SECRETARY OF LABOR,
Complainant,

v.

DUN-PAR ENGINEERED FORM COMPANY,
Respondent.

OSHRC Docket No. 82-0928

DECISION

Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.
BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(j), 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 ("OSHA"). 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).

Dun-Par Engineered Form Company builds and erects the forms into which other contractors pour concrete in buildings under construction. It strips the forms after the other companies have finished pouring the concrete. On August 20, 1982, one of Dun-Par's employees, Valadez, fell to his death off the unguarded edge of the eleventh floor of a thirteen story building under construction in Houston, Texas. The Secretary of Labor investigated the accident and then issued a one-item citation alleging it violated 29 C.F.R. 1926.500 (d)(1) by not guarding an open-sided floor with a standard railing. The Secretary later amended the citation to add the alternative allegations that Dun-Par had violated 29 C.F.R. 1926.28(a) by not requiring its employees to wear personal protective equipment, or 29 C.F.R. 1926.105(a) by not providing a safety net to protect its employees. In short, the Secretary alleged that Dun-Par had violated either section 1926.500(d)(1) or 1926.28(a) or 1926.105(a). Section 1926.500(d)(1), the standard that is of principal concern here, states:

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)(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.

The building from which Valadez fell was rectangular in shape, but its eleventh, twelfth and thirteenth floors did not extend to the outer edge of the lower floors, thus giving the top floors a stairstep profile. Valadez and Dun-Par foreman Garrett were working on a setback area of the eleventh floor at the building's northeast corner. Because of the building's stairstep design, the setback area had no floors above it.

Garrett had assigned Valadez the job of fastening strips of 3/4-inch wide steel banding around two stacks of lumber called shores.[[1]] Each stack of shores required two bands, one at each end. To perform the banding process, it was necessary to unroll a length of banding, loop it around the stack to be banded, ratchet it tight with a banding machine and then clip the banding. The employee doing the banding stood alongside the stack of material being banded. Banding was not a strenuous job and required only a minimum of physical exertion. The process took 2-1/2 to 3 minutes per band. Banded stacks of shores were later moved off the floor by crane.

The two stacks of shores that Valadez was to band were located on a nine foot wide portion of the setback area, parallel to each other but perpendicular to the eastern perimeter of the floor. One end of each stack was 12 to 18 inches from the perimeter, which was unguarded. Dun-Par had stacked the shores in that area because there was no floor above them and because the crane therefore could lift the banded shores straight up and off the floor.

When Valadez began banding the first stack of shores he was working 2 to 3-1/2 feet from the unguarded-perimeter. He was not wearing a safety belt. He fell 131 feet to the ground after banding the first stack of shores at the end closest to the perimeter. That band was variously estimated to be 2 to 3-1/2 feet from the eastern perimeter.

Garrett, the only eyewitness to the accident and the only other employee working on the eleventh floor on the morning of the accident, had safety responsibilities as part of his foreman's duties and was the supervisor of Valadez. While Valadez was banding, Garrett was working about eight to ten feet from him, receiving and stacking plywood handed down from the twelfth floor. Garrett had experience with the job of banding and knew the details of Valadez's banding job.

Garrett testified that, while banding, Valadez was approximately 2 to 3- 1/2 feet from the perimeter. He also testified that in walking between the outside edge of the shores and the floor's unguarded perimeter Valadez violated DunPar's safety policy. Garrett testified that Dun-Par's safety policy with respect to working near unguarded perimeter edges was:

Don't be out there unless you have to be and if you are out there and you do need a safety line, get one. Be extra careful .... If you are out there doing something strenuous where you have to use exertion, maybe towards the edge of the building or hanging nets where you are real close to the edge, then you wear a safety belt.

Garrett testified he gave Valadez instructions on how to work around the edge of the building. Garrett did not tell Valadez to use a safety belt for the banding job because "there is no danger. It is not a hard job."

Carpenter foreman Winzer, the Dun-Par employee on the project site with primary responsibility for safety, testified that Dun-Par's safety policy stresses that employees were "not to go on the outside perimeter of the building unless there is a specific job to be done that close to the perimeter of the building." Randolph Bordner, the Dun-Par official who had overall control of its safety program, testified that Dun-Par's safety policy was that the foreman told employees "to stay away from the edge if it is not necessary to be there." If it was feasible, lifelines could be used when employees were "hanging nets on the outside." Bordner also testified that it was possible to string a wire cable between two columns on the eleventh floor and hook a safety belt lanyard onto it for use by employees working on the setback area.

Dun-Par's general superintendent, Klewein, testified that it was possible to erect guardrails around the unguarded perimeter. Guardrails would normally have been up while the stacking and banding of shores was done. Wire rope guardrails were installed after the accident. Foreman Garrett testified that he did not believe guardrails should have been erected to protect Valadez because it would have taken longer to put them up than it would have taken for Valadez to do his banding job. Garrett also testified that the guardrails would have to be taken down to crane the shores off the floor. Klewein testified that it would have taken three employees about 1-1/2 hours to erect guardrails along the 56-foot edge of the floor and about 1 to 1-1/2 hours to dismantle them. Winzer, the carpenter foreman, testified that it would have taken two employees 1-1/2 to 2 hours to erect guardrails and 3/4 hour to take them down. Winzer also testified that a section of guardrail could have been removed or laid down when the shores were being craned off the floor. Also, the compliance officer testified that the shores could have been craned off a wider portion of the setback area if the crane operator needed more room to maneuver.

Administrative Law Judge Dee C. Blythe found that Dun-Par had committed a serious violation of section 1926.500(d)(1) and assessed the $420 penalty agreed to by the parties if a violation were found. The judge also found that Dun-Par had violated section 1926.28(a) but vacated the section 1926.105(a) allegation. Judge Blythe found that through the knowledge of its supervisory employee Garrett, Dun-Par had "actual or constructive knowledge" of the violative condition to which Valadez was exposed. The judge found that Garrett assigned Valadez the banding job and that the job required Valadez to work within 2 to 3-1/2 feet of the eleventh floor's unguarded perimeter. Assigning Valadez to work so close to the edge, the judge reasoned, exposed Valadez to a fall hazard regardless of whether he went closer to the edge.

The judge also stated that the work rule Dun-Par depended on to prevent Valadez's exposure only prohibited employees from going to the very edge of the unprotected perimeter. Yet the gravamen of the violation, the judge found, was not in going to the very edge of the unguarded perimeter, but in being "within body length thereof" without fall protection. Working two to three feet from the unguarded edge did not violate any work rule.

The judge found that, "at most," Dun-Par established only the inconvenience of erecting guardrails, not the impossibility of installing them as Commission precedent then required. He noted that employees erecting guardrails could have been protected by safety belts. The judge also concluded that the guardrails would not have interfered with the operation of the crane. Either a section of guardrail could have been removed or laid down to allow the removal of the shores by crane or the shores could have been craned off a wider part of the setback area to allow more room to maneuver crane loads away from standing guardrails.

To prove a violation of a standard, the Secretary must establish (1) the applicability of the standard, (2) the existence of noncomplying conditions, (3) employee exposure or access, and (4) that the employer knew or with the exercise of reasonable diligence could have known of the violative condition. See Belger Cartage Service, Inc., 79 OSAHRC 16/B4, 7 BNA OSHC 1233, 1235, 1979 CCH OSHD 23,440, p. 28,373 (No. 76-1480, 1979); Harvey Workover, Inc., 79 OSAHRC 72/D5, 7 BNA OSHC 1687, 1688-90, 1979 CCH OSHD 23,830, pp. 28,908-10 (No. 76-1408, 1979). Here, there is no dispute about either the applicability of the guardrail standard or the lack of guardrails in the pertinent area. Neither is there any doubt about employee exposure. Dun-Par employee Valadez was clearly exposed to the cited condition, for he fell to his death off the unguarded floor perimeter. Other Dun-Par employees, particularly those who stacked the shoring that Valadez was banding, had access to the unguarded perimeter. The last element of the Secretary's proof--whether Dun-Par knew or should have known that Valadez was exposed to a hazard--is the major issue in the case.

Dun-Par argues that the judge's decision should be reversed because it did not have knowledge that Valadez was exposed to a fall hazard. According to Dun-Par, if Valadez had done his job properly, he would have been no closer than 3 to 3-1/2 feet from the unguarded perimeter edge and would not have been exposed to a fall hazard. By "meandering to the perimeter edge," as Dun-Par puts it, Valadez violated its safety rule and exposed himself to a fall hazard. Dun-Par also contends that Garrett did not watch Valadez perform his job and saw him near the edge only when Valadez fell.

The Secretary argues that a violation was established by Valadez's authorized presence three feet from the unguarded edge, regardless of whether he attempted, as Dun-Par asserts, to go closer to the edge. Because Dun-Par's own policy contemplated that employees would work three feet from the edge, the Secretary asserts Dun-Par had at least constructive knowledge of the violation. The Secretary also argues that through its foreman Garrett, Dun-Par had actual knowledge of the guardrail violation.

The Commission agrees with the judge's conclusion that Dun-Par violated section 1926.500(d)(1) and upholds his affirmance of the citation on that basis. We agree with the findings of the judge that in approaching 2 to 3-1/2 feet from the unguarded floor edge, Valadez was exposed to a fall hazard and not violating any Dun-Par safety rule. The evidence establishes that through foreman Garrett, Dun-Par knew or with reasonable diligence could have known that Valadez was exposed to the fall hazard caused by the lack of guardrails. Garrett worked only eight to ten feet from where Valadez was banding. He knew there was no guardrail around the perimeter edge. Garrett also knew where the shores were positioned in relation to the unguarded edge. Because Garrett had experience with banding, he should have known that to do the assigned banding job, Valadez had to work about 2 to 3-1/2 feet from the unguarded perimeter, a position that endangered him.[[2]] See Daniel Construction Co., 82 OSAHRC 23/A2, 10 BNA OSHC 1549, 1551, 1982 CCH OSHD 26,027, p. 32,672 (No. 16265, 1982). See also Brennan v. OSHRC (Underhill Construction Co.), 513 F.2d 1032, 1039 (2d Cir. 1975) (employee need not be teetering on edge of floor before requiring protection).

Dun-Par also contends that installation of guardrails was impractical and that it would have taken much longer to erect guardrails than it would have taken to do the banding. It asserts that more employees would have been exposed to the unguarded perimeter if guardrails had been erected than the one employee who was assigned to do the banding. Dun-Par impliedly contends that if guardrails were erected they would have interfered with material being craned off the eleventh floor; it also asserts that if a crane load were to hit a guardrail, it could spill onto employees working below.

The Secretary argues that difficulty and impracticality are not defenses to a citation. He contends that the judge properly found that an impossibility defense was not established because guardrails could have been erected in this area and normally were utilized by Dun-Par when its employees banded shores. The Secretary also contends that the judge properly found that employees erecting guardrails could have been protected by safety belts.

An employer may defend against a cited violation of a standard by demonstrating that compliance with the standard was not feasible. Dun-Par Engineered Form Co., 86 OSAHRC __/__, __ BNA OSHC __, 1986 CCH OSHD (No. 79-2553, 1986). To demonstrate infeasibility, an employer may present evidence that compliance would not be practical or reasonable in the circumstances. As we have said, considerations of reasonableness, common sense, and practicality are implicit in the Act and in a great many of the Secretary's standards. Dun-Par Engineered Form, ___ BNA OSHC at ___, 1986 CCH OSHD at p.

In this case, Dun-Par has raised the infeasibility defense by contending that it was impractical to erect guardrails. It contends that it would have taken two or three employees working between 2 1/2 to 3 hours to erect and then dismantle the guardrail, while it should have taken Valadez only 12 to 15 minutes to band the shores. However, we conclude that Dun- Par has not established the defense. If Dun-Par's argument of impracticality--referring to the additional employees and longer time needed to erect guardrails--is taken as an argument that the installation of guardrails was not economically feasible, we find that Dun-Par has not presented sufficient evidence in support of the argument.[[3]] Dun-Par has not presented evidence of the actual added costs for the labor. Also, Dun-Par has not demonstrated that the costs were unreasonable in light of the protection afforded and has not shown what effect, if any, these added costs would have on the contract or business as a whole. If Dun-Par's argument is that a requirement for guardrails here would be contrary to reasonableness and common sense, see H.S. Holtze Construction Co. v. Marshall, 627 F.2d 149, 151-52 (8th Cir. 1980), we believe that the argument must fail because of a lack of necessary evidence that it was unreasonable or senseless to erect guardrails at the edge of a floor 131 feet above the ground. It is clear that the installation of guardrails on the open perimeter here would have provided protection not only for the one employee doing the banding, but also for other employees required to perform tasks in the area. Another Dun-Par employee, Garrett, was in the near vicinity of the open perimeter. We would also infer, in the absence of any contrary evidence from Dun-Par, that there were other employees who would be protected. For example, Dun-Par employees had stripped the forms including the shores after other companies had finished pouring the concrete. These Dun-Par employees must have placed the shores where they were later, when Valadez was attempting to band them for the crane. We also think that Dun-Par implicitly appreciated the reasonableness of installing guardrails, for Dun-Par's general superintendent Klewein admitted that the stacking and banding of shores normally was done with guardrails up.

Dun-Par also argues that guardrails were infeasible because if the loads collided with the guardrails the guardrails or crane loads could fall onto employees below. We disagree. Dun-Par could have both erected guardrails and avoided exposing the employees below to the hazard of falling objects. Carpenter foreman Winzer testified that a section of guardrail could have been removed when Dun-Par was ready to begin craning the shores off the floor. The compliance officer testified that the shores could have been craned off the wider portion of the setback area to provide the crane operator with more room to maneuver the crane. Thus, Dun-Par has failed to establish that the erection of guardrails was infeasible.

If Dun-Par's argument is that the installation of the guardrails would present a greater hazard, we still must reject the defense. As we have discussed, on this record we cannot say that more employees would be exposed to the hazard of falling from the open edge while installing the guardrails than would be protected by them. We also note that Dun-Par has not proven that guardrails would have to be erected in a location or manner that would expose employees to a fall hazard in order to protect employees working several feet in from the perimeter. Further, the Secretary established that employees erecting guardrails could be protected by safety belts. Dun-Par thus has not demonstrated that the risk to the employees who install the guardrails must necessarily be greater than the risk to Valadez and any other employees performing tasks in the vicinity of the open perimeter.

Dun-Par also raises as a defense the matter of its status as a subcontractor on a worksite on which the general contractor was responsible for the installation of guardrails. Dun-Par contends that it should not be found in violation for the lack of guardrails because the general contractor was supposed to install them. We have permitted a defense on the basis that a subcontractor on a multiple employer worksite neither created nor controlled a hazardous condition. See Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD 20,690 (No. 3694, 1976); Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD 20,691 (No. 12775, 1976). But a subcontractor asserting this defense must make a sufficient showing that it neither created nor controlled the hazardous condition, and this includes showing that the subcontractor possessed neither the expertise, personnel, nor the means to correct the hazardous condition. Union Boiler Co., 83 OSAHRC 11/C7, 11 BNA OSHC 1241, 1246, 1983-84 CCH OSHD 26,453, at p. 33,607 (No. 79-232, 1983), citing Tunnel Electric Construction Co., 80 OSAHRC 80/B7, 8 BNA OSHC 1961, 1980 CCH OSHD 24,706 (No. 76-1803, 1980). This is not the case with Dun-Par, it would appear from the record here. This record shows that Dun-Par was required and actually had the capability to replace any existing guardrails removed while performing its work. The record also reveals that Dun-Par employed carpenters and laborers capable of erecting guardrails and no evidence of union jurisdictional problems was presented. If Dun-Par lacked the materials to construct new guardrails, or lacked access to any ready-made guardrails intended for use on the worksite, Dun- Par did not establish this on this record. Therefore, we conclude that Dun-Par has not established the defense.

Accordingly, the Commission affirms the citation insofar as it alleges a serious violation of section 1926.500(d)(1),[[4]] and assesses a $420 penalty.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: July 30, 1986

RADER, Commissioner, concurring:

I join with my colleagues in affirming a violation of 1926.500(d)(1). However, I believe that further clarification of the infeasibility defense as it relates to the facts in this case is desirable, in order to facilitate our holding in Dun-Par Engineered Form Co., No. 79-2553, supra.

Our decision to uphold the violation of 1926.500(d)(1) is based on the fall exposure of a number of Dun-Par employees. If the only exposure to a fall was the 2 1/2-3 minutes that Valadez spent banding the shores, then Dun-Par would have established the infeasibility of erecting guardrails on the entire eleventh floor, under our test in Dun-Par Engineered Form Co., No. 79-2553, supra. The burden would not be on Dun-Par, at that point, to prove the unavailability of alternative means of protection. Rather, the Secretary would be required to allege and prove what alternative means of protection Dun-Par should have used. Here the Secretary properly pleaded an alternative violation of 1926.28(a) for failure to require Valadez to wear a safety belt. Thus, had Dun-Par established the infeasibility of guardrails under 1926.500(d)(1), the Secretary would have the burden of going forward with evidence to support his alternative safety belt allegation under 1926.28(a). Judge Blythe found that a safety belt was "the most practical form of fall protection" for Valadez, and indeed it may have been. However, we need not reach that issue here, or the concomitant issue of whether the Secretary met his burden of proof under 1926.28(a), because we believe other Dun-Par employees were also exposed to the fall hazard and that the company should have erected guardrails.


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FOOTNOTES:

[[1]] Each shore consisted of two 4-inch by 4-inch pieces of lumber clamped together so as to be able to slide side-by-side to a desired length. Each stack of shores was 8 feet long, 40-42 inches wide and 30 inches high.

[[2]] Garrett's testimony and a signed statement he gave to the compliance officer conflict as to whether he saw Valadez in the 12 to 18 inch distance between the stack and the edge before the fall. The judge found that Garrett's testimony was "suspect" for this reason. Because we conclude that Garrett either knew or with the exercise of reasonable diligence could have known that Valadez worked within 2 to 3-1/2 feet of the edge, we need not resolve whether Garrett saw Valadez even closer.

[[3]] In view of this finding we need not determine whether feasibility in the context of the earlier Dun-Par case encompasses economic feasibility.

[[4]] We do not reach the merits of the 1926.28(a) allegation, because we find Dun-Par violated 1926.500(d)(1).