SECRETARY OF LABOR,
Complainant,

v.

CARPENTER CONTRACTING CORPORATION,
Respondent.

OSHRC Docket No. 81-0838

DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. 659(c).

The Secretary of Labor alleges that Carpenter Contracting Corporation ("Carpenter") committed a serious violation of the standard at 29 C.F.R. 1926.500(d)(1) [[1]] in that it failed to guard the perimeters of certain open-sided floors of a parking garage under construction.  Administrative Law Judge David G. Oringer concluded that there was no violation and vacated the citation item.  We agree with that conclusion and affirm the judge's decision.

I
Employees of Carpenter were working on a large four-level parking garage in Morristown, New Jersey, when that site was inspected by a compliance officer from the Occupational Safety and Health Administration.  The parking garage was being constructed between two streets that differed some 40 feet in elevation.  The highest deck of the garage was, on one side, level with the high street, and the lowest deck was, on the other side of the garage, level with the lower street.  The general contractor on the site had contracted with Kurtz Precast Corporation ("Kurtz Precast") to construct the garage.  Kurtz Precast, the manufacturer of the precast concrete pieces of which the garage would be built, then contracted with Carpenter to set the pieces in place.   Carpenter provided its own tools and work force, the latter consisting of approximately 15 employees who were ironworkers, masons, laborers, and crane and backhoe operators.

The garage was constructed entirely of concrete members and was built one vertical bay at a time starting with the lowest level and working up.  Starting from a fixed point, the deck in each bay was constructed by placing rough-surfaced concrete sections in the shape of "double T's" that were 8-1/2 to 11 feet wide and 58 to 60 feet long onto the support concrete framework of columns and beams.  At each level, four double T's normally would combine to form the deck of a single bay.   Therefore, as each double T was put into place, the perimeter of that deck expanded.

When each double T arrived at the worksite by truck, three employees of Carpenter attached tag lines, and the crane then lifted the double T and lowered it into position in the bay under construction.  Five Carpenter employees worked on whichever deck was being laid at the time:  one signaled the crane; two guided the section into place by pulling the tag lines; and two minimally welded the pieces together so that they would stay until the permanent welding could be done when all the pieces of the deck had been laid and balanced.  As each double T was set in place, the five employees would work from the expanding perimeter.

In the citation, the Secretary alleged that Carpenter's failure to guard the open-sided floors in " areas adjacent to decks being erected" was a violation of section 1926.500(d)(1).  It was undisputed that a number of the decks within one, two, or three bays of the deck area under construction lacked perimeter guarding.

The compliance officer who conducted the inspection was the Secretary's only witness.  According to his testimony, the failure to guard the perimeters posed the hazard of employees falling 10 to 40 feet to the frozen ground or to a lower level's concrete deck. When asked if he had seen any employees "in an area around these unguarded open-sided floors," the compliance officer responded that he had observed employees of Carpenter there "performing functions of erection" and that he saw Carpenter's employees come "[w]ithin inches" of the unprotected edge "numerous times" while they were "doing fitting up, as well as welding and cutting off the hoisting groups on these pre-cast forms."  With reference to an unguarded deck that was pictured in Exhibit C-14,[[2]] the compliance officer stated that he observed employees of Carpenter "traversing [that deck] when they were putting the extension cord and electrical weld lines across the space," and that he saw employees of Carpenter come "within inches" of that deck's unguarded perimeter "on numerous occasions."

William Weber, Carpenter's superintendent at the worksite, was Carpenter's only witness.  He testified that Carpenter's employees were not required to work near the edge of the decks adjacent to the bay under construction and had "no need to traverse that area." He noted that the parking garage was "perhaps 300 feet wide" with "ample protection" against falls provided by "stone or pre-cast pieces that stood almost four feet high."  He also observed that the structure was wide enough so that employees could avoid any fall hazard.  When asked if any Carpenter employees went within 32 feet of the advancing perimeter, Weber testified that the erection crew did come closer while putting the double T's in place, but that no other employees came closer to any perimeters at any time since they "were not allowed to" based on direct instructions in Carpenter's contract forbidding any finishing work on the concrete pieces until Kurtz Precast determined that the deck was properly balanced.  Weber testified that the welders in the erection crew performed the permanent welding after the deck had been set in place and certified as balanced.   Weber stated that employees were "instructed to stay away from the open edges" and "had no business there."  He admitted the possibility that they might on occasion, such as "if a pretty girl walked by," go near the unguarded perimeters of the decks adjacent to the bay under construction.

II
In his decision, Judge Oringer found that certain bays in the erection area had no perimeter guarding.  The judge concluded, however, that there was no violation of section 1926.500(d)(1) because the constant installation and removal of guarding at the advancing perimeter while the huge, heavy double T's were swung in by crane would pose a greater hazard than the lack of such guarding.

III
On review the Secretary argues that Judge Oringer did not consider that the violation as alleged in the citation and presented by the Secretary at the hearing dealt with "areas adjacent to decks being erected."  According to the Secretary, "[a]ny evidence or holding relating to guardrails at the advancing perimeter is wholly irrelevant."

The Secretary notes on review that the Commission stated in Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 2003, 1975-76 CCH OSHD 20,448 at p. 24,425 (No. 504, 1976) that, as an element of a violation, the Secretary must prove that "employees either while in the course of their assigned working duties, their personal comfort activities while on the job, or their normal means of ingress-egress to their assigned workplaces, will be, are, or have been in a zone of danger."  The Secretary contends that the evidence of record establishes that Carpenter's employees had access to and actually were at the unguarded outside perimeters of the adjacent decks.   He notes that it was undisputed that no perimeter guarding was present on many adjacent decks. He contends that the evidence proves that Carpenter's employees passed by the unguarded edges of the adjacent decks while traveling to and from their assigned tasks and were therefore exposed to the hazard of falling 10 to 40 feet.  To support this contention, the Secretary relies on Exhibit C-14, see note 2 supra, showing a person on the ladder leaning against the outside edge of the adjacent deck.  The Secretary also notes the compliance officer's testimony that he saw the welders laying welding cables at the unguarded outer perimeter while they were working on the deck shown in Exhibit C-14.  Furthermore, the Secretary argues that it was established that some of the masons employed by Carpenter did finishing work on completed adjacent decks.   The Secretary urges the Commission to reverse the judge and assess a $700 penalty.

Carpenter contends on review that Judge Oringer properly concluded that there was no violation of section 1926.500(d)(1) because guarding the advancing perimeter would pose a greater hazard than the lack of such guarding.  Carpenter asserts that the Secretary does not take issue with the judge's conclusion regarding the advancing perimeter, the issue on which the parties focused at the hearing.  Rather, the Secretary seeks review of an issue not presented at the hearing -- the perimeter guarding of the adjacent decks. Carpenter argues that, even assuming the adjacent decks were in issue, the Secretary failed to establish that Carpenter's employees performed assigned work on the adjacent decks or had any other reason to be near the perimeter of those decks.  According to Carpenter, the adjacent decks referred to by the Secretary are the same "construction" or "erection" areas that Judge Oringer addressed.  Carpenter notes that the compliance officer identified the adjacent decks as the "Erection Area" in his written descriptions that accompany the photographic exhibits, including Exhibit C-14, which the Secretary used to show the adjacent decks on which the violations allegedly occurred.  Also, according to Carpenter, there was uncontroverted evidence that its employees were not assigned tasks near the outer perimeter of the adjacent decks and that, in fact, they were given specific instructions to stay away from it.  Carpenter additionally cites superintendent Weber's testimony that the garage levels were perhaps 300 feet wide with ample natural protection on one side and that no employees except those on the erection crew went closer than 32 feet from the perimeter.

IV
In applying Gilles & Cotting, Inc., supra, to this case, the advancing perimeter of the bay under construction must be distinguished from the perimeter of the completed decks in adjacent bays.  The judge found that it would have been more hazardous to constantly erect and remove guardrails at each point along the advancing perimeter than to perform the work without guarding those edges. The Secretary does not take exception to that finding.  Thus, we look only to the evidence which would prove exposure of Carpenter's employees to the hazard presented by unguarded decks in the areas adjacent to those under erection.[[3]]

The evidence relied upon by the Secretary is at best ambiguous as to the location of the violation, and we therefore conclude that it is insufficient to prove a violation with reference to the decks adjacent to the area under erection.  When asked if he had observed any employees of Carpenter "in an area around these unguarded open-sided floors," the compliance officer testified that he had seen employees of Carpenter "performing functions of erection" there.  However, erection work was performed at the advancing perimeter, and therefore this testimony does not establish exposure at the adjacent decks.  The compliance officer also testified that he saw employees come "[w]ithin inches" of the unprotected edge "numerous times" while they were "doing fitting up, as well as welding and cutting off the hoisting groups on these pre-case forms."  The functions described in that statement also were those done when the double T's were put in place, so the perimeter at which he observed those employees was the advancing perimeter, not the adjacent decks.  The compliance officer further stated that he saw employees of Carpenter "traversing [the unguarded deck pictured in Exhibit C-14] when they were putting the extension cord and electrical weld lines across the space" and coming "[w]ithin inches" of that deck's unguarded perimeter "on numerous occasions."  We can not determine from that testimony whether the employees of Carpenter that he observed near the edge were making the minimum welds while the deck was being laid or whether they were performing the permanent welding on the completed deck.   Moreover, Carpenter's superintendent testified that the perimeter shown in Exhibit C-14 could have been an area under construction.

In addition, other portions of the record that the Secretary relies upon are insufficient to satisfy his burden of proof under Gilles & Cotting, Inc., supra.  The Secretary contends in his brief on review that the compliance officer identified the person on the ladder in Exhibit C-14 as an employee of Carpenter.   We note that the judge, consistent with the compliance officer's testimony that he had not observed any Carpenter employees on the ladder in question, found that the person shown on the ladder in Exhibit C-14 did not work for Carpenter.  See supra note 2.  The Secretary also asserts in his brief on review that masons employed by Carpenter performed finishing work on the completed decks.  No evidence of record supports that assertion.  The Secretary quotes the testimony of Weber, Carpenter's superintendent, that Carpenter's employees might go to the perimeter on occasion, such as "if a pretty girl walked by."  We consider that testimony to be purely speculative and accord it little weight.

The evidence relied upon by the Secretary is too ambiguous or otherwise insufficient to prove that Carpenter's employees were exposed during the course of their assigned job duties, their personal comfort activities while working, or their normal way of ingress into or egress from their assigned workplaces to the hazard of the unguarded perimeters on the decks adjacent to the bay under construction.  Carpenter therefore cannot be found in violation of section 1926.500(d)(1) for failing to guard those edges.   We therefore vacate the citation item and proposed penalty.[[4]]

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  JUN 26 1984


CLEARY, Commissioner, dissenting:

I agree with the majority that the focus of the citation in this case is not exposure of Carpenter's employees when working in proximity to the expanding perimeter, but rather it is exposure of the employees to falls from the unguarded decks adjacent to the bays under construction.  However, I disagree with the majority's conclusion that Carpenter's employees were not subject to the hazard of falls from those completed adjacent decks.

Although I concur with the majority that an access test, rather than an actual exposure test, is appropriate in determining whether employees are exposed to a hazard, I have never adopted the narrow access test announced in Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD 20,448 (No. 504, 1976).   The test in Gilles & Cotting, as applied by the majority to the instant case, would require the Secretary to prove that employees had reason to go near the unguarded perimeters of the adjacent decks during the course of their assigned job activities, their personal comfort activities while working, or their normal way of ingress or egress from their assigned workplaces.

Nevertheless, while I do not adhere to the majority's test, I believe that test was met in this case because the Secretary's evidence demonstrates that employees were necessarily in close proximity to the unguarded perimeters of the adjacent decks in the performance of their assigned job activities.  The compliance officer observed Carpenter's employees when they were placing an extension cord and electrical weld lines on the deck pictured in Exhibit C-14.  That photograph shows that the cord and lines were near the unguarded edge.  It appears from the evidence that Carpenter's employees were the ones who performed the welding. Therefore, they were exposed during the course of their assigned duties.

My more fundamental disagreement with the majority is that their test is not an adequate measure of employee exposure because it ignores the reality of a construction worksite.   Employee movement around a worksite cannot be so neatly traced or predicted as the majority test assumes.  See Novak & Co., 84 OSAHRC, 11 BNA OSHC 1783, 1784, 1984 CCH OSHD 26,779 at p. 34,250 (No. 80-2946-S, 1984) (construction worksite was constantly changing, and route employees used to get to their work areas changed from day to day and even from hour to hour).  As I stated in my concurring opinion in Gilles & Cotting, the Secretary should not have to show that employees actually risked injury and possible death before the Secretary can require abatement of hazardous conditions.

This case is similar to Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 CCH OSHD 23,135 (No. 16057, 1978), in which the employer was cited for failure to guard several areas, including a floor opening.  In that case, the employer argued that its employees would have to take a circuitous route in order to expose themselves to the hazard of falling through the floor opening.  The Commission declared that to accept the employer's argument it would have to conclude that employees would travel precisely the same path at all times without deviation in order to find a violation.  The Commission said:

We do not make such an assumption, and are unwilling to speculate as to what might motivate an employee to approach an unguarded area.  During the life of a construction project it is not unreasonable to assume, as the standard does, that an employee might, at some point in time, move to an area not immediately proximate to his place of work.  Further, neither the standard as applied nor the Act requires the Secretary to prove that during the inspection, an employee actually approached a demonstrated hazard, or that the compliance officer witnessed a near accident.

6 BNA OSHC at 2050; 1978 CCH OSHD at p. 27,952.

In Special Metals Corp., 80 OSAHRC 122/B8, 9 BNA OSHC 1132, 1134, 1981 CCH OSHD 25,018 at p. 30,908 (No. 76-4940, 1980), the Commission stated:

The Commission's access test is predicated on the recognition that employees may not be restricted to specific paths or movements about their workplace.  Given the random nature of employee movement, it is inappropriate to rely on employees to avoid a hazardous condition as the primary means of protecting employees from that condition.

In this case, Carpenter's superintendent, Weber, testified that it was certainly possible that Carpenter's employees would go near the edge of the adjacent decks, albeit not in the performance of their assigned duties.  That testimony acknowledges the randomness of employee movement, which the Commission has recognized in other cases, at Carpenter's worksite.  It is hardly speculative, as the majority states.

Carpenter notes that it gave its employees instructions to avoid the unguarded edges of the adjacent decks.  However, the standard cited in this case does not permit warnings to substitute for the physical protection mandated by the standard.   The Commission has held that even when an employer goes so far as to have an employee watch an unbarricaded area in order to prevent any employee from entering it there was employee access to a hazard.  Concrete Construction Co., 76 OSAHRC 139/A2, 4 BNA OSHC 1828, 1976-77 CCH OSHD 21,269 (No. 5692, 1976), aff'd, 598 F.2d 1031 (6th Cir. 1979).  The Commission found that it was reasonably foreseeable that employees could be in the zone of danger simply because employees were moving about the site in carrying out their duties and access to the zone of danger was not blocked.

In sum, I do not believe that the Act requires the Secretary to show that an employer assigned employees work in a hazardous area or to trace customary routes of employees over a period of time.  The standard involved here is an unambiguous and readily comprehensible standard:  an open-sided floor or platform that is six feet or more above an adjacent floor or ground level must be guarded.  The reasons for such guarding are obvious.  I consider a test requiring inquiries as to what might motivate an employee to approach the unguarded perimeter of an adjacent deck or documentation of the fact that any employee did so to unnecessarily complicate the straightforward requirement established by the language of the standard.


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:

[[1]] The standard provides:

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)(1)(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,

[[2]] The photograph designated as Exhibit C-14 shows welding cable lying on the deck, a ladder leaning against the outside edge of the deck, and a person standing on the ladder.  The compliance officer testified that he had not seen any of Carpenter's employees going up or down that ladder.  Carpenter's superintendent testified and Judge Oringer found that the person on the ladder in the photograph was not an employee of Carpenter.

[[3]] In Gilles & Cotting, Inc., supra, a Commission majority agreed that to establish a section 5(a)(2) violation in multi-employer construction cases the Secretary would not have to prove that employees were actually exposed to a hazard because of the alleged noncompliance.  Former Commissioner Barnako stated that the Secretary must, however, adduce evidence to show employee activity that, with "reasonable predictability," would bring the employee into "the zone of danger" created by the violation. Commissioner Cleary concurred stating that, rather than evaluating the danger to employees in spatial terms, he would consider "the risks to employees that may be reasonably anticipated when a standard is breached" (footnote omitted).  3 BNA OSHC at 2005, 1975-76 CCH OSHD at p. 24,427.  Whether couched in terms of "reasonable anticipation" or "reasonable predictability," we will interpret Gilles to require the Secretary to present evidence sufficient to support a finding that it is reasonable to predict or anticipate that employees will be, are or have been at risk as a result of a violation.  See Concrete Construction Corp., 76 OSAHRC 139/A2, 4 BNA OSHC 1828, 1830, 1976-77 CCH OSHD 21,269 at p. 25,568 (No. 5692, 1976), aff'd, 598 F.2d 1031 (6th Cir. 1979) (Secretary must establish that it was "reasonably foreseeable that employees could be in the zone of danger because of the nature of their duties and activities on the site").

[[4]] The Commission has received a motion from Carpenter's counsel to dismiss the appeal as moot because Carpenter has ceased doing business.  In light of our decision to vacate the citation item on the merits, we need not rule on that motion.