Docket No. 1184

OTIS ELEVATOR COMPANY

OSHRC Docket No. 1184

Occupational Safety and Health Review Commission

November 19, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners

COUNSEL:

Francis V. LaRuffa, Regional Solicitor, U.S. Dept. of Labor

Emil R. Annunziato, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On September 30, 1974, the Administrative Law Judge, O'Connell issued his decision in this case. Respondent filed a petition for discretionary review before the full Commission on the sole issue of whether the Judge erred in finding the respondent in violation of the Act for a failure to comply with the job safety and health standard published at 29 CFR § 1926.28(a). n1 The petition was granted.

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n1 At the time of the inspection, the standard read:

(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 and where this part indicates the need for using such equipment to reduce the hazards to the employees.

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The Secretary of Labor has not filed a brief before the full Commission. The respondent has filed [*2] a brief, and repeated the arguments presented in his petition for review.

The Otis Elevator Company, the respondent, was in the process of installing elevators at a jobsite known as Waterside Apartments. The respondent was a subcontractor of the project, which consisted of four or more buildings in various degrees of completion. On June 15, 1972, the project was inspected by an OSHA compliance officer. In the course of its inspection, the compliance officer was accompanied by respondent's working foreman on the job.

In one building of the project, the compliance officer observed two of respondent's elevator mechanics working in an open elevator shaft. They were standing on a single, unsecured, 3' X 15' plank which had been laid across the elevator shaftway. The men were not wearing any safety belts. Two floors below the point in the elevator shaft where the men were working, there was complete planking placed across the shaft. The open area between the respective planks was about 20 feet. The failure of the men to wear safety belts while working in the open elevator shaft was brought to the foreman's attention and he took immediate action to abate the condition.

There was [*3] testimony that whenever an employee was hired, he was issued safety equipment, including a helmet, safety glasses, safety belt, and a safety handbook. In addition, safety meetings were held by the foreman and the shop steward at the jobsite. The wearing of safety equipment was stressed. The Judge nevertheless found the working foreman had a responsibility to enforce respondent's safety program by requiring employees to use the personal protective equipment furnished by the company, and this was not done. The working foreman's power to require corrective action is exhibited by his order that was given during the inspection to employees to wear the safety belts. It is also noted that respondent's "Field Safety Standard Handbook" (Exhibit R-2) indicates on page 1, that a foreman has the responsibility to take all practical steps to be sure that the work is performed with due regard to safety. This general duty is followed by a specific duty on page 3 requiring Otis personnel to adhere to the safety rules. Page 6 of the handbook requires that the safety belts be used when working in any hatchway or other structure that is more than 20 feet high, unless some other approved means [*4] of protection is provided.

Respondent, in its brief before the Commission, makes two arguments: (1) The standard at 29 CFR § 1926.28(a) is unreasonable, vague, and uneoforceable when cited alone; (2) An employer cannot be held responsible for an employee's refusal to wear safety protection.

Respondent's first argument is disposed of by Eichleay Corp., No. 2610 (February 20, 1975), and cases cited therein, in which a divided Commission affirmed an administrative law judge's determination that this standard is "reasonable, definite, and enforceable."

Concerning the second argument, we agree with the Judge that the hazard of falling was preventable for the reasons he has assigned. Prevention of hazards is the keystone of the Act. Brennan v. O.S.H.R.C. & Underhill Constr. Corp., Nos. 74-1579 & 74-1568 (2d Cir., March 10, 1975)

The evidence clearly shows a failure to comply with the standard at 29 CFR § 1926.28(a), a violation of section 5(a)(2) of the Act.

The Administrative Law Judge carefully considered the statutory factors in section 17(j) before assessing a penalty of $100 for this violation. We approve his conclusion that a penalty of $100 is appropriate for [*5] this violation, for the reasons he assigned.

Accordingly, it is ORDERED that the decision of the Judge finding respondent in violation of the Act for failure to comply with 29 CFR § 1926.28(a) and assessing a penalty of $100 therefor is affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

I would affirmatively answer the directed issue of whether the Judge erred in finding the respondent in violation of the Act for failure to comply with the occupational safety standard codified at 29 C.F.R. § 1926.28(a) because the evidence is insufficient to establish a violation of that standard.

The version of the standard under which the respondent was cited n2 required the complainant to prove the following two things:

(1) exposure to a hazardous condition warranting use of personal protective equipment, and

(2) failure to use this equipment when its use is required elsewhere in Part 1926 of the regulation.

The standard that comes closest to requiring the use of personal protective equipment under the circumstances of this case is 29 C.F.R. § 1926.105(a) which provides:

"Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces [*6] where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical." (Emphasis added.)

This standard has been interpreted to require the use of safety nets or one of the other enumerated items when work is performed at heights of more than 25 feet. Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974).

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n2 See note 1, supra, for the working of that standard. Subsequently the standard was modified by changing the word "and" to "or." 37 Fed. Reg. 27503 (1972).

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The evidence establishes that the respondent's employees were working without personal protective equipment on a plank laid across an elevator shaft opening 20 feet above the next level of planking. Having not established that any of the respondent's employees were working in a location where a fall of more than 25 feet was possible, the complainant has failed to establish an essential element of the charge. Accordingly, vacation of the citation is required.

There were two other [*7] issues before the Judge in addition to the § 1926.28(a) charge. The Judge ruled correctly on both of them. The complete text of Judge O'Connell's decision follows:

This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as "the Act") contesting several items of a citation issued by the complainant against the respondent under the authority vested in the Secretary of Labor by Section 9(a) of the Act. The citation alleges that as a result of an inspection made on June 15, 1972, of respondent's workplace located at 25th Street and FDR Drive in New York City, respondent violated Section 5(a)(2) of the Act by failing to comply with four occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The citation, containing the four (4) non-serious violations, and a Notification of Proposed Penalty were issued on June 29, 1972. Respondent by letter, dated July 14, 1972, contested only items No. 2, 3 and 4 of the citation and the penalties proposed thereon totaling $290.00. Item No. 1 and its proposed penalty of $50.00 was not contested and thereby became [*8] a final order of the Commission by operation of law. n1

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n1 Secretary of Labor. v. O.S.A.H.R.C. and Bill Echols Trucking Co., 487 F.2d 230 (5the Cir. 1973).

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The standards, allegations, and the proposed penalties involved in this contest are as follows:

			Proposed
Item	Standard Involved	Description of Violation	Penalty
2.	29 CFR 1904.2	Failure to maintain an	$100.00
		OSHA No. 100 Form: Log
		of Occupational Injuries
		& Illness, and OSHA No.
		101 Form: Supplementary
		Record.

3.	29 CFR 1926.552(c)(10)	Failure to provide car	$ 30.00
		of personnel hoist with
		a capacity and data plate.
		Building "C".

4.	29 CFR 1926.28(a)	Failure to require	$160.00
		wearing of personal
		protective equipment
		while working in
		elevator shaftway of
		"C" building.

The contested standards, as promulgated by the Secretary, provided:

Item 2:

29 CFR 1904.2 Log of occupational injuries and illnesses.

(a) Each employer shall maintain in each establishment a log of all recordable occupational injuries [*9] and illnesses for that establishment, except that under the circumstances described in paragraph (b) of this section an employer may maintain the log of occupational injuries and illnesses at a place other than the establishment. Each employer shall enter each recordable occupational injury and illness on the log as early as practicable but no later than 6 working days after receiving information that a recordable case has occurred. For this purpose, Occupational Safety and Health Administration OSHA Form No. 100 or any private equivalent may be used. OSHA Form No. 100 or its equivalent shall be completed in the detail provided in the form and the instruction contained in OSHA Form No. 100. If an equivalent to OSHA Form No. 100 is used, such as a printout from data-processing equipment, the information shall be as readable and comprehensible to a person not familiar with the data-processing equipment as the OSHA Form No. 100 itself.

(b) Any employer may maintain the log of occupational injuries and illnesses at a place other than the establishment or by means of data-processing equipment, or both, under the following circumstances:

(1) There is available at the place where the [*10] log is maintained sufficient information to complete the log to a date within 6 working days after receiving information that a recordable case has occurred, as required by paragraph (a) of this section.

(2) At each of the employer's establishments, there is available a copy of the log which reflects separately the injury and illness experience of that establishment complete and current to a date within 45-calendar days.

Item 3:

29 CFR 1926.552 n2 Material hoists, personnel hoists, and elevators.

(10) Cars shall be provided with a capacity and data plate secured in a conspicuous place on the car or crosshead.

Item 4:

29 CFR 1926.28 n3 Personal protective equipment.

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n2 Formerly 29 CFR 1518.552, published at pages 7384-85 of Federal Register, April 17, 1971, Vol. 36, No. 75.

n3 Formerly 29 CFR 1518.28, published at page 7347 of Federal Register, April 17, 1971, Vol. 36, No. 75.

[*11]

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A hearing was held herein at New York City on January 11, 1973. Complainant's case consisted of certain stipulations entered into by the parties and the testimony of Daniel Marra, an OSHA Compliance Officer. Respondent's case consisted of the testimony of Gerald A. Otten, respondent's construction superintendent for the mid-Manhattan area, and four (4) exhibits received in evidence. No union or any affected employee appeared or desired to intervene in the proceeding. The parties waived the filing of post-trial briefs.

JURISDICTION AND ISSUE

Since jurisdiction of this action and of the respondent is conceded, the sole issues for determination are (1) whether respondent violated the three contested standards as alleged by complainant, and (2) if respondent committed the alleged violations, what penalties, if any, are appropriate.

FINDINGS OF FACT

Having carefully considered all of the pleadings, the stipulations entered into between the parties, and the evidence presented in this case, having considered the demeanor of the witnesses testifying in open hearing and weighing the credibility [*12] thereof, I make the following findings:

1. Respondent is a corporation organized under the laws of the State of New Jersey, and maintains a principal place of business at 260 11th Avenue, New York, New York (Stipulation).

2. Respondent is an employer engaged in an interstate business which affects commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act (Pleadings; Stipulation).

3. Respondent, at all times pertinent herein, was engaged in the business of elevator construction and related activities. It is the largest company of that type in the United States with a net worth in the millions of dollars (Pleadings; Stipulation).

4. On June 15, 1972, Daniel Marra, an OSHA compliance officer, conducted an inspection of a four building construction jobsite known as Waterside Apartments, located at 25-29 FDR Drive, in New York City (Tr. 10). Respondent was one of over a dozen sub-contractors working on the project (Tr. 19).

5. Marra during his walk-around inspection was accompanied by John Meehan, respondent's working foreman on the job and the employer representative n4 for the purpose of the inspection (Tr. 18, 20-21, 47).

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n4 Secretary v. Hawkins Construction Company, 2 OSAHRC 702-704 (1973).

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6. In "C" building of the project, Marra observed two of respondent's elevator mechanics working in an open elevator shaft. They were standing on a single, unsecured, 3'X15' plank which had been laid across the elevator shaft opening (Tr. 12, 23, 30, 31). The men were not wearing any safety belts (Tr. 12, 22). Two floors below the point in the elevator shaft where the men were working, there was also planking placed across the elevator. The open area between the respective planks was about 20 feet (Tr. 32). The failure of the men to wear safety belts while working in the open elevator shaft was brought to the foreman's attention and he took immediate action to abate the condition (Citation; Tr. 17).

7. On June 15, 1972, a nonserious violation of the standard set forth at 29 CFR 1926.28(a) existed on the aforementioned construction site and two of respondent's employees were exposed to the violation. Respondent, through its working foreman on the jobsite, had [*14] control of its employees activities and failed to require the wearing of safety belts by such employees while exposed to the hazardous conditions.

8. On June 15, 1972, respondent had a safety program in effect concerning its employees (Tr. 28). It covered various items such as safety meetings, the posting of safety posters about its construction sites and the issuance of a company booklet entitled "Field Safety Standards Handbook" to each field employee (Exhibit R-2; Tr. 45-46). Also, each such employee when hired by respondent was issued, without cost to the employees, certain safety equipment, including a safety belt and lanyard, and the employee is required to sign a receipt for the equipment (Exhibit R-3; Tr. 45, 47). Such safety equipment was issued to the employees working on this jobsite and they signed such a receipt (Tr. 59). Respondent failed to implement its safety program on the above date, on the workplace involved herein, and with its above employees.

9. Respondent, on June 16, 1972, had no prior history of record of any violation of the Act (Tr. 14, 28). No employee was injured as a consequence of any violation alleged herein.

10. On June 5, 1972, 10 days [*15] prior to the inspection herein, respondent had turned over to the general contractor, HRH Construction Company, the temporary workmen's elevator identified as car No. 4 in building "C" on the jobsite. This car was the elevator involved in item No. 3 of the citation. John Collins, the general contractor's superintendent, accepted the car and executed a Temporary Acceptance Certificate (Exhibit R-1). This certificate was in the nature of a bill of sale by which ownership, operation and control of the car passed from respondent to the general contractor. Subsequent to June 5, 1972, the elevator was not operated by any employee of respondent but by a worker hired by the general contractor (Tr. 48-52). There is no proof of record that on June 15, 1972, or immediately prior thereto, that any of respondent's employees used or were using the elevator in question.

11. The Secretary has failed to sustain his burden of proof by the required preponderance of the credible evidence that on June 15, 1972, the respondent violated the standard set forth at 29 CFR 1926.552(c)(10) as alleged in item No. 3 of the citation.

12. At the time of the inspection herein, respondent did not maintain [*16] a log of recordable occupational injuries and illnesses on the construction premises (Tr. 12, 18). Respondent, however, had a business office at 810 Seventh Avenue, New York City, where it had a staff and from which Gerald Otten, its construction superintendent, functioned. At that location one of respondent's clerks maintained an OSHA Log Book concerning accidents and personal injuries for the jobsite in question and covering the time in question. It has been respondent's practice to maintain at one central office such a log not only for the work place in question but for its other projects in the New York area. Upon the happening of an accident at a jobsite an accident report is prepared by the job foreman and immediately mailed to the central office where it is processed by a specifically designated clerk. The recording of such an accident is completed within six working days after receiving the information. Prior to the citation herein respondent had never been cited before for failure to keep an OSHA Log. There were previous inspections of respondent's work places in this area by OSHA representatives prior to the date involved herein (Tr. 42-44).

13. Respondent's maintaining [*17] its OSHA Log at its central office as described above substantially satisfied the exception described in paragraph (b) of 29 CFR 1904.2. The Secretary has therefore failed to show a violation of the standard cited in item No. 2 of the citation.

OPINION

Section 5(a)(2) of the Act provides that each employer shall comply with occupational safety and health standards promulgated under the Act. The Act itself was designed to protect employees and the duties imposed by the Act run from the employer to his employees.

Other than those standards involving record-keeping which imposes a direct responsibility on each employer, it has been consistently held by the Review Commission that in order to establish a violation of Section 5(a)(2) there must be both non-compliance with the requirement of the cited standard and employee exposure to the hazard of that violation. Secretary v. City Wide Tuckpointing Service, OSAHRC No. 247 (May 24, 1973); Secretary v. Gilles and Cotting, OSAHRC No. 504 (October 9, 1973). It has also been held that the employer has the final responsibility for the safety of his employees regardless of who creates a hazard. Secretary v. Hoffman [*18] Electric Co., OSAHRC No. 2039 (May 3, 1974).

Respondent herein has been cited for three non-serious violations. A non-serious violation has been defined as:

". . . one in which there is a direct and immediate relationship between the violative condition and occupational safety and health but not of such relationship that a resulting injury or illness is death or serious physical harm." Secretary v. Crescent Wharf and Warehouse Company, OSAHRC No. 1 (April 27, 1973)

Knowledge on the part of the respondent of the existence of the violation is not a requirement in order to sustain a non-serious violation. Secretary v. Driscoll Construction Company, Inc., OSAHRC No. 777 (September 6, 1973).

Guided by the above enumerated principles of law and applying the same to the facts of record herein, I shall discuss each contested item separately.

VIOLATION OF 29 CFR 1926.28(a) - ITEM NO. 4

The compliance officer's testimony as to respondent's violation of the standard, when he observed two employees in the elevator shaft without any personal protective equipment such as safety belts, is uncontradicted. Respondent, in defense, did not contest the testimony of the [*19] compliance officer but raised the defense that safety belts had been supplied to such employees and that it also had a safety program in existence. Such a defense herein cannot be accepted in exoneration. Respondent had a working foreman on the jobsite. It was his responsibility to enforce respondent's safety program by "requiring" the employees to utilize the personal protective equipment furnished by the company. Failure to adequately enforce or to implement a company's safety program at the workers level is sufficient to predicate responsibility upon a respondent. See Secretary v. J.L. Manta, Inc., 2 OSAHRC 1 (1972); Secretary v. Continental Hiller Corporation, OSAHRC No. 1598 (July 20, 1973); Secretary v. Macpherson-Towne Company, OSAHRC No. 3617 (May 20, 1974).

It cannot be stressed too strongly that it is an employer's responsibility to diligently follow-up and supervise its safety program and that it must do more than merely issue safety equipment to its employees. It must admonish and discipline its workers for failure to use the protective equipment furnished. This rule established in the J.L. Manta, Inc., case, supra, was unanimously reaffirmed [*20] by the Review Commission, in Secretary v. Driscoll Construction Company, Inc., cited above. Respondent herein had control of its employees' activities as is evidenced by the immediate abatement of the condition violated when called to the attention of Mr. Meehan by the compliance officer.

In determining what would be an appropriate penalty for the violation of the cited standard the criteria of Section 17(j) of the Act must be considered and specially the gravity of the violation. The record of the hearing is somewhat sparse on the question of gravity. There is no question that two employees were exposed to the hazard and the probability of a fall occurring did exist. There was no evidence produced however, as to how long the men were exposed to the hazard, the dimensions of the elevator shaft and the exact amount of open space in the shaft from the edges of the unsecured plank to the sides of the shaft itself. The record does reflect that if an accident did occur by the tipping of the unsecured plank or by the misstep of an employee that there would be a fall of approximately 20 feet to the next solid planking placed across the elevator shaft.

It is my view that the [*21] record warrants a finding of a limited exposure to the violation by respondent's employees and a low to moderate probability of the occurrence of an accident. Applying such view as to the gravity of the violation and considering respondent's size, good faith, and the absence of any evidence presented herein regarding any previous violation of the Act, I am of the opinion that a penalty of $100.00 is reasonable and appropriate for this violation. See Secretary v. Automatic Elevator Corporation, OSAHRC No. 1049 (July 20, 1973). I give particular consideration in assessing this amount to the fact that respondent's good faith must be favorably noted because of its immediate abatement of the violation and the fact that it did have a safety program in existence. Accordingly, the $160.00 penalty proposed should be modified.

Violation of 29 CFR 1926.552(c)(10) - Item No. 3

I have found that respondent neither owned, operated nor controlled the elevator involved in the cited standard at the time of the alleged violation. There is no evidence of record to show at that time that any of respondent's employees ever used the elevator in question. Respondent has also given credible [*22] testimony that a capacity plate was in position on the crosshead of the elevator which position was not obvious to any observer who did not know where to look for such a plate. The emphasis made by respondent was that the elevator was temporary and that a permanent plate was, in effect, not required. The point is academic since I have found that there was no exposure by respondent's employees to the violative condition. I do note in passing that respondent offered uncontradicted evidence that the elevator was approved by the City of New York prior to the transfer of title to the general contractor at least 10 days before the date of the alleged violation.

I therefore conclude that Complainant has failed to sustain its burden of proof concerning this item of the citation, and, accordingly, it, and the penalty proposed therefore, should be vacated.

Violation of 29 CFR 1904.2 - Item No. 2

The proof concerning the above record-keeping violation is the testimony of the compliance officer that no log of injuries and illnesses was maintained by respondent on the construction site. This fact is not contested by respondent, who has however, affirmatively and without contradiction, [*23] offered proof that an OSHA log was being maintained at a central office and was kept substantially in accordance with the cited standard. Such proof I find to be most credible, I also find it to be in accordance with the intendment of the exception listed in the standard. The nature of the respondent's work on a construction site must be considered as well as the relatively small number of employees engaged on a today-to-day basis. The Secretary must have contemplated and considered the nature of the work involved on construction sites involving employees not in fixed establishments when he amended the regulations shortly after the date of the inspection involved herein. The amendment of 29 CFR 1904.14 n5 specifically stating that an employer may satisfy the provisions of Section 1904.2 by maintaining the required records "in an established central place" (Exhibit R-4).

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n5 37 F.R. 20822, Oct. 4, 1972.

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Respondent has, therefore, rebuted Complainant's prima facie case. Accordingly, Complainant has failed to sustain [*24] the necessary burden of proof concerning this item of the citation. Such item, and the penalty proposed, should be vacated.

CONCLUSIONS OF LAW

1. Respondent, at all times pertinent to this proceeding, was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.

2. Respondent, at all times pertiment hereto, was subject to the requirements of the Act, including Section 5(a)(2), and the occupational safety and health standards promulgated thereunder.

3. The Occupational Safety and Health Review Commission has jurisdiction of the parties and subject matter herein.

4. Respondent on June 15, 1972, was not in violation of the standard codified as 29 CFR 1904.2 as alleged in Item No. 2 of the citation and such item and the proposed penalty assessed therefore should be vacated.

5. Respondent on June 15, 1972, was not in violation of the standard codified as 29 CFR 1926.552(c)(10) as alleged in Item No. 3 of the citation and such item and the proposed penalty assessed therefore should be vacated.

6. Respondent, on June 15, 1972, was in violation of the standard codified as 29 CFR 1926.28(a) as alleged in Item No. 4 of the citation. [*25] The assessment of a penalty of $160.00 for this non-serious violation is inappropriate and should be modified to $100.00.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, and upon the entire record of this proceeding, it is

ORDERED that:

1) Item No. 2 of the citation herein charging a non-serious violation of 29 CFR 1904.2 and the proposed penalty of $100.00 assessed therefore is vacated.

2) Item No. of the citation herein charging a non-serious violation of 29 CFR 1926.552(c)(10) and the proposed penalty of $30.00 assessed therefore is vacated.

3) Item No. 4 of the citation herein charging a non-serious violation of 29 CFR 1926.28(a) is affirmed; and the proposed penalty of $160.00 assessed therefore in the Notification of Proposed Penalty is modified to the sum of $100.00.