-5 was an upgrade with a rise of 4 feet over a distance of 30 to 40 feet. To the right of the exit from building 3 about 10 feet from the exit, there was a 4 foot perpendicular drop in the ground which would impede access to the crane.

Mr. Farronato recommended penalties ** for each of the alleged violations.   In assessing penalties against the respondent, Mr. Farronato was of the view that respondent should be allowed a credit of 10 percent for good faith based on its safety program, which was considered average.   In arriving at this conclusion Mr. Farronato took into consideration meetings held by respondent with employees concerning safety, ongoing training programs, personal protection equipment issued to employees and available first aid facilities.   No allowance was made for the size of the respondent's business because it employed over a hundred people.   Because there was a record of a previous safety violation [*11]   by the respondent, an allowance of 10 percent was made for history of previous violations.   An additional 50 percent reduction of the remaining penalty was allowed by reason of the abatement of the violations.

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** Section 17(j) of the Act (29 U.S.C. §   666(i)) provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

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For violation of item 1 relating to the absence of fire extinguishers in building number 1, Mr. Farronato recommended an unadjusted penalty of $100.   He considered the gravity of the violation moderate, the hazard involved being that in the event of fire there would be no extinguishing equipment.   After allowing credit for the factors discussed above, that is, good faith,   history of previous violations and abatement,   [*12]   the unadjusted penalty proposed was $40.

The unadjusted penalty recommended for item 2 relating to floor holes on the seventh and eighth floors of building number 1, was $140.   The hazard, which was considered moderate, was that employees could step into the holes and suffer skinned shins, cuts and even a broken leg.   After adjustments for the factors discussed above, the proposed adjusted penalty was $55.

For item 3, which involved the hazard of employees being struck by the superstructure of the crane in front of building number 3, or perhaps caught between the superstructure and a crawler track, the unadjusted penalty recommended was $115, which after allowances reduced the penalty to $45.

EVALUATION AND DISCUSSION

1.   Alleged Violation of 29 CFR §   1926.150(c)(1)(i)

This standard provides, in pertinent part:

(c) Portable firefighting equipment --

(1) Fire extinguishers and small hose lines.   (i) A fire extinguisher, rated not less than 2A, shall be provided for each 3,000 square feet of the protected building area, or major fraction thereof.   Travel distance from any point of the protected area to the nearest fire extinguisher shall not exceed 100 feet.

(ii) One 55-gallon [*13]   open drum of water with two fire pails may be substituted for a fire extinguisher having a 2A rating.

(iii) A 1/2-inch diameter garden-type hose line, not to exceed 100 feet in length and equipped with a nozzle, may be substituted for a 2A-rated fire extinguisher, provided it is capable of discharging a minimum of 5 gallons per minute with a minimum hose stream range of 30 feet horizontally.   The garden-type hose lines shall be mounted on conventional racks or reels.   The number and location of hose racks or reels shall be such that at least one hose stream can be applied to all points in the area.

The evidence is uncontradicted that in building 1 there were no fire extinguishers in the building from the basement to the eighth floor. The respondent contends that substitute equipment permitted by the standard, a 55-gallon water barrel and a 100-foot hose, met the standard's requirements.

It is unnecessary to decide whether the equipment on hand satisfied the requirements of the standard because, even assuming   that the substitute firefighting equipment met the criteria set forth in the standard, the equipment was insufficient to cover an area of about 9,200 square feet [*14]   on each floor since the standard requires a fire extinguisher (or substitute) for each 3,000 square feet or major fraction thereof.   Moreover, the travel distance from the far point on each floor to the equipment would necessarily exceed 100 feet in at least one direction, the maximum permitted by the standard, given the overall length of 229 feet per floor shown on Exhibit R-1.

Regarding penalty, eighteen employees were affected by the violation, but the likelihood of a fire breaking out during "bond creting" operations are considered minimal.   Consequently, the proposed penalty of $40 is considered to be appropriate.

2.   Alleged Violation of 29 C.F.R. §   1926.500(b)(1)

The standard provides:

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.

A "floor opening" is defined in 29 C.F.R. §   1926.502(b) as "[a]n opening measuring 12 inches or more in its least dimension in any floor, roof, or platform through which persons may fall."

The evidence established that there were approximately fifteen openings throughout [*15]   the floors of the seventh and eighth floors of building number 1, but only one opening on each floor was a floor opening as defined in 29 C.F.R. §   1926.502(b) because it measured 12 inches or more in its least dimension.   This opening measured 21 inches by 20 inches and was large enough to present the hazard of an employee falling through to the next floor. The compliance officer, Mr. Farronato, testified that he observed employees on the seventh floor within approximately 3 feet of any given floor hole.   A distance of 3 feet from a floor hole is considered close enough to present the hazard of accidentally falling through so that a violation of the standard is established.   However, since only one floor opening is involved, and normal activity required employees to be 3 feet away, the degree of probability that an accident would occur is considered   low.   The penalty for this violation of $55 was proposed on the basis that there were fifteen floor openings which affected employees whereas only one floor opening was proven.   Under the circumstances, a reduction of the penalty to $24 is considered appropriate.

3.   Alleged Violation of 29 C.F.R. 1926.500(a)(9)

This standard [*16]   provides:

Accessible areas within the swing radius of the rear of the rotating superstructure of the crane, either permanently or temporarily mounted, shall be barricaded in such a manner as to prevent an employee from being struck or crushed by the crane.

The evidence sufficiently establishes that the rear of a crane in use and operated by the respondent was not barricaded in such a manner as to prevent employees of the respondent from being struck or crushed by the rotating superstructure. However, there is proof that only one of respondent's employees, Mr. Rontinaro, was exposed to this hazard. He was observed by Mr. Farranato within 6 feet of the rear of the crane, near enough to be exposed to the swing radius of the rotating superstructure. One employee of the respondent was working in a debris box about 125 feet away from the crane and another was working in the vicinity of the debris box.   The normal duties of these two employees would not require that they come closer than 30 to 40 feet from the crane so that they were not exposed to the hazard contemplated by the standard.

The crane was within 30 feet of the entrance to building 3.   Although none of respondent's employees [*17]   were working in building 3, the complainant contends the respondent owed an obligation to employees of other contractors or subcontractors working in the building not to expose these employees to the hazard presented by the operation of the crane when they came into close proximity to the crane as they were going in and out of the building.   However, decisions of the Commission have held that "[o]nly where employees of a cited employer are affected by noncompliance with an occupational safety and health standard can such employer be in violation of section 5(a)(2) of the Act." See Secretary v. City Wide Tuckpointing Service Co. No. 247 (May 24, 1973).

  With regard to penalty, even though only one employee was exposed to the hazard, the consequences of an accident, should one occur, could be serious.   Under the criteria set forth in section 17(j) of the Act, the proposed penalty of $45 is considered appropriate.

FINDINGS OF FACT

On the basis of the citation, notice of proposed penalty, notice of contest, pleadings, stipulations, the testimony adduced at the hearing and the representations of the parties, it is concluded that on the basis of the record as a whole,   [*18]   a preponderance of the evidence supports the following findings of fact:

1.   Paragraph 1 through 3 of the Stipulations are incorporated herein as findings of fact.

2.   On November 26, 1973, in building number 1 at the workplace involved herein, the respondent did not provide on the seventh and eighth floors, comprising approximately 9,200 square feet on each floor, fire extinguishers rated not less than 2A, or substitute equipment, for each 3,000 square feet or major fraction thereof.   The travel distance from some of the areas of the seventh and eight floors was more than 100 feet from the nearest fire extinguisher or equivalent equipment.

3.   Eighteen of respondent's employees were exposed to the hazard presented by the facts recited in paragraph 2 above.

4.   On November 26, 1973, on the seventh floor of building number 1 of the workplace involved herein, there was one floor opening, 21 inches by 20 inches, with a drop through the opening to the next floor.

5.   Sixteen of respondent's employees were exposed to the hazard presented by the facts recited in paragraph 4 above.

6.   On November 27, 1973, the respondent was operating a crane about 30 feet from the entrance to building [*19]   number 3 at the workplace involved herein.   The swing radius of the rear of the rotating superstructure was not barricaded in such a manner as to prevent an employee from being struck or crushed by the crane.

7.   One of respondent's employees was exposed to the hazard described in paragraph 6 above.

  8.   Giving due consideration to the size of respondent's business, the gravity of the violations, the good faith of the respondent and the history of previous violations, the appropriate penalty for the violation referred to in paragraphs 2 and 3 above is $40; the appropriate penalty for the violation referred to in paragraphs 4 and 5 above is $25; and the appropriate penalty for the violation referred to in paragraphs 6 and 7 above, is $45.

CONCLUSIONS OF LAW

1.   The respondent at all times material hereto was engaged in business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.

2.   The respondent at all times material hereto was subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder, and the Commission has jurisdiction of the parties and of the subject matter   [*20]   herein.

3.   Respondent violated the occupational safety and health standards set forth at 29 C.F.R. §   1926.150(c)(1)(i) and is assessed a penalty of $40; respondent violated 29 C.F.R. §   1926.500(b)(1) and is assessed a penalty of $25; respondent violated 29 C.F.R. §   1926.550(a)(9) and is assessed a penalty of $45.

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record it is

ORDERED that the citation issued on December 4, 1973, for violation of the standards set forth at C.F.R. §   1926.150(c)(1)(i), 29 C.F.R. §   1926.500(b)(1) and 29 C.F.R. §   1926.550(a)(9) is affirmed and the penalties assessed for the violations are $40, $25, and $45, respectively.