Docket No. 606

MARTIN IRON WORKS, INC.

OSHRC Docket No. 606

Occupational Safety and Health Review Commission

July 1, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Garl Watkins, dated December 22, 1972, is before this Commission for review pursuant to 29 U.S.C. § 661(i) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § § 651 et seq., 84 Stat. 1590). Judge Watkins vacated the citation and proposed penalty on the grounds that the complainant failed to prove that any employees of the respondent were exposed to the hazard.

We recently held in Secretary v. Hawkins Construction Co., 654(a)(2) when none of its own employees were exposed to the noncompliant conditions. We therefore affirm the decision of Judge Watkins in this case on the basis of the reasoning contained in Hawkins Construction Co.

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER, dissenting: In this case respondent, a subcontractor on a construction site, created the violation in question when it removed an 8' X 4' plate from a stairway platform at a point about 170 feet above the ground and failed to provide a guardrail around the exposed [*2] area, in violation of 29 CFR § 1926.500(d)(1). Respondent, which had the hoisting equipment and "know-how" to lift the 320-lb. plate, did so near "quitting time" one day as a volunteer, at the request of a second subcontractor, the American Elevator Company, which wanted the plate removed so that channeling work could be done the next day. At no time were respondent's employees exposed to the hazard. During a routine inspection the next day, however, a Department of Labor compliance officer noted the hazard and the exposure of employees of a third subcontractor, Rosendahl, to it. At the compliance officer's suggestion, respondent promptly abated the hazard by replacing the plate on the platform.

My colleagues conclude that respondent has breached no duty under section 5(a) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., hereinafter "the Act"), and therefor affirm the Judge's vacation of the citation and penalty.

I would reverse the Judge's decision. Complainant argues that it is only logical that an employer on the jobsite who has created a violation of a standard should be subject to citation when employees of another employer on the [*3] site are exposed to the resulting hazard, even though the violator's own employees may not be exposed. n1 This result is supported not only by logic, but also by the purpose of the Act and complainant's broad powers under section 9(a) of the Act. The predominant purpose of the Act is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions." Section 2(b) of the Act. Effective enforcement of the Act is expressly contemplated. Section 2(b)(10) of the Act.

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n1 See discussion of the instant case in 62 Geo. L.J. 1483, 1495-96 (1974) which suggests the same conclusion as a matter of common sense.

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Section 9(a) of the Act reads as follows:

If, upon inspection or investigation, the Secretary or his authorized representative believes than an employer has violated a requirement of section 5 of this Act, of any standard, rule or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, he shall with [*4] reasonable promptness issue a citation to the employer. . . . [Emphasis added.]

Section 9(a) of the Act is obviously broader than section 5(a). n2 It permits a citation for violation of a standard even when there is no violation of section 5(a). If this were not so, the use of the word "standard" in section 9(a) would be redundant because of the reference to the same term in section 5. Therefore, even accepting arguendo my colleagues' view that there is no violation under section 5(a) of the Act unless the employees of an employer are exposed, complainant may nevertheless cite the same employer under section 9(a) for violation of a standard under the circumstances described below.

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n2 Section 5(a) Each employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

(2) shall comply with occupational safety and health standards promulgated under this Act.

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Only in this way can the Secretary issue a practical order for abatement in the present case, an order more practical than one issued an employer who did not create the hazard, but whose immediate employees were exposed to the hazard. Reading section 9(a) to give complainant the power to fashion an effective order under section 9(a) to effect prompt abatement, regardless of the employment relationship between the employer in violation and the employees exposed, is clearly in furtherance of the remedial purpose of the Act and the related objective of its effective enforcement.

That the term "employer" is used both in section 5(a) and in section 9(a) does not necessarily mean the term has the same dimensions in each section. See N.L.R.B. v. Bel-Air Mart, Inc., No. 73-1826 (4th Cir., May 16, 1974), BNA Daily Labor Report No. 113, p. D-1 (June 11, 1974). Again, even accepting arguendo the majority's restrictive reading of the term "employer" in section 5, the term as used in section 9(a) appears to include any person meeting the statutory definition of "employer" in section 3(5). n3 That definition only indicates full Constitutional coverage under the Commerce [*6] Clause by the use of the "affecting commerce" test. It does not delineate any employment relationship that would derogate from the fulfillment of the statutory purpose. n4 To find that respondent is an employer subject to citation under section 9(a), it is sufficient that respondent, a subcontractor on a construction site, removed the plate at the request of a second subcontractor at the site, creating a violation of a standard to which employees of a third subcontractor were exposed.

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n3 Section 3(5) reads as follows: The term "employer" means a person engaged in a business affecting commerce who has employees, but does not include the United States or any State or political subdivision of a State.

n4 Compare, for example, the detailed definitions of "employers" and "employees" covered by the National Labor Relations Act (29 U.S.C. § 152(2) and (3)).

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The Judge speculated concerning the possible tort liability of respondent to a trespasser or an employee of Rosendahl who might fall in the open area. It [*7] certainly would be ironic if such liability existed, and yet complainant were unable to fashion an abatement order running to respondent. This irony strongly suggests a Congressional purpose consonant with my interpretation of section 9(a).

Of course, this respondent is entitled to sympathetic consideration because it is a "volunteer" and promptly abated the hazard at the suggestion of the compliance officer. These circumstances should be considered in any penalty assessment.

[The Judge's decision referred to herein follows]

WATKINS, JUDGE, OSAHRC: The question in this case is whether on February 2, 1972, Martin Iron Works, Inc. was in violation of a Construction Standard adopted under the Occupational Safety and Health Act of 1970 (29 USCA 651, et seq. ), by leaving unguarded an 8 by 4 foot opening immediately adjacent to the top landing of a 170 foot high stairway on the silo tower of a Ralston-Purina manufacturing plant being built on the outskirts of Reno, Nevada.

Respondent, a subcontractor, claims there was no violation because none of its employees were exposed to any hazard created. None were in or near the area after a steel plate was lifted to make the opening, [*8] and there was no reason for any of its employees to be there. Respondent also claims the condition was not dangerous.

The Secretary contends Respondent did not ". . . comply with occupational safety and health standards promulgated . . ." under Sec 5(a)(2) of the Act, and was therefore in violation because at least four employees of another subcontractor were working in the area at the time of the alleged violation. They, and other employees, would normally walk through a doorway to or from the stair landing in the course of their duties; and while it was not in direct line, they would be within 6 or 7 feet of the edge of the hole at the time.

The Secretary also claims Martin's employees might have been in the area and affected by the alleged violation either before or after the OSHA inspection. The evidence simply fails to support any such contention.

The Citation for serious violation was issued as the result of an inspection on the afternoon of February 2, 1972, and alleges:

An inspection of a workplace under your ownership, operation, or control located at 1055 East Gray Road, Sparks, Nevada, on February 2, 1972, discussed and described as follows miscellaneous [*9] iron work on Ralston-Purina Plant has been conducted. On the basis of the inspection it is alleged that you have violated the Occupational Safety and Health Act of 1970, 29 USC 651, in the following respects:

Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected.

29 CFR 1926.500(d)(1) as adopted by 29 CFR 1910.12 -- Employer failed to provide standard railing as required at open side of stairway landing east side at 175 foot level of silo. 4 foot by 8 foot steel deck plate left out, no guard rails provided. Shaftway for elevator on this side of landing no obstructions to ground level from this height. Standards require top rail, midrail and toeboard. -- Immediately.

The standard in question is 29 CFR 1926.500(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 equivalant, 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.

Some point is made by the Respondent [*10] that the condition was actually a floor opening rather than an open-sided floor. The actual condition could have been either. There was no guard, and the guard required for either a floor opening or an open-sided floor is the same.

Both the Citation and Notification of Proposed Penalty were issued February 23, 1972. The latter alleges the penalty in the amount of $600 and states as follows:

On the 23rd day of February, 1972, a Citation(s) was(were) issued to you in accordance with the provisions of section 9(a) of the Occupational Safety and Health Act of 1970 (84 Stat. 1601; 29 USC 651, et seq. ) hereinafter referred to as the Act. You were thus notified of certain alleged violations of the Act, as specified in that Citation(s).

YOU ARE HEREBY NOTIFIED that pursuant to the provisions of section 10(a) of the Act, the penalties set forth below is/are being proposed, based on the above Citation(s):

SERIOUS VIOLATIONS -- Proposed Penalty

Citation No. 1 -- $600.00

After the Complaint and Answer were filed, the case came on for hearing at Reno, Nevada, on June 13, 1972. Iron Workers Union Local 118, named a party as Authorized Employee Representative, did not file an appearance [*11] or appear at the hearing, and no other party appeared. In addition to stipulation of counsel, there is adequate evidence of notification of the named additional party and of all other prospective parties, of all steps of the proceeding.

Disposition will first be made of the Secretary's contention that employees of Martin might have been in danger of falling through the floor opening because if the Compliance officer had not arrived, the hole might not have been covered and the employees might have come back to do the only part of Martin's job remaining in that area, the installation of a railing on another platform inside the door opening to the platform in question. The fact is this work was scheduled to be -- and was done -- later, probably a month after the date of the inspection.

The Secretary also states in his brief: "Even on February 2nd, an employee engaged by Martin Iron Works, Inc., who was working in another area of the tower, might have come to the area of danger to pick up scrap material, to search for a mislaid tool, or to survey the platform where the guard rail remained to be installed (Tolleson, Tr. 78)." This is pure speculation.

The facts are that: [*12]

1. No employee or officer of Martin was in or near the area while the hazard existed and

2. They would not have been there unless;

a. An officer, superintendent or foreman went to an area on the premises where he had no reason to go or,

b. Another employee of Martin went to an area on the premises where he had no right to go.

This conclusion is evident on a more detailed analysis of the evidence.

The Ralston-Purina Plant in question is a very large reinforced concrete building. It is one story high except at the southeast corner where a tower rises to a height of 200 feet. About 8 feet inside the south wall of that tower is another reinforced concrete wall. It has no openings except for doorways in a vertical line. The top doorway is at the "248 foot level," about 148 feet from the ground. The next lower door is at the "232 foot level." Succeeding doorways downward are at approximately the same intervals to the ground.

Thus there was a tower within a tower, with a relatively narrow space between its south wall -- in which are the doorways mentioned -- and the south outside wall of the tower. The larger, inner area is called a "silo" and houses manufacturing [*13] machinery. The narrow space, eight feet wide and perhaps twenty feet long, serves as a stairwell for steel steps and landings, and as an elevator shaft.

The job of Martin included installation of a stairway and landings in the narrow space. The stairway went up in zigzag fashion. From each landing in front of a door -- except for the top and bottom -- one would proceed to the west up (or down as the case might be) to a landing located inside and against the west wall of the stairwell; thence easterly to the next landing in front of the door above or below the one from which he had started. From the bottom the stairway went only upward; and from the top landing -- here involved -- it went only downward.

Outside each doorway the landing was slightly larger than would normally be necessary because it also serves as a place to enter or leave a small personnel elevator. The size of the elevator is not in the record. The Judge rode up in it with one other person and it was crowded. The highest point reached by the elevator is the 232 foot level. The steel plate on the top landing, which when removed forms the basis of this citation, now supports the electric motor, drums, and [*14] other equipment necessary for the operation of the elevator.

None of this machinery had been installed at the time of the inspection and issuance of the citation. The shaft below the top landing goes to the basement floor; counsel stipulated 170 to 175 feet. Evidence indicates the basement floor is 21 feet below ground level, indicating a total distance of 169 feet.

As the installation of the stairway, handrails and landings proceeded upward, the evidence indicates a scaffolding was erected just below the place where the men exposed were working, so that any fall would have been not more than 4 feet. The workmen also wore life belts.

On February 1, 1972, work on the stairway, its handrails and the landings was completed to the top. The easterly plate of those on the landing was put in place but not welded, as were the others, because it was known it would have to be removed later for the installation of structural supporting channels made necessary by the weight of the elevator machinery to be installed.

There was some uncertainty as to which subcontractor would do the "channeling." Martin's foreman expected the American Elevator Company to do it. About a month later [*15] when the supporting channels had not been installed, employees of Martin did the work.

Near "quitting time" on February 1, 1972, the foreman of American Elevator Company asked Respondent's foreman if he would remove the plate which had been laid on the easterly part of the platform so that the channeling work could be done the next day. The plate weights 320 lbs. and Martin's equipment for hoisting and moving it was in place. At the direction of the foreman, two of Martin's employees lifted the plate and pulled it back so it was lying on the one next to it.

Routine inspection by the Secretary's Compliance Officer, H. Lee Lawrence, was the next day. He discovered the hole in the floor sometime in the afternoon. At his suggestion and before the end of the day, Martin's foreman, Emmett J. Tolleson, had the plate returned to its position covering the hole.

At the time Mr. Lawrence was at the level of the top platform, four men were working within the inner silo. All were employees of another subcontractor named Rosendahl, who installed the manufacturing equipment in the building. Another workman came out the door and proceeded down the stairs, passing Lawrence. He [*16] was not a Martin employee.

The only work remaining for Martin to do at the level in question was the installation of a handrail on a walkway inside the silo. This was scheduled to be done, and was done, sometime after February 3rd. It may be inferred from Tolleson's testimony it was about a month later. Finding the structural channeling for necessary support of the elevator motor and other equipment had not been installed by the elevator subcontractor, he had the work done by his own men at that time.

The doorway leading out to the platform and in which no door had been installed, measured 3 feet by 7 feet. The distance from the east edge of the door (and away from the stairs) to the edge of the hole left by the removal of the metal plate was 5 feet 6 inches. The edge of the top step of the stairway is 4 feet 6 inches west of the doorway, and thus 7 feet 6 inches from its east edge, and 13 feet from the edge of the hole. The area was well lighted by daylight. There was no guard of any kind around the opening. Concrete walks abutted it on three sides.

There can be no doubt of the following:

1. An unguarded hole measuring 8 feet by 4 feet, through which a man might fall [*17] 170 feet, presents a dangerous condition to people around it. This would include those using the doorway and going to and from the top of the stairs, even though they might be no closer than 6 feet to 8 feet from the edge of the hole.

2. Employees of another subcontractor' were working the area and were exposed to the hazard.

3. Employees of Martin were not; nor did they have any reason to be there.

The Act provides:

Sec. 5. (a) Each employer --

(2) shall comply with occupational safety and health standards promulgated under this Act.

(b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.

The question is whether Sec. 5(a)(2) enlarges the group of people to whom an employer owes a duty under the Act; or whether it simply requires an employer to observe specific standards with respect to the same people -- his employees. [*18]

The Secretary in his Brief states:

But, even assuming that no employee engaged by or in a contractual relationship with Martin Iron Works, Inc., was in danger of falling from the floor opening Martin Iron Works, Inc., still violated the Construction Safety Standard for which it was cited since Respondent created the hazard and workmen engaged by the Rosendahl Corporation were also in danger of falling.

Counsel for Martin cite persuasive authorities in support of its position and also states:

. . . since an employer does not furnish employment to people who are working for another employer it is ridiculous to assert that the promulgated standards impose any obligation upon an employer to persons not employed by him.

The Act itself provides no ready answer. In Sec. 3, the definition section, may be found the following;

(4) The term "person" means one or more individuals, partnerships, associations, corporations, business trusts, legal representatives, or any organized group of persons.

(5) The term "employer" means a person engaged in a business affecting commerce who has employees, but does not include the United States or any State or political subdivision of a State. [*19]

(6) The term "employee" means an employee of an employer who is employed in a business of his employer which affects commerce.

In Sec. 2 Congress stated its purpose to . . . provide for the general welfare, to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources --

(1) by encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards at their places of employment, and to stimulate employers and employees to institute new and to perfect existing programs for providing safe and healthful working conditions;

(2) by providing that employers and employees have separate but dependent responsibilities and rights with respect to achieving safe and healthful working conditions;

From the language of the statute itself, the meaning of Sec. 5(a)(2) as applied to the facts of this case is neither clear nor unambiguous. It is subject to construction, and we therefore may go behind the language of the statute to determine the intent of Congress.

It is indicated in the legislative history that the "General Duty Clause" (Sec. 5(a)(1)) was enacted because [*20] Congress recognized that specific safety standards would take time to promulgate, and that in any event they could not cover every conceivable job situation. Senate Report 91-1282, 91st Congress, 2nd Session, Legislative History, p 149-50, explains the purpose of the "General Duty Clause" as follows:

GENERAL DUTY

The committee recognizes that precise standards to cover every conceivable situation will not always exist. This legislation would be seriously deficient if any employee were killed or seriously injured on the job simply because there was no specific standard applicable to recognized hazard which could result in such misfortune. Therefore, to cover such circumstances the committee has included a requirement to the effect that employers are to furnish employment and places of employment which are free from recognized hazards to the health and safety of their employees.

The committee has concluded that such a provision is based on sound and reasonable policy. Under principles of common law, individuals are obliged to refrain from actions which cause harm to others. Statutes usually increase but sometime modify this duty. The committee believes that [*21] employers are equally bound by this general and common duty to bring no adverse effects to the life and health of their employees throughout the course of their employment. Employers have primary control of the work environment and should insure that it is safe and healthful. Section 5(a), in providing that employers must furnish employment 'which is free from recognized hazards so as to provide safe and healthful working conditions', merely restates that each employer shall furnish this degree of care.

There is a long-established statutory precedent in both Federal and State law to require employers to provide a safe and healthful place of employment. Over 36 states have provisions of this type, and at least three Federal laws contain similar clauses, including the Walsh-Healy Public Contracts Act, the Service Contract Act, and the Longshoremen's and Harbor Workers' Act.

The general duty clause in this bill would not be a general substitute for reliance on standards, but would simply enable the Secretary to insure the protection of employees who are working under special circumstances for which no standard has yet been adopted (emphasis added).

Representative Steiger, one [*22] of the authors of the bill, stated on December 17, 1970:

The conference bill takes the approach of this house to the general duty requirement that an employer maintain a safe and healthful working environment. The conference-reported bill recognized the need for such a provision where there is no existing specific standard applicable to a given situation.

Respondent cites the definition of "employee" under the particular standard in question (29 CFR 1926.32(i)) and either Counsel could argue with persuasion that this section is authority for his position.

(i) "Employee" means every laborer or mechanic under the Act regardless of the contractual relationship which may be alleged to exist between the laborer and mechanic and the contractor or subcontractor who engaged him.

The standards here involved were adopted from those promulgated under the Contract Work Hours and Safety Standards Act (83 Stat. 96; 40 USCA 333). Interestingly neither party cites 29 CFR 1926.16(b) which provides:

By contracting for full performance of a contract subject to section 107 of the Act, the prime contractor assumes all obligations prescribed as employer obligations under the standards [*23] contained in this part, whether or not he subcontracts any part of the work.

No implication is intended that this provision provides an answer to any question in this case. It may however, point to the area wherein the duties lie.

The section of the Act under scrutiny is in derogation of common law. Under the widely accepted general rule, it must be strictly construed "In favor of those against whom such statutes may be employed." 50 Am Jur. Stat., Sec. 402, p. 425.

A review of the authorities shows some deviation from this generally accepted rule. This is especially evident in modern cases construing certain provisions of "welfare" and "social" legislation. This liberalization -- if such it be -- does not aid the position of the Secretary in this case however, because it is generally confined to the area of benefits due those under the terms of the legislation. Sutherland- Statutory Construction Sec. 6203.

Thus under an Industrial Insurance Statute providing liberal construction by its terms, a workman is still held to "strict proof" of his right to compensation. D'Amico v. Conquista (Wash. 1946) 167 Pacific 2d 157.

Insofar as proving a right [*24] to receive benefits, creation of any new right, or imposition of any new statutory duty; strict construction still prevails.

STATUTES IN DEROGATION OF THE COMMON LAW

Where it is claimed that a statute imposes a duty or burden, or establishes a right or benefit which was not recognized by the common law, the statute will be given a strict interpretation to avoid the change asserted. This rule of statutory interpretation has received wide adoption, and is employed where there is reasonable doubt whether the change in the common law alleged to have been created by the statute was intended to apply to a particular situation or circumstance. If a change in the common law is to be effected, the legislative intent to do so must be clearly and plainly expressed. A statute may take away a common law right, but there is always a presumption that the legislature has no such intention.

The rule of strict interpretation of statutes in derogation of the common law has been recognized as a useful method in avoiding the possibility of a doubtful statutory duty. Sutherland- Statutory Construction Sec. 6201

A head note of Reeder v. Lehigh Valley Coal Co. (Pa. 1911) 80 A. 1121 is a [*25] more concise statement of the principal holding in the case than any language of the opinion;

When the Legislature takes a step in advance of the common law, and imposes additional burdens on an employer to meet the necessities of modern industrial growth, the new duties should be so clearly set forth as to leave no doubt as to the legislative intention, and the burden is on a party asserting a failure to perform a statutory duty to point to the statute which expressly imposes it.

We have here involved the creation of a new statutory duty to provide a safe place for employees to work. Under Sec. 5. (a)(2) failure to comply with occupational safety and health standards with respect to Respondent's own employees, creates a violation or breach of this duty. Nowhere in the Act, reading it as a whole, is there a clue as to whether this violation may be in connection with the employees of someone else.

The legislative history provides no clear answer, but seems to show several things.

(1) The major number of violations of the Act would be in failure to comply with specific standards.

(2) The general duty clause was added to cover situations where no specific standard is [*26] violated.

(3) No consideration was given to Sec. 5. (a)(2) enlarging the class of people to whom an employee owes the new duty. And

(4) Although not stated, it is implied throughout, that an employer can be in violation only with respect to his own employees.

The statue creates duties of the employer new to the law. Whether the statute is construed strictly or liberally, there is no express provision creating a duty on Respondent in this case to the employees of Rosendahl. There was therefore no violation by Respondent.

The conclusion reached might be explained more clearly if approached from a different viewpoint. Since the hazard was great, and since it was created by Respondent, it is difficult to prevent theories of common law liability from creeping into our thinking. It is difficult not to reason: "Martin removed the plate and left a dangerous hole unguarded. It should be responsible for its acts." Why not?

If a trespasser had wandered onto the premises and fallen down the hole, it is certain a jury question would be presented to determine whether Respondent was liable for setting a trap for him or for wanton and wilful misconduct. In such an action, contributory [*27] negligence would be no defense.

If an employee of Rosendahl had fallen, Respondent would be held negligent as a matter of law -- and liable, absent a finding of contributory negligence. (and also absent a provision of an Industrial Insurance law barring action).

But no such issues are present in this case. Here the question is whether Respondent failed to provide employees a safe place to work by violating a specific safety standard. Whose employees? The answer to that question determines whether there was a violation, because the standard is inapplicable if Respondent's duties under it are only with respect to its own employees.

Except for the possible element of knowledge or notice necessary to a serious violation, it makes no difference whether the Respondent's foreman and his employees created the hazard. Any violation of law in this case is in Respondent's providing this area for its employees to work; or allowing its employees to work there.

Martin had no control, or right to control the employees of anybody else. It could have prevented its own employees only -- not others -- from working in the area. It did. On February 2nd all were on the ground floor. [*28] So far as the record shows and except for replacing the plate -- all stayed on the ground for a month.

Respondent makes the additional contention that its employees who removed the floor plate actually did so ". . . at the effective direction of another subcontractor, American Elevator Co." and were thus loaned to, or borrowed by American. The basic test as to whether a servant is borrowed by another is whether the "borrower" has, or has the right, of direction and control of his activities (53 Am Jur. 2d, Master and Servant Sec 226, p 101). The record is entirely devoid of evidence from which a conclusion of the existence of this right could be drawn.

In his Brief, the Secretary points up with persuasion the "dire need" for effective enforcement of safety regulations in the construction industry. He quotes from the Legislative History of the Contract Work Hours Standards Act (supra), excerpts showing that according to the records of the National Safety Council the accident frequency rate in the construction industry is almost twice that of the all-industry rate. The severity of injuries is also greater in the construction industry. Finally, statistics show that [*29] more than 20% of the workers killed each year and more than 11% of the workers disabled each year in on-the-job accidents, are in the construction industry.

The Secretary also states,

Almost all construction projects have many subcontractors engaged in performing their specialty at the job. Workmen at the jobsite are continually subjected to safety hazards created by a contractor or subcontractor other than the one by whom they were engaged. It would be an anomalous situation, indeed, if a contractor or subcontractor on a construction site could create a condition hazardous to the safety or health of workmen on the construction site and yet be beyond the pale of enforcement because he removed his employees from the vicinity of the hazard which he created.

We do not question the accuracy of the figures or the seriousness of the problem. It is sufficient to say it cannot be solved nor any way alleviated by this case. This Commission can do no more than decide each case on the facts and law before it; nor can it decide what citation should be issued to which employers for any conditions which appeared to be violations.

If there are gaps in coverage or complexities of enforcement, [*30] it may be the solution can only come through legislation enacted within applicable Constitutional constraints. It cannot come from an abortive construction of existing law.

The Complaint must be dismissed, and the Citation and Proposed Penalty vacated.

Based upon the entire record in this case, the undersigned makes the following

FINDINGS OF FACT

1. Respondent Martin Iron Works, Inc. is a Nevada Corporation with its principal place of buisness at 530 East Fourth Street, Reno, Nevada.

2. Respondent was a subcontractor in the erection of certain structural components, including stairways, handrailings, and other miscellaneous steel work at a place of work located at 1055 East Gray Road, Sparks, Nevada, known as the Ralston-Purina Plant.

3. The Ralston-Purina Plant is a poured concrete single story warehouse and manufacturing structure with a silo tower approximately 200 feet in height located in the south-east corner of the structure.

4. At a level approximately 170 feet above the basement floor of the silo tower, a Compliance Officer of the Occupational Safety and Health Administration, on February 2, 1972, observed a steel plate measuring approximately 4 feet [*31] by 8 feet to be out of its intended place and as a result of this observation, a Citation for a Serious Violation was issued under the Act and regulations promulgated pursuant thereto. Respondent filed a Notice of Contest and pleadings were joined, all in accordance with the regulations of the Commission. There was no appearance by any other party.

5. The steel deck plate which measures 4 feet by 8 feet by 5/16 inches and weighs 320 pounds. constitutes a portion of the floor over a shaft on which a manlift elevator motor rests. It and one other plate which constitute the rest of the floor over the elevator shaft are located at the same level as a stairway landing platform, and appear to be a continuation of the landing. It is the highest such platform within the tower and there are no further stairs proceeding upward at that point. A person proceeding up the stairs would be headed in an easterly direction while on the last flight and would step onto the stairway landing platform and then proceed 4 feet 6 inches still in an easterly direction to the westerly edge of a doorway, and if such person were following the usual and intended traffic pattern, he would turn left [*32] through a 3 foot wide and 7 foot high doorway. The steel deck plate, when in place, commences at a point 5 feet 6 inches from the east edge of the doorway. The stairway platform measures 7 feet 6 inches from the top step to the easterly edge of the doorway.

6. The steel deck plate was installed by employees of Respondent who were members of the International Association of Bridge, Structural and Ornamental Iron Workers Local 118. The installation was completed on February 1, 1972. At approximately quitting time that day a representative of another subcontractor, American Elevator Company, requested Respondent's foreman to have the plate removed so that structural supporting channels could be installed by American Elevator. Two iron workers of Respondent removed the steel plate by lifting it and winching it in a westerly direction until it rested on the adjacent plate. At the time, there were no obstructions from the floor opening to the basement of the building.

7. After installation of the steel deck plate on February 1, 1972, there was no further work for Respondent at that level in the tower or anywhere else in that general vicinity. On February 2, and 3, 1972, [*33] and for a period of at least several days thereafter, there were no employees of Respondent in the area of the out-of-place steel deck plate at any time, except that after the Compliance Officer advised Respondent's foreman of the alleged violation, employees of Respondent reinstalled the deck plate on the morning of February 3. There was no other reason for any of Respondent's employees to be there at any time mentioned after February 1, 1972.

8. The location of the steel deck plate is at the eastern most side of the tower and when in place, the plat butts against concrete walls on three sides.

9. No employees of Respondent were at any time endangered by the steel deck plate being out of place.

10. Respondent averages 80 employees on an annual basis and from five to fourteen were on the job at the Ralston-Purina Plant. It has a gross annual income varying between $2,000,000 and $3,000,000. Its capital investment exceeds $500,000 but is less that $1,000,000. Over the past five years Respondent's net profits have ranged from 1.9% to 3.4% of its gross annual income.

11. Respondent is the recipient of a safety award made by the American Institute of Steel in 1965, 1967, 1969 [*34] and 1970. Awards for 1971 have not been made. Two of its employees believe Respondent's operations generally to be consistent with sound safety practices.

12. The Citation in this case is the first ever issued against Martin Iron Works by the Occupational Safety and Health Administration.

Based upon the foregoing FINDINGS OF FACT, and upon all facts admitted, stipulated, or uncontraverted; the undersigned now makes the following

CONCLUSIONS OF LAW

1. At all times pertinent, Respondent was engaged in construction work as defined in 29 CFR 1910.12(b) and was engaged in business effecting commerce within the meaning of Sec. 3(5) of the Occupational Safety and Health Act of 1970 (29 USCA 651, et seq ). The Occupational Safety and Health Review Commission has jurisdiction of the parties and the subject matter of this case.

2. As an employer under the Act and viewed in the light of all the facts of this case; Respondent owed no duty under Sec. 5(a)(2), and consequently under 29 CFR 1926.500(d)(1), to any person other than its own employees. Respondent was not in violation of the Occupational Safety and Health Act of 1970 and is entitled to an order dismissing the [*35] Complaint and vacating the Citation and Proposed Penalty.

ORDER

Based upon the foregoing, it is hereby

ORDERED that the Citation for Serious Violation issued February 23, 1972 to Respondent citing the fact of an inspection of a work place at 1055 East Gray Road, Sparks, Nevada, on February 2, 1972; and the Proposed Penalty in the amount of $600 be and the same hereby are vacated; it is further

ORDERED that the Complaint herein, based upon the above Citation and Proposed Penalty be, and the same hereby is dismissed.