SIERRA CONSTRUCTION CORP.
OSHRC Docket No. 13638
Occupational Safety and Health Review Commission
January 6, 1978
[*1]
Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Daniel Teehan, Regional Solicitor
Steve Morris, for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Commissioner:
The issues on review are whether Respondent (Sierra) violated various OSHA construction industry standards involving fall protection, material storage, and crane operation hand signals. Judge Erwin L. Stuller found Sierra in violation of five such standards. We affirm.
Sierra was the general contractor for the building of a seventeen-story addition to the Riviera Hotel in Las Vegas, Nevada. An inspection of the worksite by an OSHA compliance officer resulted in the issuance to Sierra of a single-item serious citation and a seventeen-item non-serious citation. Only the serious citation and four items of the non-serious citation n1 remained in dispute at the time of the hearing.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Sierra's notice of contest contested the serious citation and six items in the nonserious citation. The Secretary withdrew two of the six nonserious items at the outset of the hearing.
- - - - - - - - [*2] - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Serious Citation - Alleged Violation of Section 1926.105(a) n2
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 Section 1926.105(a) states:
Safety nets shall be provided when workplaces are 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.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
This citation charged that Sierra failed to provide fall protection for employees working adjacent to the open edges of concrete forms on two sides of the thirteenth floor, approximately 130 feet above the ground. The compliance officer testified that he observed fifteen of Sierra's employees working throughout the floor. They were locating concrete "flying forms" into final position and bridging the gaps between them. The work resulted in the employees being near both the open spaces between the forms and the outer edges at the north and south ends of the thirteenth floor.
The floor was not equipped with a standard [*3] railing along the two edges nor were the employees using safety belts and safety lines. In addition, Sierra had not installed either safety nets or any of the other devices listed in Section 1926.105(a) to protect its employees from falling off or through the floor.
A safety engineer for the company which supplied the flying forms testified for the Secretary that it would have been possible for Sierra's employees to wear safety belts tied off to the rebar which protruded through the thirteenth floor. Both he and Sierra's job superintendent testified that the use of safety belts and lines would create a tripping hazard to employees working with flying forms. However, the safety engineer indicated that it would have been safer for such employees to work with belts and lines than to be exposed to a 130 foot fall.
Judge Stuller affirmed the citation on the grounds that Sierra's employees were exposed to the hazard of falling without the protection of any device listed in Section 1926.105(a). The Judge found that while the use of safety belts and lines created a minor tripping hazard, this did not relieve Sierra of the obligation to protect its employees from the serious hazard of [*4] falling 130 feet to the ground.
On review Sierra argues that safety belts and lines were impractical because they created a tripping hazard. Sierra also argues that rebars may not be used for tying off where there is no proof they would be able to hold a lateral load, citing Ceco Corp., 75 OSAHRC 45/D3, 3 BNA OSHC 1161, 1974-75 CCH OSHD para. 19,397 (No. 9467, 1975) (ALJ). Sierra concludes that since the Secretary did not present any evidence as to the feasibility of the other devices listed in Section 1926.105(a), he failed to prove a violation of the standard.
Sierra argues with respect to both citations that the compliance officer's testimony should not have been credited because he was inexperienced, hostile toward Sierra, and conducted a careless inspection in that he failed to identify Sierra's employees. Sierra also contends that it had an effective safety program.
We find these latter arguments without merit. Sierra made the same arguments before the Judge it now makes to us concerning the credibility of the witnesses, and Judge Stuller specifically found that the compliance officer's testimony was "highly credible, more credible than any of the other witnesses. [*5] . . ." Moreover, the Judge discredited the testimony of Sierra's superintendent. We accept these credibility determinations. Paul L. Heath Contracting Co., 75 OSAHRC 84/B2, 3 BNA OSHC 1550, 1975-76 CCH OSHD para. 20,006 (No. 5467, 1975); Northeast Stevedoring Co., 74 OSAHRC 81/B9, 2 BNA OSHC 1332, 1974-75 CCH OSHD para. 19,001 (No. 642, 1974). Furthermore, a generalized claim that it had an effective safety program does not absolve an employer from liability for violations under the Act. n3 See Ocean Electric Corp., 75 OSAHRC 6/C14, 3 BNA OSHC 1705, 1975-76 CCH OSHD para. 20,167 (No. 5811, 1975), opinion withdrawn and rehearing granted, No. 76-1060, 4th Cir., October 26, 1977.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 The Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Turning to the alleged violation itself, a prima facie violation of Section 1926.105(a) is established if employees are subject to falls of more than 25 feet and none of the devices listed in the standard are used. Brennan v. Southern Contractors [*6] Service, 492 F.2d 498 (5th Cir. 1974); McKee-Wellman Power Gas, 77 OSAHRC 133/A2, 5 BNA OSHC 1592, 1977-78 CCH OSHD para. 21,972 (No. 12618, 1977).
Moreover, we agree with the Judge's finding that the use of safety belts was practical. The safety engineer testified, without rebuttal, that it was possible to tie off to the rebar, and there was no evidence that the rebar would fail to support the weight of a man. Sierra's reliance on Ceco Corp., supra, is misplaced. That case is a judge's decision which the Commission did not review, and it is therefore not binding precedent. Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976). Commission precedents hold that a complete failure to use safety belts is not excused simply because they cannot be tied-off in an ideal manner. See Frank Briscoe Co., 76 OSAHRC 125/D7, 4 BNA OSHC 1706, 1976-77 CCH OSHD para. 21,191, (No. 12136, 1976); Kelly Construction Services, Inc., 79 OSAHRC 89/F3, BNA OSHC 1491, 1976-77 CCH OSHD para. 20,925 (No. 7102, 1976).
The safety engineer qualified his testimony by adding that he considered tying off to be "impractical", presumably [*7] because he anticipated that this method of fall protection would create a tripping hazard. As the Judge Found, however, the possibility of a minor tripping hazard did not obviate the need to use safety belts and lines to avoid the serious fall hazard of 130 feet. Under these circumstances we agree with the Judge that Sierra violated the standard.
Alleged Violation of Section 1926.250(b)(1) n4
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 Section 1926.250(b)(1) states:
Several requirements for storage.
(b) Material storage. (1) Material stored inside buildings under construction shall not be placed within 6 feet of any hoistway or inside floor openings, nor within 10 feet of any exterior wall which does not extend above the top of the material stored.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The Secretary alleged that Sierra violated this standard because it placed concrete form material on the thirteenth floor within ten feet of exterior walls which did not extend above the top of the material. He argued that the material was "stored", within the terms of Section 1926.250(b)(1), since [*8] it was not being used at the time the compliance officer observed it at the edge of the floor.
Sierra contends that since concrete work was being performed on the thirteenth floor, the form material was not "stored" because it was there for immediate use. We reject the argument. Any material placed on a construction site is presumably for eventual use. Under the standard, however, all material is considered "stored" until it is in fact used. Brennan v. Underhill Construction Corp., 513 F.2d 1032 (2nd Cir. 1975); Whitcomb Logging Co., 74 OSAHRC 89/F7, 2 BNA OSHC 1419, 1974-75 CCH OSHD para. 19,128 (No. 1323, 1974). We therefore agree with the Judge's conclusion that the material in this case was stored, and that Sierra violated the standard.
Alleged Violation of Section 1926.500(b)(2) n5
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 Section 1926.500(b)(2) states:
Guardrails, handrails, and covers.
(b) Guarding of floor openings and floor holes.
(2) Ladderway floor openings or platforms shall be guarded by standard railings with standard toeboards on all exposed sides, except at entrance to opening, with the passage through the railing either provided with a swinging gate or so offset that a person cannot walk directly into the opening.
[*9]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Sierra maintained a ladderway floor opening on the thirteenth floor that was not protected by standard railings and toeboards. Sierra employees used the ladder in this opening to gain access to the thirteenth floor. Based on these conditions, Judge Stuller affirmed this item of the nonserious citation.
Sierra maintains that, because the opening was surrounded by a rebar fence and wooden rails, it was improbable that an employee could "accidentally" walk into the opening, particularly since the area was not a work area. n6
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6 Sierra relies on Section 1926.500(b)(8) which states:
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. (Emphasis supplied).
Presumably it relied on this subsection becuase the complaint mistakenly referred to (b)(8) rather than (b)(2), the subsection alleged in the citation, and the Secretary did not move to amend. However, the substance of the violation remains the same under either standard, i.e. that the opening is one into which employees could walk. Furthermore, the guardrail requirements are the same under either standard in the circumstances of this case. Therefore, Sierra was not prejudiced by the mistake.
[*10]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The evidence establishes that Sierra's employees used the ladderway since it was the only means of access to the thirteenth floor. Moreover, the rebar and low wooden barrier which existed at the opening did not meet the requirements of the standard. Thus, the Judge properly affirmed this item.
Alleged Violation of Section 1926.500(d)(1) n7
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7 Section 1926.500(d)(1) states:
(d) 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 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 toeboard 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.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*11]
The citation charged that, at ten areas, open-sided floors or platforms more than six feet above the adjacent floor or ground lacked standard railings and toeboards. n8 Judge Stuller affirmed the citation for all ten locations.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 Originally, the Secretary cited twelve locations; at the outset of the hearing, he conceded that a violation did not occur at two of the locations.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Sierra argues that the Secretary failed to prove that any of its employees were exposed to the hazardous conditions at each location. It also contends that at five locations, the railings or toeboards must have been removed by subcontractors in order to perform work. Finally, Sierra argues that one location, a platform next to a personnel hoist, was not intended as a work surface but was erected as a canopy to protect employees from falling material, and without Sierra's approval, employees of the ironwork subcontractor used the canopy as a work platform.
In order to support a citation, the Secretary must establish that employees had access [*12] to the zone or zones of danger created by the hazardous conditions. A Munder & Sons, Inc. and Robert Catino, Inc., 76 OSAHRC 106/A2, 4 BNA OSHC 1593, 1976-77 CCH OSHD para. 21,000 (No. 1858, 1976); Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,448 (No. 504, 1976).
The Judge found "employee exposure" generally, but nor specifically at each of the ten locations. Nevertheless, the record establishes this fact. First, the compliance officer, whose testimony the Judge credited over the conflicting testimony of Sierra's construction superintendent, specified that Sierra employees were working or passing near certain of the ten locations. Furthermore, employees of subcontractors had access to the conditions and Sierra, as the general contractor, had the ultimate control and responsibility to protect the subcontractors' employees by ensuring compliance with the standard. Knutson Construction Co., 76 OSAHRC 131/F3, 4 BNA OSHC 1759, 1976-77 CCH OSHD para. 21,185 (No. 765, 1976), aff'd, No. 76-1979, 8th Cir., November 29, 1977, and cases cited therein.
As to the defense that at certain of the locations subcontractors removed the railings [*13] and toeboards to perform their work, the construction superintendent admitted that at one location the work did not require removal of the railing. As for the other locations, he could only theorize that the work required removal. Thus, Sierra failed to prove that the work could not have been performed with the railings and toeboards in place. Compare Otis Elevator Co., 77 OSAHRC 80/A2, 5 BNA OSHC 1429, 1977-78 CCH OSHD para. 21,821 (No. 13140, May 11, 1977) (concurring opinion); W.B. Meredith, II, Inc., 74 OSAHRC 39/A2, 1 BNA OSHC 1782, 1973-74 CCH OSHD para. 18,003 (No. 810, 1974).
Alleged Violation of Section 1926.550(a)(4) n9
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n9 Section 1926.550(a)(4) states:
Cranes and derricks
(a) General requirements. (4) Hand signals to crane and derrick operators shall be those prescribed by the applicable ANSI standard for the type of crane in use. An illustration of the signals shall be posted at the site.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
It was undisputed that Sierra had not posted an illusteration of crane hand signals on the [*14] worksite. The Judge affirmed this item, finding that the required illustration was not posted and that various Sierra employees were signalling the crane operator who was lifting loads over other employees.
Sierra argues that the charge should have been dismissed because the complaint alleged a violation of the wrong subsection, n10 because Sierra had its own system of signals and used radios to guide the crane operator, and because the absence of the illustration was de minimis at most, and insufficient to support a fine against Sierra.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n10 The complaint alleged that the subsection violated was 1926.550(a)(2).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
We reject Sierra's contentions. Although subsection (a)(2) (pertaining to rated load capacities and crane operating instructions), was inadvertently cited in the complaint, the substance of the alleged violation is unchanged, i.e., the absence of a poster, and Sierra defended against subsection (a)(4). Thus, Sierra was not prejudiced by the referral to subsection (a)(2) in the complaint.
Sierra's use of [*15] its own signalling system does not eliminate the necessity of complying with the standard's posting requirement. n11 Finally, the standard is directed at the hazard that an employee may be struck or otherwise injured by the load due to a misunderstanding between the crane operator and the employee giving signals. The hazard is not trifling and the violation is therefore not de minimis. Compare Alfred S. Austin Construction Co., 76 OSAHRC 50/A2, 4 BNA OSHC 1166, 1975-76 CCH OSHD para. 20,660 (No. 4809, 1976).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n11 An employer that wishes to use a means of eliminating a hazard different from that provided in a standard must obtain a variance from the standard. 29 U.S.C. 655(d) (1970).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Penalties
Judge Stuller assessed a $700 penalty for the serious violation of Section 1926.105(a). He assessed penalties for the four nonserious items as follows:
|
Section 1926.250(b)(1) |
- $60 |
|
Section 1926.500(b)(2) |
- $60 |
|
Section 1926.500(d)(1) |
- $90 |
|
Section 1926.550(a)(4) |
- $60 |
We adopt his penalty assessments [*16] for the reasons he stated, including his evaluation of the evidence as it pertained to the gravity of the violations, Sierra's size, good faith, and history or previous violations.
Accordingly, the Judge's decision is affirmed.