Docket No. 84-0009

SECRETARY OF LABOR,
Complainant,

LEE ROY WESTBROOK CONSTRUCTION COMPANY,
Respondent.

OSHRC DOCKET NO. 84-0009

DECISION

Before: BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

The issue in this case is whether Lee Roy Westbrook Construction Company ("Westbrook"), a concrete framing subcontractor working at a multi-employer construction site, had a legal obligation or duty under 29 C.F.R. § 1926.500(b)(1)[[1/]] to protect its employees by guarding or covering a floor opening even though the general contractor at the site had contractual responsibility for covering the opening. We find and conclude that Westbrook could and should have covered the floor opening. Accordingly, we uphold the decision of Administrative Law Judge Stanley M. Schwartz, which affirmed the citation issued by the Secretary of Labor.

At the time of the alleged violation, Westbrook was working on the construction of a four-story office building in Dallas, Texas. Its job was to erect wooden forms (usually consisting of 4-inch by 4-inch or 4-inch by 6-inch lumber) to hold up metal "pan" containers into which concrete would be poured by the general contractor, Connell Construction Company. After the concrete had been poured, Westbrook would remove the forms and pans, leaving the concrete in place.

On Nov. 15, 1983, one of the Secretary's compliance officers, Jeffrey C. Rucker, inspected the jobsite. While there, he observed a Westbrook employee, Mosles Gamas, coming down a ladder from the building's fourth floor to the third floor. Gamas, a laborer, had also used the ladder to get to the fourth floor to observe how forms he had helped place there were holding up under concrete that was being poured for the building's penthouse.

The feet of the ladder were positioned along the edge of one side of an elevator shaft opening on the third floor. The ladder extended upward across the opening, and the top of the ladder rested against the edge of the opposite side of a similar opening directly above on the fourth floor. The third floor shaft opening was 6 feet, 3 inches wide and 17 feet long; it was not protected by either a guardrail or a cover. The ladder had been placed there that morning and had been in place for 2 to 3-1/2 hours before the compliance officer observed Gamas on the ladder. During that time period, the ladder was the only means of access to the fourth floor.

Westbrook's Gamas, and his foreman, Joseph L. Garcia, used the ladder several times on the day of the inspection while the third floor opening was unguarded and uncovered. At a minimum, they used the ladder to get to their fourth floor workplace that morning, to descend from the fourth floor so that they could go to lunch, to return to the fourth floor after lunch, and to descend to the third floor during OSHA's walkaround inspection. The ladder may have been in a different location when the employees first ascended to their work area in the morning, but the record establishes that it was positioned next to the unprotected shaft opening on each of the other occasions. If either employee had fallen through the floor opening while on or near the ladder, he would have fallen 40 feet to the bottom of the elevator shaft.

Prior to compliance officer Rucker's inspection, the shaft opening on the building's fourth floor, above the third floor opening, was also not protected by either a cover or guardrail. However, at some time during the two-hour interval between the compliance officer's arrival at the worksite and the walkaround inspection, the general contractor's onsite foreman directed that the fourth floor opening be covered. Westbrook employees Garcia and Gamas assisted the general contractor in covering it. Lumber readily available at the job site was used to cover the opening, and no special equipment or special skills were needed to do the job. During this two-hour interval, the general contractor's foreman also assured Westbrook foreman Garcia that the third floor opening was next in line to be covered, and this second opening was in fact covered within 30 to 45 minutes of the compliance officer's observation of this alleged violation, after he had pointed it out to representatives both of Westbrook and of the general contractor.

After the inspection, Westbrook was issued a citation by the Secretary alleging that Westbrook had violated 29 C.F.R. § 1926.500(b)(1) by not guarding or covering the third floor elevator shaft opening. [[2/]] The Secretary alleged that the violation was serious and proposed a $450 penalty.

Commission Judge Schwartz affirmed the citation and assessed the proposed penalty. He found that there was "no question that a violation of the [cited] standard existed" and that there was "no question that death or serious physical injury could occur" if an employee slipped off the ladder.

Judge Schwartz also held that Westbrook had failed to prove the limited affirmative defense available to some subcontractors on multi-employer construction sites. See Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD ś 20,690 (No. 3694, 1976); Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD ś 20,691 (No. 12775, 1976). Although he found that Westbrook did not create the cited hazard, and assumed that the company did not control the hazard, the judge nevertheless rejected the employer's defense on the basis of his finding that Westbrook had not taken reasonable alternative measures to protect its employees from the fall hazard created by the unprotected floor opening. He stated that "Westbrook should have refused to commence work" until the general contractor had covered all uncovered elevator shaft openings.

On review before us, Westbrook does not dispute the judge's finding that the unguarded elevator shaft opening violated the standard. The opening in question, which meets the Secretary's definition of a "floor opening," was not guarded by either a guardrail or cover, as required by the cited standard. Westbrook foreman Joseph Garcia and laborer Mosles Gamas were exposed to the unguarded floor opening when they used the ladder set up next to the opening to get to and from their job responsibilities on the fourth floor. Knowledge of the violative conditions is imputed to Westbrook through foreman Garcia, who not only observed the unguarded floor opening, but repeatedly used the ladder positioned next to it. We therefore conclude that the Secretary has met her burden of proving a prima facie violation of the cited standard. See Dun-Par Engineered Form Co., 12 BNA OSHC 1949, 1952, 1986-87 CCH OSHD ś 27,650 at p. 36,019 (No. 79-2553, 1986), rev'd on other grounds, 843 F.2d 1135 (8th Cir. 1988) (elements of Secretary's burden). The violation was serious, as alleged, since a 40-foot fall through the unguarded opening would probably result in death or serious physical harm.

Westbrook defends against the violation by arguing that it has proven the multi-employer construction site affirmative defense. In order to establish that defense, Westbrook must prove, by a preponderance of the evidence, that:

1. It did not create the violative condition; and

2. It did not control the violative condition such that it could not realistically have abated the condition in the manner required by the standard; and

3. (a) It made reasonable alternative efforts to protect its employees from the violative condition; or
(b) It did not have, and with the exercise of reasonable diligence could not have had, notice that the violative condition was hazardous.
See Anning-Johnson, 4 BNA OSHC at 1198, 1975-76 CCH OSHD at pp. 24,783-84; Grossman Steel, 4 BNA OSHC at 1189-90, 1975-76 CCH OSHD at pp. 24,791-92.

The first element of Westbrook's defense is not in dispute. Judge Schwartz found, and the Secretary apparently concedes, that Westbrook did not create the violative condition. The Secretary does, however, challenge the judge's resolution of the second element of the defense. Judge Schwartz assumed, without deciding, that Westbrook also did not control the violative condition. We agree with the Secretary, however, that Westbrook did in fact control the violative condition and that it has therefore failed to establish its affirmative defense. [[3/]]

"Control is established when it is shown that an employer possessed the expertise and personnel to abate a hazard." Union Boiler Co., 11 BNA OSHC 1241, 1246, 1983-84 CCH OSHD ś 26,453 at p. 33,607 (No. 79-232, 1983), aff'd, 732 F.2d 191 (4th Cir. 1984). Abatement of the hazard caused by the uncovered third floor shaft opening was accomplished by covering the opening with lumber. According to the foreman for the general contractor, this task required no special equipment or special skills, and it took only 30 minutes to complete it. The material used to cover the opening, 2-inch by 12-inch and 4-inch by 4-inch pieces of lumber, was readily available at the Jobsite.[[4/]] Two Westbrook employees, foreman Garcia and laborer Gamas, helped abate a similar hazard when they assisted the general contractor in covering the unprotected elevator shaft opening on the fourth floor. Since it possessed the expertise [[5/]] and personnel to abate the hazard, Westbrook has failed to establish its multi-employer construction site affirmative defense, and the Secretary's citation is affirmed.

Although this ruling resolves the issues before us, we have an additional observation. We emphatically agree with Westbrook's argument that Judge Schwartz erred in holding that Westbrook should have refused to commence work until the general contractor had covered all uncovered shafts. As Westbrook argues in its brief, Review commission precedent does not require such a stoppage of work. See Grossman Steel, 4 BNA OSHC at 1189, n. 7, 1975-76 CCH OSHD at p. 24,791, n. 7. As a general rule, a non-creating, non-controlling subcontractor is expected to find a means of protecting its employees against hazards that falls short of removing them from the worksite entirely.[[6/]] Here, for example, as mentioned above, Garcia had been told by the general contractor's foreman that the third floor opening would soon be covered. The record therefore suggests that foreman Garcia might have been able to find work for Gamas and himself that would not have required them to be near the cited floor opening until it was covered. We do not believe that the situation here was so exceptional as to justify the judge's holding that Westbrook should have walked off the job.

We assess a penalty of $50. Only two employees were exposed to the hazard, and this exposure was only briefly while they used the ladder to go between the third and fourth floors on the day of the inspection. Furthermore, covering the shaft openings was the contractual responsibility of the general contractor--not subcontractor Westbrook--and the general contractor had assured Westbrook that the cited opening would be covered. Indeed, the general contractor had, with Westbrook's assistance, covered the fourth floor opening even before the OSHA walkaround began, lending credibility to Westbrook's argument that it relied in good faith upon the general contractor's assurance that the third floor opening would soon be covered. Under these circumstances, we conclude that it would not be "appropriate" to assess a substantial penalty against Westbrook. See § 17(j) of the Act, 29 U.S.C. § 666(j).

Accordingly, the Secretary's citation alleging that Westbrook committed a serious violation of section 1926.500(b)(1) is affirmed, and a $50 penalty is assessed.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: March 22, 1989

SECRETARY OF LABOR,
Complainant,

LEE ROY WESTBROOK CONSTRUCTION CO.,
Respondent.

OSHRC DOCKET NO. 84-0009

Appearances:

A. Reid Tilson, Esq.
Dallas, Texas

For the Complainant.

John F. McCarthy, Jr., Esq.
Dallas, Texas

For the Respondent

DECISION AND ORDER

SCHWARTZ, Judge:

This is a proceeding brought before the Occupational Safety and Health Review Commission ("the Commission") pursuant to Section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et. seq. ("the Act"). Respondent contests an alleged serious violation of 29 CFR 1926.500(b)(1). A penalty of $450 was proposed for the alleged serious violation.

An inspection was conducted at Respondent's workplace on November 7 and 8, 1983. Respondent timely contested the subject citation. A hearing was held on June 14, 1984, at Dallas, Texas. No additional persons desired to intervene in this matter. Both parties have filed helpful post-hearing briefs.

The Evidence

On November 7 and 8, 1983, Jeffery C. Rucker conducted an OSHA inspection of a four story building under construction. The Respondent was a framing subcontractor at the subject worksite. The general contractor was Connell Construction Company (T. 8-9; 18; Exh. C-2; Exh. R-1).

Rucker arrived at the worksite at approximately 11:00 a.m. on November 7, 1983. He held an opening conference, broke for lunch, and started his actual inspection after the employee lunch hour. Rucker inspected the building from the top to the bottom. A steel stairwell provided access to the third floor. The fourth floor was only accessible by a wooden ladder. The ladder itself was placed over an open unguarded elevator shaft. Rucker considered the ladder unsafe and did not use it to inspect the fourth floor (Tr. 20-24).

Rucker was accompanied throughout the inspection by Glenn Faries, Connell's foreman at the job. Rucker issued an alleged serious citation for 1926.500(b)(1). He found the wooden ladder at the edge of the elevator shaft opening. The opening was 17 feet long and 6 feet 3 inches wide. The drop was 40 feet to the elevator pit below. The pit contained a damper column and was filled with rebar and broken pieces of wood. The ladder was 36 inches wide and was midway in the opening. It completely spanned the shaft opening. There were six to seven feet of uncovered shaft space on each side of the ladder. The subject ladder was 15 feet high (Tr. 24-27; Exh. C-3-5).

Rucker perceived the hazard as an employee losing his balance with a potential fall of 40 feet to the pit below. The employee could be carrying tools or a broom while using the ladder. If he slipped, the lack of a cover over the shaft opening could cause a fatal fall. The most typical way to prevent the hazard would be wood planking over the hole (Tr. 28-30).

Rucker observed an employee of the general contractor use the ladder to reach the third floor. After observing this employee, Rucker and Faries walked over to check the perimeter guarding. He looked back and saw another employee come down the same ladder. The employee, through an interpreter, was identified as Mosles Gamas, a Westbrook employee. The interpreter was Joe Garcia who served as Respondent's foreman at the site.

Gamas told Rucker he had used the ladder two or three times daily. Garcia, in response to Rucker's question, indicated he too used the ladder (T. 33-37; Exh. C-3). Rucker also testified the general contractor has overall responsibility for jobsite safety (T. 49).

The Secretary also called Glenn Faries to testify. Faries was the general contractor's foreman at the subject jobsite. Westbrook had a contract to pan the floors. At the time of the inspection they were pouring concrete at the fourth floor level. The subject ladder was the only way to move from the third floor to the fourth floor. Respondent's workday started at 7:00 a.m. Garcia was in charge of Westbrook's employees. Faries accompanied Rucker throughout the inspection (T. 54-58).

Faries believed that an employee would use the ladder three times a day. This would occur in the morning, at lunch, and possibly once or twice in the afternoon. He indicated any employee working at the fourth level-penthouse would stay there until lunch. The employee would return after lunch and not leave until quitting time. The ladder was moved the morning of the inspection to the subject location. Connell corrected the condition the day of the inspection. Faries used wood planks which were available and no special skill was required. It took approximately 30 minutes. Faries considered decking as the general contractor's responsibility (T. 59-61; 63-64; 66).

Faries knew about the uncovered shafts. He testified the ladder had been in place over the shaft for two-three hours. Prior to Rucker's arrival on the third floor, Faries was securing the fourth floor opening. He was working his way down and estimated the third floor would have been completed in another thirty to forty-five minutes. Garcia's crew helped deck the fourth floor. Faries told Garcia his crew would finish the decking. Faries chose to deck the fourth floor first because that was where the majority of the men were working (T. 65; 67; 70).

Respondent called Westbrook's foreman, Joe Garcia. Be indicated his crew consisted of one employee and himself on that day. They were watching a concrete pour on the fourth floor at the time of the inspection. Westbrook had been working on that floor the morning of the inspection. He had helped the general contractor cover the fourth floor opening (T. 77; 81-82).

Garcia indicated that he came down from the fourth level to the third level at the time of the inspection because he thought the OSHA inspector wanted to talk to him. Garcia indicated that he would not have come down the ladder if the OSHA man had not called him. He also would not allow anyone in his crew to use an unsafe ladder. Garcia would normally not leave a concrete pour (T. 83-84).

He testified that he used the subject ladder to reach the fourth floor that morning. He used the ladder once in the morning and also about three times a day. They used it to come down. He explained why he used the ladder three or four times a day. He used it when somebody called him at the office or he had something to do on the job. He also indicated his helper would use it at least two times. They had to use the ladder one time to watch the pour. His helper used the ladder to follow him down. The helper came down and asked "what happened." The helper did not know the OSHA inspector was there (T. 85-86).

Opinion

The Secretary has alleged a serious violation of 29 CFR 1926.500(b)(1). The standard provides as follows:

§ 1926.500 Guardrails, handrails, and covers.
(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.

There is no question that a violation of the standard existed at the subject worksite. The elevator shaft opening was not covered. Respondent's employees were exposed to a potential fall of approximately forty feet to the elevator pit below. The pit contained a damper column as well as rebar. If an employee slipped off the ladder, there is no question that death or serious physical injury could occur. Consequently the violative condition must be considered serious within the meaning of the Act.

Respondent contends that it fulfilled its responsibilities as a subcontractor in this case. The Commission has long held that if a hazard remains unabated, the employer who does not create or control the hazard will be relieved of any responsibility for violating the standard if it can establish that it used reasonable alternative means to protect its employees or had no actual or constructive knowledge that the condition was hazardous. Grossman Steel and Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD ś 20,691 (No. 12,775, 1975); Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 ś 20,690 (Nos. 3694 and 4409, 1975). Whether the alternative methods of protection taken by the noncontrolling employer are sufficient to establish an affirmative defense is decided on a case by case basis and will depend on the circumstances at the workplace. J.H. McKay Elec. Co., 78 OSAHRC 77/B10, 6 BNA OSHC 1947, 1978 CCH OSHC ś 23,026 (No. 16110, 1978).

With respect to the planking of unguarded elevator shafts, Respondent is a framing subcontractor at a multi-employer worksite. Respondent did not create the fall hazard. For purposes of the decision, I have assumed that Respondent also did not control the hazard and that the general contractor had complete control of the hazard. The real question is whether, under the circumstances of this case, Westbrook took reasonable alternative means to protect its employees.

The first priority is to determine the exact nature of the hazard involved. In this case a ladder spanned a large elevator opening. The shaft opening was uncovered exposing employees to a potential fall of forty feet. One slip could result in a serious injury or death. The hazard could be abated by installing planks over the opening. The material was readily available at the job. It would take thirty to forty-five minutes to abate this hazard.

Respondent's foreman, Garcia, was aware of the hazard. He was helping the general contractor abate the condition on the fourth floor. However, placed in its true context, Westbrook did not fulfull its responsibility under the Act to assure the safety of its employees, Garcia and Gamas. My reasons follow.

Garcia was well aware of the danger. He used the ladder to leave the fourth floor because he thought the OSHA inspector called him. This single transgression might be forgiven. However, the test is whether Westbrook took reasonable alternative means to protect its employees from the highly dangerous opening. Gamas was seen using the ladder by Rucker. Garcia explained that Gamas followed him down to see what happened. Gamas, according to Garcia, did not know the OSHA inspector was there. This transgression is the flaw in Westbrook's reasoning. The employee Gamas, at the very least should have been warned not to use that ladder until the third floor was planked. Gamas showed no concern for the obvious hazard and Respondent therefore has not sustained its burden of proof on this defense.

In addition, the record supports a finding that Garcia and Gamas both used the ladder several times prior to the abatement of the hazard. Both Gamas and Garcia told Rucker they used the ladder. Faries estimated that Westbrook employees would use the ladder in the morning and at lunch. Finally Garcia confirmed his use of the ladder at times other than when he thought the OSHA inspector called him. He clearly stated that he used the ladder to reach the fourth floor the morning of the inspection. He also used it approximately three other times. Garcia used it when somebody called him at tie office or he had something to do at the office. He also testified Gamas used it at least twice. This evidence, considered as a whole, leads to one finding. I find as fact that both Garcia and Gamas used the ladder several times prior to the opening being covered by the general contractor.

The above facts detract from Garcia's statement that he would not allow anyone to come down an unsafe ladder. Rather it is clear that Garcia took no alternative methods to protect himself or Gamas from the dangerous condition existing at the worksite. Westbrook should have refused to commence work until Connell Construction had covered all uncovered shafts. This small delay was fully justified when weighed against the seriousness of the violative condition. At the very minimum, foreman Garcia should have instructed Gamas, in no uncertain terms, to stay off the ladder until the hazard was corrected. Garcia himself should have followed these same precautions. Consequently, in view of the above, serious citation number 1 is affirmed.

I now turn to the assessment of an appropriate penalty in this case. The overriding consideration is the high gravity of the violation. Two employees were exposed to a forty foot fall to the bottom of the elevator pit. This pit contained a damper column as well as rebar. There this violation. On balance, I conclude that the Secretary's proposed penalty of $450 is more than reasonable in light of the record and the statutory criteria set forth in Section 17(j) of the Act.

Conclusions of Law

1. Respondent, Lee Roy Westbrook Construction Co., is engaged in a business affecting commerce and has employees within the meaning of Section 3(5) of the Act. The Commission has jurisdiction of the parties and of the subject matter of this proceeding.

2. On November 7, 1983, Respondent was in serious violation of 29 CFR 1926.500(b)(1).

ORDER

On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

1 . Item 1 of serious citation number 1 is affirmed and a penalty of; 450 is assessed.

STANLEY M. SCHWARTZ
Administrative Law Judge

Date: October 19, 1984

FOOTNOTES:

[[1/]] Section 1926.500(b)(1) provides:
§ 1926.500 Guardrails, handrails, and covers.
* * *
(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/]] General contractor Connell Construction was similarly cited.

[[3/]] Westbrook incorrectly argues in its brief that the issue of control is not before us. From the outset, the central issue in this case has been whether Westbrook met its burden of proving the. affirmative defense established in the Anning-Johnson and Grossman Steel decisions. We could not sustain that defense, as Westbrook urges, without first finding that it has established all of the elements of the affirmative defense. Moreover, the element of "control" was encompassed in the second of the two issues specified in Chairman Buckley's direction for review--"Whether the judge erred in finding that Respondent was in violation when Respondent neither created nor controlled the violative condition." Finally, we note that the former Review Commission procedural rule pertinent to this issue, rule 92(c) , on which Westbrook bases its argument that the control issue is not before us, was construed by the Commission in Hamilton Die Cast, Inc., 12 BNA OSHC 1797, 1802-1803, 1986-87 CCH OSHD ś 27,576 at pp. 35,824-25 (No. 83-308, 1986). In that case, the Commission held that former rule 92(c) was consistent with its view that the entirety of a case is before the Commission on review once a direction for review is issued, regardless of the scope of the issues expressly stated in the direction for review. Current Review Commission procedural rule 92(a), 29 C.F.R. § 2200.92(a), provides that, unless otherwise specified, "a direction for review establishes jurisdiction in the Commission to review the entire case."

[[4/]] The record suggests that this material was Westbrook's property. Thus, the general contractor's foreman testified that he had approached Westbrook's foreman about using the materials because Garcia "had the material readily available" that was needed to cover the openings.

[[5/]] The principal work of the two employees was the erecting and dismantling of wooden formwork. It is therefore clear that they had sufficient carpentry skills to cover the cited floor opening.

[[6/]] OSHA's current official enforcement guidelines for issuing citations on multi-employer worksites take this same position.
OSHA Instruction CPL 2.45A CH-10 (March 27, 1986), para. F.3.d. [citation wiIl not be issued to noncreating, noncontrolling employer that takes specified precautions, including "where feasible . . . alternative means of protecting employees from the hazard short of walking off the job (except when special circumstances require such extreme action)."]