OSHRC Docket No. 13831

Occupational Safety and Health Review Commission

January 6, 1977


Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.


Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Reg. Sol, USDOL

R. E. Hensley, Secy, Central Contracting Corp., for the employer



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 [*2] Judge's decision. 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.



MORAN, Commissioner, Dissenting:

The 29 C.F.R. 1926.500(d)(1) charge should be vacated because that standard does not apply to flat roofs. Secretary v. Central City Roofing Co., OSAHRC Docket No. 8173, June 4, 1976. My colleagues, however, have disregarded this established Commission precedent by perfunctorily affirming a Judge's decision that holds to the contrary. In doing so, they have improperly failed to invoke the plain error rule n1 which has previously been utilized to afford relief to another respondent under similar circumstances. Secretary v. Frank Briscoe Co., OSAHRC Docket No. 12136, September 23, 1976. Fundamental fairness requires that this respondent be given equal treatment.

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n1 My views on the Commission's obligation to apply the plain error rule are expressed in Secretary v. Puterbaugh Enterprises, Inc., 9 OSAHRC 718 (1974) (dissenting opinion).

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The remaining item should also be vacated because complainant failed to prove that the cited condition constituted a hazard in view of respondent's use of a plywood covering as alternate protection authorized by the cited standard, 29 C.F.R. 1926.500(b)(5). See Secretary v. Alfred S. Austin Construction Co., OSAHRC Docket No. 4809, April 28, 1976 (dissenting opinion).

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



Donald R. McCoy, for the Complainant

Raymond E. Hensley, for the Respondent

Carlson, Judge, OSAHRC:

This is a proceeding brought under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.), hereafter referred [*4] to as "the Act". By citation issued June 3, 1975 the complainant Secretary of Labor alleges that respondent violated the Construction Industry Standards published at 29 CFR 1926.500(d)(1) and 1926.500(b)(5) at a hospital construction site at Kearney, Nebraska. Complainant further charged that the violations (enumerated in the citation as items 1-a and 1-b) were of a serious character and proposed a combined civil penalty of $650.

The matter came regularly on for hearing at Grand Island, Nebraska on September 25, 1975. The scope of the notice of contest filed by respondent was not wholly clear from the pleadings, but the parties were in full agreement at the time of the trial that respondent had not intended to contest the existence of the violations alleged, but challenged the alleged "seriousness" of the violations and the reasonableness of the penalty amount.

No employees or their representatives at any time sought party status. The complainant submitted a post-hearing brief; respondent elected not to do so.

Complainant's citation described the alleged violations in these terms:


Standard Allegedly Violated

Description of Alleged Violation


29 CFR 1926.500(d)(1)

(North side of hospital addition)

A standard railing or the equiv-

alent was not provided on the

opensided floor, 60 feet above

ground level, where the crane

operator was working.


29 CFR 1926.500(b)(5)

(Adjacent to old oxygen storage

room) A standard railing for

protection against falling is not

provided on the open side of the

approximately 11 foot deep air

shaft pit.


The cited subparts of the standard provide respectively:

1926.500 Guardrails, handrails, and covers.

(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)(1) 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.

(b) Guarding of floor openings and floor holes.

(5) Pits and trap-door floor openings shall be guarded by floor opening covers of standard strength and construction. While the cover is not in place, the pit or trap openings shall be protected on all exposed sides by removable standard railings.

No jurisdictional questions are presented here. Respondent, by its answer, admitted engaging in a business affecting commerce and acknowledged its status as an employer.


The undisputed evidence herein discloses [*6] that the citation arose out of an inspection conducted by one of complainant's compliance officers on May 28, 1975, at a major addition which was being constructed at a hospital in Kearney, Nebraska. Respondent corporation was the general contractor. The new wing of the hospital was essentially a three-story brick and steel structure with a basement. At one end, however, the structure rose an additional two stories where the elevator tower had been built high enough to accommodate two possible additional floors. Respondent had 24 employees on the site at the time of inspection.

Item 1a

The uncontroverted evidence discloses that at the time of the inspection one of respondent's employees was standing on the flat covering of the elevator tower from which vantage point he was operating a remote control crane. The crane was mounted on a stationary tower some distance from the building. Its movements were regulated by a control box held in the operator's hand. Masons were bricking the sides of the building at the time in question, and the crane was lifting brick and mortar to their scaffold. The scaffold surrounded the building at a height 20 feet below the crane operator's [*7] station, and about 40 feet above subjacent ground level.

It was further undisputed that neither of the two corners of the elevator tower on which the crane operator stood to do his work was provided with any sort of guardrail when the inspection began on May 28, nor was any other safety barrier or device present which would serve to restrain a fall.

The compliance officer testified that as he watched the crane operator guide materials to the scaffold below him, the operator sometimes approached to about 1 1/2 feet from the edge (Tr. 17). In his own testimony on behalf of respondent, the operator indicated that he was generally back about 3 feet from the edge (Tr. 75), but acknowledged that he could have come closer from time to time (Tr. 77). The compliance officer agreed that the worker went only occasionally to the edge (Tr. 45).

Had the crane operator for any reason lost his balance and fallen from his station, the fall would most likely have ended on the scaffold platform some 20 feet below. Its width was between 6 and 7 feet, and its perimeter was protected by a standard guardrail except at the landing zone for crane loads.

The compliance officer maintained a fall would [*8] likely result in significant injury such as broken bones or damage to internal organs - particularly if pallets of brick or similar items present on the scaffold floor should be struck. He also asserted that some possibility existed that the falling employee could strike the scaffold platform at a point near the load landing zone where there was no guardrail and thus fall another 40 feet to the ground. The crane operator thought this unlikely; he asserted that the unguarded space was 10 to 12 feet from the building edge at his work station.

Originally the crane operator had worked from the scaffold platform itself. About three days in advance of the inspection, however, he had moved to the top of the elevator tower to get a better view of the operation since more materials were being hoisted to the scaffold level. He made the move on his own initiative.

Item 1b

The further item of violation cited concerned an air shaft pit adjacent to an employee passageway. The shaft, which was merely an open space between the existing hospital building and the new addition, was rectangular in shape. Its narrower or "end" dimensions were 5 to 6 feet, and one end lay parallel to and approximately [*9] 2 feet away from the edge of a walkway situated at the foot of a short flight of stairs leading from the existing hospital building. (The 2 feet of separation between the edge of the pit and the natural path of the walkway was provided by a plywood covering which had been secured across the last 2 feet of the shaft.) The shaft opening was 11 feet deep with an earthen bottom upon which some lumps of cement residue were deposited. No guardrail or other fall barrier stood between the walkway and the shaft edge.

The respondent has not disputed that the near edge of the shaft should have been guarded, but suggests that the chance of an employee's falling from the walkway was small. The compliance officer essentially agreed. He pointed out that the stairway and the walkway area at its foot were wide, and there was hence no necessity for respondent's employees to come close to the edge. Nevertheless, it was possible that an employee, perhaps one carrying materials of some sort, could have stumbled while negotiating one of the lower stairs and have fallen in. Without specifying more, the compliance officer testified that the victim of such a fall "might well suffer a serious injury" [*10] due to the distance involved and the presence of the cement residue (Tr. 34-35).

General Matters on Penalty

The compliance officer testified that he followed certain criteria laid down by his superiors in recommending the $650 penalty sum ultimately proposed herein. He reduced a $1,000 raw figure by a "maximum" 20% for what he judged to be respondent's general good faith as evidenced by such matters as its first-aid training program. A further 5% reduction was allowed in view of respondent's "moderate" size of some 50 employees overall, with 24 on the job. A 10% reduction, rather than the "maximum" 20%, was allowed with respect to respondent's prior safety history since the corporation had been earlier inspected with resulting citations which became final through lack of contest. No indication was given that the earlier violations were serious or of a kind related to those in the instant case. (Tr. 35-44.)

Complainant's inspector pointed out that abatement of both violations in the present case was extremely prompt. A railing was erected at the air shaft almost immediately, and standard rails were in place by the following morning at both corners of the elevator shaft [*11] top where the crane operator worked.


Respondent contends that the violations did not qualify as "serious". That term is defined in Section 17(k) of the Act which declares:

"For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."

Upon the record made herein it is clear that the conceded violation of 29 CFR 1926.500(d)(1) involving the crane operator meets the definition in all respects. Respondent's project superintendent may not have ordered the employee to his position on the roof, but it is inconceivable, if any supervision was present at the worksite, that he was unaware of the violative conduct. The requisite employer knowledge was present.

Neither can it be doubted that the likely consequence of a 20 foot fall to the scaffold platform [*12] would have been serious injury. Seriousness does not depend upon the likelihood that an accident will occur, but upon the probability of severe harm should one occur. n1

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n1 Secretary v. Standard Glass and Supply Co., 2 OSAHRC 1488 (1973).

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When the same criteria are applied to the air shaft violation of 29 CFR 1926.500(b)(5), I am not persuaded that complainant has borne the burden of proving that dereliction to be serious. The knowledge element was doubtless present. But there was no real testimony from the compliance officer as to a probability (in contrast to possibility) of serious injury (Tr. 34-35); and he forthrightly acknowledged that under policies of his agency in force at the time of trial, the same situation would have been classified as nonserious (Tr. 62). Under the facts, I must hold the air-shaft guarding violation properly ranks as nonserious.

Turning now to the matter of penalty assessment, the evidence convinces me that the proposed $650 sum is too high. Respondent corporation is of modest [*13] size, and it deserves high marks for its general attitude on safety - as exemplified by the swift correction of the present violations.

The most important penalty criterion in the present case, however, is the gravity of the violations. The crane operator was close to the building perimeter for but brief periods and was the sole employee exposed to that hazard. While serious injury was probable had he fallen, the probability of such a fall was not high. As to the air-shaft guarding violation, the extremely low possibility of an accident was conceded.

Giving due consideration to the gravity of the violation, along with the employer's size, good faith and prior history (as mandated by Section 17(j) of the Act), I conclude that $250 is an appropriate penalty for the serious violation. Measured by the same criteria, $50 is appropriate for the nonserious violation.


Upon the entire record, and pursuant to the foregoing discussion, the following findings of fact are entered:

1. At the times material hereto respondent corporation was engaged as general contractor in the building of an addition to a hospital building in Kearney, Nebraska.

2. On May 28, 1975 [*14] one of respondent's employees was working atop an elevator tower from positions which sometimes placed him in close proximity to the perimeter thereof.

3. The perimeter was not guarded by any railing or equivalent barrier; nor was the employee protected from falling by a safety line or other restraint.

4. The employee was exposed to a danger of falling approximately 20 feet to a scaffold platform below his work position. Such a fall would likely have resulted in serious bodily injury.

5. Respondent had constructive knowledge of the conditions above described.

6. At the same worksite various of respondent's employees were exposed to the danger of falling 11 feet from a common walkway into the open end of an air shaft pit, the edge of which was situated some 2 feet from the nearer edge of the walkway. The pit edge was not provided with a guardrail.

7. Because of the width of the walkway the probability of such a fall was remote; and should a fall have occurred, the evidence does not establish a substantial probability of serious injury.

8. Respondent is a corporation of moderate size with some adverse prior history under the Act, but has demonstrated a general record of [*15] good faith in managerial attitudes toward safety matters.


It is concluded:

1. That respondent on May 28, 1975 at its hospital construction site in Kearney, Nebraska violated 29 CFR 1926.500(d)(1); that such violation was "serious" as that term is defined in Section 17(k) of the Act; and that a penalty of $250 is appropriate for such violation.

2. That on the same date at the same site respondent violated 29 CFR 1926.500(b)(5); that such violation was not "serious" within the meaning of Section 17(k) of the Act; and that a penalty of $50 is appropriate for such nonserious violation.


In accordance with the foregoing, item 1a of the citation herein is ORDERED affirmed, and a civil penalty of $250 is assessed in connection therewith; item 1b of the citation is likewise ORDERED affirmed, but the classification of the violation is reduced from serious to nonserious, and a civil penalty of $50 is assessed in connection therewith.

John A. Carlson, Judge, OSAHRC

Dated: March 15, 1976