CHARLES A. GAETANO CONSTRUCTION CORP.

OSHRC Docket No. 14886

Occupational Safety and Health Review Commission

March 23, 1978

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

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

Charles E. Snitzer, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

The issues to be reviewed in this case are those specified in my order issued under 12(j) of the Occupational Safety and Health Act of 1970, U.S.C. 651 et seq. [hereinafter "the Act"] granting respondent's petition for review of Judge Edward V. Alfieri's decision affirming four citations for serious violations. n1 For the reasons set forth below, we affirm Judge Alfieri's decision.

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n1 Former Commissioner Moran also ordered the case for review "for error" without specifying any issue.

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Respondent, Charles A. Gaetano Construction Corp., is a general contractor that, on the date of the OSHA inspection, was engaged in constructing a tri-level parking ramp in Rome, New York. One citation alleging nine nonserious violations and four citations alleging serious violations [*2] of the standards published at 29 CFR 1926.304(f), 1926.28(a), 1926.500(d)(1), and 1926.451(m)(6) n2 were issued as a result of OSHA's inspection. Respondent did not contest the "nonserious" citation, but contested all four "serious" citations.

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n2 1926.304 Woodworking tools.

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(f) Other requirements. All woodworking tools and machinery shall meet other applicable requirements of American National Standards Institute, 0.1.1-1961, Safety Code for Woodworking Machinery.

1926.28 Personal protective equipment.

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

1926.500 Guardrails, handrails, and covers.

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(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)(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.

1926.451 Scaffolding.

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(m) Carpenter's bracket scaffolds.

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(6) Guardrails made of lumber, not less than 2 X 4 inches (or other material providing equivalent protection), approximately 42 inches high, with a midrail, of 1 X 6 inch lumber (or other material providing equivalent protection), and toeboards, shall be installed at all open sides and ends on all scaffolds more than 10 feet above the ground or floor. Toeboards shall be a minimum of 4 inches in height. Wire mesh shall be installed in accordance with paragraph (a)(6) of this section.

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The Judge's decision affirmed the 1926.304(f) and 1926.28(a) citations in their entirety, the 1926.500(d)(1) citation only with respect to subparts (b) and (c), and subpart (a) of the 1926.451(m)(6) citation. Subparts (a), (d) and (e) of the 1926.500(d)(1) citation and subpart (b) of the 1926.451(m)(6) citation were vacated. The Judge assessed penalties totalling $2,030.

After the case had been directed for review, both complainant and respondent indicated an intent to submit briefs to the full Commission. Complainant filed a motion for extension of time to file his brief. It was granted. Although respondent filed its brief within the allotted time requested in complainant's motion, complainant failed to do so. Complainant subsequently sought to have his late filed brief accepted by the Commission. Respondent objected and by a divided vote the Commission ordered complainant's brief stricken from the record. Complainant later filed a motion to have his brief reinstated that was opposed by respondent and denied by the Commission. As a consequence, respondent's brief is unopposed before [*4] us.

The 1926.304(f) Allegation

Respondent was cited for allowing its employees to be exposed to the hazard of serious physical harm presented by a Skil saw not meeting the requirements of the American National Standards Institute (ANSI) standards that are incorporated by reference into the OSHA regulation published at 29 CFR 1926.304(f). The saw was allegedly inadequate in that the lower portion of the blade was unguarded, the saw was not equipped with an adjustable stop to prevent the forward travel of the blade thereby enabling the blade to travel beyond the table edge, and the saw was not installed in such a manner that the cutting head would return to the start position when released.

Respondent makes several arguments with respect to the 1926.304(f) citation. First, it argues that the Judge erred in concluding that respondent committed a serious violation of 1926.304(f). Respondent contends that, prior to issuance of the citation, it lacked knowledge of the 1926.304(f) regulation and the ANSI standards incorporated by reference therein. Respondent argues that it could not have known of the ANSI standard because it was unavailable, and therefore respondent [*5] has not violated 1926.304(f). Respondent's counsel testified at the hearing that he made a sincere effort to obtain the referenced ANSI standards, but that he was unable to obtain the standards although he telephoned other contractors in the area, the contractor's association, the public library, and the American National Standards Institute. This testimony was presumably intended to establish the unavailability to respondent of the ANSI standard prior to the time of the inspection and subsequent citation. Respondent claims that this unavailability of the ANSI standards and its lack of knowledge of the cited OSHA standard defeat a showing of a serious violation of 1926.304(f) because complainant must establish respondent's "knowledge" of the standard to sustain his burden of proof. n3

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n3 In its petition for review respondent argued that the Administrative Law Judge erred in finding a serious violation of 1926.304(f) because "there was no proof made by complainant that respondent had any knowledge . . . of the violation." In my direction for review I noted that the petition for review included the issue of whether the Administrative Law Judge erred "in concluding that the element of 'knowledge' was satisfied for the alleged serious violations in this case by imputing the superintendent's knowledge of the conditions to the respondent." This question was not briefed before the Commission. Respondent's "knowledge" argument was limited to its assertion that, because of the asserted unavailability of the ANSI standard, it lacked knowledge of the cited OSHA regulation, and therefore could not be found in violation of the regulation. However, it is well settled that the knowledge element of section 17(k) of the Act refers to knowledge of the physical conditions which constitute a violation, not to knowledge of the requirements of the law. S.W. Acoustics & Specialty, Inc., 77 OSAHRC 141/D10, 5 BNA OSHC 1091, 1977-78 CCH OSHD para. 21,582 (No. 12174, 1977). Therefore, we are treating respondent's "knowledge" argument as an assertion that the 1926.304(f) regulation is invalid due to an improper incorporation by reference. See note 3 of Corbin Lavoy d/b/a Empire Boring Co., 76 OSAHRC 57/A2, 4 BNA OSHC 1259, 1976-77 CCH OSHD para. 20,715 (No. 782, 1976) for my view of Commission authority to declare standards invalid.

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Respondent's contentions lack merit. Generally, ignorance of the Act and of the published regulations that have been promulgated under it does not excuse noncompliance with the requirements of the Act. Publication in the Federal Register constitutes constructive notice of a regulation. Federal Crop Ins. Corp. v. Merill 332 U.S. 380 (1947). Publication in the Federal Register also creates a rebuttable presumption that the standards have been validly published and that there has been compliance with all requirements regarding publication. Leader Evaporator Co., Inc., 76 OSAHRC 61/D2, 4 BNA OSHC 1292, 1976-77 CCH OSHD para. 20,781 (No. 5225, 1976). Materials incorporated by reference are presumed to be reasonably available and to be incorporated with the approval of the Director of the Federal Register in accordance with the limitations on the use of incorporated by reference materials found at 5 U.S.C. 552(a)(1). n4 Leader Evaporator Co., Inc., supra.

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n4 552. Public information; agency rules, opinions, orders, records, and proceedings

(a) Each agency shall make available to the public information as follows:

(1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public -

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(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and

(E) each amendment, revision, or repeal of the foregoing.

Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. For the purpose of this paragraph, matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register.

See the applicable rules of the Office of the Federal Register. 1 CFR Part 51. The rules require the filing agency to include a showing that the material incorporated is, in fact, reasonably available to the affected class. 1 CFR 51.8(a) and (b).

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Respondent bears the burden of rebutting at least one of these presumptions to prove the invalidity of the standard. Because respondent does not dispute the validity of the procedures used to promulgate 29 CFR 1926.304(f) nor the existence of an approval by the Director of the Federal Register, the sole issue before us is whether the ANSI standard incorporated into 1926.304(f) is "reasonably available" to the class of persons affected by its incorporation.

We agree with Judge Alfieri that, based upon the record presented at hearing, n5 respondent has not proved the unavailability of the ANSI standard, and therefore the presumption of a valid incorporation by reference must stand. We note with approval Judge Alfieri's reliance upon respondent's failure to contact OSHA as evidence negating respondent's claim of unavailability and undermining its contention that the material was not reasonably available. However, we consider other facts more conclusive of the availability issue.

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n5 On review, respondent attempted to supplement the record on the issue of unavailability by proffering (a) a letter written by its counsel to the Syracuse, New York OSHA office in which respondent's counsel requested a copy of the 1961 ANSI "Safety Code for Woodworking Machinery" standards, and (b) a letter from the Syracuse, New York OSHA office to respondent's counsel stating that the standards were available at the American National Standards Institute. We need not determine whether this evidence should be considered because, given the circumstances of this case, we do not believe the result would be changed by its consideration.

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Respondent's evidence concerning the availability of the standard relates solely to the period of time subsequent to citation. Respondent introduced no evidence of any attempt to obtain the ANSI standard in order to accomplish compliance with its requirements before the time of citation.

More significant, however, is the fact that all of respondent's evidence relates to its own, geographically localized efforts to obtain the incorporated material. Respondent did not demonstrate the unavailability of the ANSI standards to employers in general, nor has it established the general unavailability of the standards. See Corbin Lavoy d/b/a Empire Boring Co., 76 OSAHRC 57/A2, 4 BNA OSHC 1259, 1976-77 CCH OSHD para. 20,715 (No. 782, 1976). For example, respondent did not show that other employers were unable to obtain copies of the ANSI standards, nor did respondent contact the national office of OSHA in its own attempt to obtain a copy of the standards.

Finally, there is an indication in the record that some confusion existed with regard to the 1961 ANSI "Safety Standard for Woodworking Machinery." [*9] The 1954 ANSI "Safety Standard for Woodworking Machinery" was reaffirmed in 1961. The fact of its 1961 reaffirmance was printed across the front cover of the 1954 publication. This method of delineating the 1961 standard may have hindered respondent's efforts to obtain a copy of the standard, but it does not indicate the unavailability of the standard.

Respondent's second argument with respect to the 1926.304(f) violation is that the Judge erred in finding a serious violation because complainant's proof was inadequate. Respondent argues that complainant's failure to place the ANSI standard in evidence during his case-in-chief requires finding no violation because complainant did not carry his burden of proof "as to the content of documents incorporated by reference." Respondent argues that complainant bore the burden of demonstrating the relationship between the content of the ANSI standard and the conditions alleged by the compliance officer in order to prove that the alleged conditions "conform exactly to the language of the standard." Respondent extends its inadequacy of proof argument to include an assertion in its petition for review that the Secretary did not show "by [*10] a preponderance of the evidence, that there was a substantial probability of the violation resulting in death or permanent injury."

After reviewing the record in this case, we disagree with respondent's contention that complainant's proof is inadequate. Complainant is not required physically to place the ANSI standard into evidence if there has been a valid incorporation by reference. Material incorporated by reference in the Federal Register is deemed published therein (see 5 U.S.C. 552(a)(1), supra at footnote 4) and "shall be judically noted." 44 U.S.C. 1507. n6 In addition, we note that complainant's "burden" of demonstrating the relationship (conformance) between the content of the ANSI standard and the alleged violative conditions is the same "burden" the Secretary would carry if the ANSI standards were published fully in the Federal Register. The Secretary proved that respondent violated the requirements of the cited standard in exactly the same way that he would have done in any other situation. The fact that the standard was stated in materials incorporated in regulations published in the Federal Register did nothing to change complainant's burden of proof.

[*11]

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n6 In this case complainant did introduce the ANSI standard into evidence. After respondent's counsel testified that he was unable to obtain a copy of the standard, complainant introducted a copy of the 1961 ANSI standard into evidence and proffered to the court that the Area Director's testimony would have been that copies of the standard would have been available at the local OSHA office upon request.

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Finally, we reject respondent's argument that complainant has not shown the violation to be "serious" because he has not established a substantial probability of the violation resulting in death or serious injury. Aside from the knowledge element of section 17(k) of the Act, the seriousness of a violation is determined by assessing the nature of the injury that is substantially probable in the event that an accident occurs. California Stevedore & Ballast Co. v. O.S.H.R.C., 517 F.2d 986, 987-88 (9th Cir. 1975). The compliance officer testified at trial that if an accident should occur the probability of serious [*12] injury was great because any employee using the unguarded saw could suffer a severe cut or amputate a limb. We affirm the Judge's conclusion that there was a serious violation of 1926.304(f).

The 1926.28(a) Allegation

Respondent makes two arguments in support of its contention that the Judge erred in concluding that it had committed a serious violation of the standard published at 29 CFR 1926.28(a). Both arguments are based upon the alleged inadequacy of proof.

First, respondent argues that there was no proof offered to show that it knew or could have known of the violation. Respondent predicates this argument on the asserted "vagueness" of the standard which, it argues, made it impossible for respondent to know how to comply. The Commission has previously upheld the validity of the standard published at 1926.28(a), holding it is not impermissibly vague. See Hoffman Construction Co., 75 OSAHRC 31/E12, 2 BNA OSHC 1523, 1974-75 CCH OSHD para. 19,275 (No. 644, 1975) rev'd, 546 F.2d 281 (9th Cir. 1976); B & B Insulation, Inc., 77 OSAHRC 49/A2, 5 BNA OSHC 1265, 1977-78 CCH OSHD para. 21,747 (No. 9985, 1977). Therefore, respondent's challenge to the [*13] validity of the standard fails, and it can not claim ignorance of the standard's requirements as an excuse for its violation.

Respondent's second argument is that there was no evidence adduced at the hearing to establish a "substantial probability of serious injury or death." Respondent again appears to have confused probability of an accident occurring with probability of serious injury if an accident occurs. Our concern is with the latter, and as indicated below the record persuasively supports the Judge's conclusion that there was a substantial probability of serious injury if an accident were to occur.

At the hearing the compliance officer testified that an employee was standing among the reinforcing rods on a support post without the protection of personal protective equipment, guardrails, or safety nets. The potential distance of a fall was 38 feet. In addition, the compliance officer testified that three carpenters without personal protective equipment were exposed to a potential fall of 35 feet. Although the testimony does not tell us upon what material the employees would have fallen, one of the exhibits shows concrete below the work area. The compliance officer testified [*14] that he believed a fall of 35 or 38 feet would result in serious injury or death. We find nothing in the record to refute this opinion testimony on the seriousness of injury if an accident were to occur. Therefore, we affirm the Judge's finding of a serious violation of 1926.28(a).

The 1926.500(d)(1) Allegation

Respondent argues that the Judge erred by affirming two of the cited five instances of alleged 1926.500(d)(1) violations included in item 1 of citation No. 4. The compliance officer testified that the third-level perimeter on the south side of the structure was improperly guarded in that guardrails had been installed without midrails. Employees were observed within 6 to 12 feet of the third-floor perimeter installing rebars prior to concrete pouring. The fall distance from the improperly guarded south side was stated by the compliance officer to be 9 feet 8 inches to a ramp below.

The second-level on the south side also had a midrail missing from its guardrail. The potential distance of a fall in that instance was about 27 feet to the ground level. The compliance officer testified that he observed employees working 2 to 3 feet from the perimeter of the second [*15] floor.

Respondent again bases its exception to the Judge's ruling upon the asserted inadequacy of complainant's proof at the hearing. n7 First, respondent argues that there was no evidence of employee access to the hazard posed by the non-conforming guardrail on the third level. Upon review of the record, however, we reject respondent's contention. In Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,448 (No. 504, 1976), we held that complainant need not establish actual exposure to a hazard in order to support a citation, but rather, must show only that employees had access to the hazard associated with the non-complying condition.

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n7 In its brief to the Commission, respondent argues for the first time that the guardrail system provided was "equivalent" to that required by the standard. Because respondent did not raise this argument in its petition for review and because the cover sheet accompanying the direction for review clearly gave respondent notice that the submission of briefs was limited to issues raised in the petition for review, the "equivalence" issue is not before us. In any event, there is no persuasive evidence of equivalence. Also, although patently concerned with equivalence, the argument appears to challenge the wisdom of the standard's requirement that guardrails be comprised of three railings. See The Budd Co., 74 OSAHRC 12/A2, 1 BNA OSHC 1548, 73-74 CCH OSHD para. 17,387 (Nos. 199 and 215, 1974), aff'd, 513 F.2d 201 (3d Cir. 1975).

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We find that the compliance officer's testimony regarding the employees' installing rebars within 6 to 12 feet of the third floor's improperly guarded perimeter, and his testimony that employees were observed working 2 to 3 feet from the edge of the improperly guarded second floor, clearly establish employee access to the hazard. We uphold the Judge's finding of employee access in this instance. n8

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n8 The findings noted that a midrail was missing thus exposing employees to a falling hazard which may have caused serious or fatal injuries.

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Respondent's second argument is that complainant presented no evidence of the "probability of serious injury or death." Again, respondent confuses the probability of occurrence with the likelihood of serious injury if an accident were to occur. Clearly, if an employee were to fall 27 feet, serious injury would be substantially probable. (See seriousness discussion, supra.)

Respondent additionally [*17] argues that it was improper for complainant and the Judge to consider both instances of noncompliance with 1926.500(d)(1) when determining the "seriousness" of the violation. Respondent's contention is misplaced. As noted above one of the two items (Citation 4, Item 1b), involved a potential fall of some 27 feet which by itself is clearly serious. Inasmuch as the Judge correctly found this sub-item to be serious has affirmance of the citation as a whole as one serious violation of the Act results in no prejudice to respondent in that the remaining sub-item (Citation 4, Item 1b), even if it were non-serious, has been subsumed into the citation as a whole. Under these circumstances we affirm the 1926.500(d)(1) citation and the $200 penalty.

The 1926.451(m)(6) Allegation

The Judge found respondent in violation of 1926.451(m)(6) for failing to provide standard safety railings on a carpenter's bracket scaffold on the northeast corner of the third-level of the structure. The distance from the scaffold to the ground was approximately 35 feet.

Respondent's arguments supporting its contest of the 1926.451(m)(6) violation are similar to its arguments concerning the other [*18] allegations. Respondent argues that complainant did not show by a preponderance of the evidence that (a) there was employee access to the scaffolding hazard, and (b) there was a substantial probability of serious injury or death.

Respondent does not dispute the compliance officer's testimony that the scaffold was without end-rails. Instead, respondent notes that the compliance officer did not observe anyone on the unguarded scaffold, and argues that the ends of the scaffolds were not guarded unless someone was actually working on them.

We find no merit in respondent's argument regarding a lack of employee access and affirm the Judge's finding of employee access to the hazard. See Gilles & Cotting, supra. Based upon the compliance officer's testimony that it was necessary to stand on the length of the scaffold to remove the forms, and the removal of the forms adjacent to the scaffold was the work in progress at the time of inspection, we infer that an employee was on the scaffold to perform these duties. In addition, respondent's representative testified at the hearing that the scaffold was left in place to provide employee access to the main deck.

Respondent's "seriousness" [*19] argument is again based upon his reliance upon an analysis of the probability of an accident occurring rather than the probability of an employee suffering serious injury if an accident were to occur. (See discussion of seriousness, supra.) It is obvious that a fall of 35 feet would be likely to result in serious injury. We conclude that a serious violation of 1926.451(m)(6) has been proven.

Conclusion

Having reviewed the entire record and considered each of respondent's arguments, we affirm the Administrative Law Judge's decision. The citations for serious violations of 5(a)(2) of the Act are affirmed as stated in this opinion and a total penalty of $2,030 is assessed.

So ORDERED.