GRANITE-GROVES, A JOINT VENTURE

OSHRC Docket No. 10677

Occupational Safety and Health Review Commission

March 7, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Kioumars Aghazadeh, Granite-Groves, A Joint Venture, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On June 20, 1975, Administrative Law Judge Ben D. Worcester issued his decision vacating two citations for serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter cited as "the Act"]. Citation No. 1 as amended n1 alleged a failure to comply with 29 CFR 1926.500(d)(2) n1a and 29 CFR 1926.651(w). n2 Citation No. 2 alleged noncompliance with 29 CFR 1926.700(b)(2). n3

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The citation originally charged respondent with a failure to comply with the standard at 29 CFR 1926.500(d)(1). In the complaint, the Secretary amended the citation to allege noncompliance with 1926.500(d)(2) and 1926.651(w). The Secretary stated the reason for the amendment to be that the substituted standards pertain more precisely to the hazardous conditions and describe the hazard with greater particularity. In spite of the amendment of the citation by the complaint, at the beginning of the hearing Judge Worcester allowed the citation to be amended only to allege noncompliance with 1926.500(d)(2). He denied the amendment as to 1926.651(w) on the ground that this standard duplicated the requirements of 1926.500(d)(2), and was therefore mere surplusage. In his decision, however, the Judge rules on the merits of both standards. On review neither the Secretary nor respondent has objected to consideration of the 1926.651(w) allegation. Indeed, both parties have fully briefed the substantive issues involved.

As we indicate, infra, 1926.651(w) is the standard specifically applicable to this situation. We also note, as did Judge Worcester at the hearing, that the substantive requirements of 1926.651(w) 1926.500(d)(2) are the same as they relate to this case. Moreover, the factual predicate underlying the allegation is not changed under 1926.651(w), and it was fully tried at the hearing. We, therefore, amend the pleadings to conform to the evidence pursuant to Fed. R. Civ. P. 15(b) to allege a failure to comply with 1926.651(w). See Kaiser Aluminum & Chemical Corp., 4 BNA OSHC 1162, 1975-76 CCH OSHD para. 20,675 (No. 3685, 1976). In so doing we do not reach the question of whether the Judge's denial of the amendment was proper under Commission rule 33(a)(3) and Fed. R. Civ. P. 15(a).

n1a 1926.500 Guardrails, handrails, and covers.

* * *

(d) Guarding of open-sided floors, platforms, and runways.

* * *

(2) Runways shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f) of this section, on all open sides, 4 feet or more above floor or gound level. Whenever tools, machine parts, or materials are likely to be used on the runway, a toeboard shall also be provided on each exposed side.

n2 1926.651 Specific excavation requirements.

* * *

(w) Where employees or equipment are required or permitted to cross over excavations, walkways or bridges with standard guardrails shall be provided.

n3 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.

[*2]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Pursuant to section 12(j) of the Act, review by the full Commission was directed to decide whether the Judge erred in vacating the two citations. For reasons given below the Judge's decision is reversed and the citations are affirmed.

At the time of the inspection, respondent Granite-Groves was engaged in construction work at an excavation for a metro tunnel in the District of Columbia. The excavation was from 50 to 60 feet deep, 60 feet wide, and over 1,200 feet long.

The walls of the excavation were supported with steel H-beam pilings driven into the ground and wales (also steel H-beams) running horizontally along the walls. The wales were braced by steel beams (struts) that ran across the width of the excavation. The beams of both the wales and the struts were 36-inches wide. Angle-iron supports were welded to the struts at various locations. There were at least three levels of wales and struts, the levels being about 20 feet apart. Only the second level of wales was provided with guardrails. None of the struts was guarded. On the bottom of the excavation steel rebars protruded vertically [*3] at least three feet from the floor.

On September 25, 1974, respondent was installing an extra set of support beams (wales and struts) between the second and third levels of wales in a section of the excavation. The work was necessary because the stress on the existing support system was greater than had been anticipated, and the stress was causing the struts to twist and the wales to buckle. Buckling had occurred a week before at various locations along the excavation. Respondent was installing the extra supports where needed along the length of the excavation.

On September 25, 1974, an OSHA safety inspection was conducted at the portion of the excavation where respondent was installing the extra set of supports. The compliance officer observed employees walking along the unguarded wales and struts about 50 feet above the ground. None of the employees was protected by safety belts or other protective devices. The compliance officer also noted that employees on the wales were working directly above the protruding rebars. The two citations for serious violation of the Act were issued on the basis of the compliance officer's observations. A $600 penalty was proposed for each [*4] citation.

Regarding citation No. 1, as best we can determine, the Judge considered 1926.500(d)(2) to be inapplicable because the struts and wales were not open-sided floors or platforms. He also fould that 1926.651(w) was inapplicable because neither the wales nor struts were designed as walkways, runways, or sidewalks, and except for an emergency would not have been used to cross the excavation. Citation No. 2 was vacated because, in the Judge's opinion, the only hazard was that of falling from the beams and a fall could result in death or serious physical harm regardless of the surface below. Accordingly, the Judge found that the hazard posed by the rebars should not have been cited independently, but was properly part of the hazard alleged in citation No. 1. Finally, Judge Worcester observed that the actions of the employees walking on the unguarded beams were justified in view of the "emergency conditions" existing at the worksite.

We agree with Judge Worcester, although for different reasons, that the standard at 1926.500(d)(2) is inapplicable to the facts of this case. When a general and specific standard are applicable to the same condition, the specific standard [*5] prevails. Plessy, Inc., 1974-75 CCH OSHD para. 18,907, 2 BNA OSHC 1032 (No. 946, 1974). In this case, 1926.651(w) is a specific standard requiring fall protection on walkways in excavations. As such, it applies rather than 1926.500(d)(2), a general standard regulating essentially the same condition.

The Judge erred, however, in finding that the condition of the excavation presented an emergency situation excusing respondent from compliance with 1926.651(w). The buckling of the excavation's support system had taken place a week before the installation of the extra set of supports at the cited location and in the ensuing week respondent had been checking the excavation locating those areas where additional shoring was required. Contrary to the Judge's findings, there was no evidence indicating that a collapse of the excavation was imminent.

More importantly, the evidence establishes that before the discovery of the shoring system failure, respondent allowed its employees to cross the excavation on the struts. In this regard, Ernest B. Jorgensen, Jr., respondent's safety superintendent testified as follows:

Q. As of September 25, 1974, and for the time prior thereto, [*6] what was the rule of Granite-Groves concerning walking over the excavation on struts?

A. Discouraged.

Q. Discourage[d]. Was it forbidden?

A. No, it wasn't forbidden. It was discouraged to the extent that it was only permitted in situations which were reviewed and examined. In other words there was no carte blanche to say "Do it when you want, but don't try not to do it" [emphasis added].

This testimony establishes that respondent failed to prevent its employees from crossing the unguarded struts even before the onset of the "emergency" condition.

Moreover, the Judge erred in finding that, because the wales and struts were not intended to be walkways, they did not have to comply with the requirement that walkways in excavations be provided with standard guardrails. The evidence establishes that both supervisory and non-supervisory employees regularly used the struts as a means of crossing the excavation. The only alternative was to walk around the excavation. This lengthy walk would take nearly a half hour. n4 The struts and wales were therefore used as walkways, although they were not designed as such. Because struts and wales were used as walkways respondent had a [*7] duty to guard them as required by the standard. Accordingly, respondent's failure to provide guardrails is a failure to comply with the standard.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 Testimony by several employees indicated a fear that had they used this circuitous route to the other side of the excavation they would have been fired.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Respondent also contends that the citation must be vacated because the installation of guardrails would have resulted in greater employee exposure to the hazard of falling. Respondent however has failed to adduce any evidence to support its contention. n5 Moreover, the defense was first raised in respondent's post hearing brief, after the issue formulation stage of the case and is, therefore, not properly before us. See Puterbaugh Enterprises, 1973-74 CCH OSHD para. 18,158 2 BNA OSHC 1030 (No. 1097, 1974).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 We also note that respondent did not apply for a variance, nor has it argued that a variance from the standard under section 6(d) of the Act would have been inappropriate. See G.A. Hormel & Co., 1974-75 CCH OSHD para. 18,685, 2 BNA OSHC 1190 (No. 1410, 1974).

[*8]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

We also find that respondent's failure to comply with 1926.700(b)(2) was properly cited as a separate violation. The conditions covered by the two citations, although related, are independent. If respondent protected the rebars it would still be liable for failing to comply with 1926.651(w) in that the hazard of a 50-foot fall would still exist. Although the existence of the protruding rebars renders more severe the hazard of a fall, it is a separate condition contravening the requirement of a separate standard.

Respondent also contends that its employees were not exposed to the hazard posed by the rebars. According to respondent, the rebars were located directly under the wales and, if an employee fell, he would not have landed on them. In so urging respondent relies upon the testimony of Mr. Jorgensen, the aforementioned safety superintendent, and Curtis Simms, a pile driver for respondent. The ultimate issue here is whether employees were permitted to work above vertically protruding reinforcing steel without being protected from the hazard of impalement. Mr. Simms testified that the rebars [*9] or reinforcing steel were located directly under the wales. He further testified that in his opinion if a man fell from the wales he would not hit the rebars so long as the fourth level would block the rebar under it. Mr. Jorgensen also testified that the rebars were under the wales. He was also of the opinion that a man falling from a wale would not hit the rebars apparently because the rebars were under the wales.

On the other hand Mr. Ferguson, a welder, testified that he was working at about the third level from the concrete deck. He also said that rebars were protruding from the deck but that they were under the wales. But he was of the opinion that if he fell from the inside of the wale he would strike the rebars. In addition, the compliance officer testified that the rebars were two to five feet away from the wales.

Although the evidence is conflicting as to the precise location of the protruding rebars, we consider it reasonable to conclude that there was a danger of impalement if a man fell from a wale. We are unpersuaded by the opinion evidence to the contrary. Rather we are persuaded by the testimony of the two employees who had worked on the wales. Simm's testimony [*10] was conditioned on the fourth level blocking a fall on the rebar and Ferguson's testimony was unequivocal that there was a danger of impalement.

Regarding the civil penalties, we note that the Secretary considered respondent's size, good faith, history, and the gravity of the violation in arriving at the proposed penalty of $600 for each citation. We find, however, that respondent should be accorded additional credit for good faith. Respondent had guarded one of the wales before the onset of the "emergency," and it promptly abated the hazard by erecting a catwalk after the inspection. On balance, we find that a $500 penalty is appropriate for each citation.

Accordingly, it is ORDERED that the Judge's decision is reversed. Citation for serious violation No. 1 for noncompliance with 29 CFR 1926.651 (w) and citation for serious violation No. 2 for noncompliance with 29 CFR 1926.700(b)(2) are affirmed. That portion of citation No. 1 alleging noncompliance with 29 CFR 1926.500(d)(2) is vacated. A penalty of $500 is assessed for each citation.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I agree with that portion of the majority [*11] decision which finds that respondent failed to comply with the occupational safety standard codified at 29 C.F.R. 1926.700(b)(2) (Citation No. 2). That allegation was improperly cited as a separate violation, however, since it addresses the same hazard that is alleged in Citation No. 1. n6 In such a situation, the proper course is to combine the allegations into one violation and to assess an appropriate penalty accordingly. Secretary v. I.B. Rogers, d/b/a Bonneville Homes, 11 OSAHRC 115, 125 (1974).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n6 I note that since the majority opinion affirms the guarding violation alleged in Citation No. 1, abatement of the alleged falling hazard necessarily obviates the impalement hazard envisioned by 29 C.F.R. 1926.700(b)(2). Respondent is therefore being fined twice for the same hazardous condition.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

I dissent from the affirmance of the charge set forth in Citation No. 1, which, as issued on October 10, 1974, alleged noncompliance with 29 C.F.R. 1926.500(d)(1). The Judge improperly permitted complainant to [*12] amend his charge to allege a failure to comply with 29 C.F.R. 1926.500(d)(2). My colleagues compound that error by further amending the charge to include an alleged violation of the safety standard codified at 29 C.F.R. 1926.651(w). Because of the unique nature of citations under the Act, such amendments are inherently prejudicial and should, except in the most extraordinary circumstances, be denied. Secretary v. Warnel Corporation, OSAHRC Docket No. 4537, March 31, 1976 (dissenting opinion).

The standard originally cited, 29 C.F.R. 1926.500(d)(1), which is the only standard properly before us requires that open-sided floors or platforms 6 feet or more above adjacent floor or ground level be guarded by a standard railing, or its equivalent. The standard is inapplicable to the facts of this case since the beam struts involved, which are part of the excavation's shoring system, are neither floors nor platforms. To hold otherwise would be to strain the natural meaning of words, n7 a practice which was condemned in Diamond Roofing Co., Inc. v. OSAHRC, 528 F.2d 645 (5th Cir. 1976). n8 Therefore, this charge should be vacated.

- - - - - - - - - - - - - - - - - -Footnotes- [*13] - - - - - - - - - - - - - - - - -

n7 A platform is defined at 29 C.F.R. 1910.21(a)(4) as "[a] working space for persons." The shoring system's support struts were not working spaces.

n8 Also see Langer Roofing & Sheet Metal, Inc. v. Secretary of Labor, 524 F.2d 1337 (7th Cir. 1975).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -