OSHRC Docket No. 13925

Occupational Safety and Health Review Commission

April 17, 1978


Before CLEARY, Chairman; BARNAKO, Commissioner.  


Baruch A. Fellner, Office of the Solicitor, USDOL

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

Peter A. Somers, for the employer




A February 12, 1976 decision of Administrative Law Judge Richard DeBenedetto is before this Commission for review pursuant to Section 12(j) of the Occupational Safety and Health Act of 1970. n1 Judge DeBenedetto found that the Respondent (Gibson) did not timely contest item 2 of a nonserious citation alleging its failure to comply with 29 C.F.R. 1926.500(e)(1)(iv). n2 Therefore, he denied Gibson's motion to place this item in contest. Judge DeBenedetto also vacated item 3 of the citation alleging Gibson's failure to comply with 29 C.F.R. 1926.500(d)(1) n3 because the Secretary failed to establish employee exposure to the cited condition.

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n1 29 U.S.C. 651 et seq., hereinafter "the Act.'

n2 29 C.F.R. 1926.500(e)(1)(iv) requires the provision of stair railings on opensided stairways.

n3 29 C.F.R. 1926.500(d)(1) requires a standard railing for every opensided floor or platform 6' or more above adjacent floor or ground level.


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The issues on review are whether the judge erred in (1) holding that item 2 of the citation was not timely contested; (2) concluding that there was no employee exposure to the hazard at issue in item 3; and (3) denying the Secretary's motion to amend the alleged violation in item 3 from nonserious to serious.   For the following reasons we affirm the judge's decision on the contest and amendment issues.   However, the Commission members cannot agree on the issue of employee exposure to the alleged hazard in item 3.   Commissioner Barnako would modify and affirm Judge DeBenedetto's decision vacating the item.   Chairman Cleary would reverse the Administrative Law Judge and affirm the violation as deminimis. In light, however, of the absence of a third member since April 28, 1977, and the statutory purpose of expeditious adjudication, the present members agree to resolve their impasse by affirming the judge's order vacating item 3 but according the portion of his decision pertaining thereto the precedential value of an unreviewed judge's decision.   See Life Science Products Co., 77 OSAHRC 200/A2,   [*3]   6 BNA OSHC 1053, 1977-78 CCH OSHD para. 22,313 (No. 14910, 1977), pet. for review filed, No. 78-1014 (4th Cir. Jan. 6, 1978).

Gibson, a mechanical contractor, was engaged in the construction of the Second Senior High School in Middletown, N.J.   The company contracted to install the heating, ventilating, and air conditioning work on the construction project.   The building was two stories high and had several wings connected by a central mezzanine area.   At the time of the inspection, the building was enclosed; most of the masonry was completed; and the electrical, carpentry, and plumbing work was in progress.   The mezzanine area was on the second floor overlooking the dining room 13 feet below.   Instead of a standard guardrail, as required by 1926.500(d)(1), a 3/5" manila rope was installed along the edge of this opensided second floor. Ten feet from the edge of the mezzanine was a wall.   The space between the wall and the edge was used as a passageway by Gibson's employees to gain access between the wings of the building.

On these facts Gibson received a nonserious citation alleging, among other things, that it failed to comply with 1926.500(e)(1)(iv) (item 2) and [*4]   1926.500(d)(1) (item 3).   No penalty was proposed for the former alleged violation, but a $50 penalty was proposed for the latter. n4 The first paragraph of Gibson's pro se notice of contest objected only to the "fine of fifty dollars ($50.00) for failing to have a guard rail on the second floor of the building. . ." [item 3].   It did not mention item 2 of the citation which alleged a failure to provide railings on the open side of a stairway. The second paragraph of the notice of contest referred to a magazine article discussing the court's decision in Anning-Johnson Co. v. OSHRC, 516 F.2d 1081 (7th Cir. 1975), which assertedly supported Gibson's defense that "the installation of the rail was the responsibility of the general contractor and that the subcontractors could not be held liable." In his complaint, the Secretary averred that item 2 was not contested and had become a final order of the Commission.   When it answered the complaint, Gibson was represented by an attorney who denied "that item 2 . . . was not contested."

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n4 The original citation contained three items.   Item 1 of the nonserious citation alleged that Gibson violated 29 C.F.R. 1926.350(a)(9) (failure to secure compressed gas cylinders).   However, since Gibson did not contest this item, it became a final order of the Commission pursuant to section 10(a) of the Act.


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Gibson argues that a liberal interpretation of its letter indicates that it was contesting item 2 as well as item 3.   It points out that the judicial decision referred to in the second paragraph of its notice of contest concerned both the failure to provide perimeter guard railings and stairway railings. Thus, Gibson asserts that it properly contested both items 2 and 3.

Judge DeBenedetto concluded that although pro se contests are to be interpreted liberally, "a tortured construction of the notice of contest is not permitted." He held that the words of the contest "speak for themselves." The first paragraph focuses exclusively on the subject matter of item 3.   In that paragraph respondent raises objections only to the perimeter guardrail violation and the penalty proposed for that item.   There is no mention of either item 2 or Gibson's alleged failure to provide stairway railings. Therefore, Judge DeBenedetto denied Gibson's motion to place item 2 in contest. We agree with the judge's ruling for the reasons he gave.

Concerning item 3, the Secretary contends on review that the judge erred [*6]   in finding that there was no employee exposure to the alleged violation of 1926.500(d)(1).   Relying on Bechtel Corp., 74 OSAHRC 79/D2, 2 BNA OSHC 1336, 1974-75 CCH OSHD para. 18,906 (No. 1038, 1974) and J.E. Roupp & Co., Inc., 74 OSAHRC 20/C1, 1 BNA OSHC 1680, 1973-74 CCH OSHD para.   17,660 (No. 146, 1974), Judge DeBenedetto stated that in order to establish a violation of the standard, the Secretary had the burden of proving that Gibson's employees were "directly" or "actually" exposed to the hazard of falling from the opensided floor. He concluded that the Secretary's evidence did not meet this test.   On the contrary, he found that Gibson's employees did not even work in proximity to the inadequately guarded edge. Although Gibson stipulated that its employees performed work in the mezzanine area of the second floor, its job foreman testified that they did not do so in the vicinity of the opensided floor. Rather, they merely used the passageways along the perimeter of the mezzanine for access to their work stations in other parts of the building's second floor.

The Secretary argues that the Commission no longer applies the test of "actual" or "direct" exposure. He [*7]   points out that recent cases have held that proof of employee access to the zone of danger created by the hazardous condition satisifes his burden of proof.   The Secretary contends that by using the aisleways in question, Gibson's employees had access to the zone of danger.

Subsequent to Judge DeBenedetto's decision, the Commission decided that a rule of access is more likely to further the purposes of the Act than is a rule requiring proof of actual exposure. Gilles and Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 2003, 1975-76 CCH OSHD para. 20,448 at p. 24,425 (No. 504, 1976).

Commissioner Barnako agrees with the Secretary's contention that the judge erred in applying an actual exposure test, but he would affirm the judge's decision on the basis that the Secretary failed to prove Gibson's employees had access to the zone of danger. In Gilles and Cotting, supra, Commissioner Barnako held that, absent an admission by the employer, the Secretary must establish access by evidentiary facts.   The evidence must show that it is reasonably predictable that employees will be, are, or have been in a zone of danger either while performing their work-related duties, pursuing [*8]   their personal comfort activities during work, or employing their normal means of ingress and egress to their work stations.

In the instant case, the perimeter of the floor was guarded by a 42-inch rope railing; there was no midrail.   When some fall protection is provided but a midrail is missing, Commissioner Barnako would find that the zone of danger is more restricted than when there is a complete absence of guardrail protection.   When some protection is afforded, that zone is much nearer the edge of the floor. Gibson's employees were not working near the edge. Instead they were using the 10 foot aisleway along the perimeter of the mezzanine area for access to their workplaces in other parts of the building.   There was no evidence that this passage would require them to move to the edge of the building or ignore the rope already provided.   In these circumstances Commissioner Barnako would conclude that the Secretary has not established that Gibson's employees would have access to the zone of danger with any degree of reasonable predictability.   Accordingly, he would vacate item 3 of the citation.

Chairman Cleary would affirm the item as a de minimis violation.   The   [*9]   compliance officer testified that the rope used to guard the opensided floor "had a deflexion from one to two feet." This meant that "you could grab a hold of it and lift it up two feet. . . ." Moreover, there was no second rope to serve as the equivalent of a guardrail. Under these circumstances, Chairman Cleary finds that Gibson did not provide protection equivalent to standard guardrails. Mayfair Construction Co., 77 OSAHRC 178/A14, 5 BNA OSHC 1877, 1977-78 CCH OSHD para. 22,214 (No. 2171, 1977).

Since the respondent's employees had to pass within ten feet of the opensided floor, Chairman Cleary finds that the evidence establishes that Gibson's employees had access to the violative condition.   See Cornell & Co., 77 OSAHRC 164/F5, 5 BNA OSHC 1736, 1977-78 CCH OSHD para. 22,095 (No. 8721, 1977).   However, because of the partial protection afforded by the manila rope and the brief exposure of the employees to the hazard, the Chairman would classify item 3 as a de minimis violation, which does not require abatement of the violative condition or include a penalty assessment.   See Combustion Engineering, Inc., 77 OSAHRC 182/A2, 5 BNA OSHC 1943, 1977-78 CCH [*10]   OSHD para. 22,241 (No. 76-2210, 1977).

Finally, the Secretary argues that Judge DeBenedetto erred in denying his motion to amend the alleged violation of 1926.500(d)(1) from nonserious to serious.   Since Commissioner Barnako would vacate item 3 of the citation and Chairman Cleary would affirm it as de minimis, the amendment question need not be reached.

Accordingly, the judge's decision is affirmed.   So ORDERED.