UNDERHILL CONSTRUCTION CORP., individually and DIC CONCRETE CORP., individually, trading as DIC-UNDERHILL, A Joint Venture

OSHRC Docket No. 12412

Occupational Safety and Health Review Commission

January 14, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis LaRuffa, Regional Solicitor, USDOL

William J. Pastore, for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507), 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance of an unreviewed Judge's decision. [*2] Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The citation should be vacated because it was not issued with reasonable promptness as required by 29 U.S.C. 658(a). Secretary v. Jack Conie & Sons Corp., OSAHRC Docket No. 6794, June 25, 1976. Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges.

Since this decision does not address any of the matters covered in Judge Ditore's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

APPENDIX A

DECISION AND ORDER

Francis V. LaRuffa, Regional Solicitor, United States Department of Labor and Louis D. DeBernardo, for complainant

William J. Pastore, for respondents

Ditore, J.

PRELIMINARY STATEMENT

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of [*3] 1970 (29 U.S.C. 651, et seq., hereinafter called the Act), contesting a citation for a willful and/or repeat serious violation of an occupational safety and health standard, issued by complainant against respondents under the authority vested in the complainant by section 9(a) of the Act (29 U.S.C. 658(a)). The citation alleges that as a result of an inspection on January 10, 1975, of a workplace located at 695 Third Avenue, New York, New York, and described as "Construction, 31 Story Building", the respondents violated section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)) by failing to comply with an occupational safety and health standard promulgated by the Secretary in the Federal Register on June 24, 1974 (36 F.R. 22801) and codified in 29 CFR 1926.500(d)(1).

The description of the violation and the standard as promulgated by the Secretary are as follows:

"The perimeter of open-sided floors was not protected by a standard railing, or the equivalent, as specified in paragraph (f)(1) of this section.

Located: 1) Fourth floor - East, West and North Sides.

2) Fifth floor - East Side."

Standard as promulgated

Section 1926.500

"(d) Guarding of open-sided floors, [*4] platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toe-board wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard."

Pursuant to the enforcement procedure set forth in section 10(a) (29 U.S.C. 659(a)) of the Act, the respondent was notified by letter dated January 24, 1975, from the area director of the New York area, that the Occupational Safety and Health Administration proposed to assess a $6,000.00 penalty for the violation. The action was heard at New York, New York, on June 12, and July 11, 1975.

ISSUES

1. Whether respondents' employees were exposed to the hazards of unguarded open-sided floors on the fourth and fifth floors of respondent's worksite on January 10, 1975.

2. If the employees were exposed whether the violation was serious.

3. If the hazard was [*5] serious, whether respondents were responsible for the serious violation.

4. If respondents were responsible whether the serious violation was a willful and/or a repeat violation.

STATEMENT OF THE EVIDENCE

On January 10, 1975, a hi-rise thirty two story reinforced concrete office building at 695 Third Avenue, New York, New York, was under construction. Respondents were the structural concrete subcontractors on this project (T. * 151-152; Resp. brief p.1). On the morning of January 10th Peter C. Richardson, a compliance officer for the Occupational Safety and Health Administration, started his inspection of respondents' workplace at the project. At the time of the inspection the superstructure of the building had been constructed up to and including the fourth floor. Forming work had started for the erection of the fifth floor (T. 36-37, 42).

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

* Reference key: T. refers to pages of hearing minutes.

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

The fourth floor was rectangular in shape and measured 200 feet by 300 feet. The concrete floor had been poured [*6] the day before. Officer Richardson arrived on the fourth floor about 10:15 a.m. He observed about seventy of respondents' employees on the floor engaged in erecting column forms to support the fifth floor. He observed that the three exposed open sides (north, east and west) were not protected by perimeter guarding. The drop from the edge of the fourth floor's exposed sides to the ground below was thirty six feet. He also observed stacks of aircraft wire or cable which were to be used for perimeter guarding (T. 41-45, 53, 63; Exh. C-3).

A carpenter employee was cutting lumber (form work) within four feet of the unguarded edge of the northwest corner of the fourth floor. Another employee was standing within three to six inches of the unguarded north edge of the floor, and a crew of six employees working on column forms, were within four to five feet of the unguarded east edge of the floor (T. 46-51, 52, 53, 56, 60-69; Exhs. C-2, C-3, C-4, C-5).

In discussing the conditions he observed with Mr. Edward Bispo, respondents' job superintendent, Richardson was told by Bispo that perimeter guarding (aircraft cable) was installed the previous day, January 9th, but was taken down on January [*7] 10th in order to set up columns on the east side of the floor; that the guarding interferred with the erection of column forms over and around the reinforcing steel bars or dowel of the columns; and that the column form work would take about six hours to complete during which time the perimeter guarding had to be down (T. 69, 70). Richardson stated to Bispo that perimeter guarding was necessary to protect respondents' employees. Mr. Bispo immediately reinstalled the aircraft wire around the open perimeters of the fourth floor (T.71, 73).

When Officer Richardson returned to the fourth floor after lunch, he observed that the wire guarding had been removed; that about fifty employees of respondents were working on the floor, twenty of whom were within five to six feet of the unguarded edges of the floor; and that 20 percent of the staging and forming work for the fifth floor had been erected (T. 76, 77).

Officer Richardson then proceeded to the fifth floor where he observed eight to ten of respondents' employees working. There was no perimeter protection at the east side edge of the fifth floor (T. 77, 78; Exh. C-6).

Mr. Bispo stated to Richardson that respondents' employees were [*8] erecting columns on the fifth floor and during this phase of the work, perimeter guarding by aircraft wire could not be installed. Mr. Bispo had erected a wood barricade at the east edge of the fifth floor which consisted of standards wood railings attached to wood stringers and column formations coming up from the fourth floor (T. 85-89).

Based on his observations, Officer Richardson recommended to his area director that a citation for a serious violation of 29 CFR 1926.500(d)(1) be issued to respondents. The area director issued a citation for a willful serious violation of the standard which was modified by the complaint to allege a "willful and/or repeat" violation on the fourth and fifth floors (T. 89, 92, 98-99, 106, 137-139; complaint).

At the conclusion of Officer Richardson's direct testimony respondents declined to cross-examine Richardson (T. 104).

Respondents, at the end of complainant's case, moved to dismiss the "willful" aspect of the violation and that portion of the penalty based on the willfulness of the violation (T. 145-148). Decision on the motion was reserved (T. 148-150).

Respondent's Case

Edward Bispo, respondents' superintendent in charge of [*9] respondents' work at the construction project on January 10, 1975, related the following course of events, conditions, and work problems at the construction worksite (T. 150-154).

On January 10, 1975, the concrete, forming the fourth floor slab, had been poured, and a double row of safety aircraft wire had been strung as perimeter guarding for the floor. The safety wire was affixed to column bars by clamps. Column bars are reinforced steel bars, also known as dowels, which came up through the concrete slab on the fourth floor from the third floor columns (T. 166, 169, 173; Exh. C-2, dowels marked "b"). There is a cluster of about six to ten dowels in each column (T. 171).

On the morning of January 10, 1975, prior to the arrival of the compliance officer, the wire perimeter guards on the fourth floor were removed in order to permit respondents' lather-employees to "cone the dowels" (T. 171). This is a procedure whereby a length of pipe is slipped over each dowel, one at a time, to bend the dowels inward towards the center of the cluster which results in forming the dowels into a cone shape (T. 171-172); See Exh. C-2). Since the safety perimeter cable is clamped to one of the [*10] dowels of a column, it was necessary to remove the wire and clamp to allow the bending pipe to be inserted over the dowel (T. 173-176). After coning is completed, carpenters install a column yoke base around the base of the embryo column which will secure the column form in place. Column forms consist of four plywood sides, assembled in a 30 square inch box shape form nine feet long. These forms are assembled on the fourth floor, are lifted by a crew of four to six men, are placed on end over the coned column dowels, and come to rest in the base yoke. This column forming procedure occurs within two to twenty minutes after coning. Concrete is later poured into the column forms which creates the columns from the fourth to fifth floors (T. 177, 178-180, 181, 182; Exh. C-2 shows column forms before assembly, Exhs. C-4, C-5, show assembled column forms). During the coning and column form installation phase, it is impossible to retain the safety perimeter wire clamped to the dowels because it would prevent the dowels from being coned and would prevent the column forms from being dropped over the coned dowels (T. 182-183).

After two column forms are erected or installed, a beam bottom [*11] is placed, and secured, at the top of and between the two column forms, to hold the columns together. After six such column forms with beam bottoms are installed, the safety perimeter wire is reinstalled and attached to the columns (T. 184-188, 190; Exhs. C-4, C-5, Exh. R-1). Thereafter form work is erected which will support the plywood for the fifth floor flooring (T. 185).

At the time of inspection on January 10, 1975, respondents had fifty to sixty employees working on the fourth floor. Four to eight employees were engaged in coning dowels of columns located at the floor's perimeter, and eight others were assembling and installing column forms (T. 189, 190). It was not possible for these workers in the perimeter area of the floor to wear safety belts because there was no place to attach the safety belt lanyards except to an interior column some eighteen feet away. If attachments were made to the interior column, they would have created tripping and other hazards to the employees working on the interior areas of the floor. Except for the employees working at or near the perimeter areas, all other employees were prohibited from approaching any closer than six feet to the [*12] perimeters of the floor during the time the perimeters were unguarded (T. 191-194).

At the time of inspection approximately 80 percent of the columns at the floor's perimeter had been coned (T. 198-199). After the morning inspection and prior to lunch time (11:30 a.m.) the safety perimeter wire was reinstalled, but a return to the fourth floor after lunch revealed that the wire had been removed. Mr. Bispo believed it was dropped to complete the remaining 20 percent of coning and column form work (T. 235-236).

The Partial Erected Fifth Floor

During the morning of January 10th, form work for the fifth floor's concrete slab or floor was started. Column forms were plumbed, braced and beam bottoms attached. Forms for the sides of the beam, and forms for the plywood decking were installed (T. 200, 201, 202-203, 205; Exh. R-1).

About 1:30 p.m. 20 percent of the plywood decking was in place on the east side of the fifth floor (T. 203, 204). After the interior beam side had been installed and sufficient plywood decking laid down, a perimeter guard consisting of two feet by four feet posts with top and mid rails, was nailed to the interior beam side, two feet inside the outer [*13] edge of the building (T. 218-221; Exh. R-1). The plywood decking did not extend to the outer edge of the building but was two feet inside the outer edge to allow for the installation of a spandrel beam which ran around the perimeter of each floor (T. 205-209, 227, 228; Exh. R-1).

In building or erecting the perimeter columns, it then became necessary for respondents' lather-employees to drop pre-assembled cages weighing between 300 and 400 pounds, and consisting of 6 to 36 dowels, 16 feet to 18 feet in length, into the column box forms that came up from the fourth floor slab to the fifth floor beam bottoms (T. 210-212, 221-223). To perform this phase of the work it was necessary to remove the previously installed wooden perimeter guard to allow the employees to have access to the column area in order to place the pre-assembled cages into place (T. 220-225). After the column dowels or pre-assembled cages were in place, perimeter guarding in the form of aircraft wire was set up and clamped to the dowels (T. 225; Exh. R-1).

During the interval of time between the removal of the wooden perimeter guard and the installation of the wire guard, it was not possible for respondents' employees [*14] on the fifth floor to use safety belts for the reason that there was no place on that floor to which safety belts could be anchored (T. 225-226).

Rebuttal Evidence

To offset respondents' evidence that the peculiar configuration of the office building being erected required the removal of perimeter guards during certain phases of respondents' work (coning, column framing, and pre-assembled cage installation), complainant, through compliance officer Richardson, suggested that there existed a patented perimeter protection method that could have been used. The system is known as the SGB Universal Perimeter Protection System. This system offered perimeter protection at building construction sites, three floors at a time (Exhs. C-12, R-2; T. 265, 269-270, 298-302).

Officer Richardson's only familiarity with this system was from a reading of the manufacturer's brochure (Exh. C-12) and a view of the system (Not its operation) at another construction site (T. 309-310, 313). Officer Richardson stated that the patented system was for use in the construction of residential buildings where the height of ceilings are eight feet. He did not know the height of office building ceilings. [*15] He knew that the mullions or vertical posts could not be increased in length (T. 313-314).

Joseph Gleich, respondents' chief engineer and a licensed professional engineer, stated that he was familiar with the patented perimeter protection system (Exh. C-12), had discussed it with its inventor, and had considered its use at respondents' construction site at 695 Third Avenue. He however, came to the conclusion that the system was not suitable for this project (T. 316-319).

Mr. Gleich reasoned that the mullions made for the patented system were exactly 24 feet long and were made to cover three floors of a typical apartment house construction where the ceiling heights were between eight and nine feet. The height of ceilings at the instant project were eleven feet, and the mullions would have been too short to use as they could not be obtained in longer lengths. Further, the mullions would be difficult to handle as each 24 foot mullion weighed 79 pounds, and if they were available in longer lengths to accommodate eleven foot ceilings they would weigh about nineth pounds each (T. 319-320).

Mr. Gleich also indicated that when the mullions are moved all safety cables attached to the [*16] mullions must be removed; and that when the mullions are moved to an upper floor, workers doing stripping work on a lower floor would be without perimeter floor protection (T. 320-323, 341-343; Exh. R-2).

OPINION

Respondents did not at the hearing, dispute the direct testimony of compliance officer Richardson as to the lack of perimeter guarding on the east, west and north sides of the fourth floor, and on the east side of the fifth floor on the day of inspection.

For its defense respondents, through their job superintendent, Edward Bispo, established that it was impossible during certain specialized phases of its concrete construction work i.e., coning dowels, installing column forms and cages, on the fourth and fifth floors to have perimeter wire guarding in place due to the peculiar configuration or design of the building being constructed; that perimeter guarding was in place on the fourth floor and partially decked fifth floor prior to the beginning and subsequent to the completion of the specialized column work; that except for the employees performing the specialized column work and during the time this work was being performed, all employees were prohibited from approaching [*17] to within six feet of the floors' unguarded perimeters; and that except for the fourth and fifth floors all other floors were either protected with perimeter guards or the employees were equipped with and using safety belts and lanyards.

In rebutting respondents' defense of impossibility of performance, complainant attempted to establish through compliance officer Richardson that there existed a patented perimeter protective system which could have been used by respondents. Officer Richardson's only knowledge of this system was what he read from the brochure about the system (Exh. C-12) and his single observation of the system (not its operation) at a residential construction site. He believed the system could have been used at respondents' work place but acknowledged that the necessary equipment was not available to adapt this system to office building construction.

Respondents through their chief engineer, Joseph Gleich, countered that the patented system was given consideration for use at the construction site but was rejected because it applied to residential construction sites where ceilings are eight feet high and not to office building construction sites where ceilings [*18] are eleven feet high. This was based in part on the 24 foot length of the mullions or vertical posts, an integral part of the system, which covered three floors or 24 feet. These mullions were not made in longer lengths and could not be adjusted to cover three floors of an office building construction where ceiling heights were eleven feet. The system was further rejected because of the heavy weight (79 pounds) of each 24 foot mullion or vertical post. If mullions were available for eleven foot high floors each mullion would weigh about 90 pounds and would be too unwieldy to handle. Further, Mr. Gleich concluded that the patented system, if it could be used, would leave certain employees doing stripping work on a lower floor unprotected when the mullions were moved up to the next floor.

The evidence establishes that the peculiar design of the office building, i.e., floor edges two feet in from the outer side of the perimeter columns, made it impossible to have perimeter guarding in place during the specialized column work; and made it impossible for respondents to otherwise protect the employees doing this specialized column work. *

- - - - - - - - - - - - - - - - - -Footnotes- [*19] - - - - - - - - - - - - - - - - -

* Subsequent to the inspection and prior to the hearing, respondents did develop a perimeter guarding method for this type and design of office building which would eliminate the situation presented here from occurring in the future (T. 215-218; R-1).

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

Complainant's suggestion of an alternate patented perimeter system used on residential building construction was not available for, and could not be adapted to, office building construction, and its use created other hazards. Respondents' cannot be faulted for rejecting the patented system after due professional reflection on the systems merits and failings.

Respondents were not in violation of the standard during the periods of specialized column work on the fourth and fifth floors when it was necessary to remove the guarding to perform the work. Secretary of Labor v. Dic-Underhill, A Joint Venture, 15 OSAHRC 695, 696 (1975).

However, and respondents' admit (brief p.11), at the time of inspection 80 percent of the specialized column work was completed on the fourth floor, and the wire perimeter guarding [*20] was re-installed prior to the lunch break about 11:30 a.m. When officer Richardson returned to the fourth floor after lunch about 1:30 p.m., he found that fifty employees were working on the floor and that the wire perimeter guarding had been dropped on all three sides of the floor. Respondents' believe the wire was dropped to complete the remaining 20 percent of the specialized column work. What is not clear nor answered by respondents' is the reason for the complete removal rather than a partial removal of the wire when 80 percent of the specialized work was completed.

The fourth floor measured approximately 200 feet on the east and west sides and 300 feet on the north side. The wire guarding was installed in fifth foot lengths (T. 43, 44, 197). This indicates that the wire guarding should not have been completely down on all three exposed sides when 80 percent of the specialized work at the perimeter columns was completed. Mr. Bispo, in officer Richardson's presence reinstalled the wire guarding (T. 236).

Respondents are responsible for the complete removal of the wire perimeter guarding on the fourth floor during the period subsequent to 11:30 a.m. and its re-installation [*21] about 1:30 p.m. on January 10, 1975. The violation was serious in that an employee's fall from a height of 36 feet to the ground below would more probabably than not have caused serious physical harm to the employee. Respondents knew or with the excerise of reasonable diligence should have known of the serious violation through their superintendent and foremen.

PENALTY

An adjusted penalty of $6,000.00 was proposed by complainant. This was based in part, on the violation being a willful and/or repeat serious violation, in that respondents' had approximately eight separate prior violations of standard 29 CFR 1926.500(d)(1) (T. 110-114; Exh. C-1).

Respondents maintain an active safety and training program for its job supervisors, foremen and employees in which perimeter protection, among other items, is strongly stressed (T. 230-234). At the instant construction site, the floors below the fourth and fifth floors were protected either with perimeter guarding or the employees were protected with safety belts and lanyards.

Under the circumstances of this case, it cannot be found that respondents willfully violated the standard. Respondents were in serious violation of the [*22] standard on the fourth floor during the flexible two hour period (11:30 a.m. to 1:30 p.m.) on January 10, 1975, when the wire guarding was completely removed. This indicates a lack of proper supervision or attention by respondents various job foremen in failing to rigidly carry out respondents' safety rule as to perimeter guarding but does not indicate a willful action on the part of respondents. Respondents violated the standard on, at least, eight prior occasions (final orders). This is sufficient to find the instant violation a repeat violation. Secretary of Labor v. Bethlehem Steel Corporation 20 OSAHRC-, Docket No. 8392, September 17, 1975.

The violation is found to be a serious repeat violation on the fourth floor on January 10, 1975, during the time period stated above. Considering all the factors of section 17(j) of the Act, including the high gravity and the repeat nature of the violation, a penalty of $1,000.00 is deemed reasonable and proper.

Respondent motion and affirmative defense

This decision determines respondents' motion to dismiss the "willful" aspect of the citation and that portion of the penalty based on the alleged "willfulness".

Respondents [*23] raised the additional affirmative defense of "reasonable promptness" in its answer. Respondents failed to establish, or submit any evidence on, this defense at the hearing and it is not here considered.

FINDINGS OF FACT

The credible evidence and the record as a whole establishes preponderant proof of the following findings of fact:

1. Respondents, as a joint venture, were engaged on January 10, 1975, as the concrete subcontractors on a 32 story office building construction worksite located at 695 Third Avenue, New York, New York.

2. Respondents admit that their joint venture is a business which affects commerce.

3. On January 10, 1975, compliance officer Richard C. Richardson inspected respondents' workplace at 695 Third Avenue, New York, New York.

The Construction Site

4. The construction site consisted of a 32 story reinforced concrete office building under construction.

5. At the time of inspection about 10:15 a.m. on January 10, 1975, four concrete floors had been completed. Forming work in preparation for the erection of the fifth floor decking had been started.

The Fourth Floor

6. The fourth floor was rectangular in shape, was 200 feet long [*24] on its east and west sides and 300 feet on its north side. The south side was flush against an adjoining building.

7. There was no perimeter guarding along the unguarded edges of the east, west and north sides of the floor.

8. There were about seventy of respondents' employees working on this floor. Eight were standing or working from several inches to five feet from the unguarded floor edges. These eight employees were engaged in forming and erecting columns along the floor's perimeter which would eventually rise to the level of the fifth floor where further column work would continue for the fifth floor.

9. The perimeter columns of the fourth floor extended two feet beyond the edge of the floor's perimeter.

10. On the morning of January 10, 1975, but prior to inspection, reinforcement bars or dowels were set in the fourth floor's perimeter columns. Fifty foot lengths of aircraft wire were properly installed around the three open sides of the floor by clamping the wire to the dowels of the various embyro perimeter columns.

11. As part of the formation of the columns, the dowels or reinforcement bars had to be coned (see statement of evidence) and boxed shaped wooden [*25] forms had to be installed over the coned dowels. During this specialized column work, and in order to perform the work, the aircraft wire perimeter guarding had to be removed. After this specialized work was completed and several columns were secured with beam bottoms, the wire perimeter guarding was reinstalled. This work took about six hours to complete.

12. During the time the specialized work was in progress and the perimeter guarding was removed, all of respondents' employees on the floor except for those engaged in the specialized work, were prohibited from approaching any closer than six feet to the unguarded edges of the floor.

13. About 11:30 a.m. on January 10, 1975, 80 percent of the specialized column work had been completed and the wire perimeter guarding was reinstalled.

14. At 1:30 p.m. of the same day, the wire guarding was found completely removed, ostensible to complete the remaining 20 percent of specialized column work.

15. Sometime during the two hour period between 11:30 a.m. and 1:30 p.m., and after 80 percent of the specialized work had been completed, 100 percent of the perimeter guarding was removed.

16. At this time (1:30 p.m.) there were about [*26] fifty employees of respondents' on the fourth floor, twenty of whom were within five to six feet of the floor's unguarded edges (T. 78-79).

17. The wire perimeter guarding was immediately reinstalled when its removal was brought to the attention of respondents' job superintendent.

18. Respondents during the several phases of specialized column work could not proceed with the work if perimeter guarding was in place.

19. Due to the peculiar design or configuration of the building no feasible or alternate type of guarding was available on January 10, 1975, to protect respondents' employees engaged in the specialized work during the time it took for such work to be completed.

20. However, the complete rather than a proportional or partial removal of the wire perimeter guarding, after 80 percent of the specialized work was completed, exposed respondents' employees to the hazard of falling 36 feet to the ground below and to the dangers of death or serious physical harm.

21. Respondents knew or with the exercise of reasonable diligence, should have known of the serious condition that existed on the fourth floor between 11:30 a.m. and 1:30 p.m., when the perimeter wire guarding [*27] was completely removed.

The Partial Decked Fifth Floor

22. About 11:30 on January 10, 1975, forming work for the plywood deck of the fifth floor had started.

23. At 1:30 p.m., 20 percent of the plywood decking on the east side of the floor was installed. There were eight to ten employees on this partial floor who had laid the plywood decking. At this time a wooden perimeter guard was installed at the east side which was later removed when the specialized column work for this floor began.

24. Due to the initial work of laying a partial plywood floor to work from, and the immediate erection of a temporary wooden perimeter guard at the east side of the floor prior to the specialized column work, respondents were not in noncompliance with 29 CFR 1926.500(d)(1) at the time of the afternoon inspection of this floor.

Respondents Safety and Training Program

25. Respondents maintain an active safety and training program for their supervisory personnel and employees with major stress on perimeter guarding.

26. Respondents properly maintained safety protections for all its employees including perimeter guarding on all floors below the fourth floor on January 10, 1975. [*28]

27. There is no evidence that the serious violation of 29 CFR 1926.500(d)(1) on the fourth floor during the flexible period between 11:30 a.m. and 1:30 p.m. on January 10, 1975, was the result of any willful actions on the part of respondents.

28. The violation was due to the less than rigid enforcement of respondents' perimeter guarding safety rules by lower echelon foremen and indicates that respondents active safety and training program is less than adequate to instill compliance by their foremen.

27. The violation is also a repeat violation in that prior violations of the same standard by respondents are of record as final orders of the Commission.

CONCLUSIONS OF LAW

1. Respondents are, and at all times material herein were, engaged in a business affecting commerce within the meaning of section 3(5) of the Act (29 U.S.C. 652(5)).

2. The Occupational Safety and Health Review Commission has jurisdiction over the subject matter and parties to this action.

3. On January 10, 1975, respondents were not in willful violation of 29 CFR 1926.500(d)(1) but were in serious repeat violation of the standard on the fourth floor of the construction site during the period [*29] from 11:30 to 1:30 p.m. Respondents were not in violation of the standard on the fifth floor of the construction site.

4. Under the circumstances of this case with due consideration to the statutory factors of 17(j) of the Act and the repeat nature of the violation, a proposed penalty of $1,000.00, is reasonable and proper.

ORDER

Due deliberation having been had on the whole record, it is hereby

ORDERED that the citation for a willful and/or repeat serious violation of 29 CFR 1926.500(d)(1) is amended to a repeat serious violation, and further amended to delete the descriptive reference to a violation on the fifth floor, and as amended, is affirmed, it is further

ORDERED that the notification of proposed penalty is amended by reducing the proposed penalty to $1,000.00, and as amended, is affirmed.

JEROME C. DITORE, JUDGE, OSAHRC

Dated: December 29, 1975

New York, New York