SECRETARY OF LABOR,

Complainant,

v.

NOVAK & COMPANY, INC.,

Respondent.

OSHRC Docket No. 80-2946-S

DECISION

Before: ROWLAND, Chairman; CLEARY and BUCKLEY,[[*]] Commissioner.

BY THE COMMISSION:

Following an April, 1980 inspection, the Secretary cited Novak & Company for an alleged violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678, because Novak employees were exposed to two unguarded floor holes.  The questions before the Commission are whether the Secretary established that the open floor holes presented a hazard to Novak employees and whether Novak failed to take reasonable measures to protect its employees and the alleged hazard.  For the following reasons, we affirm Judge David G. Oringer's decision to vacate the citation.

I

Novak was a plumbing subcontractor at a New York City worksite.  During an OSHA inspection, the compliance officer saw two of Novak's employees walk within three feet of the unguarded floor holes.  According to the compliance officer, the Novak employees were required to walk past these floor openings on their way to the stairs which they used in order to reach the basement of the building where they were working.  If an employer were to fall into the floor holes, he would drop seven feet from the first level to the basement.

Testimony established that the floor holes were the general contractor's responsibility and that as a union plumbing subcontractor, Novak would not be allowed to erect standard railings or move lumber to cover the floor holes.   The standard practice at the workplace when a subcontractor saw an unsafe condition that it did not control was for the subcontractor to inform the general contractor of the condition.  While Novak had complained to the general contractor about many conditions at the site, it had never complained specifically about the uncovered floor holes.

Testimony differed as to how long the floor holes were uncovered.  The compliance officer testified that he had been told by the general contractor's superintendent that the floor holes had been uncovered for two weeks.   However, Ronald Novak, the Vice-President of Novak and Company, testified that the floor holes had been covered when he was at the worksite approximately ten days before the inspection.  The Secretary presented no evidence as to whether Novak's foreman, or other supervisory employees, were aware of the open floor holes.

The Secretary now argues that Novak should have advised the general contractor that the floor holes were guarded or, if the condition remained unchanged, have remove its employees from the hazardous area.  Because the Novak employees were exposed to the unguarded floor holes, the Secretary cited Novak for violating 29 C.F.R. § 1926.550(b)(1).[[1]]

II

To prove any violation of the Act, the Secretary must establish that the employer knew or, with reasonable diligence, could have known of the violative condition.  Prestressed Systems Inc., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1981 CCH OSHD ¶ 25,358 (No. 16147, 1981); General Electric Co., 81 OSAHRC 42/A2, 9 BNA OSHC 1772, 1981 CCH OSHD ¶ 25,345 (No. 13732, 1981).  In this case, the Secretary has not presented sufficient evidence to establish that Novak knew of the open floor holes.

The Secretary did not establish that any of Novak's supervisory employees knew of the unguarded floor holes.  Therefore, knowledge must be base upon a showing that Novak could have known of the violative condition with the exercise of reasonable diligence.  The compliance officer's testimony established that the floor holes were open at the time of the inspection and that Novak employees were exposed to the openings.[[2]]  The Secretary also presented hearsay testimony that the floor holes had been unguarded for about two weeks.  This testimony was in conflict with that of Novak's Vice-President who said that the floor holes had been covered when he visited the worksite ten days before the inspection.   Even assuming, however, that the floor holes were open for two weeks, there is no evidence that Novak employees were exposed to the unguarded floor openings for those two weeks.

Novak presented testimony that the worksite was constantly changing and that the route which Novak employees would use to get to their work areas changed from day to day and even from hour to hour.  For example, on the day of the inspection, Novak employees had to walk around lumber and reinforcing rods in order to get to their work areas.  This circuitous route brought them near the uncovered floor openings.  The Secretary admits that if the lumber and rods had not been there, the Novak employees would have had no reason to pass by the floor openings.

The critical point is that the Secretary never established how long Novak employees had used a route which took them by the floor openings.  The record indicated that Novak was a conscientious employer who complained to the general contractor when its employees were exposed to unsafe conditions. [[3]]  Given the concern Novak has shown its employees in the past and the testimony that conditions at the worksite and the routes Novak employees would use were constantly changing, it is more likely than not that the particular route used by Novak on the day of the inspection was merely temporary.  There is no evidence to indicate that Novak employees were exposed to the floor holes for an amount of time which could have made complaints to the general contractor feasible.  There is certainly no evidence to establish that Novak employees were exposed to the open floor holes for ten days or two weeks as the Secretary seems to assume.

Since the Secretary has not established how long Novak employees had passed by the open floor holes, we cannot say, on this record, that Novak knew or, with reasonable diligence, could have known of the hazard.

Therefore, for the foregoing reasons we affirm that the judge's vacation of the citation.

FOR THE COMMISSION

RAY H. DARLING
EXECUTIVE SECRETARY

DATED: JAN 31 1984

 


The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[*]] Commissioner Buckley took no part in the decision of this case.   Although a new Commissioner possesses the legal authority to participate in pending cases, participation is discretionary and is not required for the agency to take official action.  Perini Corp., 78 OSAHRC 43/C5, 6 BNA OSHC 1609, 1611, 1978 CCH OSHD ¶ 22,772 at p. 27,494 (No. 13029, 1978) (Commissioner Cottine's separate opinion).  See § 12(f) of the Act, 29 U.S.C. § 661(e).  Chairman Rowland and Commissioner Cleary reached agreement on the disposition of this case prior to the assumption of office of Commissioner Buckley.  Participation by Commissioner Buckley would therefore have no effect on the outcome of the case and would delay the issuance of the decision.   Accordingly, in the interests of efficient decision-making, Commissioner Buckley elects not to participate in this case.

[[1]] 29 C.F.R. § 1926.500(b)(1) requires

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

[[2]] Because the citation is being vacated on other grounds, Chairman Rowland does not reach the issue of whether Novak employees were exposed to the unguarded floor holes where employees were observed walking within three feet of the openings.

[[3]] The citation presently before the Commission is the only alleged serious violation for which Novak was cited.