HUBER, HUNT & NICHOLS, INC., and BLOUNT BROTHERS CORPORATION, A Joint Venture

OSHRC Docket No. 6007

Occupational Safety and Health Review Commission

June 28, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Ronald M Gaswirth, Regional Solicitor, U.S. Department of Labor

William C. Tidwell, III, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On March 17, 1975, Administrative Law Judge Paul E. Dixon rendered a decision affirming in pertinent part two citations for "serious" violations and one citation of eighteen items alleging a violation simpliciter of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). Respondent's petition for discretionary review of March 17, 1975, was not explicitly granted, but Commissioner Moran, on March 17, 1975, directed review on his own motion and invited submissions on the following issues:

(1) Was there sufficient evidence to justify the Judge's finding that the Act was violated as alleged?

(2) Do the cited standards apply to employers working pursuant to a construction contract executed prior to the effective date of the Act?

(3) Do the standards at issue in this case satisfy the statutory and constitutional tests for valid occupational safety and health standards?

Both parties have filed briefs. We [*2] affirm the Judge's decision.

Respondent-employer was the general contractor for the construction of the Louisiana Superdome stadium in New Orleans. It employed about 350 employees at the worksite, and engaged numerous subcontractors. Its worksite was inspected by four compliance safety and health officers during a period on one week.

With regard to the second issue directed for review, respondent argues that because its construction contract was entered into before the effective date listed in Subpart X of Part 1926, it need not comply with the Construction Safety Act regulations adopted under OSHA. The Commission has rejected this argument in other decisions. Underhill Construction Corporation, 15 OSAHRC 366, BNA 2 OSHC 1556, CCH 1974-75 OSHD para. 19,276 (No. 1307, January 31, 1975) aff'd, 526 F.2d 53 (2d Cir. 1975). See Bechtel Power Corporation, BNA 4 OSHC 1005, CCH 1975-76 OSHD para. 20,503 (No. 5064, March 11, 1976). Judge Dixon correctly anticipated our Underhill decision, and his ruling on this matter is accordingly affirmed.

With respect to the third numbered issue specified for review, we note that respondent raised only the validity of 29 CFR [*3] 1926.51(a)(5) before Judge Dixon. With this one exception then, the matter is raised sua sponte in the order for review. We have consistently held that this is not a jurisdictional issue n1 to be raised at any stage of the proceedings. A.J. McNulty & Company, Inc., No. 2295 (April 8, 1976); Puterbaugh Enterprises, Inc., 9 OSAHRC 718, 721, BNA 2 OSHC 1030, 1032, CCH 1973-74 OSHD para. 18,158 (No. 1097, July 1, 1974). Accordingly, with the exception noted, we shall decline to address the point.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 See Atlantic & Gulf Stevedores, Inc., No. 75-1584 (3d Cir., March 26, 1976) (invalidity of standard an affirmative defense to be proved by employer); United States v. Nudelman, 104 F.2d 549,552 (7th Cir.), cert. denied, 308 U.S. 589 (1939) (not jurisdictional).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

With respect to both citations for "serious" violations and items 4, 8, n2 10, 11, 16, n3 and 17 of the citation for a violation simpliciter, we find that the Judge's findings of fact, conclusions of law, and order are proper [*4] for the reasons he assigned, and that the issues raised require no further discussion. Accordingly, the Judge's report is to this extent adopted and his orders affirmed. We also find no error in the Judge's assessment of penalties, and to this extent his orders as to all citations and items are also affirmed. We do, however, note that with regard to several of these items, respondent urges that exposure of its employees was not proved. Although we agree with the Judge's findings that Huber, Hunt employees were exposed to the pertinent hazards, we add that the Commission has overruled its line of decisions requiring proof of actual exposure, and has instead adopted a rule of access based on reasonable predictability. Gilles & Cotting, Inc., BNA & OSHC 2002, CCH 1975-76 OSHD para. 20,448 (No. 504, February 20, 1976) (on remand). Also, it is no longer necessary, in the circumstances presented by this case, that the exposed employees be those of respondent. Grossman Steel & Aluminum Corporation, No. 12775 (May 12, 1976); Anning-Johnson Company, Nos. 3694 & 4409 (May 12, 1976). It is enough here to note that because of Huber, Hunt's failures to comply with cited standards, [*5] employees of its subcontractors were exposed or had access to hazards. Id. See, for example, items ten and seventeen of the non-serious citation. The remainder of this opinion will concern the disposition of various items of the "non-serious" citation, the merits of which have been briefed by respondent.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 With respect to item 8, respondent does not dispute the affirmance of the citation but contends only that the proposed penalty is excessive.

n3 Respondent argues that with regard to item 16, compliance was impossible. There is no evidence supporting this defense.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Item Two: Powered Concrete Saw Guard

Respondent was cited under section 1910.212(a)(3)(ii) for failing to guard a powered cement saw. The unguarded saw was being used by an employee of respondent to cut groves in the edges of some concrete steps. n4 It was sometimes necessary to cut the groves in a corner. The particular guard that respondent claims it normally used interfered with the latter operation and, because of its characteristics, [*6] had to be removed.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 Obviously, an unguarded power saw presents a hazard to its operator. For example, on several occasions, the saw "sort of climb[ed] and g[o]t away from" its operator. Accordingly, we note that a failure to comply with the standard was proved. Buckeye Industries, Inc., BNA 3 OSHC 1837, CCH 1975-76 OSHD para. 20,239 (No. 8454, December 22, 1975); Western Steel Manufacturing Company, No. 3528 (April 5, 1976). Only respondent's affirmative defense remains for consideration. Ace Sheeting & Repair Company, BNA 3 OSHC 1868, CCH 1975-76 OSHD para. 20,256 (No. 5284, December 31, 1975).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Judge Dixon correctly held that it is the duty of the employer to fabricate guards that comply with the directives of the standard. Acme Glass Company, BNA 3 OSHC 2087, CCH 1975-76 OSHD para. 20,249 (No. 3282, March 3, 1976); Buckeye Industries, Inc., BNA 3 OSHC 1837, CCH 1975-76 OSHD para. 20,239 (No. 8454, December 22, 1975). It is not enough to show that the employer has tried one method of [*7] guarding and has found it unsatisfactory. Diebold, Inc., BNA 3 OSHC 1897, CCH 1975-76 OSHD para. 20,333 (No. 6767 etc., January 22, 1976). The record evidence then does not establish the defense; n5 there is no evidence that other types of guards could not be used. n6 The Judge's disposition was therefore correct, and the item is affirmed. n7

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 F.H. Lawsor Co., CCH 1975-76 OSHD para. 20,550 (No. 12883, February 24, 1976) (Administrative Law Judge), review directed, March 25, 1976, and cases cited.

n6 See e.g., Concrete Constr. Co., No. 2490 (April 8, 1976).

n7 For my own part, I would add that respondent has also failed to establish that resort to variance and abatement extension procedures could not be had. Atlantic & Gulf Stevedores, Inc. v. O.S.H.R.C., No. 75-1584 (3d Cir., March 26, 1976); Warnel Corp., No. 4537 (March 31, 1976) (concurring opinion).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Item Three: Lower Radial Saw Guard

Respondent's DeWalt radial saw, located in a shack near respondent's office, had an unguarded [*8] lower blade, contrary to section 1910.213(h)(1). Though the saw was not in use during the inspection a compliance officer stated that he "could see that it had been used." The saw was occasionally used by employees to cut 5 or 6-inch pieces of lumber and 200 to 300 pieces of specially cut material (e.g., 4" X 4" wedges). One of respondent's witnesses, a carpenter, testified that he personally used the unguarded saw. During such operations the guard provided would be removed in order to allow the cut to be made.

As to respondent's reliance on the infrequency of use, the Commission has held that infrequency of use affects only the gravity of the violation for penalty assessment purposes and not the determination of whether a violation exists. The employer is required to afford protection to its employees on those occasions when the machine is used. Konkolville Lumber Company, Inc., BNA 3 OSHC 1796, CCH 1975-76 OSHD para. 20,224 (No. 2437, December 15, 1975); Western Steel Manufacturing Company, No. 3628 (April 5, 1976). The same may be said for the respondent's use of only experienced operators. Slyter Chair, Inc., No. 1263 (April 8, 1976). See Akron Brick [*9] & Block Company, BNA 3 OSHC 1876, CCH 1975-76 OSHD para. 20,302 (No. 4859, January 14, 1976). There is uncontroverted evidence here that employees have actually used the saw in its violative condition. In any event, we have held that if the tool is available for use, the employer is under a duty to comply with the standard. Harold Christiansen et al., BNA 4 OSHC 1020, CCH 1975-76 OSHD para. 20,517 (No. 3108, March 18, 1976) and cases cited. Finally, respondent's impossibility defense is clearly not established. The standard requires the a lower blade guard "automatically adjust itself to the thickness of the stock". The record does not support a finding that this level of performance cannot be attained. The Judge's findings and disposition are therefore correct and are affirmed.

Item Six: Oxygen Cylinders

The cited standard, section 1910.252(a)(2)(iv)(a), forbids, among other things, the storage of oxygen cylinders near acetylene or other fuel-gas cylinders. Respondent stored oxygen and acetylene cylinders together in a shack in a yard near respondent's office, but far removed from a work area. The record shows that this situation presented fire and explosion [*10] hazards, thereby creating a very wide zone of danger. n8 See Bechtel Power Corporation, BNA 4 OSHC 1005, CCH 1975-76 OSHD para. 20,503 (No. 5064, March 11, 1976) (citing cases); Beall Construction Company, 6 OSAHRC 582, 588, BNA 1 OSHC 1559, CCH 1973-74 OSHD para. 17,339 (No. 557, February 21, 1974), aff'd 507 F.2d 1041 (8th Cir. 1974). Respondent's lack of exposure argument cannot, therefore, be adopted.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n8 Particularly with regard to the fire hazard, we note that the danger created by the cited condition could also endanger employees who try to control or extinguish the fire.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Respondent does urge, however, that the citation not be affirmed because the compliance officer did not determine whether the gas cylinders contained any gas. As an abstraction, we would agree that if the gas cylinders were indeed completely empty and presented no hazard whatsoever, the violation (if any) might be de minimis, and abatement would not be required. But this is a hypothetical situation that rarely if [*11] ever occurs in practice. As the compliance officer testified, many so-called "empty" cylinders have some residual gas within them. And as the Judge properly noted, the standard makes no distinction between empty and full cylinders. The standard out of respect for the dangers associated with even residual quantities of flammable compressed gases, requires that cylinders be presumed to be wholly or partly full, or contain residual gas, and present a hazard. n9 Compliance with the standard is accordingly not dependent on the production of particularized evidence proving that the violative condition is indeed hazardous. In the ordinary case, and in the absence of persuasive contrary evidence, the hazard may be n10 and must be presumed. n11 On the other hand, if on the facts of a particular case it appears, for example, that the cylinders are so completely empty as to negate any possibility of injury, the presumption will be considered to have been rebutted. In this case, that presumption has not been met by any record evidence. The Judge's disposition must therefore be affirmed.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n9 Other standards show this same degree of caution. See, e.g., 29 CFR 1910.252(a)(2)(ii)(c) ("Empty cylinders shall have their valves closed."), 1910.252(a)(2)(v)(b)(8) and (11), and 1926.350(a)(8).

n10 Lee Way Motor Freight, Inc., 7 OSAHRC 1128, BNA 1, OSHC 1689, CCH 1973-74 OSHD para. 17,693 (No. 1105, April 23, 1974), aff'd, 511 F.2d 864 (10th Cir. 1975).

n11 There are of course other reasons for this conclusion. We have recognized that the lack of markings indicating emptiness permits the conclusion that a cylinder is at least partly full. Beall Construction Company, 6 OSAHRC 582, 588, BNA 1 OSHC 1559, CCH 1973-74 OSHD para. 17,339 (No. 557, February 21, 1974), aff'd, 507 F.2d 1041 (8th Cir. 1974). This accords with common safety practice. See ANSI Z 49.1, standard 3.2.5.9.4 ("[E]mpty cylinders shall be . . . marked 'empty' or 'MT'."), incorporated by reference and applied to the construction industry by 29 CFR 1926.350(j). Further discussion is contained in D'Adderio Construction Company, Inc., 15 OSAHRC 68, 70, BNA 2 OSHC 1573, CCH 1974-75 OSHD para. 19,217 (Nos. 1990 & 1956, January 17, 1975) (dissenting opinion).

[*12]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Item Seven: The Housekeeping Violations

We find no error in the Judge's report here, and only a brief discussion clarifying one important point is necessary. Respondent complains that inadmissible hearsay was admitted into the record. The declarant was respondent's designated "walkaround" representative. He also assisted respondent in maintaining safe working conditions. The Judge correctly concluded that the declarant was respondent's duly designated agent. Under these circumstances, the declarant's statements are not only admissible, they are not even classified as hearsay. A.J. McNulty & Company, Inc., No. 2295 (April 8, 1976) (slip op. at 7 n.5); Fed.R.Evid. 801(d)(2)(c) and (d) (codifying prior law).

Item Nine: Unsanitary Drinking Facilities

Respondent claims that 29 CFR 1926.51(a)(5) is invalid because the hazard it addresses and the means of compliance it requires have no rational relation to health or safety. Respondent's argument in substance and tone questions the wisdom of the standard, and I would not entertain it. Van Raalte Company, Inc., No. 5007 (April 19, [*13] 1976); Cornish Dress Manufacturing Company, BNA 3 OSHC 1850, CCH 1975-76 OSHD para. 20,246 (No. 6765, December 23, 1975); General Electric Company, 17 OSAHRC 49, 62-63, BNA 3 OSHC 1031, 1040-1041, CCH 1974-75 OSHD para. 19,567 at 23,366 (No. 2739, April 21, 1975). Chairman Barnako would adopt the Judge's reasoning.

Item Twelve: Lack of Signs and Inadequate Barricades Around Unchuted Trash Disposal Area

The Judge's findings on the lack of barricades and signs are based on his assessment of the credibility of the witnesses, and we find no reason to disturb them. Evansville Materials, Inc., BNA 3 OSHC 1741, CCH 1975-76 OSHD para. 20,187 (No. 3444, November 28, 1975); Paul L. Heath d/b/a Paul L. Heath Contracting Company, 20 OSAHRC 297, BNA 3 OSHC 1550, CCH 1975-76 OSHD para. 20,006 (No. 5467, September 24, 1975). Cf. River Terminal Railway Company, BNA 3 OSHC 1808, CCH 1975-76 OSHD para. 20,215 (No. 4419, December 12, 1975). As to exposure, the Judge's finding of fact number thirteen is dispositive; in any event, access was shown. Accordingly, the Judge's disposition is affirmed.

Item Fifteen: Scaffold Violation

A scaffold being used by respondent's [*14] employees had an improperly supported guardrail, in apparent contravention of section 1926.451(a)(5). Respondent relies, however, on the provision of section 1926.451(a)(4) which requires the installation of guardrails on platforms more than ten n12 feet above the ground.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n12 Judge Dixon held that the pertinent figure is six feet. On December 2, 1972, the standard's minimum safe elevation figure was amended from six to ten feet. 37 Fed. Reg. 25713. The Judge's error was harmless, however, because part of the scaffold was more than ten feet off the ground.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Judge, however, credited the estimates of two compliance officers that one end of the inclined scaffold was twelve feet off the ground. The estimates were based on comparisons of the scaffold height with the known heights of one of the compliance officers and of men working directly beneath it. The Judge implicitly n13 found that the measurements were reliable, and held that in the absence of contrary evidence, the evidence preponderated in favor of the [*15] Secretary. We agree.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n13 Judge Dixon cast his holding in terms of "substantial evidence." Though the use of this language was unfortunate (Olin Construction Company, Inc. v. O.S.H.R.C., 525 F.2d 464 (2d Cir. 1975); Armor Elevator Company, Inc., 5 OSAHRC 260, BNA 1 OSHC 1409, CCH 1973-74 OSHD para. 16,958 (Nos. 425 & 426, November 20, 1973)), it is sufficiently clear that the Judge found the testimony credible and the method to be reliable. Accordingly, the error was harmless, and it cannot affect the merits. Fed.R.Civ.P. 61.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Accordingly, the Judge's order is AFFIRMED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The majority's action in this case is wrong for numerous reasons. I am therefore constrained to register my disagreement therewith.

The citation alleging a serious violation of the standard codified at 29 C.F.R. 1926.500(d)(1), as well as items 7 through 18 of the non-serious citation, should be vacated because respondent is exempt from the purview of those standards. As I explained at some length [*16] in Secretary v. Underhill Construction Corporation, 15 OSAHRC 366, 370 (1975), n14 the regulation codified at 29 C.F.R. 1926.1050 precludes application of the construction safety standards to any work performed pursuant to a contract negotiated and signed prior to April 24, 1971. Since the work of respondent in this case was pursuant to a contract signed on March 4, 1971, the failure to apply this exemption and vacate all charges based on these standards is error.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The holding by my colleagues on item 2 of the nonserious citation requires all employers in this nation to become inventors. They say that "[i]t is not enough to show that the employer has tried one method of guarding and has found it unsatisfactory." Thereafter, they affirm this item of the citation because "there is no evidence that other types of guards could not be used." This places the burden of proof on the wrong party. To establish [*17] a violation of 29 C.F.R. 1910.212(a)(3)(ii), the complainant must prove that it was feasible for respondent to fabricate a saw guard which could be used while cutting grooves in the edges of concrete steps. Complainant failed to carry this burden so it is clear error for Messrs. Barnako and Cleary to affirm this violation without any evidence whatsoever as to the feasibility of constructing such a guard.

I also except from the majority's refusal to address the issue of whether the cited standards are valid occupational safety and health standards. The contention that such as issue is not jurisdictional is erroneous. If an agency of the United States goes beyond the powers conferred on it by Congress in promulgating regulations, the regulations so promulgated are void. Utah Power & Light Company v. United States, 243 U.S. 389, 410 (1917); Federal Maritime Commission v. Anglo-Canadian Shipping Company, 335 F.2d 255 (9th Cir. 1964). When an issue exists as to whether the Secretary exceeded the limits of his delegated authority in promulgating a standard, [*18] a question of subject matter jurisdiction is raised. See Secretary v. Stevens Equipment Company, 2 OSAHRC 1501 (1973). Jurisdictional issues may be raised by the Commission at any time and on its own motion. See Clark v. Paul Gray, Inc., 306 U.S. 538, 588 (1939); Hackner v. Guaranty Trust Company of New York, 117 F.2d 95 (2d Cir. 1941); Fed. R. Civ. P. 12(h)(3).

The standards codified at 29 C.F.R. Furthermore, the standard codified at 29 C.F.R. Accordingly, items 3 and 4 of the nonserious citation and the remaining serious citation should be vacated.

As a final point, I must once again state my total disagreement with the Barnako-Cleary "rules" regarding employee exposure. n15 Not only are they completely contrary to prior Commission precedent and totally at odds with the intent and purpose [*19] of the Act but, as the affirmance of item 6 of the nonserious citation indicates, they are unfairly applied.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In this case, my colleagues do not know what amount of gas, if any, was in the gas cylinders. Thus, even if there was some gas in the cylinders, they do not know the extent of the alleged hazard. Without this information, their conclusion that employee exposure was established is sheer speculation.

- - - - - - - - - - - - - [*20] - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n16 The only reason for the existence of this Act is to reduce employee accidents and diseases. If a cited condition poses no hazard to any employee, it cannot constitute a violation of this Act.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Judge made the following findings on this charge:

"The compliance officer was unable to establish with any precision that the cylinders were stored near any particular employees or any given workarea, but to the contrary, that they were fairly far removed . . . ."

This conclusion is correctly derived from the testimony of one of the complainant's inspectors who also indicated that the cylinders were stored "in a shack in the yard."

My colleagues conclude that "the cited condition could . . . endanger employees who try to control or extinguish the fire." This illustrates the extent to which they are willing to speculate in order to hold an employer liable. It is abundantly clear, however, that any reasonable person would stand clear of a "shack" and let it burn down before he would expose himself to the danger of attempting to extinguish [*21] such a fire.

In view of the evidence regarding the location of the cylinders, it is obvious that employee exposure is not established even under the Barnako-Cleary "access" rule and that this is yet another example of how they unfairly stretch their rules in order to hold employers liable for violations.

In view of the majority opinion's reliance on a substantial portion of Judge Dixon's decision, the same is attached hereto as Appendix A so that the law of this case may be fully known.

APPENDIX A

JAMES F. GRUBEN, Office of the Solicitor, U.S. Department of Labor, Appearing on behalf of Complainant

MICHAEL S. FAWER, Appearing on behalf of Respondent

Hearing held June 18 & 19, 1974, GSA Conference Room, U.S. Court of Appeals Building, 600 Camp Street, New Orleans, Louisiana, Judge Paul E. Dixon presiding.

Paul E. Dixon, Judge:

This is an action under section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 651, et seq. (hereinafter referred to as the Act), contesting a citation issued December 21, 1973, alleging serious and non-serious violations as a result of an inspection by the Department of Labor during the period of December 4 through December 10, [*22] 1973, of various worksites where respondent was conducting operations.

Timely notice of contest was made by the respondent, and following the issuance of complaint and response by the respondent, the case was brought to issue.

RULING ON RESPONDENT'S MOTION TO DISMISS

Respondent, by motion, in its answer, during the hearing and in subsequent post-hearing motion, raised the issue of lack of jurisdiction upon the basis that 29 CFR 1926.1050, as incorporated by reference in 29 CFR 1910.12(c), provides that construction standards will apply only to contracts advertised after April 24, 1971, or to negotiated contracts for which negotiations begin after April 29, 1971, submitting documentation that the construction contract in the case at hand was bid on February 16, 1971, and the construction contract was signed on March 4, 1971.

[*23] exempted from coverage all contracts other than new contracts advertised on or after April 24, 1971, and new contracts upon which negotiations are begun on or after April 27, 1971, he held that when the construction standards promulgated under the Construction Safety Act were incorporated by reference under the Occupational Safety and Health Act on May 29, 1971, effective August 27, 1971, the exemption for pre-April 24, 1971, contracts was adopted also. The issue of exemption was not disposed of by the Review Commission in its final order.

A contrary holding was made in the case of Secretary v. Kesler and Sons Construction Co., 9 OSAHRC 1033 (1974); CCH 15,398 (December 29, 1972), where the judge, after an exhaustive review of the legislative inactment concluded that the effective date of the Act for employers and employment subject to the Construction Safety Act (or other statutes listed) is May 29, 1971 (date of publication of occupational safety and health standards), and for employers and employments not subject to that Act as August 27, 1971 [*24] (90 days after promulgation). The Review Commission did not disturb the judge's finding.

Similarly, the same result was reached in Secretary v. Diesel Construction Co., 2 OSAHRC 595 (1973); CCH 15,429.

The above-mentioned cases were dismissed September 20, 1974, 2d Circuit, No. 74-1662. [*25]

Therefore, the Judge reaffirms his denial of respondent's motion claiming lack of jurisdiction and reasserts his finding that the Review Commission has jurisdiction of the proceedings.

CITATION 1, ITEM 1, ALLEGING SERIOUS VIOLATION

Respondent was charged in citation 1, item 1, of being in serious violation of 29 CFR 1926.500(d)(1), as adopted by 29 CFR 1910.12, in that:

"open-sided floors, more than six (6) feet above adjacent floor level in the following locations, were not guarded by standard railings or the equivalent on all open sides, and no toeboards were provided: Opensided floors throughout the construction site had a combination of inadequate guard rails; no standard guarding in place; observed in the East and West Garages, Ground Level, Mezzanine, Levels 100-700, Pedestrian Ramps, Bridges, outside periphery of stadium building."

"It [*26] should be noted that there were numerous instances of inadequate standard guardrails throughout the entire Dome construction site, with many instances of employees working at heights without protective rails or equipment, on ledges, ramps, opensided floors."

An abatement date of February 6, 1974, was established and a penalty of $600.00 was proposed.

THE STANDARD

"29 CFR 1926.500 Guardrails, handrails, and covers.

(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."

THE EVIDENCE

Mr. Lawrence G. Drouant was called by complainant. Mr. Drouant is employed by Gulf-York/Limbach and was the foreman of a plumbing crew. Mr. Drouant, during the course of his employment at the [*27] Superdome, observed open-sided floors at the jobsite and made complaint to Mr. Schroeder at the safety meetings of his employer, Gulf-York/Limbach. No representative of respondent was at these meetings.

Mr. Drouant expressed the concern that all men on the job, which employed numerous subcontractors and their employees, were in jeopardy because of the open-sided flooring.

Mr. Drouant was working at the 500 elevation (T. 41) with a four-man crew, and in addition to his area observed other open-sided floors in other areas with persons working near the open-sided floors (T. 43).

Mr. Drouant estimated that there were about 20 subcontractors on the job of respondent Huber Hunt, and during the life of the Dome construction there would be approximately 50 other subcontractor.

The various subcontractors' employees generally wear their own distinctive-type hat, but not at all times, which would identify the type of work they were doing (Tr. 36-49).

Mr. Leon Nunez was called by complainant and identified himself as a supervisor of carpenters and employed by respondent for a period of a little over two years.

Mr. Nunez accompanied the compliance officers during their inspection in December [*28] of 1973 and observed unguarded open-sided floors where there were men working (T. 51-52).

He also observed two or three areas with temporary portable barricades, specifically in his area, which was at least 6 feet above the floor below; or, according to his estimation, some 8 or 10 feet roughly above the floor level in his particular area (T. 52-53).

It was Mr. Nunez' recollection that he accompanied the inspectors approximately an hour and-a-half to two hours during the inspection of approximately 60 or 80 percent of the east garage, which was about 850 feet long and a couple hundred feet wide (T. 53).

Subcontractors were moving forms and setting up decking, along with electricians and plumbers, along with respondent's employees.

Mr. Nunez had roughly 20 some-odd carpenters and a crew of 15 or 18 laborers all working in that general area (T. 53-55).

Mr. Nunez explained that the difference between the levels in the garage was 4 feet, 10 inches, throughout the garage area, and that barricades had been removed because trash was being hauled out of the area; and, in discussing the various levels and based upon the supposition of a person falling, it was Mr. Nunez' opinion that a [*29] person could fall a distance of 4 feet, 10 inches, to approximately 8 feet. Mr. Nunez complained that while he had two trucks hauling trash, he had a problem with subcontractors working in the areas moving the barricades. His employer, Huber Hunt, was moving the trash. (T. 59)

In addition, the rod busters, in moving steel from one deck to the other, would move the barricades to get the steel through the wood decks.

In setting up for a concrete pour, it would not be necessary for barricades after the pour, but it would be necessary two days before the pour when portable barricades would be used; but these portable barricades were not used at every one of the openings (T. 62).

Mr. Ronald J. Abadie, the compliance officer with the U.S. Department of Labor, with a B.S. in Physical Science and J.D. in Law, made an inspection of the Superdome operation where respondent was a prime contractor during the period of December 4 to December 10, 1973. Mr. Abadie observed several open-sided floors more than 6 feet above the adjacent floor level.

He observed open-sided floors at either end of the stadium where the garages were constructed in the neighborhood of 8 feet, and within the stadium [*30] he saw open-sided floors with drops that would be 50 to 80 feet in some instances, along with instances where the open-sided floors were not guarded by standard railings or the equivalent (T. 69).

He felt there is danger of employees falling over the edge of such open-sided floors, and danger of falling materials, creating a hazard to individuals working below (T. 63-70).

Mr. Abadie identified a photograph (Exhibit C-3), which he took near column line 3. This was in the southwest quadrant of the stadium at the 300 level. Mr. Abadie estimated the distance between the edge to the level below to be 20 and 30 feet.

Mr. Abadie identified Exhibit C-6, taken at 11:30 a.m. on December 5, 1973, at the 500 level where there were laborers and carpenters working for respondent Huber Hunt, with a man leaning over the edge attempting to receive something from below. The distance of the lower level would be 18 to 20 feet (T. 77-78).

Mr. Abadie identified Exhibit C-11 as having been taken at 11:08 a.m. on December 5, 1973, facing in a northwesterly direction near column line 17 southwest on the 500 level showing an open-sided floor.

Mr. Abadie identified Exhibit C-12 as having been taken [*31] at 9:04 on December 5 facing in a northerly direction at the 200 level, and of an employee by the name of Frank Miller who was a cement finisher working within 4 or 5 feet from the edge. The distance to the floor of the stadium below was estimated to be 25 to 30 feet. (T. 81)

Exhibit C-13 was identified by Mr. Abadie as having been taken at 8:46 on December 5, 1973, on the east end of the garage facing southerly, demonstrating the type of barrier in the garage level where the drops were generally 8 to 10 feet.

Mr. Abadie was present when Exhibit C-18 was taken, and identified the Exhibit as depicting railings or barriers which were used where he would have expected standard railings to be used. The barrier was portable and would move sideways if leaned against. (T. 83)

Exhibit C-19 was identified by the witness as having been taken by another compliance officer, but the same as he observed, and was taken in the garage area to show the type of railing present at the level above, and that there were vertical reinforcing bars on the area below, which would be a hazard from a fall from the area above (T. 84-86).

With reference to the areas photographed, wherein the open-sided floors [*32] were unguarded by railing or toeboards, in some instances there were persons working below the open-sided floors, and a hazard was present in the event the tools were to go over the side (T. 89-90).

Margaret M. Carroll, compliance officer for the U.S. Department of Labor, with a B.S. Degree from L.S.U. in New Orleans and a Degree in Safety Engineering from Delgado College, with nine years experience as a safety engineer for the Boeing Co., accompanied Mr. Abadie during the course of the inspection. During some portions of the time, her inspection overlapped the inspection of two other compliance officers, Mr. Luc and Mr. Patton. (T. 437-438)

Officer Carroll put together the recommended citation, which the Area Director sent out, and computed the proposed penalties. During the course of their inspection, the compliance officers had as their management representative from respondent Huber Hunt and Nichols, a Mr. Nunez, carpenter, and a Mr. A. J. Norman, who was the employee representative.

Through parts of the Dome itself, the structure and the infield, they had variously Mr. Reckner and Mr. Bassemier as respondent's authorized representative. In the yard area, they had Mr. Reckner [*33] as a representative. (T. 439-441)

Referring to Exhibit C-6, officer Carroll described the Exhibit as that of a carpenter leaning over an unguarded floor, with other employees scattered about the area.

A drop of approximately 20 feet was determined from discussion with a carpenter, based upon consideration of markings on upright girders indicating the heights from the level below and from the walkaround representative.

The carpenter depicted in Exhibit C-6 was wearing no safety devices, nor was there a toeboard or guardrail at the open-sided floor (T. 442-443).

With reference to Exhibit C-11, officer Carroll noted that it was an open-sided floor at the 500 level with a drop to the next level below being 100 feet with no guarding. There were employees working about in the area, primarily carpenters employed by respondent. (T. 444)

Referring to Exhibit C-12, officer Carroll testified that it was taken at the 100 level, with a man standing outside a parapet wall about 3 feet high with no lifeline and no guardrail. The area involved two ledges, one 32 inches with about a 6-inch drop, and the other ledge extending out another 30 inches with a drop of 37 feet, 1 inch, which was [*34] measured by the officers. (T. 445)

Referring to Exhibit C-13, officer Carroll identified the Exhibit as representing the east garage area and indicating an insufficient guardrail placed with an opening or a gap between the guardrail and the edge, with a drop of 14 feet, 6 inches, to the next level. There were employees above and below, and pretty well throughout the garage area. (T. 447)

Referring to Exhibit C-18, officer Carroll noted that the Exhibit represented another barricade in the east garage to show the type of barricade which was being used as being made of substantial lumber but placed upon unsecured stanchions, requiring very little effort to push over the side.

She felt that the barricade itself was a hazard and that it could fall on someone below. She testified that there were employees working below and in the general vicinity of the area. (T. 446-447)

The area below was 14 feet, 6 inches, from the decking.

Referring to Exhibit C-19, officer Carroll described it as reflecting the garage area and depicting an insufficient guardrail which had a top rail, no mid-rail and partial toeboards, and was unsupported for a distance greater than 8 feet with uprights, with [*35] no upright vertical members at 8-foot intervals (T. 447).

She also noted that Exhibit C-19 demonstrated the hazard of projecting rebars (reinforcing rods), noting that the photo also indicated the same height as Exhibit C-18, namely 14 feet, 6 inches, and also demonstrated employees visible in the picture (T. 448).

Officer Carroll noted that Exhibits C-23 and C-24 were taken from different heights and different angles of the ground level and infield of the Dome stadium to show the exposure of Huber Hunt employees to the hazard of falling roof panels, debris and tools from overhead.

There was excavation and pouring of concrete and placement of tracks and some welding going on in the infield, along with portable infield seating (T. 449).

Mr. Floyd S. Bassemier, a carpenter and union steward employed by respondent, was designated by respondent to accompany compliance officers Abadie and Carroll (T. 276-278).

Mr. Reckner, safety engineer for respondent, was to accompany the other two inspectors, Patton and Luc.

Part of Mr. Bassemier's duties was to point out the areas wherein respondent's employees were conducting work activities. Mr. Bassemier identified various heights of the [*36] various levels, namely, the ground of the mezzanine as 12 feet; on the inside concourse from the ground level to the 100 level as 18 to 20 feet; from the ground floor inside to the 100 level as 18 or 20 feet and from the ground level to the 200 level 31 or 32 feet (T. 288).

The 250-foot level was 20 feet.

The 300 level was the next paved level and was 51 or 52 feet from the floor; the 500 level would be 70-odd feet from the floor (T. 290).

Mr. Bassemier also identified respondent's employees as putting in the beam sides and parapet walls and columns in the east garage during the inspection, with respondent's employees working beneath as the beam sides were put up (T. 290-291).

Mr. Bassemier reiterated that he, during the course of the inspection, accompanied the compliance officers and would point out to them areas where respondent's employees were working. He pointed out respondent's workareas for the purposes of photography, along with the workareas of other subcontractors. He also identified Huber Hunt employees for the compliance officers, along with other subcontractors, and he was familiar enough that he could isolate the various areas where respondent's activities were [*37] taking place. (T. 293-294)

Respondent has six various crafts working for it, namely, laborers, cement finishers, iron workers, carpenters and teamsters (T. 307).

Compliance officer William E. Patton, with 21 years experience in the field of safety, appeared on behalf of complainant and identified Exhibit C-26 as a photograph taken from the 100 level to demonstrate the exposure of respondent's employees on the floor of the stadium, along with men riding on crane fenders (T. 322-326).

DISCUSSION

Respondent takes issue through reference to the abovequoted citation, that on the basis of the Superdome construction site being approximately 1/2 mile in circumference covering 27 acres, with up to 50 subcontractors being employed during the life of the project, it alleges a failure of the complainant to sustain his burden of proof by stating the time and circumstances of the exposure of respondent's employees to the hazards of lack of guarding of open-sided floors.

The respondent's position is not tenable for several reasons.

The construction activities, as described by the testimony of all parties, clearly demonstrated that respondent had employees engaged in numerous faceted activities [*38] throughout the stadium and assumes the fact that such activities were of a static nature when the sum total of the evidence shows that there was work activity going on continuously, even during the time of the inspection.

Secondly, all areas of respondent's work activity and respondent's employee positions referenced in the citation were clearly established as respondent's workareas by respondent's designated walkaround representative, as was the work activities of other crafts not connected with the citation.

FINDINGS OF FACT

1. The east garage was approximately 150 feet long and several hundred feet wide and had unguarded open-sided floors, with a drop of from 6 to 10 feet above the floor level, wherein respondent had some 20-odd carpenters and a crew of 15 or 18 laborers all working in the general area.

2. It was necessary for a concrete pour to establish portable barricades two days prior to the pour, but there were times when portable barricades were not used at every one of the openings.

3. Within the stadium, there were open-sided floors with drops of 50 to 80 feet that were not guarded by standard railings or the equivalent, with respondent's employees performing [*39] work below and other employees working above.

4. At the 500 level, there were laborers and carpenters working for respondent, with a carpenter leaning over the edge of an open-sided floor where the drop to the lower level was 18 to 20 feet.

5. At the 200 level, and employee of respondent by the name of Frank Miller, who was a cement finisher, was working within 4 or 5 feet from the edge of an unguarded platform with a drop to the floor of 25 to 30 feet.

6. Cement finishers was one of the crafts employed by respondent; therefore, such employee was exposed to the hazard of falling by the absence of guardrails or causing injury to other of respondent's employees working below.

7. With reference to work activities taking place on opensided floors which were unguarded by railings, there was also lack of toeboard guarding.

8. Respondent's employees were working at various levels above the floor level.

9. Respondent had employees at the same time working in and around the floor area.

10. At the 500 level, with a drop to the next level below being 100 feet, there was no parimeter guarding, and there were carpenter employees of respondent working in the area.

11. At the 100 [*40] level, there was an employee performing work in close proximity to an open-sided floor some 37 feet above ground level.

12. At the east garage area, there was an insufficient temporary guardrail where there were respondent's employees working above and below and throughout the garage area, with a drop of 14 feet, 6 inches.

13. During the time of the inspection, there was excavation and pouring of concrete and placement of tracks and welding going on in the infield, presenting the hazard of respondent's employees performing this work in the infield of being exposed to falling tools and debris, or even persons from overhead heights.

14. Respondent's workareas were specifically demonstrated to the compliance officers. Identification of respondent's employees was made by respondent's walkaround representative who furnished the compliance officers with the various elevations wherein respondent's employees were working, and in particular, identified respondent's employees in the area of the beam side and parapet walls in the east garage where respondent also had employees working beneath the beam sides.

CONCLUSION OF LAW

The citation for serious violation of 29 CFR 1926.500(d)(1) [*41] is affirmed. Complainant, in his assessment of proposed penalty, gave respondent 20 percent credit for good faith, 0 credit for size, and 20 percent credit for history, for a total of 40 percent against the maximum proposed penalty of $1,000.00, resulting in a net proposed penalty of $600.00. Section 17(k) of the Act is quite explicit in holding that a serious violation shall be deemed to exist in a place of employment if there is substantial probability that death or serious physical harm could result from the 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.

The preponderance of the credible, probative and substantial evidence clearly demonstrates that there were numerous specific workareas where respondent's employees were exposed to opensided work platforms with no standard guardrail and toeboards, and that with the nearness of some of the employees, even those employees not of respondent, there was present a hazard dur to their proximity to the [*42] edge of the open-sided floor of falling a substantial distance, which would create a substantial probability that death or serious physical injury could result if such a fall took place, or through the inadvertence of tools or materials going over the open side to strike respondent's employees admittedly working in the infield below. The gravity in such circumstances would be high.

The evidence also further substantiates that the employer, through its representative, was well aware of the numerous instances of the violation which fully corroborated the visual observations at the various workareas pointed out to the compliance officers by the employer representative.

Considering all the criterion of section 17(k), a $600.00 penalty is assessed.

CITATION 1, ITEM 2, ALLEGING SERIOUS VIOLATION

Respondent was charged in citation 1, item 2, of being in serious violation of 29 CFR 1910.132(a), in that:

"protective shields and barriers not provided, used and maintained in a reliable condition wherever it is necessary by reason of hazards of processes or environment encountered in a manner capable of causing injury or impairment in the function of any part of the body through physical [*43] contact; i.e., employees working at levels below the roof, particularly those on the ground level of the dome, exposed to the hazard of tools, debris, and roof sections falling from a maximum height of 276 feet. Protective hard hats do not afford them adequate protection due to the extreme height from which these objects would fall, and the resulting impact therefrom."

An abatement date of February 6, 1974, was established, and a penalty of $600.00 was proposed.

THE STANDARD

"29 CFR 1910.132 General requirements.

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact."

DISCUSSION

Respondent makes the argument much the same as it does in connection with citatioin [*44] 1, item 1, of serious violation, that the Secretary utilized a "shotgun" approach, or quoting that the compliance officer had "good reason to believe" or that the compliance officer "was told" that many employees below the roof area where roofing was taking place were respondent's employees, and that no effort was made to identify specific groups of employees working in specific areas that would be exposed to falling objects.

Respondent's argument is defeated by the evidence supplied by respondent's own employee walkaround representative and its own safety engineer.

The unrebutted preponderance of the substantial, probative and credible evidence establishes the following:

FINDINGS OF FACT

1. Respondent had 350 employees working all over the Dome, with the exception of the roof area (T. 576).

2. Respondent had, during the time of the inspection, approximately six to 12 employees on the rail mats and six to 12 employees on the end zone operations, a portion of which was under the stands at the ground level (T. 571).

3. Compliance officers Patton and Luc Worked as a team, with Mr. Reckner, respondent's safety engineer, pointing out to the compliance officers respondent's [*45] worksites and making identification of respondent's employees (T. 324). Exhibits C-23 and C-24 demonstrate employees, identified by respondent's walkaround representatives, as working on the floor of the Dome (T. 93-94).

5. Compliance officer Abadie observed these people working on the floor, with roofing activities taking place above (T. 195).

6. There was a hazard of employees working at heights dropping tools, which in turn could strike respondent's employees working on the floor of the stadium (T. 198).

7. There were respondent's employees working on the floor of the stadium throughout the days of the inspection, which took from December 4 to December 10, 1973 (T. 199).

8. Tracks were being installed in the stadium floor by respondent's employees, and trucks were hauling material (T. 200; 571).

9. Additional identification of respondent's employees and equipment working on the floor of the Dome was made by Mr. Bassemier, respondent's walkaround representative (T. 201).

10. Respondent's counsel made the admission of respondent's employees working on the floor of the Dome (T. 213).

11. Compliance officer Patton observed persons working above people below while working [*46] his way up to the roof area, along with electrical people working along elevated runways and painters working at various levels of the light ring (T. 356-358).

These work activities presented a hazard of falling objects to the persons working below in the floor of the Dome (T. 60).

12. Compliance officer Luc observed unguarded catwalks used by roofers and electricians carrying handtools, unloading materials from a 6 by 8-foot skip pan onto the catwalk (T. 397-398), with said materials not being lashed in the skip pan (T. 434).

13. There was an area of approximately 20 by 30 feet roped off on the infield (T. 410).

14. There was a hazard of falling tools, equipment or material on persons working below (T. 415-419).

15. Sheets of material, which were approximately 3 feet wide by 9 or 10 feet in length and were unsecured by a cable to the cable hole, which was provided in the roofing material, were being passed up to the roof by two roofing employees (T. 419-429).

16. The customary method in passing roofing material at heights is for the punching of a hole in the roofing material and the attachment of a cable until said roofing material is secured (T. 421).

17. Should the [*47] roofing material be dropped, it assumes a gliding characteristic or a sailing effect and would present a hazard of its unpredictability as to where it would land or as to whether or not it would bounce off girders, so that the barricaded area of 20 by 30 was inadequate (T. 421).

18. Compliance officer Carroll actually observed a panel of undetermined origin "cascading entirely across the stadium area" (T. 549).

19. This roofing operation was taking place approximately 200 to 270 feet above ground level and other levels within the stadium where respondent's employees were working (T. 433).

20. Hardhats were not sufficient protection against falling objects under the evidence of the work activities.

CONCLUSION OF LAW

The citation for serious violation of 29 CFR 1910.132(a) is affirmed. Complainant, in his assessment of proposed penalties, gave respondent 20 percent credit for good faith, 0 credit for size, and 20 percent credit for history, for a total of 40 percent against the maximum proposed penalty of $1,000.00, resulting in a net proposed penalty of $600.00.

Utilizing the criterion of section 17(k) of the Act, previously described herein, the preponderance of the [*48] credible, probative and substantial evidence clearly demonstrates that while the hazards of falling objects were created by other subcontractors on the job working at the roof level and at various other sublevels above respondent's employees working at lower levels and on the Dome floor, respondent's employees were exposed to these hazards. Further, while great discussion was made as to feasibility of non-feasibility of the establishment of a net to catch falling objects, the issue was fairly met by the complainant in demonstrating that the areas barricaded were insufficient, and that falling objects, particularly those such as roofing material which have a sailing characteristic and those objects which might strike a beam or girder, would not of necessity fall into such a small area barricaded by another subcontractor. The feasibility of shields and barriers was effectively discussed as an alternate protective device for protection of respondent's employees working in these various areas, who if subjected to the impact of falling objects would suffer grievous harm, if not death.

Considering all the criterion of section 17(k), a penalty of $600.00 is assessed.

CITATION 1, ITEM [*49] 1, ALLEGING NON-SERIOUS VIOLATION

Citation 1, item 1, for non-serious violation of 29 CFR 1910.94(a)(1)(ii), regarding lack of protection for employees sandblasting, the respondent stipulated that it was in violation, but questioned the appropriateness of a penalty of $80.00.

Considering the criterion of section 17(j) of the Act, although there was the allegation of immediate abatement by way of mitigation made by respondent, no evidence was adduced. It is felt that a penalty of $80.00, considering the size of respondent, the gravity of the violation, the good faith of the employer, and the history of previous violations, is appropriate.

FINDINGS OF FACT

Respondent did not provide its employees, sandblasting at the 200 level of the stadium seating deck area, with a continuous flow airline respirator.

CONCLUSION OF LAW

Citation 1, item 1, for non-serious violation of 29 CFR 1910.94(a)(1)(ii) is affirmed, and a penalty of $80.00 is assessed.

CITATION 1, ITEM 2, ALLEGING NON-SERIOUS VIOLATION

Respondent was charged in citation 1, item 2, of being in non-serious violation of 29 CFR 1910.212(a)(3)(ii), in that:

"the point of operation of a machine whose operation [*50] exposes an employee to injury was not guarded; the guarding device shall be in conformity with any appropriate standards therefore; or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle; i.e., cement finisher using Homelite XL-98 Multi-Purpose Saw Serial No. 32810113, with no guard, to cut [sic] groves in stadium seat deck area on level 200, exposing feet, legs and torso to injury."

An abatement date of February 6, 1974, was established, and a penalty of $30.00 was proposed.

THE STANDARD

"29 CFR 1910.212 General requirements for all machines

(a) Machine guarding --

(3) Point of operation guarding.

(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle."

FINDINGS OF FACT

1. Compliance officer Abadie identified [*51] Exhibit C-5, demonstrating one of respondent's employees operating a cement saw without blade guarding cutting grooves in steps. This operation was also observed by compliance officer Carroll. (T. 104-105; 451)

2. The saw was observed to climb and get away from the operator on several occasions and is powered by the same basic motor that is used for chain saws, which is fairly powerful (T. 451).

3. Respondent's employee was wearing a face shield, gloves and rubber boots (T. 451).

4. Although compliance officer Abadie had never seen a Homelite saw, such as was being used with a guard on it, he was aware of manufacturers and employers adapting guards to comply with the standards (T. 217-218).

5. The purpose of the guard would be to protect the operator from flying particles.

DISCUSSION

The respondent takes a position that as a defense to the charge that a guard could not be used while cutting grooves in the corner of the step, it cites Secretary v. Shea-Ball, a Joint Venture, 10 OSAHRC 719 (1974) and Secretary v. Masonry, Inc., 5 OSAHRC 524 (1973). These cases are clearly distinguishable, in that they involved open-sided floors which had been guarded; in the [*52] one case the guard had been removed temporarily to fill voids with cement; in the other case a railing had been taken down on one side of the platform in order to perform a drilling operation.

Two points mitigate against respondent's position.

One, the standard, in sub-paragraph (ii), states in pertinent part:

". . . The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle." (Emphasis supplied)

Therefore, the standard has the mandatory provision that a guard shall be designed and constructed as to prevent the operator from having any part of his body in the danger zone, which in this case was demonstrated to be that zone wherein the saw was climbing during the course of the operation, rendering the employee exposed to the entire rotating saw blade, no part of which was guarded.

Secondly, the argument is not persuasive that the work could not be done with some form of guarding on the saw, particularly in view of the mandatory nature of the standards that [*53] such protection shall be fabricated if no specific standard applies. It also ignores the alternate method of grooving in corner areas by a method not utilizing a powerful cement saw, such as demonstrated in other testimony of handchipping operations being performed on cement.

CONCLUSION OF LAW

The citation for non-serious violation of 29 CFR 1910.212(a)(3)(ii) is affirmed. Considering the criterion of section 17(j) of the Act, a penalty of $30.00 is assessed.

CITATION 1, ITEM 3, ALLEGING NON-SERIOUS VIOLATION

Respondent was charged in citation 1, item 3, of being in non-serious violation of 29 CFR 1910.213(h)(1), in that: "the sides of the lower exposed portion of the blade on the following radial saw were not guarded: DeWalt radial arm saw #88885, in the Shack near the Office."

An abatement date of February 6, 1974, was established, and a penalty of $30.00 was proposed.

THE STANDARD

"29 CFR 1910.213 Woodworking machinery requirements

(h) Radial saws.

(1) The upper hood shall completely enclose the upper portion of the blade down to a point that will include the end of the saw arbor. . ."

FINDINGS OF FACT

1. Compliance officer Abadie observed a DeWalt [*54] radial saw in the shack near the office of respondent with the closed portion of the blade unguarded (T. 106-107).

2. The saw was not in use during the time he was there, and he saw no one exposed to the hazard of its operation.

3. When a 5 or 6-inch piece of lumber is cut, the half-moon guard on the left side of the blade would be removed, and after the cut the guard would be replaced (T. 300-301).

4. The saw is not used regularly, but only for special-cut material from once a week to once every two weeks (T. 301-302).

5. Only authorized people used the saw, and the saw was equipped with a special remote switch which must be used to activate the saw (T. 311).

6. The saw would be used for special material cuts like 4 by 4 wedges where there would be a need for 200 or 300 pieces of certain-sized cut (T. 301-302).

DISCUSSION

Regarding respondent's argument, citing Secretary v. Smoke-Craft, Inc., 8 OSAHRC 597 (1974), that it cannot be "assumed" that respondent's employees used the saw, the testimony of respondent's walkaround carpenter foreman established that not only he, but other employees of respondent use the saw. True, while the testimony was that the saw was [*55] used infrequently, once every week or so, the evidence went on to show that when used, the saw was used in a very energetic fashion in cutting some 200 or 300 pieces of wedging, where it was necessary to remove the lower guard, which would certainly indicate an abundance of exposure to respondent's employees on the occasions that the saw was used with the guard removed.

CONCLUSION OF LAW

The citation for non-serious violation of 29 CFR 1910.213(h)(1) is affirmed, and a penalty of $30.00 is assessed.

CITATION 1, ITEM 4, ALLEGING NON-SERIOUS VIOLATION

Citation 1, item 4, for non-serious violation of 29 CFR 1910.213(h)(4), disclosed with regard to the previously discussed DeWalt radial saw, that the radial saw "was not installed in such a manner, so as to cause the cutting head to return gently to the starting position when released by the operator.".

An abatement date of February 6, 1974, was established, with no penalty proposed.

THE STANDARD

"29 CFR 1910.213 Woodworking machinery requirements.

(h) Radial saws.

(4) Installation shall be in such a manner that the front end of the unit will be slightly higher than the rear, so as to cause the cutting head to return [*56] gently to the starting position when released by the operator."

FINDINGS OF FACT

1. The radial saw in question was not equipped with a return spring and requires a little pressure to pull it back.

2. It was not installed in such a manner so as to cause the cutting head to return gently to the starting position when released by the operator (T. 107-224; 300-305).

DISCUSSION

Respondent's argument is that if a violation had been proved, the violation is de minimis.

The provisions for de minimis violation are set forth in section 9(a) of the Act:

"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." (Emphasis supplied)

The return or nonreturn of radial arm saw operation, involving the cutting of several hundred wedges, has a direct relation to the safety of the operator, and hence, an immediate relationship to safety and health; therefore, said violation cannot be denominated a de minimis violation.

CONCLUSION OF LAW

The citation of non-serious violation of 29 CFR 1910.213(h)(4) is affirmed, and no penalty is assessed. [*57]

CITATION 1, ITEM 5, ALLEGING NON-SERIOUS VIOLATION

Citation for alleged violation of 29 CFR 1910.244(b), referencing to blast cleaning nozzles not equipped with operating valve or support when not in use, was admitted by the respondent. Respondent denies the appropriateness of the proposed penalty of $30.00.

CONCLUSION OF LAW

The citation for non-serious violation of 29 CFR 1910.244(b) is affirmed.

Considering the criterion of section 17(j), a penalty of $30.00 is assessed.

CITATION 1, ITEM 6, ALLEGING NON-SERIOUS VIOLATION

As a result of the aforesaid inspection, respondent was charged in citation 1, item 6, of being in non-serious violation of 29 CFR 1910.252(a)(2)(iv)(a), in that:

"oxygen cylinder was stored near acetylene and/or other fuel gas cylinder in the following location: oxygen and acetylene stored together in Shed Rack in yard near Office."

An abatement date of February 6, 1974, was established, and no penalty was proposed.

THE STANDARD

"29 CFR 1910.252 Welding, cutting, and brazing.

(a) Installation and operation of oxygen-fuel gas systems for welding and cutting --

(2) Cylinders and containers --

(iv) Oxygen storage.

(a) Oxygen cylinders [*58] shall not be stored near highly combustible material, especially oil and grease; or near reserve stocks of carbide and acetylene or other fuel-gas cylinders, or near any other substance likely to cause or accelerate fire; or in an acetylene generator compartment."

FINDINGS OF FACT

1. Mr. Abadie identified Exhibit C-13 as reflecting oxygen cylinders stored near acetylene in the yard near the office (T. 108).

2. He did not establish whether the cylinders were empty or full or partially empty (T. 109).

3. He never considers a cylinder completely empty (T. 110).

4. This assumption is based upon the training he receives that even an empty cylinder has some gas remaining (T. 225).

5. Acetylene and oxygen, in combination with one another, presents a risk (T. 226).

6. The cylinders were not near any particular employees or any given workarea, but some distance away (T. 228).

DISCUSSION

Respondent makes argument that the compliance officer made no determination as to whether the gas cylinders referred to contained any gas, and that, therefore, failed to prove the exitence of a violation.

It must be pointed out that the provisions of the applicable standard make no distinction [*59] between empty and full bottles, apparently because many so-called "empty" cylinders have some gas within them.

The compliance officer was unable to establish with any precision that the cylinders were stored near any particular employees or any given workarea, but to the contrary, that they were fairly far removed; therefore, the element of exposure was quite minimal.

CONCLUSION OF LAW

The citation for non-serious violation of 29 CFR 1910.252(a)(2)(iv)(a) is affirmed, and no penalty is assessed.

CITATION 1, ITEM 7, ALLEGING NON-SERIOUS VIOLATION

Pursuant to the same inspection, it was alleged that respondent was in violation of 29 CFR 1926.25(a), in that:

"housekeeping was not maintained at the following location: throughout the areas of East and West Garages, 700 level NE, Col. 7-18; Central Plant area on the ground level; 100 Level, Column Line 30, East; 500 level, Col. 2 SW, 500 Level, generally; yard, all around the Dome site, particularly in the NE corner; Bridge and Ramp Areas; debris includes rebar and wood scrap, wood with [*60] nails, paper, electrical cable, scrap metal, garbage, food wraps and cans, pipe, iron beams, rubble also rebars protruding into walkways in East and West Garages, nails in concrete footing of roll-a-way seating sections on infield."

An abatement date of February 6, 1974, was established, and a penalty of $50.00 was proposed.

THE STANDARD

"29 CFR 1926.25 Housekeeping.

(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."

FINDINGS OF FACT

1. There was a pile of debris on the 200 level near column line 20, southwest (Exhibit C-2; T. 111).

2. There were electrical flexible cords on the floor near column line 0 (Exhibit C-8; T. 111-112).

3. There were bent rebars and wood at column line 11 on the 400 level (Exhibit C-14; T. 112).

4. There was wood and debris lying about the east garage (Exhibit C-16; T. 112-113).

5. There was wood with nails and debris in the east garage (Exhibit C-13; T. 113-114).

6. The metal rebars were acknowledged by the respondent's walkaround representative [*61] to have been on the floor for six months in one particular area (T. 230).

7. The area was identified by respondent's employee designated as respondent's walkaround representative (T. 231).

8. Compliance officer Carroll was advised by employer's walkaround representative that a pile of rebars and trash had been lying around for a year and-a-half (T. 521; 528).

9. The area referred to by the respondent's walkaround representative was the central plant area on the ground level (T. 532).

10. The area of the flex cords lying on the floor was identified as a workarea of the respondent by respondent's walkaround representative (T. 239).

11. Respondent's employees were observed walking in the area of the flex cords on the floor, which presented a tripping hazard (T. 240).

12. There were respondent's employees working alongside other subcontractor employees in the east garage area, where wood with nails was located (T. 441).

13. Respondent's walkaround representative identified material depicted in Exhibit C-2 as consisting of some re-useable material and some throwaway material (T. 279-281).

14. Such material would stay approximately two to three days and then be removed to [*62] another area (T. 283).

15. Respondent's walkaround representative identified Exhibit C-8 as depicting electrical cords which were used by respondent's employees as a source of energy for their skill saws (T. 282-284).

16. Respondent's employees would work around the debris, depicted by Exhibit C-2, within a foot or 2 (T. 286-287).

17. Respondent's employees put in the rebars, depicted in Exhibit C-14, and would be working around the rebars while they were piled (T. 286).

18. Food wrappers, cans, bottles and papers were around the floor for a period of up to a week (T. 287-288).

19. The stacked material, depicted by Exhibit C-2, represented a hazard of being knocked down to the next level by vehicular traffic (T. 297).

20. The debris depicted in Exhibit C-2 could have been there for one to two days (T. 299).

21. At the location of the seats of the stadium seating area at the 700 level, there were electrical extensions and pieces of metal throughout the area, with respondent's employees walking around, over and through the items (Exhibit C-27-28; T. 329-330).

22. At the west garage area, P-4 level, a piece of folded debris was lying near the rebar area (Exhibit C-29; [*63] T. 331). Other debris was lying in the area near the rebars.

23. On the ground level of the garage, there were numerous lumber stacks, some with nails, some without, in which men were walking and working (Exhibit C-29; T. 333).

DISCUSSION

Respondent makes two defenses to the alleged housekeeping violation; namely, one, that some of the areas involved were actually "work in progress" areas and that respondent had a 40-man cleanup crew operating at all times (T. 229-230), and secondly, that the Judge should strike the testimony of compliance officer Carroll regarding the length of time the debris was allowed to remain at the worksite, which information was obtained by her from respondent's duly designated walkaround representative.

Ms. Carroll's testimony was not uncorroborated testimony upon which a citation would fail (Secretary v. Milprint, Inc., 4 OSAHRC 1207 (RC 1973)).

To the contrary, however, Mr. Bassemier, who was under Subpoena by the Government in his testimony in chief, discussed the positions, location, and to some extent the hazard, of reinforcement bars and debris stacked alongside a runway which could be tipped over to areas below. The Act specifically [*64] provides for a respondent's designated walkaround representative to aid in the inspection. To aid in the inspection is to give information to the compliance officers to enable them to complete their task with dispatch, efficiency and to properly identify the areas being inspected as to areas of responsibility and employee exposure. Mr. Bassemier fulfilled these obligations. His testimony was in response to the test of direct and cross-examination.

Mr. Bassemier, being an employee of respondent, was more particularly available to the respondent than he was to the Government. Mr. Bassemier was the duly designated agent of respondent, and, therefore, his admissions were imputable to the respondent.

Respondent cannot object to additional information obtained by the compliance officer, which respondent failed to develop on his own cross-examination of the witness but rather through a rigorous cross-examination of the compliance officer.

Respondent did not avail himself of a motion to recall the witness for further cross-examination. Based on the foregoing, the Writer reaffirms his denial of respondent's motion to strike.

While respondent made some effort at proper housekeeping, [*65] the preponderance of the substantial and credible evidence clearly demonstrates that its efforts were half-hearted or inadequate at best.

CONCLUSION OF LAW

The citation for non-serious violation of 29 CFR 1926.25(a) is affirmed, and a penalty of $50.00 is assessed.

CITATION 1, ITEM 8, ALLEGING NON-SERIOUS VIOLATION

Citation 1, item 8, for non-serious violation of 29 CFR 1926.28(a), alleges that:

"the employer did not require the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where the need exists for using such equipment to reduce the hazards to employees; i.e., P-3 Level East Garage eye protection either not provided or not worn while chipping concrete from forms and pipes; Cement Finisher on 200 Level Stadium Seat deck area not provided with foot and leg protection against masonry saw (Homelite Multi-Purpose XL-98, Serial No. 32810118), which was also not guarded: Carpenters on 600 level Col. 0, NE quadrant, carrying and handling steel concrete forms weighing 50-60 pounds each, with no protective footwear."

An abatement date of February 6, 1974, was established, and a penalty of $30.00 was [*66] proposed.

THE STANDARD

"29 CFR 1926.28 Personal protective equipment.

(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."

FINDINGS OF FACT

1. A cement finisher utilizing a cement saw was not provided with foot and leg protection (Exhibit C-5; T. 116).

2. Carpenters on the 600 level were carrying and handling steel concrete forms weighing 50 and 60 pounds with no protective footgear (T. 116).

3. The cement finisher was wearing rubber boots, not safety-toed shoes; nor was he wearing leggings to protect him from concrete chips or the climbing and loss of control of the cement saw (T. 451).

4. Respondent's carpenters were engaged in placing steel members for the concrete floor and handling girders weighing 50 or 60 pounds and were not wearing safety shoes or metatarsal guards (T. 452).

5. In the east garage, respondent's employees were chipping concrete from forms and pipes and were not wearing eye protection, having their goggles worn over the [*67] top of their hardhat, with one employee with no eye protection at all (T. 452-453).

DISCUSSION

Respondent takes issues with the compliance officer's evaluation of the citation and proposed penalty, on the basis of her alleged negative reaction to the employee walkaround representatives not correcting other employees failing to wear eye protection.

The complaince officer's taking into account of an employer's, or for that matter, an employee's attitude towards safety, is within the scope of her authority in making a determination as to a respondent's efforts toward good faith and compliance with the Act, and certainly would not prejudice the issuance of any citation.

CONCLUSION OF LAW

The citation for non-serious violation of 29 CFR 1926.28(a) is affirmed.

Considering the criterion of section 17(j), a penalty of $30.00 is assessed.

CITATION 1, ITEM 9, ALLEGING NON-SERIOUS VIOLATION

Citation 1, item 9, alleges non-serious violation of 29 CFR 1926.51(a)(5), in that:

"a sanitary container for the unused single service cups and a receptacle for disposing of the used cups not provided; East and West Garages, Yard, Bridge, Ramps, Ground Level through Roof Areas."

An [*68] abatement date of February 6, 1974, was established, and no penalty was proposed.

THE STANDARD

"29 CFR 1926.51 Sanitation.

(a) Potable water.

(5) Where single service cups (to be used but once) are supplied, both a sanitary container for the unused cups and a receptacle for disposing of the used cups shall be provided."

FINDING OF FACT

Compliance officer Abadie observed at various places throughout the standium that there was no sanitary container or usused single service cups; nor was there a receptacle for disposing of the used cups (T. 116-117).

DISCUSSION

Respondent's argument that violation of the foregoing standard has no reasonable relationship to health or safety is untenable, in that the standard as written is to insure that employees at places of employment have an adequate supply of portable water, and that there be supplied a sanitary container for unused single service cups and a receptacle for the disposition of used cups.

Respondent was charged with not providing sanitary containers for unused cups, which certainly would have an effect and direct relationship to the health of an employee.

The authority as cited by respondent is inappropriate, in [*69] that it directs itself to the proper promulgation and adoption of standards, where in the instant case we have a promulgated standard which has not been challenged.

CONCLUSION OF LAW

The citation for non-serious violation of 29 CFR 1926.51(a)(5) is affirmed, and no penalty is assessed.

CITATION 1, ITEM 10, ALLEGING NON-SERIOUS VIOLATION

Citation 1, item 10, alleges non-serious violation of 29 CFR 1926.250(b)(1), in that:

"materials were stored within 10 feet of the exterior wall at the following location of the building under construction. Wall did not extend above the top of the material stored: P-4 level, East Garage, form lumber; SE. [sic] quadrand 200 level, pile of steel members at guard rail, pushing rails (unsecured) over floor on one end, exposing employees below to hazard of falling objects and rolling barricades."

An abatement date of February 6, 1974, was established, and a penalty of $30.00 was proposed.

THE STANDARD

"29 CFR 1926.250 General requirements for storage.

(b) Material storage.

(1) Material stored inside buildings under construction shall not be placed within 6 feet of any hoistway or inside floor openings, nor within 10 feet of an exterior [*70] wall which does not extend above the top of the material stored."

FINDINGS OF FACT

1. Compliance officer Abadie observed a number of areas within the Dome standium and within the east garage, where in some cases lumber, and in other cases steel members, were piled and were within 10 feet of the dropoff from the wall (T. 116-117).

2. Compliance officer Abadie could not specifically remember seeing an employee below, but saw a number of employees there (T. 253-255).

3. Compliance officer Abadie saw employees working below, and based his judgment on employee exposure on the fact that he was taken to an area in which respondent would have been performing work.

DISCUSSION

While the compliance officer could not specifically identify a particular employee of respondent exposed to the danger of the falling of stacked material, the fact that the area was described to him as being a workplace of Huber Hunt employees, and that there were employees below the stacked material exposed to the hazard of falling, precludes the vacation of the citation for lack of specific identification on part of the compliance officer.

CONCLUSION OF LAW

Citation 1, item 10, alleging violation [*71] of 29 CFR 19236.250(b)(1), is affirmed, and a penalty of $30.00 is assessed.

CITATION 1, ITEM 11, ALLEGING NON-SERIOUS VIOLATION

Citation 1, item 11, alleges non-serious violation of 29 CFR 1926.250(b)(8)(i), in that:

"used lumber stacked at the following locations did not have all nails removed: P-4 level, East Garage - form lumber; Bridge, East Side, form lumber; West Garage Ground Level, Co., line 51, forms with nails exposed."

THE STANDARD

"29 CFR 1926.250 General requirements for storage.

(b) Material storage.

(8) Lumber:

(i) Used lumber shall have all nails withdrawn before stacking."

FINDINGS OF FACT

1. Compliance officer Abadie identified Exhibit C-20 and C-21 as exhibiting lumber which did not have nails removed, and which he personally observed (T. 119-120).

2. There were 350 of respondent's employees working throughout the Dome area, with the exception of the roof (T. 576).

3. Respondent's workareas were pointed out to the compliance officere by respondent's designated walkaround representative, who is familiar with the workareas (T. 292).

4. Respondent has six various crafts working for it, namely, laborers, cement finishers, iron workers, [*72] carpenters and teamsters (T. 307).

DISCUSSION

Respondent's argument of nonexposure fails in light of the foregoing findings of fact, in that the various crafts, including carpenters, were engaged in work throughout the Dome area; and, the observation of wood with protruding nails in an area specifically designated as respondent's workarea is sufficient to demdonstrate exposure to the hazard of protruding nails.

CONCLUSION OF LAW

Citation 1, item 11, for violation of 29 CFR 1926.250(b)(8)(i) is affirmed, and a ponalty of $30.00 is assessed.

CITATION 1, ITEM 12, ALLEGING NON-SERIOUS VIOLATION

Citation 1, item 12, alleges respondent in non-serious violation of 29 CFR 1926.252(b), in that:

"debris being dropped through holes in the floor (and being pushed over the open sided floors) without the use of chutes, the area into which the material is dropped not completely enclosed with barricades not less than 42" high and not less than 6' back from the projected edge of the opening above. Signs warning of the hazard of failing materials shall be posted at each level. Removal shall not be permitted in this lower area until debris handling ceases above; those dumpster areas [*73] on the Ground level of the Stadium infield."

An abatement date of February 6, 1974, was established, and a penalty of $30.00 was proposed.

THE STANDARD

"29 CFR 1926.252 Disposal of waste materials.

(b) When debris is dropped through holes in the floor without the use of chutes, the area onto which the material is dropped shall be completely enclosed with barricades not less than 42 inches high and not less than 6 feet back from the projected edge of the opening above. Sings warning of the hazard of falling materials shall be posted at each level. Removal shall not be permitted in this lower area until debris handling ceases above."

FINDINGS OF FACT

1. Compliance officer Abadie observed debris, used lumber and trash being dropped through holes in the floor without the use of chutes.

2. Materials of various sorts throughout the inspection were being dropped through holes and down to the area below (T. 121).

3. There were holes in upper levels where materials would be dropped to the level below from where the holes were to the stadium floor level (T. 122).

4. The materials consisted of wood, bent rebars and parts of cut reinforcing bars (T. 123). The area into [*74] which the material dropped was not enclosed with barricades (T. 123). There were no signs warning employees that it was a debris drop-area (T. 123-124).

5. The material would be dropped over the edge or through a hole in the floor without the use of a chute (T. 124).

6. There were people working on the floor of the stadium (T. 122).

7. There was a dumpster receptacle below a drop-area (T. 258), but compliance officer Abadie could not testify as to whether or not there was a barricade around the receptacle (T.258).

8. He did not see a single person exposed to the hazard (T. 260).

9. There were areas where there were holes through which trash was swept into or dumped into (T. 456).

10. There were employees at the ground level in the area of the dumpster, and no chute was utilized (T. 457).

11. The area where the trash dumpster was located as indequately barricaded (T. 457).

12. Respondent was only cited for those instances of not having a chute where there was over a 20-foot distance between levels (T. 514).

13. There were eight instances over the five-day inspection period that observation was made of persons using the floor hole or open-sided floor (T. 515).

DISCUSSION [*75]

Respondent timely made objection to testimony of materials being dropped outside the exterior walls, on the grounds that respondent was not charged with violation of 29 CFR 1926.252(a). Respondent's objection is sustained, and the findings on this item are based on the testimony of debris being dropped through holes in the floor without the use of chutes into areas inadequately barricaded and failing to have warning signs.

CONCLUSION OF LAW

Citation 1, item 12, for non-serious violation of 29 CFR 1926.252(b) is affirmed, and a penalty of $30.00 is assessed.

CITATION 1, ITEM 13, ALLEGING NON-SERIOUS VIOLATION

Respondent does not contest alleged violation of 29 CFR 1926.402(a)(5). The citation is affirmed, and no penalty is assessed.

CITATION 1, ITEM 14, ALLEGING NON-SERIOUS VIOLATION

Respondent does not contest alleged non-serious violation of 29 CFR 1926.450(a)(9). The citation is affirmed, and no penalty is assessed.

CITATION 1, ITEM 15, ALLEGING NON-SERIOUS VIOLATION

Respondent was charged with alleged violation of 29 CFR 1926.451(a)(5), in that:

"Guardrails not 2" X 4", or the equivalent, approximately 42" high, with a midrail. Supports shall be at [*76] intervals not to exceed 8 feet, as required; level 400, column line 3 NE where scaffold rails were 18-20 feet in length, spliced and not of adequate strength."

An abatement date of February 6, 1974, was established, and a penalty of $30.00 was proposed.

THE STANDARD

"29 CFR 1926.451 Scaffolding.

(a) General requirements.

(5) Guardrails shall be 2- X 4-inches, or the equivalent, approximately 42 inches high, with a midrail, when required. Supports shall be at intervals not to exceed 8 feet. Toeboards shall be a minimum of 4 inches in height."

FINDINGS OF FACT

1. A saffold was being utilized across a ramp, with the scafford being approximately 20 feet long. It had one top rail made by 2 by 4 material that was spliced with no mid-railing or toeboard (T. 385).

2. One end of the scaffold was approximately 4 feet from ground level at one end to 12 feet at the other end (T. 385-386). Two men working on the scaffold were removing forms and passing material to men below (T. 386). The height of 12 feet was not measured, but estimated based upon the height of the compliance officer being 6 feet and having to look up (T. 386).

3. The scaffold was at the 400 level, northeast, [*77] on bent line 3 (T. 339).

4. Compliance officer Patton estimated one end of the scaffold 6 feet off the floor and the other end 12 feet off the floor without measurement (T. 339).

5. The employees were identified as respondent's employees by Mr. Reckner, respondent's walkaround representative.

DISCUSSION

Respondent makes the argument that guardrails are required by the standard only when the scaffold is more than 10 feet above floor, referring to 29 CFR 1926.451(a)(4).

A reading of the foregoing standard requires that guardrails and toeboards shall be installed on all open sides and ends of platforms more than 6 feet above the ground, not 10 feet.

Further argument is made as to the estimation of the compliance officer of the 12-foot height of one end of the scaffold, which he based upon his own height and observation of men working beneath the scaffold, arriving at his judgment. While the Writer agrees with respondent that precise measurements should be made at all times in any instance where compliance officers are contemplating issuing a citation involving measurements and distances, it cannot be said in this case that the proof adduced by the two compliance officers, [*78] based upon a reasonable basis of comparing the height of the scaffold to the height of the persons working beneath, is so remote so as to not constitute substantial evidence. Further, no rebuttal evidence was offered by respondent to contradict the evidence given by the compliance officers.

CONCLUSION OF LAW

The citation for non-serious violation of 29 CFR 1926.451(a)(5) is affirmed, and a penalty of $30.00 is assessed.

CITATION 1, ITEM 16, ALLEGING NON-SERIOUS VIOLATION

Respondent was charged with alleged violation of 29 CFR 1926.500(b)(1), in that:

"Floor openings at the following locations were not guarded by standard railings or covers and were not equipped with toeboards: P-2 level, Poydras Street side East Garage, no standard railing; North side, East Garage, Line 24; 100 level escalator openings not guarded; escalator at Column Line 30 East, pit 6" X 15' on 200 level; open floor partially decked over with hole 12" X 18' West Side; on East Side, hole is 24" X 12' long; Column 3 SW -300 level, escalator opening, no guards; openings at 400 level, Col. 10 SE, not guarded; also in several instances throughout the 400 level; 500 level, col. 16 SW, hole around trash [*79] chute partially covered, leaving hole 3"-5"X38" along walkway; Promenade, trash chute opening 6"X6' long around trash chute; 700 level col. 7-18 NE, no mid-rails at two duct openings and the existing top rail inadequate and insecure; 700 level SE floor opening at duct opening, no midrail and no toeboard with small pieces of wood and rebars around edge of opening; West Garage floor openings not guarded on P-4 level; Poydras Street side first tier floor opening not guarded by standard rail; North side Column 24, 100 elevation, escalator openings not guarded."

An abatement date of February 6, 1974, was established, and a penalty of $45.00 was proposed.

THE STANDARD

"29 CFR 1926.500 Guardrails, handrails, and covers.

(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."

FINDINGS OF FACT

1. Compliance officer Abadie observed floor openings that were not guarded by standard railings or covers or equipped with toeboards at the east garage, line 24, and [*80] on the 300 level, column line 3, southwest (T. 129-130).

2. A number of these openings were sufficiently large enough that an employee could fall through (T. 130).

3. There was a floor opening at the 100 level near column line 10, southeast, approximately 8 or 9 feet wide, with a depth of approximately 25 to 30 feet (T. 133; 263-267; Exhibit C-1).

4. There were two unguarded areas at the 700 level, which were insufficiently guarded duct openings (Exhibit C-25; T. 336-337).

DISCUSSION

Respondent makes the argument that guardrails were not required at the floor opening depicted in Exhibit C-1, as there was work in progress. No evidence was offered by respondent to support this allegation, and the combined testimony of the various compliance officers clearly demonstrates by the preponderance of the credible evidence that floor holes being unguarded was a general condition throughout the workplace, and in fact some of the floor holes were being utilized as a means of debris disposal, while others were completely unguarded or inadequately guarded. Further, with respondent having approximately 340 employees working throughout the premises there can be no question that the floor [*81] holes unguarded, or inadequately guarded floor holes, presented a hazard to these same employees.

CONCLUSION OF LAW

The citation for non-serious violation of 29 CFR 1926.500(b)(1) is affirmed, and a penalty of $45.00 is assessed.

CITATION 1, ITEM 17, ALLEGING NON-SERIOUS VIOLATION

Respondent was charged with alleged violation of 29 CFR 1926.500(d)(2), in that:

"runways not guarded by a standard railing, or the equivalent on all open sides 6 feet or more above floor or ground level. Wherever tools, machine parts, or materials are likely to be used on the runway, a toeboard shall be provided on each exposed side; i.e., runway at highest point over center of dome infield (approximate height 276 feet), no guarding to prevent fall to dome floor."

An abatement date of February 6, 1974, was established, and a penalty of $50.00 was proposed.

THE STANDARD

"29 CFR 1926.500 Guardrails, handrails, and covers.

(d) Guarding of open-sided floors, platforms, and runways.

(2) Runways shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f) of this section, on all open sides, 4 feet or more above floor or ground level. Wherever tools, machine [*82] parts, or materials are likely to be used on the runway, a toeboard shall also be provided on each exposed side."

FINDINGS OF FACT

1. Compliance officers Luc and Patton observed an unguarded runway or catwalk at the 275 level in the center of the Dome (T. 386-387).

2. The catwalk was open-ended (T. 388). There was no rail or guard at the end of the catwalk (T. 390).

3. An electrical contractor's employees, roofers and other workmen in the Superdome used the catwalk (T. 397).

4. The workmen were carrying tool pouches (T. 397).

5. Workmen were unloading a skip pan, approximately 6 feet wide, 8-10 feet long and 10-14 inches high, to hoist material from the ground level to the workarea (T. 398).

6. Material from the skip pan was placed on the catwalk (T. 399).

7. Respondent had approximately 340 employees working throughout the Dome, with a portion of them working at the floor level.

8. There was a hazard that should material fall from the open-ended platform, it would strike and severly injure, if not kill, persons at a lower level.

9. The barricaded area below the skip pan of 20 feet by 30 feet was inadequate to protect persons below from falling objects from [*83] the catwalk at the ceiling of the Dome (T. 414-415; 418-419).

DISCUSSION

Respondent takes a position that none of its employees were exposed to the hazard of falling from the aforementioned unguarded runways, which is contrary to previous findings that there were respondent's employees doing cement work and installing a track on the floor of the stadium as part of some approximately 340 employees working throughout the stadium.

Respondent argues that the Secretary made no showing as to the location of the runway or catwalk, when the evidence from the compliance officers was that it was over the center of the floor area. The Secretary, by the preponderance of the evidence, proved the violation of the open-sided runway or catwalk and proved the existence of hazard to respondent's employees working below.

CONCLUSION OF LAW

The citation for non-serious violation of 29 CFR 1926.500(d)(2) is affirmed, and a penalty of $50.00 is assessed.

CITATION 1, ITEM 18, ALLEGING NON-SERIOUS VIOLATION

Respondent does not contest the alleged violation of 29 CFR 1926.601(b)(8).

CONCLUSION OF LAW

The citation for violation of 29 CFR 1926.601(b)(8) is affirmed, and a penalty of [*84] $65.00 is assessed.

ORDER

Based upon the above findings of fact and conclusions of law, it is hereby ORDERED that:

1. Citation 1, item 1, alleging serious violation of 29 CFR 1926.500(d)(1), is affirmed, and penalty of $600.00 is assessed.

2. Citation 1, item 2, alleging serious violation of 29 CFR 1910.132(a), is affirmed, and a penalty of $600.00 is assessed.

3. Citation 1, item 1, alleging non-serious violation of 29 CFR 1910.94(a)(1)(ii), is affirmed, and a penalty of $80.00 is assessed.

4. Citation 1, item 2, alleging non-serious violation of 29 CFR 1910.212(a)(3)(ii), is affirmed, and a penalty of $30.00 is assessed.

5. Citation 1, item 3, alleging non-serious violation of 29 CFR 1910.213(h)(1), is affirmed, and a penalty of $30.00 is assessed.

6. Citation 1, item 4, alleging non-serious violation of 29 CFR 1910.213(h)(4), is affirmed, and no penalty is assessed.

7. Citation 1, item 5, alleging non-serious violation of 29 CFR 1910.244(b), is affirmed, and a penalty of $30.00 is assessed.

8. Citation 1, item 6, alleging non-serious violation of 29 CFR 1910.252(a)(2)(iv)(a), is affirmed, and no penalty is assessed.

9. Citation 1, item 7, alleging non-serious [*85] violation of 29 CFR 1926.25(a), is affirmed, and a penalty of $50.00 is assessed.

10. Citation 1, item 8, alleging non-serious violation of 29 CFR 1926.28(a), is affirmed, and a penalty of $30.00 is assessed.

11. Citation 1, item 9, alleging non-serious violation of 29 CFR 1926.51(a)(5), is affirmed, and no penalty is assessed.

12. Citation 1, item 10, alleging non-serious violation of 29 CFR 1926.250(b)(1), is affirmed, and a penalty of $30.00 is assessed.

13. Citation 1, item 11, alleging non-serious violation of 29 CFR 1926.250(b)(8)(i), is affirmed, and a penalty of $30.00 is assessed.

14. Citation 1, item 12, alleging non-serious violation of 29 CFR 1926.252(b), is affirmed, and a penalty of $30.00 is assessed.

15. Citation 1, item 13, alleging non-serious violation of 29 CFR 1926.402(a)(5), is affirmed, and no penalty is assessed.

16. Citation 1, item 14, alleging non-serious violation of 29 CFR 1926.450(a)(9), is affirmed, and no penalty is assessed.

17. Citation 1, item 15, alleging non-serious violation of 29 CFR 1926.451(a)(5), is affirmed, and a penalty of $30.00 is assessed.

18. Citation 1, item 16, alleging non-serious violation of 29 CFR 1926.500(b)(1), [*86] is affirmed, and a penalty of $45.00 is assessed.

19. Citation 1, item 17, alleging non-serious violation of 29 CFR 1926.500(d)(2), is affirmed, and a penalty of $50.00 is assessed.

20. Citation 1, item 18, alleging non-serious violation of 29 CFR 1926.601(b)(8), is affirmed, and a penalty of $65.00 is assessed.

Paul E. Dixon, Judge,OSAHRC

MAR 17 1975