RIVERVIEW STEEL ERECTORS, INC.

OSHRC Docket No. 76-392

Occupational Safety and Health Review Commission

April 27, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

William Condon, President, RIVERVIEW STEEL ERECTORS, INC., for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision [*2] is accorded the significance of an unreviewed Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The citation should be vacated. Judge Gold properly concluded that the cited standard, 29 C.F.R. 1926,500(d)(1), does not apply to respondent's steel erection activities. Secretary v. The Ashton Company, Inc., OSAHRC Docket No. 5111, January 26, 1976. He erred, however, in amending the charge sua sponte to allege noncompliance with 29 C.F.R. 1926.750(b)(1)(iii) and affirming the citation as so amended. Because of the unique nature of citations under the Act, such amendments, made after the filing of a notice of contest and in this case after a trial on the merits, are inherently prejudicial and, therefore, should be prohibited, except in the most extraordinary of circumstances. Secretary v. Warnel Corporation, OSAHRC Docket No. 4537, March 31, 1976 (dissenting opinion).

Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I [*3] disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges. Since my colleagues do not address any of the matters covered in Judge Gold's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

APPENDIX A

DECISION AND ORDER

Jack Fisher, For Complainant

William Condon, pro se, For Respondent

Gold, Judge:

This case arose under Section 10(c) of the Occupational Safety and Health Act, 29 U.S.C. 659(c), and was heard on April 30, 1976, at New York City.

On January 12, 1976, Respondent was cited for an alleged serious violation of the standard at 29 C.F.R. 1926.500(d)(1), and a penalty of $700 was proposed by the Secretary of Labor.

Respondent conceded facts establishing Commission jurisdiction over the parties and subject matter by not denying Paragraphs II and III of the complaint. Commission Rule 33(b)(2). Thus, Respondent admitted that it is a New York corporation engaged in steel erection; that many of the materials and supplies used by Respondent were manufactured outside the state of New York; and that Respondent [*4] was and is engaged in a business affecting commerce within the meaning of Sections 3(3) and 3(5) of the Act.

29 U.S.C. 654(a)(2) requires that each employer comply with occupational safety and health standards promulgated under the Act.

Pursuant to 29 U.S.C. 666(b), an employer shall be assessed a civil penalty of up to $1,000 for each serious violation.

Section 666(c) provides that an employer may be assessed a civil penalty of up to $1,000 for each nonserious violation.

29 U.S.C. 666(j) declares that "a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."

Civil penalties shall be imposed only after considering the size of the business of the employer, the gravity of the violation, the good faith of the employer, and the history of previous violations. 29 U.S.C. 666(i).

The [*5] cited standard states:

Subpart M -- Floor and Wall Openings, and Stairways

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.

On December 23, 1975, James Whitney, a compliance officer of the Department of Labor, inspected as site at Ashburton Avenue, Yonkers, New York, where a ramp-type open parking garage was under construction (Tr. 7, 21).

He testified that he observed a Mr. Ricca, an employee of Respondent, at the third floor level of the building, no more than twelve inches from the edge, sweeping snow from an open-sided floor (Tr. 7-9); that the third floor level where this employee stood measured twenty-two feet above the [*6] ground (Tr. 8); that the open side where he was sweeping had no standard railing, cable, rope, or other means of protection (Tr. 8).

Mr. Whitney asserted that the steel erection was complete in this area, the metal deck having been welded in place (Tr. 8); that Mr. Lindner, Respondent's foreman at the site, and a third employee of Respondent were then working 10-15 feet from the open side of the third floor; that the metal deck on which they were working was very slippery because of the snow, and even after it was swept there was a residue of snow and water (Tr. 9); that after he asked Mr. Ricca if he did not think it was dangerous "he just shrugged his shoulders, but he did go down and get a safety belt upon the direction of Mr. Lindner" (Tr. 10).

The metal deck was tacked in place and Respondent's employees were installing shear connectors, which are welded to structural steel, thereby securing the metal deck (Tr. 15); the concrete had not been poured (Tr. 15).

William Condon, General Superintendent for Respondent, declared in his testimony that another contractor, W. J. Long, had put the sheets in their final location and tacked the four corners; that Respondent secured the [*7] sheets by welding 3/4-inch by 3-inch shear connectors at the end and through all intermediate structural members; that the final phase of steel erection takes place when the shear connectors are welded, and then the metal deck is turned over to the general contractor (Tr. 25); that Respondent had two employees at the site: John Lidner, who was the foreman, and Frank Ricca, who was shop steward and also a foreman; that both are ironworkers; that the total time they worked at the third flood level was twelve hours (Tr. 26); that they worked on the third floor during December 23 and 24, 1975, finishing the job there on the 24th (Tr. 26-27).

The record shows that on December 23, 1975, an employee was about a foot from the edge of an unguarded open-sided floor twenty-two feet above ground level. He was within view of Respondent's foreman on the job.

Respondent contends that since its employees were engaging in steel erection at the site, its work is covered by steel standards, and not by Section 1926.550(d)(1). I agree. The metal deck was still in the steel erection stage and was a temporary floor prior to being converted into a permanent, cement floor for eventual use as a parking [*8] garage. 29 C.F.R. 1910.5(c)(1) declares that if a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable. In the instant case the standard at Section 1926.750(b)(1)(iii) preempts 1926.500(d)(1). The applicable standard provides:

Subpart R -- Steel Erection

1926.750 Flooring requirements.

* * *

(b) Temporary flooring -- skeleton steel construction in tiered buildings. (1)

* * *

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

An employee of Respondent was exposed to the hazard of falling off the edge of the third floor level; the hazardous condition and the employee's exposure were within view of Respondent's foreman on the job; and the foreman's knowledge of the hazardous condition and of the exposure thereto of Respondent's employee are imputed to Respondent who, as a steel [*9] erector, was capable of correcting the hazard by installing the 1/2-inch wire rope around the periphery of the metal-decked floor, thereby complying with the requirements of the standard at 1926.750(b)(1)(iii). I find that on this record Respondent was in violation of that standard. However, that standard was not named in the citation or complaint. Counsel for the Secretary mentioned it, in his argument at the close of trial but did not move to amend the citation.

In my opinion it is appropriate at this time to amend the citation and complaint to conform to the evidence by invoking Fed.R.Civ.P. 15(b) and I do so amend by substituting for the present charge the allegation that Respondent violated 29 C.F.R. 1926.750(b)(1)(iii) in that an employee of Respondent was at the third floor level, twenty-two feet above ground, close to the edge of a temporary, metal-decked floor which had no safety railing of 1/2-inch wire rope or equal around the periphery of the floor.

Respondent protested at trial that 1926.750 applied to its work, rather than 1926.500 (Tr. 1, 33-34, 38). Respondent asserted that "we should comply under the 750 code" (Tr. 17); it stated its awareness of the "safety [*10] wire" requirement (Tr. 34), and knew that such wire had been installed at the first floor level by the general contractor (Tr. 17, 20, 34). In these circumstances, Respondent was not prejudiced in its preparation or presentation of a defense on the merits. Actually, Respondent has made no claim that there was any railing or other protection on the open-sided floor, but contends that it was the duty of the general contractor, W.J. Long, to install a wire (Tr. 35). Respondent offers no basis for this defense other than the bald assertion that the general contractor carries this responsibility. The contention is meritless. Respondent offered no evidence that it made a demand upon the general contractor to put up a wire. In any event, Respondent was, by skill and license, capable of installing the wire. This employer unreasonably took no action to remedy the hazard to which it exposed its employee. The record establishes that Respondent violated 29 U.S.C. 654(a)(2) by noncompliance with 29 C.F.R. 1926.750(b)(1)(iii), and it is so concluded.

There is a substantial probability that death or serious physical harm could result from a fall of twenty-two feet to the ground due [*11] to this violation. Respondent, through its foreman at the site, knew of the presence of the violative condition. On the basis of this record it is found that the violation was of a serious nature.

The Secretary proposes a $700 penalty. Death or serious physical harm could occur if an employee fell, but in my opinion the probability of a fall was rather low. Only one employee was exposed to danger. Respondent operates a small business, with twelve to fifteen employees constituting a work force, but if Respondent is handling two jobs at one time, it may employ as many as thirty (Tr. 35). There is no evidence of prior violations. The inspector conceded that Respondent cooperated fully with him (Tr. 19-20). The company conducts job safety meetings (Tr. 29-32). Respondent feels that the proposed penalty is too high. I agree. Taking into account the factors listed in 29 U.S.C. 666(i), it is my finding that $400 is an appropriate penalty.

Accordingly, IT IS ORDERED that the serious citation of January 12, 1976, as amended, be affirmed, and that a penalty of $400 be assessed.

ABRAHAM GOLD, Judge, OSHRC

Dated: July 22, 1976

Boston, Massachusetts