Docket No. 8468

OTIS ELEVATOR COMPANY

OSHRC Docket No. 8468

Occupational Safety and Health Review Commission

May 14, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Albert H. Ross, Regional Solicitor, U.S. Department of Labor

Maurice T. FitzMaurice, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

A report of Judge Donald K. Duvall, dated March 13, 1975, is before this Commission for review, pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651, et seq., hereinafter "the Act"). On review, the essential question is whether a subcontractor is in violation of section 5(a)(2) of the Act when its employees are exposed to hazardous conditions which are contrary to standards but which it did not create and which it had no contractual obligation to correct. n1 For the reasons set forth herein, we conclude that in the facts of this case, Respondent was in violation of the Act.

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n1 Commissioner Moran also directed review, on his own motion, as to whether the Judge's report was in conformity with the requirements of the Administrative Procedure Act, 5 U.S.C. § 551, et seq. (APA), since it did not contain "any discussion of issues other than Findings of Fact and Conclusions of Law." We have examined the Judge's report and find it sufficient to satisfy the requirements of 5 U.S.C. § 557(c). His findings of fact include determinations that the cited standards were not complied with and determinations that Respondent's employees were exposed to hazards existing by virtue of the noncomplying conditions. The reasons for his disposition were therefore evident.

[*2]

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At the time of the inspection, Respondent was engaged in the installation of elevators in a 26-story office building under construction in Hartford, Connecticut. Respondent had 13 employees at the site who were installing 16 elevators in as many shafts. The elevator complement consisted, in part, of six "low rise" elevators which serviced the first through fourteenth floors, six "high rise" elevators which started on the first floor but serviced only the fifteenth through twenty-fourth floors, and two "penthouse" or "executive" elevators which serviced the twenty-fourth through twenty-sixth floors.

Following an inspection by Complainant's representatives, a citation was issued which alleged that Respondent was in nonserious violation of numberous standards. Thereafter, Respondent filed a notice of contest limited to the following alleged violations: (1) an allegation that Respondent had inadequate housekeeping on the basement level and the first floor in violation of 29 C.F.R. 1926.25(a); (2) and allegation that elevator shaft openings on the 15th, 16th, 17th, 19th, and 20th floors (all high rise [*3] shafts) were not equipped with toeboards in violation of 29 C.F.R. 1926.500(c)(1)(ii); n2 an allegation that elevator shaft openings on the 14th, 15th, and 26th floors were not equipped with standard guardrails in violation of 29 C.F.R. 1926.500(c)(1)(i) n3 and an allegation that a floor opening at the executive elevator shaft on the 26th floor was unguarded in violation of 29 C.F.R. 1926.500(b)(1). n4 Judge Duvall vacated the alleged violation of 1926.500(c)(1)(i) but otherwise affirmed the citation.

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n2 29 C.F.R. 1926.500(c)(1)(ii) provides:

The bottom of a wall opening, which is less than 4 inches above the working surface, regardless of width, shall be protected by a standard toeboard or an enclosing screen either of solid construction or as specified in paragraph (f)(7)(ii) of this section.

n3 29 C.F.R. 1926.500(c)(1)(i) provides:

(i) When the height and placement of the opening in relation to the working surface is such that either a standard rail or intermediate rail will effectively reduce the danger of falling, one or both shall be provided.

n4 Item 8 of the citation originally alleged a violation of 1926.500(d)(1). However, it was amended by the complaint to allege a violation of 1926.500(c)(1)(i) and 1926.500(b)(1).

29 C.F.R. 1926.500(b)(1) provides:

Floor openings shall be guarded by a standard railing and toeboards or cover as specified in paragraph (f) of this section. In general, the railings shall be provided on all exposed sides, except at entrances to stairways.

[*4]

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Inasmuch as the Complainant did not petition for review of Judge Duvall's vacation of the alleged violation of 1926.500(c)(1)(i), and did not brief it on review, we will not consider it on review. Abbott-Sommer, Inc., Docket No. 9507, BNA 3 OSHC 2032, CCH OSHD para. 20,428 (R.C., February 17, 1976).

Alleged Violation of 29 C.F.R. 1926.25(a)

The record establishes, and Judge Duvall found, that there was scattered debris, equipment and materials on the floor of the basement, adjacent to Respondent's work area and job shack. The record also establishes that at Respondent's worksite on the first floor, there were equipment and supplies owned by Respondent, as well as other equipment and debris, blocking the aisle in front of the elevators which led to the basement stairs. Each subcontractor was responsible for its own debris, materials, and equipment. On these facts, Respondent was cited for violation of 1926.25(a). Respondent defended against this allegation on the basis that two days prior to the inspection, it had assigned an employee to clean up its work area in the basement, and that [*5] the remaining debris had been left by one or more of the five other subcontractors that used the basement area.

On review, Respondent contends that the decision of the Seventh Circuit in Anning-Johnson Co. v. OSHRC, 516 F.2d 1081 (7th Cir. 1975) and the decision of the Second Circuit in Brennan v. OSHRC (Underhill Construction Company), 513 F.2d 1032 (2d Cir. 1975), support its position that it should not be held responsible for the violative conditions created by others. In Anning-Johnson, the court held, with regard to nonserious violations in the construction industry, that a subcontractor who did not create a violative condition and did not control the area, was not responsible under the Act, despite actual exposure of its employees to the condition. In so deciding, the court noted several factors, among others, which influenced its decision; (1) The general contractor on a multi-employer construction site is the one who contractually controls the jobsite, while the subcontractor is contractually limited to his specific field; (2) a policy of responsibility based solely on whose employees are exposed requires employers to discover and correct violations that may [*6] be beyond their area of expertise; and (3) union contracts ordinarily require that only certain crafts be permitted to undertake certain work and the cited employer may not employ members of that craft. Underhill, supra, held among other things that a subcontractor who created a violation to which only employees of other contractos were exposed, had violated the Act.

As the court in Anning-Johnson noted, the Commission has consistently held that an employer is in violation of section 5(a)(2) of the Act if his employees are exposed n5 to a hazard that the cited standards seeks to eliminate. Robert E. Lee Plumbers, Inc., 17 OSAHRC 639, BNA 3 OSHC 1150, CCH OSHD para. 19,594 (1975) and cases cited therein. We have also held that an employer is not responsible for a condition it creates in violation of a standard so long as its own employees are not exposed to the condition, even though employees of other employers are exposed. Martin Iron Works, Inc., 9 OSAHRC 695, BNA 2 OSHC 1063, CCH OSHD para. 18,164 (1974). Thus, the protection assured each employee was the responsibility of his or her own employer.

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Although the Commission is not bound by the decisions of the court in Underhill, supra, and Anning-Johnson, supra., n6 it has recently reconsidered its prior decisions regarding multi-employer liability on construction sites in light of those decisions. Accordingly, we held that each employer is responsible for assuring that its own conduct does not create hazards to any employees on the site, and that we would hold [*8] the general contractor responsible for violations it could reasonably have been expected to prevent or abate by reason of its supervisory capacity. We also noted, however, that although a subcontractor may not be able to abate a hazard itself, it cannot ignore hazards to which its employees are exposed and of which it had or should have had actual knowledge. Accordingly, the subcontractor can attempt to have the general contractor correct the condition, attempt to persuade the employer responsible for the condition to correct it, instruct its employees to avoid the hazard if it is practical to do so, or in some instances provide an alternative means of protection against the hazard. In the absence of such actions, we will hold each employer responsible for all violative conditions to which its employees have access.

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[*9]

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Furthermore, we held in Grossman, that the burden of establishing this exception to the general rule that an employer is responsible for the exposure of his own employees to a hazard, is that of the Respondent. We stated in Grossman that while our holding differed from that of the Seventh Circuit in Anning-Johnson, we believed it to be a workable rule and responsive to the major objections the court had to our prior decisions in this area.

With regard to the alleged violation of 1926.25(a) in the instant case, it is clear that Respondent had the expertise to recognize the hazard, as well as to eliminate it. n8 In this regard, we believe the very nature of housekeeping violations makes them readily apparent to most, if not all employers. Furthermore, it is obvious that no special expertise is needed to correct them.

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We are not necessarily saying that Respondent should have corrected the hazards itself, but as a minimum it should have requested the responsible subcontractor to correct this condition, or should have notified the general contractor. The record, herein, establishes that when accumulated debris came to the general contractor's attention, the general would require the responsible subcontractor to clean the area. If the subcontractor did not comply, the general would clear the area and charge the subcontractor. Inasmuch as Respondent had not taken sufficient steps to either have the housekeeping violations eliminated, or to eliminate them itself, and its employees had access to the hazard, we will affirm the citation item charging a violation of 1926.25(a).

Alleged Nonserious Violations of 1926.500(c)(1)(ii) and 1926.500(b)(1)

Respondent was cited for nonserious violation of 1926.500(c)(1)(ii) in that the high-rise elevator shafts did not have toeboards on the 15 - 17th floors and on the 19 - 20th floors. Respondent was also cited for violation of 1926.500(b)(1) in that on the 26th floor, a floor opening at the executive elevator shaft was not equipped [*11] with a standard guardrail.

Respondent's construction foreman admitted at the hearing that the toeboards were missing on the 15th floor and above. It was also established that the floor opening at the executive elevator shaft was guarded only be a rope. Respondent contended, contrary to the compliance officer, that it had no employees exposed to the hazard presented by the missing toeboards and that the general contractor (through its carpentry subcontractor) was responsible for the installation and maintenance of the toeboards. Respondent also asserted that the general contractor was responsible for the guardrails around the executive elevator shaft.

Judge Duvall found that Respondent's employees were exposed to the hazards presented by the missing toeboards and the unguarded shaft. Applying the Commission rule which existed at the time he issued his report (see discussion under "Alleged Violation of 1926.25(a)") he affirmed both items of the citation.

On review, Respondent again contends that its employees were not exposed to the alleged violation of 1926.500(c)(1)(ii). In this regard, we note that a credibility determination and weighing of the evidence was implicit in the [*12] Judge's finding that there was exposure. It is well established that we will not disturb a finding with that basis. N.E. Stevedoring Co., Inc., 13 OSAHRC 105, BNA 2 OSHC 1332, CCH OSHD para. 19,001 (1974); Paul L. Heath Contracting Co., 20 OSAHRC 297, BNA 3 OSHC 1550, CCH OSHD para. 20,006 (1975).

On review, Respondent also contends that these items of the citation should be vacated on the basis that the general contractor was responsible for the installation of toeboards and guardrails. In support of its position, Respondent points to the evidence that the general contractor was responsible for the toeboards and guardrails and that it had subcontracted that responsibility to a carpentry concern.

As previously discussed, we have recently re-evaluated our rule regarding liability of employers on multi-employer construction sites and have held that in appropriate circumstances we will hold the general contractor or an appropriate subcontractor liable for hazards for which they are responsible and to which the employees of other employers are exposed. Grossman Steel and Alumimum Corporation, supra. However, we also stated in Grossman that the new rule was an [*13] exception to the general rule that each employer has is responsibility for the safety of its own employees and that an employer could not ignore hazards of which it had knowledge.

In this case, Respondent has established that the general contractor had assumed responsibility for the installation of guardrails and toeboards. However, these violations were peculiarly within Respondent's area of expertise. That is, the violations involved the failure to properly guard elevator shafts and Respondent's specialty is the installation of elevators. We believe that an elevator subcontractor should be particularly sensitive to the existence of these types of violations. Moreover, the elevator shafts are an area of the construction project over which the Respondent has joint control. On these facts, we are not persuaded to excuse Respondent from its responsibility for the safety of its own employees. n9 Accordingly, we will affirm these items of the citation.

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Furthermore, even if Respondent had not had joint control of the elevator shafts, we would still find Respondent liable in this case. We stated in Grossman that where a Respondent has the expertise to detect the existence of a hazard, he must take reasonable steps to protect his employees from that hazard. We also said the burden of establishing that these steps were taken lies with the Respondent. Inasmuch as this record contains no evidence that Respondent took any steps to have the general contractor correct the hazardous conditions or to warn its employees of the hazards, we would affirm even if Respondent did not have joint control over the elevator shafts.

The Respondent stipulated to the appropriateness of the penalties proposed by the Secretary. We will assess the stipulated amount inasmuch as no party or employee has objected to it and the amount is not clearly repugnant to the objectives of the Act. Thorleif Larsen & Sons, Inc., 12 OSAHRC 313, BNA 2 OSHC 1256, CCH OSHD para. 18,826 (1974).

Accordingly, the Judge's report is affirmed. It is so ORDERED.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, [*15] Commissioner, Concurring in Part, Dissenting in Part:

I agree with the affirmance of the Judge's vacation of the § 1926.500(c)(1)(i) charge for the reasons stated in his decision which is attached hereto as Appendix A. n10 I disagree, however, with the remainder of the majority opinion.

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n10 The majority opinion erroneously refuses to consider the reasons for the Judge's disposition on this particular charge - but affirms it because the losing party did not request discretionary review thereon or file a brief. There is no requirement either in the Act or the Rules of this Commission that any party perform either of these acts. Consequently no adverse inference can be drawn from one's failure to do so.

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Since the record shows that respondent was not responsible for either the existence of any of the violations charged against it - or the abatement thereof - it becomes a Godawful miscarriage of justice to hold respondent liable for them. In Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975), the Circuit Court carefully weighed the equities in deciding whether to base an employer's job safety liability at multi-employer jobsites on its employees exposure to worksite hazards for which the cited employer was not responsible or upon the employer with actual responsibility for the violative conditions. It concluded that the purposes of the Act would best be served by releasing from liability innocent employers whose employees happened to be in the vicinity of noncompliant conditions which the cited employer neither created or could abate. That decision is not being followed by the Commission in this case. The reasons given for not following it are not because it is wrong or because there is any other contrary court decision but - brace yourself now - because the NLRB says it doesn't have to follow Court decisions. See the citation to 119 NLRB [*17] 768 in note 6, supra. My comments on this bizarre behavior are contained in the Grossman Steel case, cited infra.

Although I will not repeat what I said in those decisions, I do wish to point out that my colleagues' holding in this case illustrates that their self-created rule is neither "reasonable" or "workable."

Acting as if they were expert witnesses for the complainant on construction practices, my colleagues decide that the installation of guardrails and toeboards are "peculiarly within Respondent's area of expertise." The fallaciousness of this conclusion is demonstrated by the fact that respondent showed that its work involved all parts of elevators except the doors and openings and that it engaged no carpenters [*18] on the worksite because it was not responsible for erecting railings and toeboards.

As for the citation for failure to remove debris, respondent's witnesses testified that they often requested the general contractor to have the other subcontractors remove the debris that those subcontractors had created. My colleagues acknowledge that respondent removed debris from the basement two days before the inspection. What else do they expect? Is it necessary for one subcontractor to keep all other subcontractors working in a building of this enormous size under constant surveillance for the creation of debris? That is ridiculous on its face, but I submit that it is necessary if a subcontractor is to avoid liability under this Barnako-Cleary rule. Thus, all subcontractors on a worksite will have to be constantly checking on all others to insure that somebody's worker has not thrown down some trash.

A requirement for such constant cross-checking of each other is an obvious waste of manpower which could be used to advance the purposes for which they contracted. Logic dictates that the responsibility for debris should rest primarily on the contractor who created it n11 or on the general [*19] contractor who has assumed overall responsibility therefor as in this case. Logic, however, is not the keystone of the Barnako-Cleary rule. They say that respondent "had the expertise . . . to eliminate" the debris created by others. It may seem obvious that any subcontractor has the expertise to clean up debris (there are many who question this, saying it depends on the nature of the debris), but he will encounter difficulties when he tries to use elevator specialists, plumbers, or electricians to clean up a pile of debris created by another subcontractor. More importantly, however, it is patently wrong to require a subcontractor to be responsible for correcting housekeeping violations of all other subcontractors on a worksite.

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n11 The majority opinion asserts that respondent had supplies and equipment on the first floor. It should be noted, however, that it is not claimed that this was debris or that the "debris, blocking the aisle in the front of the elevator which led to the basement stairs" was created by respondent.

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This case is only illustrative of the problems inherent in applying the Barnako-Cleary rule. The truth is - it's not a rule at all. It is a trap, large enough and adaptable enough to catch all employers at all multi-employer worksites for all sub-standard conditions existing thereon. It makes each such employer an OSHA Deputy Sheriff with responsibility for organizing a posse to police the activities of each other employer at the worksite. But, unlike traditional standards of America jurisprudence, the Barnako-Cleary theory is to hold each Deputy Sheriff liable if there are any outlaws on the premises. There is no escape. Every employer is liable for every violation. The quintessential OSHA has arrived at multi-employer worksites.

Fortunately, however, the courts are still in business and I have no doubt that this principle of law ennunciated in Brennan v. OSAHRC and Raymond Hendrix d/b/a Alsea Lumber Company n12 still applies:

"Fundamental fairness would require that one charged with and penalized for violation be shown to have caused, or at least to have knowingly acquiesced in that violation. Under our legal system, to date at least, [*21] no man is held accountable, or subject to fine, for the totally independent act of another."

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n12 511 F.2d 1139 (9th Cir. 1975).

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APPENDIX A

DECISION AND ORDER

Jerrold Solomon, U.S. Department of Labor, for Complainant

Maurice T. FitzMaurice, for Respondent

Duvall, D. K., Judge, OSAHRC

This is a proceeding pursuant to sections 9 and 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter called "the Act") contesting that part of a citation, issued on May 28, 1974, consisting of three alleged non-serious violations of occupational safety and health standards under sections 5(a)(2) and 6 of the Act. Also contested are the related proposed penalties in the total amount of $180.00.

Specifically, it is alleged that on May 17, 1974, the date complainant inspected respondent's Financial Center Building site at 700 Main Street, Hartford, Connecticut, respondent violated the occupational safety and health standard set forth at 29 CFR 1926.25(a) in that the "Employer failed to [*22] assure that during the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways and stairs, in and around buildings or other structures. Location - (a) base level; work area near job shack cluttered with miscellaneous debris and equipment, (b) 1st floor South; hallway blocked with test weights and cable reel."

29 CFR 1926.25(a) provides as follows:

"During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures."

The proposed penalty for this alleged violation is $45.00.

It is further alleged in item 7 of the citation that respondent at said time and place violated the occupational safety and health standard set forth at 29 CFR 1926.500(c)(1)(ii) in that the "Employer failed to assure that the bottom of a wall opening, which is less than 4 inches above the working surface, shall be protected by a standard toeboard or an enclosing screen. Location - elevator shaft openings on 15, 16, 17, 19 and 20th floors [*23] had no toeboards protecting openings." The proposed penalty for this alleged violation is $80.00.

29 CFR 1926.500(c)(1) provides as follows:

"Wall openings, from which there is a drop of more than 4 feet, and the bottom of the opening is less than 3 feet above the working surface, shall be guarded as follows:

"(ii) The bottom of a wall opening, which is less than 4 inches above the working surface, regardless of width, shall be protected by a standard toeboard or an enclosing screen either of solid construction or as specified in paragraph (f)(7)(ii) of this section."

Finally, it is alleged in item 8 of said citation as amended by the complaint herein that at said time and place respondent violated the occupational safety and health standards set forth at 29 CFR 1926.500(c)(1)(i) in that "Respondent failed to provide either a standard rail or an intermediate rail where the height and placement of wall openings in relation to the working surface is such that the danger of falling would be effectively reduced. Location: elevator shaft openings on 14, 15 and 26th floors."

As part of item 8, violation of 29 CFR 1926.500(b)(1) was also alleged in that "Respondent failed to guard [*24] a floor opening with a standard railing and toeboard or cover as specified in paragraph (f) of this section. Location: floor opening on 26th floor." A single penalty of $55.00 was proposed for these two alleged violations.

29 CFR 1926.500(c)(1)(i) provides:

"When the height and placement of the opening in relation to the working surface is such that either a standard rail or intermediate rail will effectively reduce the danger of falling, one or both shall be provided."

29 CFR 1926.500(b)(1) provides:

"Floor openings shall be guarded by a standard railing and toeboards or cover, as specified in paragraph (f) of this spection. In general, the railing shall be provided on all exposed sides, except at entrances to stairways."

A prehearing conference and a hearing in this matter were held before me on October 8, 1974 at Hartford, Connecticut, with both parties represented by counsel. No affected employee or representative thereof has asserted party status in this matter. The parties stipulated that the proposed penalties were appropriate if the respective violations were found (Tr. 5). At the close of the hearing, the Judge granted complainant's motion for summary judgment on [*25] the issue of reasonably prompt issuance of the citation on May 28, 1974, following the OSHA inspection on May 17, 1974 (Tr. 19-26, 278-280).

Findings of Fact

The record herein, as a whole, contains reliable, probative, and substantial evidence to support the following findings of fact:

1. Respondent is a New Jersey corporation engaged in the business of assembling and installing passenger and freight elevators, which entails doing business outside of the State of New Jersey and handling and shipment of goods across state lines interstate commerce (Citation, Answer, Tr. 3-4).

2. Respondent's net worth for 1973 was $273 million and it had 10,000 employees (daily average) in the United States, of whom approximately 13 employees were employed on May 17, 1974, at its work site at 700 Main Street, Hartford, Connecticut, where the 26 story Financial Center Building was under construction (Complaint, Answer, Tr. 5, 34).

3. On May 17, 1974, respondent's work site was inspected by complainant's agents, including compliance officers Masters, Barnes and Stanton and area director Smith. The inspection was conducted by teams with each OSHA officer, accompanied by different employer [*26] and employee representatives, inspecting designated floors of the building. On the inspection date the entire framework of the building was up and most of its exterior enclosed, with interior construction still in progress by at least 15 contractors (Tr. 35-37).

4. On May 28, 1974, based on the aforesaid inspection, complainant issued to respondent a citation alleging eight non-serious violations of specific occupational safety and health standards, of which respondent contested violation items 2, 7 and 8 and the related proposed penalties in the total amount of $180.00 (Citation, Complaint, Notice of Contest).

Item 2 - 29 CFR 1926.25(a)

5. At all times material hereto, in the work site basement level, adjacent to respondent's work area and job shack, there was a work area and passageways which contained scattered debris, equipment and materials on the floor attributable to or used by various subcontractors at the work site, including plumbers, sheet metal workers, sprinkle fitters, electricians, and cement finishers. A workbench in the cited area was used by respondent in the early stages of construction and thereafter all trades, including respondent, have used it (Tr. [*27] 141-143, 219-225, Exhibit R-5).

6. Two days prior to the inspection, respondent had an employee clean up its work area around its job shack (to the right of the area shown in Exhibit R-5) so as to eliminate scattered debris and provide ample walkway for the movement of heavy equipment to the elevator shaft (Tr. 275-278).

7. Respondent's work shack was a meeting place and lunchroom for respondent's employees, who would walk from left to right across the area shown in Exhibit R-5 to reach the job shack (Tr. 224-225). On the material date, three of respondent's employees were in the job shack and one passed through the area shown in Exhibit R-5 (Tr. 142-143, 167).

8. At all times material hereto, in the work site first floor south level, there was equipment and supplies, including a spent cable spool and weights owned by respondent and sections of scaffold, pipe, dolly and scrap lumber, obstructing the aisle or passageway in front of the elevators leading to stairs to the basement (Tr. 156-166, Exhibit C-6).

9. At the time and place aforestated in finding 8, respondent's employees were using the weights in connection with their work on the elevator there (Tr. 178-179).

Item [*28] 7 - 29 CFR 1926.500(c)(1)(ii)

10. At the work site on the dates material hereto, there were no toeboards in the wall openings of the elevator shafts, north and south banks, on floors 15 through 20, with the exception of the 18th floor (Tr. 127). The cited wall openings on floor 18 had standard railings and on floors 15 though 17 and 19 through 20, railings only (Tr. 127-128, 135). The cited wall openings were not raised above the floor (Tr. 69).

11. Toeboards were nailed to the framing of guardrails at the wall openings on floor 18 (Tr. 131). From time to time, such toeboards could be removed by various trades in order to work or move materials (Tr. 211-216).

12. There were persons working on floors 15 through 20 and there was some debris in the area of the cited wall openings which could have been kicked or otherwise fallen into the shafts of the high rise elevators which serviced floors 15 through 24 (Tr. 128-129, 169). Mr. Smith observed two of respondent's employees descending from the 24th to the 1st floors on a platform in the high rise elevator shaft, north bank (Tr. 78, 102).

13. Only respondent's employees were authorized to operate powered platforms in the [*29] high rise shafts (Tr. 237).

Item 8 - 29 CFR 1926.500(c)(1)(i) and 29 CFR 1926.500(b)(1)

14. On the material dates there were adequate railings at the cited wall openings on floors 15 through 20 (Tr. 127-128, 136). No evidence of record showed inadequate railings at wall openings on floor 14 (Tr. 138-140). The cited wall opening on floor 26 involved no substantial drop since a solid concrete floor was constructed there (Tr. 90, 117, 173-174, Exhibit C-1).

15. On the material dates on the 26h floor of respondent's work site, there was a floor opening for double elevator shafts to the 24th floor which was guarded on one side by a hemp rope which could not support a man, on two ends by unanchored railings and crosspiece without mid-rails or toeboards, and on part of one side by a piece of plywood sheeting 1/2 inch by 6 inches which was not anchored (Tr. 39-40, 46-47, Exhibit C-1 and 2).

16. Respondent's employees were in and around the control room near the floor opening on the 26th floor and at least one such employee walked within 4 to 6 feet of the opening. There were loose boards and a cord on the floor close to the floor opening (Tr. 115-116). To travel to and from [*30] the control room from or to any floor below, an employee would probably travel in a direction away from the floor opening (Tr. 155, 175-176).

17. Under the bidding specifications for construction at the work site respondent had no contractual obligation to provide barricades and guards at floor openings and, in practice, installation of standard rails and toeboards was considered a carpenter's task and contracted out by the general contractor of the work site (Gilbane Building Company) to a carpentry subcontractor (Tr. 213-215, 250-262, Exhibit R-7). Under the construction contract applicable to the work site, respondent, as a subcontractor, was required to comply with all State and Federal regulations (Tr. 262-263).

18. The high rise elevators serviced floors 1 and 15 through 24, the low rise elevators serviced floors 1 through 14, and the executive elevators serviced floors 24 through 26; additionally, one elevator serviced the basement to the 24th floor and one hydraulic serviced the 1st and 2nd floors (Tr. 169).

19. On the material dates no employee of respondent was assigned to work in the high rise shafts (Tr. 185, 200-201, Exhibits R-2 and R-3).

20. On the material [*31] dates there was a Chicago boom operational on the 26th floor of the work site. This boom was used at times unknown by various trades to lifet heavy equipment from the 24th to 26th floors through the executive elevator hatch, usually when respondent's foreman gave clearance. The rails or toeboards at the executive shafts were removed at such times to facilitate movement of heavy equipment (Tr. 179-183).

21. In determining the amount of the proposed penalties for the alleged violations herein, complainant gave consideration to the gravity of the alleged violation, size of the business and respondent's good faith and history of previous violations (Tr. 5-6, Complaint, Stipulation).

Conclusions of Law

1. At all times material hereto respondent was an employer engaged in a business affecting commerce within the meaning of sections 5(a) and 3(5) of the Act, and the Commission has jurisdiction of the parties and the subject matter herein under section 10 of the Act.

2. At all times material hereto respondent was subject to the requirements of the Act and the occupational safety and health standards promulgated thereunder pursuant to section 6 of the Act, including the standards [*32] cited herein.

3. On May 17, 1974, respondent was in violation of the occupational safety and health standard set forth at 29 CFR 1926.25(a) under sections 5(a)(2) and 6 of the Act as alleged in the citation, item 2.

4. On May 17, 1974, respondent was in violation of the occupational safety and health standard set forth at 29 CFR 1926.500(c)(1)(ii) under sections 5(a)(2) and 6 of the Act as alleged in the citation, item 7.

5. On May 17, 1974, respondent did not violate the occupational safety and health standard set forth at 29 CFR 1926.500(c)(1)(i) under sections 5(a)(2) and 6 of the Act as alleged in the amended citation, item 8.

6. On May 17, 1974, respondent violated the occupational safety and health standard set forth at 29 CFR 1926.500(b)(1) under sections 5(a)(2) and 6 of the Act as alleged in the amended citation, item 8.

7. The penalties proposed for the aforesaid violations are appropriate in accordance with section 17(c) and (j) of the Act.

ORDER

Based on the foregoing findings of fact, conclusions of law and the record as a whole, it is ORDERED, that the amended citation herein, items 2, 7, and that part of item 8 relating to 29 CFR 1926.500(b)(1) be and [*33] hereby and affirmed and that a total penalty of $180.00 be and hereby is assessed. That part of item 8 of the amended citation relating to 29 CFR 1926.500(c)(1)(i) is hereby vacated.

DONALD K. DUVALL, Judge, OSAHRC

Dated: MAR. 13, 1975, Hyattsville, Maryland