SECRETARY OF LABOR,
Complainant,

v.

NORTH BERRY CONCRETE CORPORATION,
Respondent.

OSHRC Docket No. 86-0163

DECISION

Before: BUCKLEY, Chairman; AREY, Commissioner.

BY THE COMMISSION:

At issue is whether the judge erred in vacating a citation item alleging a serious violation of the construction standard previously published at 29 C.F.R. 1926.700(b)(2).[[1/]] Specifically, the item charged that North Berry Concrete Corporation had exposed its employees to the danger of falling and becoming impaled on reinforcing steel bars ("rebars") during concrete construction. The major issue is whether the standard applies to employees who were not at their work stations, but were walking to and from them. For the reasons that follow, we reverse the judge's decision, find a serious violation and assess a $100 penalty.

North Berry was the concrete subcontractor for a 68-story building under construction at 146 West 57th Street, New York, New York. Its employees walked near a floor opening that was about six feet across (though irregularly shaped) on the 61st floor. About ten vertical rebars, arranged in a semicircle, rose about three feet from the concrete 60th floor, below the floor opening. Two OSHA inspectors testified that an employee could have fallen on a rebar if he fell through the opening. The rebars, which had been installed by North Berry, were not covered with plywood or otherwise protected to prevent impalement. North Berry's employees had no assigned jobs near the floor opening. However, they passed it to reach a central stairway which was their only access to work stations on higher floors.

The judge concluded that the standard does not cover employees in transit because it applies only to "work" above rebars. However, the Commission has held that the standard covers employees traveling to and from their work stations. Gelco Builders, Inc., 77 OSAHRC 203/B14, 6 BNA OSHC 1104, 1977-78 CCH OSHD 22,353 (No. 14505, 1977). We adhere to the reasoning of Gelco. There, the employees were exposed to an impalement hazard when they climbed an access ladder above rebars. The commission stated:

[W]e conclude that the use of the ladder constituted "work" within the meaning of Section 1926.700(b)(2). In our opinion, "work" includes the necessary activity of gaining access to the work station. . . .

6 BNA OSHC at 1106, 1977-78 CCH OSHD at p. 26,941 (footnote and case citations omitted). Cf. Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 2003, 1975-76 CCH OSHD 20,448, p. 24,425 (No. 504, 1976) (Secretary may establish employee access to a hazard by showing that employees while in the course of "their normal means of ingress-egress to their assigned workplaces, will be, are or have been in a zone of danger").

North Berry attempts to distinguish Gelco on the grounds that the decision was narrowly limited to the use of a ladder, and that the employees' travel there was more precarious. However, Gelco's reasoning applies here because, as noted above, it indicated that "work" under the standard includes "the necessary activity of gaining access to the work station" generally. The opinion does not distinguish between methods of travel, and we see no reason to make such a distinction. See also J.M. Martinac Shipbuilding, Inc., 76 OSAHRC 46/A2, 6 BNA OSHC 1645, 1978 CCH OSHD 22,792 (No. 14767, 1978) (standard requiring guarding if deck openings and edges during shipbuilding to protect employees "working around open hatches" applies to employees merely climbing in and out of hatch and walking close to it), aff'd, 614 F.2d 776 (9th Cir. 1980) (unpubl.).

North Berry also argues that even if the standard reasonably may be applied here, the pleadings did not inform it that this particular citation was directed at employees who merely walked by the opening. Thus, it argues that it was unable to defend itself properly.

We disagree. The Secretary's answers to North Berry's interrogatories provided notice that employees "passing" the floor opening was the basis of the citation.[[2/]] Also, inspector Richardson made clear at the hearing that the basis for the citation was employee exposure while walking to and from work stations past the opening. North Berry's counsel did not object at any time to the introduction of evidence concerning employees walking past the opening. North Berry had adequate notice that the citation was based on employees walking past the opening.

Thus, the standard properly may be applied in this case. To establish a violation, the Secretary also must show that the standard's terms were violated, that an employee had access to the hazards, and that the employer know or with the exercise of reasonable diligence could have known of the violative conditions. E.g., Dun-Par Engineered Form Co., 12 BNA OSHC 1962, 1965, 1986-87 CCH OSHD 27,651, p. 36,033 (No. 82-928, 1986).

To resolve whether the standard's terms were violated, we must determine whether North Berry's employees were working (as defined herein) "above" the rebars.[[3/]] The judge essentially found that employees were not "above" the rebars for two reasons. First, he found that no hazard was proven because "there was sufficient room for the employees (1-2 feet or more) to walk along the 61st floor . . . without being in a zone of danger." Second, he found the evidence insufficient that an employee would be impaled on a rebar if he fell through the opening. We disagree with these findings.

As to the first finding, the walking surface was at least 10 feet wide in that area. However, the testimony indicates that North Berry employees routinely walked within one to two feet of the floor opening when they went to work, went for coffee, went for lunch, and went home.[[4/]] Thus, employees walked close enough to the floor opening that they could have fallen through. See, e.g., Dun-Par, 12 BNA OSHC at 1965-66, 1986-87 CCH OSHD at pp. 36,033-34 (employee who came within two to three feet from unguarded edge of upper floor during his assigned work was exposed to fall). See also Brennan v. Underhill Construction Corp., 513 F.2d 1032, 1039 (2d Cir. 1975) (to establish access to hazard, inspector need not see employee teetering on edge of floor).[[5/]]

As to the judge's second finding, he dismissed as conjecture inspector Richardson's testimony about the chances of an employee being impaled. However, inspector Toale gave testimony that there was a 75 to 80 percent chance that an employee would hit a rebar if he fell. That estimate was not rebutted. The rebars were almost directly below the opening, as a photograph in evidence illustrates.[[6/]]

Access to a hazard exists if it is reasonably predictable that employees will be, are, or have been in a zone of danger in the course of their duties. In Gilles & Cotting, Inc., supra, we defined the course of employees' duties as including their assigned working duties, their personal comfort activities while on the job, or their normal means of ingress-egress to their assigned work places. See also, Clement Food Co., 84 OSAHRC 26/A2, 11 BNA OSHC 2120, 2123, 1984-85 CCH OSHD 26,972, p. 34,633 (No. 80-607, 1984); Carpenter Contracting Corp., 84 OSAHRC 22/B10, 11 BNA OSHC 2027, 2029, 1984-85 CCH OSHD 26,950, p. 34,563 (No. 81-838, 1984). As stated above, North Berry employees routinely walked within one to two feet of the floor opening in the course of their duties, and thereby were "above" the rebars, which presented a hazard of impalement. We find, therefore, that the employees had access to the hazard of impalement.

The next question is whether North Berry had the requisite knowledge of the violative conditions. Its foreman, like its other employees, had to pass the floor opening several times daily. The violative conditions were in plain view. An OSHA inspector testified without contradiction that the impalement hazard was where the foreman "has to see it." That inspector also estimated that the condition had existed for at least a week, because the pouring of concrete had proceeded to the 67th floor (six stories above the floor opening) by the time of the inspection. This testimony shows that North Berry, through its foreman, knew, or with the exercise of reasonable diligence could have known, of the hazardous exposure. See Dun-Par, 12 BNA OSHC at 1965-66 and n. 2, 1986-87 CCH OSHD at pp. 36,033-34 and n. 2.[[7/]]

Thus, the Secretary has proven all the elements of a violation. The remaining issues are whether the violation was serious, as alleged, and whether the Secretary's proposed penalty was appropriate. We conclude that the violation was serious under 29 U.S.C. 666(k). Inspector Richardson testified without contradiction that an employee could have been killed if he fell on the rebars. Thus, death or serious physical harm likely could have resulted from the impalement hazard.

The Secretary proposed a $630 penalty. We disagree. Penalties are to take into consideration the employer's degree of good faith, as well as the gravity of the violation, the employer's size and its history of violations. 29 U.S.C. 666(j). On the one hand, the violation could have caused death or serious physical harm. Also, North Berry was a large employer, with over 100 employees, and it had previous violations of other construction standards on record.

On the other hand, so far as the record shows, this was a unique and transient violation on a fast-changing high-rise construction site, and was not flagrant.[[8/]] There is no evidence that the foreman consciously realized the extent of the impalement hazards. Although there was some danger that employees could fall onto the unprotected rebars while walking past the floor opening, the relatively wide ten-foot corridor alongside the opening made such a fall relatively unlikely. Also, North Berry's president testified without contradiction that it had an active safety program, including a weekly job safety program for its employees. On balance, a penalty of $100 is appropriate.

Thus, the citation item for violation of the former 1926.700(b)(2) is affirmed, and a penalty of $100 is assessed. In all other respects, the judge's decision is affirmed.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: 27 FEB 1989


WILLIAM E. BROCK, SECRETARY OF LABOR,
United States Department of Labor
CompIainant,

v.

NORTH BERRY CONCRETE CORPORATION
Respondent.

OSHRC DOCKET NO. 86-0163

APPEARANCES:

BARNETT SILVERSTEIN, Esquire

U.S. Department of Labor
Office of the Solicitor
New York, New York
For the Complainant

McDONOUGH MARCUS COHN & TRETTER, P.C.
By JUDAH D. GREENBLATT, Esquire
For the Respondent

DECISION AND ORDER

SOMMER, JUDGE:

This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. (hereinafter sometimes referred to as "the Act"), to review citations issued by the Secretary of Labor (hereinafter sometimes referred to as "Complainant"), pursuant to section 9(a) of the Act, and the proposed assessment of penalties therein issued, pursuant to section 10(a) of the Act.

On December 18, 1985, respondent was issued serious citation No. 1 alleging violations of 29 C.F.R. 1926.28(a) (Amended to include 29 C.F.R. 1926.105(a)), 29 C.F.R. 1926.700(b)(2), 29 C.F.R. 1926.304(d), 29 C.F.R. 1926.401(f) and 29 C.F.R. 1926.500(b)(7). The respondent was also issued repeat citation No. 2 alleging a violation of 29 C.F.R. 1926.100(a) and other than serious citation No. 3 alleging violations of 29 C.F.R. 1926.450(a)(9) and 29 C.F.R. 1926.500(b)(8). Penalties of $2,790 were proposed for the serious violations and $1,080 - for the repeat violation. A hearing was held in New York, New York. All parties were represented by Counsel. Counsel for the respondent filed a post-hearing brief. No jurisdictional issues are in dispute, the parties having pleaded sufficient facts to establish the respondent is subject to the Act and the Commission has jurisdiction of the parties and of the subject matter.

Background

North Berry Concrete Corporation is a corporation organized under the laws of the State of New York with an office and place of business in Brooklyn, New York. The corporation is engaged in the construction business as a contractor doing reinforced concrete work and similar construction assignments. The corporation was a subcontractor doing concrete work at 146 West 57th Street, New York, New York where a building was being constructed and where the violations alleged herein occurred.

Discussion

Alleged violation of 29 C.F.R. 1926.28(a) and/or 29 C.F.R. 1926.105(a) -- item 1 of serious citation No. 1.

Citation item 1 alleges that North Berry violated section 1926.28(a)[[1]] and/or 1926.105(a)[[2]] in that an employee was not wearing a safety belt and/or safety nets were not provided where the workplace was more than 25 feet above the ground The compliance officers testified that during the inspection they observed one of North Berry's employees working near the unguarded edge of the building on the 67th floor; a distance of approximately 700 feet above the ground.

Mr. Toale, one of the compliance officers estimates the distance the employee was working from the edge as 1 to 1 feet. The employee was not wearing a safety belt nor were there safety nets in this area. The compliance officers indicated that while there was perimeter guarding around the building edges, in the area directly behind where the employee was working attempting to straighten out a bent rebar there was none to prevent a fall. They found that there was a hazard present that the employee working near the edge without any protection could fall 67 stories to his death or with serious consequences.

To establish a violation of the Act, the Secretary must prove, among other things, that the employer either knew or could, with the exercise of reasonable diligence, have known of the presence of the violative conditions. Daniel International Corp., Wansley Project, 81 OSAHRC 71/D6, 9 BNA OSHC 2027, 1981 CCH OSHD 25,813 (No. 76-181, 1981).

The facts amply demonstrate that the employee was exposed to the hazard of a fall from 67 stories warranting the need for and use of safety belts. The record further reveals that at least one of the respondent's foremen (Bonecore)[[3]] knew or could with the exercise of reasonable diligence have known of this hazardous condition since he was standing on the desk near the compliance officers and observed or should have observed his employee working in plain view near the roof edge without protective equipment. The knowledge of the supervisor is imputed to North Berry, who is responsible for the violation herein. Accordingly, the Secretary established a prima facie showing of respondent's knowledge of the existence of the hazard to its employee and the violation of the standard. The record further shows that the respondent failed to produce any evidence which would rebut this showing. Citation No. 1, item No. 1, alleging a violation of 29 C.F.R. 1926.29(a) is affirmed. A penalty of $500 for the violation is consistent with the criteria set forth in section 17(j) of the Act under the circumstances of this case.

Alleged violation of 29 C.F.R. 1926.700(b)(2) -- item 2 of serious citation No. 1.

Citation item 2 alleges that North Berry violated section 1926.700(b)(2)[[4/]] in that employees were exposed to the hazard of falling one floor through an opening and onto unprotected steel rebars while walking past the opening on the way to their jobs.

Compliance Officer Richardson testified that in order for the employees of North Berry to get to the work stations on the 65-67th floors of the building, they would board a hoist which took them to the 61st floor, and from there they crossed over to a ladder or staircase where they walked up. However, in leaving the hoist they allegedly walked within 1-2 feet of a 6' x 6' floor opening exposing themselves to a possible fall on vertical steel rebars below which were unprotected.

The evidence of record fails to establish the presence of a hazard or that the respondent had actual or constructive knowledge of its existence. The respondent had no reason to question the plain meaning of the standard which enjoins employees from working above vertically protruding steel bars which have not been protected. The employees cited for this alleged violation were walking by the opening. An agency is bound by what its regulation plainly means, not what is intended. See Diamond Roofing Co., 528 F.2d 645 (5th Cir. 1976).

The hazard present is the possibility of a fall upon the unprotected steel rebars. However, the compliance officer made no measurements nor could accurately state if a fall occurred whether it would be onto a rebar since the distance from the edge to where the rebars were below was undetermined. His conjecture that one falling would be impaled on a rebar is insufficient to prove a violation. The proof cannot be based on speculation, nor presumed. See Ellison Electric, 1 OSAHRC 247, 1 BNA OSHC 3034, 1971-73 CCH OSHD 15,133 (No. 412, 1972); Edison Lampworks, 7 BNA OSHC 1818, 1979 CCH OSHD 23,913 (No. 76-484, 1979).

Additionally both the testimony and photograph reveal that there was sufficient room for the employees (1-2 feet or more) to walk along the 61st floor to the other staircase or ladder without being in a zone of danger. They were sufficiently distant from the opening that just walking by could by no stretch of the imagination be called a hazard.

The evidence is totally insufficient to sustain the Secretary's burden of proof that a hazard was present, or the respondent was aware of it. Item No. 2 alleging a violation of 29 C.F.R. 1926.700(b)(2) is vacated.

Alleged violation of 29 C.F.R. 1926.304(d)5 item No. 3 of serious citation No. 1.

Citation item 3 alleges that North Berry violated 29 C.F.R. 1926.304(d) because the lower guard had not automatically returned to the covering position when not functioning. The compliance officer testified he saw one man an the first floor of the building using a circular saw to cut a 4 x 4 resting across his knee; the guard on the saw was not functioning and not protecting the lower blade as required; this created a hazard in that the employee could have cut his leg. The compliance officer states he could not ascertain the name of the employee but was told at the closing conference by Mr. Roscigno that the man using the saw was an employee of North Berry. The respondent in effect questions whether the evidence is sufficient to show that a North Berry employee was operating the saw. I agree there is a question as to identity. Firstly, this occurred on the first floor while admittedly the evidence shows all employees of North Berry were working on the 65th-67th floors; additionally, Mr. Roscigno who allegedly said it was a North employee a few days after the incident did not furnish said employee's name and did not actually see this man while at work. Moreover, respondent has denied that Roscigno is a foreman. In short, the evidence as to the identity of this man is scanty and his employment by North Berry conjectural. Additionally, the defect in the saw was not one readily apparent and there is no evidence that North Berry actually knew that the violative condition was present or should have known it existed with reasonable diligence. Accordingly, the citation for violation of 29 C.F.R. 1926.304(d) is vacated.

Alleged violation of 29 C.F.R. 1926.401(f)[[6]] -- item No. 4 of serious citation No. 1.

Citation item 4 alleges that an employee was using a drill whose power was being supplied through an extension cord absent a grounding plug which created a hazard of electrical shock to the user. The testimony of the two compliance officers as to where the fault was located differed. Richardson testified that a prong on the extension cord plug was broken off at the end where it connected to the tool while compliance officer Toale testified the plug was defective at the end connected to the socket. Another problem concerning this alleged violation is that neither compliance officer gave any evidence nor indicated they sought to ascertain how long this condition had existed. Since such vital information is missing from the record, there is a serious question as to whether the respondent had knowledge of the violative condition. Considering the discrepancies in testimony as to location of the hazard, and no proof whether the respondent had actual or constructive notice of the alleged violation, the Secretary has not sustained his burden of proof as to the existence of a violation. Accordingly, item No. 4 alleging a violation of 29 C.F.R. 1926.401(f) is vacated.

Alleged violation of 29 C.F.R. 1926.500(b)(7)[[7]] -- item 5 of serious citation No. 1.

Citation item 4 alleges a violation of 1926.500(b)(7) because of a failure by respondent to guard floor openings on both the 65th and 66th floor of the building. The compliance officer testified that employees working in these areas passed within a foot of the unguarded openings and could fall therein causing serious injuries. The respondent's president Martinelli testified these openings were necessary so that materials could be passed through while the job was in progress, and that this is safer than passing the materials on the outside perimeter of the building. The unproven and self supporting statement of the respondent president that it is safer to proceed with allowing the opening hazards to exist is unacceptable herein. The unguarded openings are an obvious hazard which the respondent knew existed and nothing was done to ameliorate the violative condition. Even if his statement that the opening is used to pass material raises the defense of impossibility of performance, such defense can be entertained if the employer shows 1) compliance with the standard would prevent performance of the work activity and 2) alternative means of employee protection are not available. M.J. Lee Construction Co.,79 OSAHRC 12 A/2, 7 BNA OSHC 1140, 1979 CCH OSHD 23,330 (No. 15094, 1979). Neither element has been substantiated. Accordingly, the existent unguarded floor openings are a violation of the standard, and the citation is affirmed. The penalty assessed of $560 is reasonable and appropriate under section 17(j) of the Act.

Alleged violation of 29 C.F.R. 1926.100(a)[[8]]--item No. 1 of repeat citation No. 2.

This citation alleges that North Berry failed to comply with the standard at 29 C.F.R. 1926.100(a) in that employees were not required to wear hard hats while working in an area where they were exposed to head injury from impact. The compliance officers observed five North Berry workmen on their knees doing finishing work (smoothing out concrete) while another activity was going on above them, i.e., a crane was swinging a bucket full of concrete to another job going on and the the bucket was about 5' above the men as it passed. The men were in danger of being hit by the bucket if they suddenly stood up for any reason or if in some way the bucket accidentally swayed or became detached due to any irregularity. Two foremen were present, one of whom was wearing a hard hat. One of North Berry's arguments is that hard hats are purchased and made available to the men but they cannot require or make them put them on since any penalty may sought to impose would cause union difficulties, etc. This response is untenable. The standard requires that employees be provided hats and made to use them where there is possibility of head injury exists. See Franklin R. Lacy, (Acqua View Apartments), 81 OSAHRC 7 A/2, 9 BNA OSHC 1253, 1254, 1981 CCH OSHD 25,171, p. 31,073 (No. 3701, 1981). The respondent cannot abrogate his responsibility under the Act by shifting the responsibility to his employees as to whether there will be compliance. The contention of North Berry that merely making the hard hats available constitutes compliance is rejected. Accordingly, I conclude that North Berry violated the standard at 29 C.F.R. 1926.100(a).

The record further demonstrates that the respondent was previously cited for similar violations of 29 C.F.R. 1926.100(a) on two occasions for which final orders of the Commission were issued. Accordingly, this violation was correctly issued as a repeat violation. See Potlatch Corp., 79 OSAHRC 6 A/2, 7 BNA 1061, 1063, 1979 CCH OSHD 23,294, p. 28,171 (No. 16183, 1979). The penalty assessed of $1,080 -- is appropriate under the criteria set forth in 17(j) of the act.

Alleged violation of 29 C.F.R. 1926.450(a)(9)[[9]] -- item No. 1 - other than serious citation No. 3.

The Secretary alleges that the respondent violated the standard at 1926.450(a)(9) in that the ladder extending from the 66th to the 67th floor of the building being contracted had side rails which did not extend more than 36 inches above the landing. The compliance officer during his inspection personally observed employees using this ladder to ascend to the other floor with the violative condition present. He testified that the employees and the foremen used this ladder to get to the worksite. The respondent presented no evidence that disputes this finding except stating it was an isolated incident. This defense lacks merit. The ladder was being used by the foremen who were well aware of its condition. Moreover, the respondent has not met its burden of proving this affirmative defense. The employer failed to establish that it had a work rule which addressed the cited violative condition or that it effectively communicated or enforced the rules. Accordingly, the citation for violation of 29 C.F.R. 1926.450(a)(9) is affirmed. No penalty is assessed.

Alleged violation of 29 C.F.R. 1926.500(b)(8)[[10]]--item No. 2--other than serious citation No. 3.

The respondent was cited for an other than serious violation of 29 C.F.R. 1926.500(b)(8) for failure to guard floor holes on the 62nd, 65th and 66th floors by a standard railing and toeboard or by a floor hole cover. The compliance officer observed numerous floor holes on the floors listed in the area where respondent's employees were working. The holes represented a tripping hazard for the men and the compliance officer stated that they should be provided with floor hole covers. The respondent offered no evidence to contradict the obvious violation other than they were not responsible for the 62nd floor problem. However, the compliance officer identified men working on the 62nd as well as the 65th and 66th floors as employees of respondent who were subject to the tripping and failing hazard. Accordingly, this violation is affirmed. No penalty is assessed.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The findings of fact and conclusions of law in this opinion are incorporated herein in accordance with Rule 52 of the Federal Rules of Civil Procedure.[[11]]

ORDER

1 - The allegation of a serious violation of the standard set forth at 29 C.F.R. 1926.28(a) is affirmed and a penalty of $500 is assessed therefor.

2 - The allegations of serious violations of the standards set forth at 29 C.F.R. 1926.700(b)(2), 29 C.F.R. 1926.304(d) and 29 C.F.R. 1926.401(f) are vacated.

3 - The allegation of a serious violation of the standard set forth at 29 C.F.R. 1926.500(b)(7) is affirmed and a penalty of $560 is assessed therefor.

4 - The allegation of a repeat violation of the standard set forth at 29 C.F.R. 1926.100(a) is affirmed and a penalty of $1,080 is assessed.

5 - The allegations of other than serious violations of the standards set forth at 29 C.F.R. 1926.450(a)(9) and 29 C.F.R. 1926.500(b)(8) are affirmed with no penalty assessed.

SO ORDERED.

IRVING SOMMER
Judge

DATED: February 6, 1987
Washington, D.C.


FOOTNOTES:

[[1/]] That standard provided:
Subpart 0 -- Concrete, Concrete Forms, and Shoring
1926 700 General provisions.
*             *              *
(b) Reinforcing steel.
*             *              *
(2) Employees shall not be permitted to work above vertically protruding reinforcing steel unless it has been protected to eliminate the hazard of impalement.

Since this alleged violation occurred, the standard was amended as part of a general revision of the Subpart Q standards. 53 Fed. Reg. 22643 (June 16, 1988). The revised version of the cited standard is now published at 29 C.F.R. 1926.701(b).

[[2/]]North Berry asked the Secretary to ["s]tate the name of each employee . . . alleged to have violated the standard . . . ." The Secretary responded in part, "all employees passing to and from personnel hoist." That hoist carried employees as high as the 61st floor. Employees had to pass the floor opening between that point and their work stations on higher floors.

[[3/]] It is undisputed that the rebars were not protected to prevent impalement, and that North Berry permitted the employees to walk where they did.

[[4/]] There is no question that the employees who walked by the opening included a large number of North Berry employees. One OSHA inspector testified that at least 50 of North Berry's employees would pass by the floor opening. He identified them as North Berry employees because they were doing carpentry work and North Berry "really was the only one up there doing carpentry." The other OSHA inspector testified that North Berry's foreman identified the employees walking by the opening as its own, and that only North Berry employees were working above the 61st floor.

North Berry's president testified that if a previous witness had stated that employees walked within a foot of the opening, "I think he was wrong." However, the president did not explain the basis for his opinion, and was not present during the inspection. Even if, as the president said, the employees were not within one foot of the opening, they were close enough to be endangered.

[[5/]] There was a guardrail across part of the floor opening, but it was clearly inadequate. One OSHA inspector testified that it "wasn't any good" because it was "bent, broken" and "[i]t couldn't really hold up if a guy fell against it." Also, he testified that there was no guarding along a portion of the floor opening past which employees walked. There was no contrary evidence.

[[6/]] North Berry cites a Commission case which held that employees are not working "above" rebars if they work "on the same level as and next to the rebars." Berglund-Cherne General Contractors, 82 OSAHRC 25/D9, 10 BNA OSHC 1644, 1646, 1982 CCH OSHD 26,039, p. 32,696 (No. 79-4347, 1982), aff'd, No. 82-1768 (10th Cir. October 24, 1983)(unpubl.). However, here the employees were not on the same level as the rebars. This employer violated the terms of the standard.

[[7/]] The judge stated that there was Insufficient evidence that North Berry had actual or constructive knowledge of the violation. That finding, however, was based on his ruling that the standard did not give North Berry fair notice that it applies to employees merely walking above rebars. We have rejected that ruling above. The judge did not address whether North Berry knew or with the exercise of reasonable diligence could have known of the violative conditions.

[[8/]] The testimony, noted above, indicating that the construction could advance several stories in a week illustrates the rapid pace of change that characterizes high-rise construction.


[[1]] The standard provides:
1926.28 Personal protective equipment
a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

[[2]] The standard provides:
1926.105 Safety nets
a) Safety nets shall be provided when workplaces more than 25 feet above the ground or water surface or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.

[[3]] The compliance officers testified that two individuals, Bonecore and Roscigno identified themselves as foremen and accompanied them during the course of the inspection. Joseph Martinelli, the president of North Berry admitted Bonecare is a foreman; he stated Roscigno was not a foreman, but "it's quite possible" that he worked for North Berry.

[[4/]] The standard provides:
1926.700(b) Reinforcing steel
*             *              *
(2) Employees shall not be permitted to work above vertically protruding steel unless it has been protected to eliminate the hazard of impalement.

[[5]] The standard provides:
1926.304 Woodworking tools

*             *              *
(d) Guarding. All portable, power driven circular saws shall be equipped with guards above and below the base plate or shoe . . . . When the tool is withdrawn from the work, the lower guard shall automatically and instantly return to the covering position.

[[6]] The standard provides:
1926.401 Grounding and bonding
*             *              *
(f) Extension cords. Extension cords used with portable electric tools shall be of the three-wire type.

[[7]] The standard provides:
1926.500(b) Guarding of floor openings and floor holes

*             *              *
(7) Temporary floor openings shall have standard railings.

[[8]] The standard provides:
1926.100 Head Protection
a) Employees Working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns shall be protected by protective helmets.

[[9]] The standard provides:
1926.450 Ladders
(a)(9) The side rails shall extend not less than 36 inches above the landing. When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point of access, shall be installed.

[[10]] The standard provides:
1926.500 Guardrails, handrails, and covers
(b)(8) Floor holes, into which persons can accidentally walk, shall be guarded by either a standard railing with standard toeboard on all exposed sides, or a floor hole cover of standard strength and construction that is secured against accidental displacement. While the cover is not in place, the floor hole shall be protected by a standard railing.

[[11]] Rule 52. Findings by Court
a) Effect. In all actions tried upon the facts without a jury . . . the courts shall find the facts specially and state separately its conclusions of law therein, . . . . If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein (Emphasis supplied)