TRULAND CORPORATION

OSHRC Docket No. 12705

Occupational Safety and Health Review Commission

November 17, 1977

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Harold J. Engel, U.S. Department of Labor

Edward L. Weaver, Truland Corp., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Review Commission Judge David Harris is before us for review pursuant to 29 U.S.C. 661(i). The Judge affirmed a serious violation of 29 C.F.R. 1926.500(d)(1) and assessed a $100 penalty in lieu of the $800 proposed. Truland Corporation's petition for discretionary review, granted by Chairman Cleary, raises the issues: (1) whether the Seventh Circuit opinion in Anning-Johnson Co. v. OSHRC, 516 F.2d 1081 (7th Cir. 1975) applies to the facts of this case; (2) whether a pre hearing amendment modifying the citation and complaint to allege a serious rather than nonserious violation is proper; and (3) whether the evidence demonstrates that the violation was serious.

Truland, the electrical contractor on a building construction project, was issued a citation alleging a nonserious violation of 29 C.F.R. 1926.500(d)(1) n1 for failure to adequately guard an open-sided floor. After Truland's answer was filed, but before the hearing, the Secretary [*2] moved to amend the citation and complaint to allege that the violation was of a serious nature, and to increase the proposed penalty from $50 to $800. The Judge granted the amendment by order prior to the hearing.

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n1 The standard at 29 C.F.R. 1926.500(d)(1) provides in relevant part:

Guarding of open-sided floors, 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 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.

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The structure upon which Truland was working consisted of three floors and a partial basement. The second floor perimeter was guarded by a sagging wire rope attached to columns eighteen to twenty feet apart. The OSHA compliance officer who inspected the worksite testified that the fall distance from the second floor was twenty to thirty feet. Although Truland does not dispute that the second floor was [*3] protected only by a sagging wire rope, its co-foreman testified that the distance from the highest point on the second floor to the ground was twelve to thirteen feet. Truland's employees worked within three feet of the edge of the second floor. The nature of the ground surface beneath the edge of the floor is not revealed by the evidence.

The Judge found the testimony of Truland's co-foreman, who worked on the job for fourteen months prior to the OSHA inspection, more credible regarding the fall distance, and thus found that the maximum fall distance from the floor would be twelve to thirteen feet. He concluded that such a fall could result in death or serious physical harm, and thus found the violation to be serious. The Judge assessed a $100 penalty based upon a low probability of injury, the absence of a history of prior violations, and Truland's moderate good faith.

It is undisputed that the single wire cable surrounding the second floor failed to comply with the standard, that Truland's employees had access to the perimeter of the floor, and that Truland knew or should have known of the condition. Truland argues, however, that as a subcontractor who did not create or [*4] control the condition, n2 it is not responsible for the violation under the decision in Anning-Johnson v. OSHRC, supra.

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n2 Truland contends that the general contractor was responsible for the installation and maintenance of guardrails.

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The Commission has declined to follow all aspects of the 7th Circuit's decision. Mayfair Constr. Co., n5 BNA OSHC 1877, 1977-78 CCH OSHD para. 22,214 (No. 2171, 1977). We have held, however, that where the usual criteria establishing employer liability have been shown, a non-creating, non-controlling subcontractor on a multi-employer construction site can defend by showing that it took realistic steps, as an alternative to literal compliance with the standard, to protect its employees. Grossman Steel and Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-1976 CCH OSHD para. 20,691 (No. 12775, 1975), and Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (No. 4409, 1976). It has been our practice in cases tried before those decisions [*5] were issued to afford the subcontractor an opportunity to reopen the record to present evidence relevant to the defense, and we will afford Truland a similar opportunity.

The question remains whether the violation is properly classified as serious. The Commission members are divided on this issue. Both members accept the Judge's credibility determination that the fall distance from the second floor was twelve to thirteen feet, but they differ on whether such a fall establishes a serious violation.

Chairman Cleary agrees with the Judge that the violation was shown to be serious by a preponderance of the evidence. A violation is serious within the meaning of section 17(k) of the Act if a substantial probability exists that death or serious physical harm would result if an accident occurs. The probability that an accident could occur is relevant only to penalty assessment. California Stevedore and Ballast Co., 517 F.2d 986 (9th Cir., 1975); RPM Erectors, Inc., 74 OSAHRC 62/D14, 2 BNA OSHC 1187, 1971-73 CCH OSHD para. 15,411 (No. 1114, 1974). Here, there existed a potential fall of twelve to thirteen feet onto a surface of unknown composition. The building was not built [*6] on level ground. The compliance officer testified that in his opinion the probable result of a fall from the second floor on the west side of the building would be death or serious physical harm. The testimony was unrebutted. Thus, Chairman Cleary concludes that the violation was properly characterized as serious in nature. n3

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n3 Although Chairman Cleary would determine seriousness on the basis of the facts in each particular case, he notes that the result here is not inconsistent with prior caselaw. See, e.g., Russ Keller, Inc., t/a Surfa-Shield, 76 OSAHRC 130/F10, 4 BNA OSHC 1759, 1976-77 CCH OSHD para. 21,152 (No. 11171, 1976) (twelve-foot fall onto macadam-type driveway resulting in death found serious; Schiavone Constr. Co., 77 OSAHRC 76/A2, 5 BNA OSHC 1385, 1977-78 CCH OSHD para. 21,815 (No. 12767, 1977) (fourteen-foot fall onto steel platform found serious); PPG Industries, Inc., No. 15426 (November 4, 1977) (Ten-to-fifteen-foot fall to concrete surface held serious).

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Chairman Cleary [*7] also concludes that the Judge properly allowed the Secretary to amend the complaint to allege that the violation was serious. It is well established that amendments to administrative pleadings should be freely allowed in order to facilitate the trial of cases on the merits. E.g., Usery v. Marquette Cement Mfg. Co., No. 76-4083 (2d Cir., August 29, 1977); Nat'l Realty & Constr. Co., 489 F.2d 1257 (D.C. Cir. 1973); Fed. R. Civ. P. 15(a). In this case, the motion to amend was made and granted well in advance of the hearing. Respondent had adequate opportunity to prepare its defense to each of the allegations. Respondent neither contended nor showed that it was prejudiced in the preparation of its case. n4 Under such circumstances, Chairman Cleary concludes that the Judge correctly granted the amendment.

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n4 Respondent did allege that the amendment was improper because it was based on statements obtained by the compliance officer through coercion. As the Judge found, however, there is no evidence of record of coercion by the compliance officer. Moreover, the statements were not introduced into evidence.

[*8]

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Commissioner Barnako thinks that the record does not show that the violation was serious, and therefore does not reach the question of whether the amendment was properly allowed. Although a fall distance of twelve to thirteen feet might produce serious injury, the evidence here does not establish that serious injury was substantially probable. The burden of proof rests with the Secretary, and he has not demonstrated conditions which would show that a twelve to thirteen foot fall would per se likely cause death or serious injury. Compare Schiavone Construction Co., supra, (fourteen foot fall onto steel platform or steel pilings held to be serious). Furthermore, although the presence of the wire rope would not affect the result of a fall from the floor perimeter, Commissioner Barnako notes that it has been the Secretary's practice to allege that perimeter guarding violations are nonserious where such protection has been provided. See, e.g., Mayfair Construction Co., supra. The Secretary has not cited any cases in which violations of this type have been characterized as serious.

Both [*9] Commission members agree that the Judge's assessment of a $100 penalty is appropriate for the reasons he assigned.

Accordingly, the Judge's finding that Truland violated 1926.500(d)(1), and his assessment of a $100 penalty, are affirmed unless Truland requests a further hearing within ten days of its receipt of this decision. In such event, this order will be withdrawn and the case remanded for further proceedings. If Truland does not request a further hearing, the Judge's finding that the violation was of a serious nature becomes the final action of the Commission.