OSHRC Docket No. 16057

Occupational Safety and Health Review Commission

October 31, 1978


Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.


Baruch A. Fellner, Office of the Solicitor, USDOL

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

Bennett W. Cervin, for the employer




CLEARY, Chairman:

The decision of Administrative Law Judge Vernon Riehl, dated August 23, 1976, is on review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. The Judge affirmed a nonserious citation issued to respondent, Otis Elevator Company, charging noncompliance with 29 CFR 1926.500(e)(1)(iv), n1 29 CFR 1926.500(b)(1), n2 and 29 CFR 1926.500(c)(1)(ii). n3

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n1 1926.500(e)(1)(iv) provides:

(e) Stairway railings and guards. (1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified below, the width of the stair to be measured clear of all obstructions except handrails:

(iv) On stairways more than 44 inches wide but less than 88 inches wide, one handrail on each enclosed side and on stair railing on each open side.

2 1926.500(b)(1) provides:

Floor openings shall be guarded by a standard railing and toeboards or cover, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways.

n3 1926.500(c)(1)(ii) provides:

(c) Guarding of wall openings. (1) Wall openings, from which there is a drop of more than 4 feet, and the bottom of the opening is less than 3 feet above the working surface, shall be guarded as follows:

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(ii) The bottom of a wall opening, which is less than 4 inches above the working surface, regardless of width, shall be protected by a standard toeboard or an enclosing screen either of solid construction or as specified in paragraph (f)(7)(ii) of this section.


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On October 30, 1975, a compliance officer for the Secretary inspected a construction project in Topeka, Kansas, at which an additional two upper levels were being added to an existing parking garage. n4 A blueprint of the project (Exhibit R-1) shows the building in the configuration of a shortened "T" shape. It was approximately 269 feet across the top of the "T" and 284 feet from the top to the bottom of the "T". One stairway was located at each end of the top of the "T" and another at the base. In addition, a fourth stairway was located on the right side of the base, approximately 50 feet from the joinder of the base and top of the "T". A double elevator shaft was in between the fourth stairway and the top of the "T".

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n4 The construction area involved consisted of what would usually be termed a two story building. There were two "levels" below ground. Thus "levels" 1 and 2 were below ground; "level" 3 was at ground level and "level" 4 was one story above ground.

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Respondent was the elevator subcontractor on the project. On the day of inspection Otis employees were working in the bottom of the elevator shaft preparing to put in a hydraulic cylinder. All of the alleged violations deal with the shaft in which the employees were working and the fourth stairway which was immediately adjacent to the elevator shaft. At the third and fourth levels of the same stairway, the openings between the floors and the stairwells were not equipped with guardrails. These openings were guarded only by a single rope strung between columns. Each rope sagged to within eight inches to two feet above the floor. The compliance officer also testified that elevator wall openings on the second, third and fourth levels were without toeboards or screens to protect those employees working below in the elevator shaft from falling objects.

Respondent argues that the Judge erred in permitting the Secretary to amend, in the complaint, item (1)(b) of the citation so as to allege noncompliance with 1926.500(b)(1) instead of 1926.500(f)(1). n5 If further contends that the amendment violated Commission Rule 33(a)(3), 29 CFR 2200. 33(a)(3), [*4] n6 because the Secretary failed to assign reasons for the requested amendment. Respondent also argues that by granting the amendment it lacked proper notice so that its right to due process was violated. Respondent concedes that administrative pleadings should be liberally construed and easily amended but claims that the "fair notice" caveat announced in National Realty & Construction Co., Inc. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973), has not been satisfied.

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n5 1926.500 Guardrails, handrails, and covers.

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(f) Standard specifications. (1) A standard railing shall consist of top rail, intermediate rail, toeboard, and posts, and shall have a vertical height of approximately 42 inches from upper surface of top rail to floor, platform, runway, or ramp level. The top rail shall be smoothsurfaced throughout the length of the railing. The intermediate rail shall be halfway between the top rail and the floor, platform, runway, or ramp. The ends of the rails shall not overhang the terminal posts except where such overhang does not constitute a projection hazard. Minimum requirements for standard railings under various types of construction are specified in the following paragraphs:

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n6 Commission Rule 33(a)(3) provides:

(3) Where the Secretary seeks in his complaint to amend his citation or proposed penalty, he shall set forth the reasons for amendment and shall state with particularity the change sought.


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The amendment of the citation in the complaint from 1926.500(f)(1) to 1926.500(b)(1), left the facts alleged unchanged. Respondent concedes as much. Still at issue was the lack of adequate guardrails. Since the amendment did not modify the original allegation that the rope railing was an inadequate guardrail, it was appropriate. Coastal Pile Driving, Inc., 77 OSAHRC 206/F3, 6 BNA OSHC 1133, 1977-78 CCH OSHD P22,375 (No. 15043, 1977); Southern Colorado Prestress Co., 76 OSAHRC 107/D8, 4 BNA OSHC 1638, 1976-77 CCH OSHD P20,918 (No. 3035, 1976), pet. for review filed, No. 76-1974 (10th Cir., Oct. 26, 1976). Even if the change had been substantive, it would have been appropriate here as the citation was amended in the complaint more than three months prior to the hearing. Compare Coastal Pile Driving, Inc., supra, with Cornell & Co., Inc. v. OSAHRC and Secretary of Labor, 573 F.2d 820 (3d Cir. 1978), (amendment 9 days prior to hearing not permitted).

Respondent also argues that the Secretary's failure to state a reason for the amendment, a violation of Commission Rule 33(a)(3), [*6] 29 CFR 2200.33(a)(3), is cause for dismissal. The Commission has held that absent a showing of prejudice, a failure to state a reason for an amendment will not invalidate that amendment. Schiavone Construction Company, 77 OSAHRC 78/A2, 5 BNA OSHC 1385, 1977-78 CCH OSHD P21,815 (No. 12767, 1977), petition for review docketed, No. 77-1807, (3d Cir., June 20, 1977). Here respondent neither claims nor demonstrates such prejudice.

Item (1)(a) alleges that a portion of the stairway between the second and the third levels was not equipped with proper railings, a violation of 1926.500(e)(1)(iv). Respondent does not deny the condition of the stairway, but argues that its employees used the stairway only at the request of the compliance officer on the day of inspection and on one prior unspecified occasion.

Respondent contends that this evidence is not sufficient to find that its employees had access to the hazard. The record indicates there were other stairways and a car ramp that could have been used by respondent's employees. The compliance officer testified, however, that the stairway at issue was less than 21 feet from the elevator shaft while the car ramp and other stairways [*7] were from 80 to 100 feet distant. Testimony also indicates that respondent's employees used the stairway at issue when traveling from the third level to the fourth level to perform work in the same elevator shaft which was within 21 feet of that stairway.

While the Secretary need not prove actual exposure of respondent's employees, he must demonstrate that "the hazard posed by the violation is accessible to employees." Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD P20,448 (No. 504, 1976). Further, he must show such employee access to the hazard by a preponderance of the evidence. Olin Construction Co., Inc. v. O.S.H.R.C., 525 F.2d 464 (2d Cir. 1975). Here, respondent claims that employee access to the violative condition was not shown by the Secretary. In support of this claim, respondent offers no countervailing evidence indicating that its employees used any stairway other than the one at issue. It is undisputed that on the day of inspection Respondent's employees were working in the bottom of the elevator shaft within 30 feet of the stairway lacking a railing. We also note that the other stairways were at least 120 feet from the elevator [*8] shaft. Use by respondent's employees of the stairway nearest to the elevator shaft to reach upper level work locations in that shaft is circumstantial evidence that the same employees used the same stairway to reach a lower level work location in that same elevator shaft. See Smith Masonry Contractors, Inc., 78 OSAHRC 1/D2, 6 BNA OSHC 1271, 1977-78 CCH OSHD P22,471 (No. 13746, 1978). This circumstantial evidence as well as the testimony described above leads us to conclude that the preponderant evidence on the record as a whole supports the Secretary's contention that respondent's employees used the stairway at issue and therefore had access to the violative condition.

As to the alleged violation of 29 CFR 1926.500(b)(1), respondent's mechanic in-charge testified that he and one other employee had used the stairway at issue to travel to the upper floor when they installed the vertical rail that guided the elevator. He also testified that the lack of guarding on the upper levels was "probably the same" then as it was on the date of the inspection. Nevertheless, respondent again contends that since its employees were not exposed to the hazard, it was not in violation [*9] of the Act. Respondent argues that:

First, the nearest access to the stairs from the elevator hoistway area where the men were working would have lead straight to the landing and then to the steps. A completely circuitous route would have had to be taken to approach the stairwell on its open side. Second, although it be assumed that at the time the stairs were used the standard guard rail was not in place at the stairwell opening itself, a manila rope was tied along the columns adjacent to the stairwell opening -- not to serve as a guard or guard rail, but rather to guide any person approaching the stairwell to the landing area and to a safe access to the steps themselves.

Respondent's first contention fails to note that the unguarded floor abutting the stairwell was less than 10 feet from the route its employees used to reach the elevator shaft from the stairway. In Gilles & Cotting, Inc., supra, the Commission held that the Secretary did not have to prove actual exposure. Rather he only had to show access to noncomplying conditions. Here, the employees were close enough to the unguarded stairwell to be endangered by a falling hazard. Cornell & Company, Inc., [*10] 77 OSAHRC 164/F5, 5 BNA OSHC 1736, 1977-78 CCH OSHD P22,095 (No. 8721, 1977). To accept respondent's argument, it would have to be concluded that respondent's employees would travel precisely the same path at all times without deviation. We do not make such an assumption, and are unwilling to speculate as to what might motivate an employee to approach an unguarded area. During the life of a construction project it is not unreasonable to assume, as the standard does, that an employee might, at some point in time, move to an area not immediately proximate to his place of work. Further, neither the standard as applied nor the Act requires the Secretary to prove that during the inspection, an employee actually approached a demonstrated hazard, or that the compliance officer witnessed a near accident.

In a recent Commission decision where an opensided floor was guarded only by a rope railing contrary to 1926.500(d)(1), the Commission relied upon the fact that the height of the rope offered some measure of actual protection. In the case before us now the single rope that respondent urges us to consider "a guide", may serve that purpose, but there is no indication that, sagging to [*11] within 8 inches of the floor, it offers any type of fall protection. Frank C. Gibson, 78 OSAHRC 32/F7, 6 BNA OSHC 1557, 1978 CCH OSHD P22,686 (No. 13925, 1978). n7 In the instant case the compliance officer testified that the rope sagged to within approximately eight inches to two feet of the floor. This method of 'guarding' offers no protection against falling. Respondent therefore failed to comply with 29 CFR 1926.500(b)(1).

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n7 In the Frank C. Gibson case Commissioner Barnako reasoned that the rope railing offered some protection so that the "zone of danger" was geographically limited. Finding that no employees entered this "zone of danger", he concluded there was no violation. I noted that the single rope had a deflection of from one to two feet and there was no second rope to serve as a guardrail. I concluded that such an arrangement did not provide protection equivalent to standard guardrails. In light of the partial protection efforded by the rope, however, I found the violation to be de minimis.

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Item number 2 alleges that wall openings into the elevator shaft at all upper floor levels were not provided with toeboards in violation of 29 CFR 1926.500(c)(1)(ii).

It is undisputed that respondent's employees were working at the bottom of the shaft and that toeboards were not provided on the second, third and fourth levels. The compliance officer testified that pieces of electrical conduit, rocks, cement and various other debris were present near the shaft openings. It is also undisputed that the other contractors were working on the upper levels. Respondent's mechanic-in-charge testified that bricks or rocks were within four feet of the opening on the second level.

Respondent contends that complainant failed to prove the presence of both debris and workmen in the vicinity who might inadvertently propel the debris into the shaft from the upper levels. Respondent thus argues that its employees at the bottom of the shaft were not shown to be exposed to a hazard. We do not agree.

We find the evidence of record sufficient to show that respondent's employees were so exposed. Respondent's employees were working in the bottom of a four story high elevator shaft which was [*13] approximately 20 feet long by 10 feet wide. The upper reaches of this shaft contained two openings on each of three different levels. Employees of other contractors were working on those upper levels. Because of their lack of maneuverability in their work area and lack of visibility as to the conditions surrounding the shaft openings at the upper levels, we conclude that respondent's employees working below were extremely vulnerable to changing conditions on the upper levels that might bring debris into the shaft. Under these conditions and in view of the special expertise it has in guarding elevator shafts, Otis Elevator Company, 76 OSAHRC 57/E5, 4 BNA OSHC 1219, 1975-76 CCH OSHD P20,693 (No. 8468, 1976) we find that respondent was in noncompliance with the standard.

Furthermore, the cited standard is one which presumes the existence of a hazard. See Thermo Tech, Inc., 77 OSAHRC 192/A2, 5 BNA OSHC 2044, 1977-78 CCH OSHD P22,281 (No. 15381, 1977), petition for review filed, No. 77-3438 (5th Cir., Dec. 13, 1977); Vecco Concrete Construction, Inc., 77 OSAHRC 183/A2, 5 BNA OSHC 1960, 1977-78 CCH OSHD P22,247 (No. 15579, 1977). Thus, once the non-complying condition [*14] and employee exposure to that condition are shown complainant need not prove the existence of a hazard. Here the lack of toeboards, as well as the presence of respondent's employees at the bottom of the shaft is undisputed. The standard anticipates guarding without proof as to the condition surrounding the opening.

On May 12, 1976, the Commission modified its precedent concerning the duties under section 5(a)(2) of the Act, of subcontractors working on multi-employer construction sites. Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD P20,690 (Nos. 3694 & 4409) and Grossman Steel & Aluminum Corporation, 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD P20,691 (No. 12775, 1976). We held that, where the usual elements of employer liability are established, a subcontractor on a multi-employer construction site who did not create a violation and lacked the ability to abate within the literal terms of the standard may defend affirmatively by showing that it took realistic steps, as an alternative to literal compliance with the standard, to protect its employees. The hearing in this case was held on March 30, 1976. Respondent in both its post hearing [*15] brief and its brief on review requested an opportunity to present evidence bearing on these affirmative defenses, should its other arguments fail. Because respondent has not had an opportunity to present evidence bearing on those defenses we will offer respondent an opportunity to do so.

Accordingly, items 1a and 1b and item 2 of the citation are affirmed, and a penalty of $50 is assessed unless Otis within 10 days requests an opportunity to assert the described defenses and to adduce evidence bearing on those defenses.





BARNAKO, Commissioner, Concurring in part and dissenting in part:

Item 1(a) of the citation alleges that Otis violated the standard at 1926.500(e)(1)(iv) by failing to provide proper handrails for the stairs between the second and third levels of a parking garage under construction. For the reasons stated below, I concur with the conclusion of the Commission majority that Otis violated the cited standard. Item 1(b) of the citation alleges that Otis violated the standard at 1926.500(b)(1) by using a low-hanging length of manila rope to guard open-sided floor openings on the third and fourth levels of the parking [*16] structure. As indicated below, I dissent from the majority's finding that Otis violated the cited standard. Item 2 of the citation alleges that Otis violated the standard at 1926.500(c)(1)(ii) by failing to provide toeboards for the bottom of the wall openings leading into the elevator shafts on the third and fourth levels of the structure. I agree with the majority, for the reasons stated in their opinion, that Otis violated the cited standard and therefore will not address that citation item below.

Otis contends that its employees were not exposed to any hazards as a result of the missing stair railings or the low-hanging rope. n1 It contends that the Secretary's complaint alleges the cited standards were violated on the October 30, 1975 inspection date but that the record does not prove any of its employees were exposed to the cited hazards on that date. Otis asserts that the only evidence on employee exposure relates to one possible occasion on some unspecified date prior to inspection. Otis further argues that it did not violate the standard at 1926.500(b)(1) because its employees would have had to take completely circuitous routes to approach the stairwells guarded only [*17] by a low rope.

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n1 Otis also contends that the Secretary was improperly permitted to amend the citation involving the low-hanging rope from the originally cited standard at 1926.500(f)(1) to 1926.500(b)(1). For the reasons stated by the majority, I would find that the amendment was proper.

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I disagree with Otis insofar as it asserts that the Secretary failed to establish employee exposure with respect to item 1(a) of the citation but agree with Otis that the Secretary did not establish employee exposure with respect to item 2. In Gilles and Cotting, Inc. 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,448 (No. 504, 1976), I set forth the test I would apply to establish employee exposure. I stated that exposure need not be based upon actual exposure but could also be based upon a rule of access based upon reasonable predictability that employees will be, are, or have been in a zone of danger. I added, however, that absent an admission by respondent, the Secretary must establish access by evidentiary [*18] facts.

With respect to item 1(a) concerning the missing handrails, the evidence establishes that on the inspection date employees were working in an elevator shaft in the basement level of the garage under construction. The stairs at issue were only 21 feet from the elevator shaft. Neither the auto ramp in the parking structure, nor the structure's other stairways, which were 80-100 feet from the elevator shaft, were as convenient as the stairs at issue for access points to the shaft. Since the stairs with the missing handrails were the closest access point to the shaft, it is reasonably predictable that the employees would use this particular stairway to get to the relevant elevator shaft. Accordingly, I agree with the majority that the Secretary established employee exposure with respect to item 1(a) and would affirm that item of the citation.

I disagree with the majority, however, that the Secretary proved exposure to the open-sided stairwell and dissent, therefore, from the conclusion that Otis violated the amended citation. Accordingly, I would vacate item 1(b).

At the outset I note that the majority bases its finding of exposure with respect to item 1(b) solely on the [*19] testimony of Otis's mechanic-in-charge that he and one other employee had used the stairway at issue to travel to the upper floor when they installed the vertical rail that guided the elevator. However, these employees did not use the stairway on the date of the inspection. Since the citation and complaint allege a violation only on the date of the inspection, the majority errs in affirming this citation item. Any violation based upon the testimony of Otis's mechanic-in-charge would be proper only if the citation and complaint were amended to specify that earlier period of time. Assuming such an amendment was made, n2 I nevertheless disagree with the majority's conclusion that the Secretary established employee exposure.

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n2 Otis objected when the Secretary first attempted to introduce testimony on employee exposure prior to the inspection. The judge allowed the testimony to be introduced, implicitly overruling Otis's objection. At the end of the hearing, when the Secretary moved to amend the complaint to conform to the evidence of exposure prior to the inspection date, Otis again objected. The judge reserved ruling on the motion at the hearing and did not address the matter in his decision. Since Otis did not allege prejudice from such amendment either at the hearing or on review, amendment would be proper on the basis of Rule 15(b), F.R.Civ. P. The pertinent portion of that rule reads: 'If evidence is objected to at the trial on the basis that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits.' See Usery v. Marquette Cement Manufacturing Co., 568 F.2d 902 (2d Cir. 1977).


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When using the stairs within the inadequately guarded stairwell openings to get to the elevator shafts, Otis's employees had to walk diagonally to their right from the top of the stairs to the elevator shaft. The stairwell openings whose stairs the employees had just ascended, therefore, would have been to the left of the employees and behind them. There is no evidence showing that the employees had any reason for turning to their left, walking around a steel column positioned at the right-hand corner of the stairwell next to the top stair, and walking back toward the stairwell opening rather than proceeding straight ahead and to their right to the elevator shafts.

On their way back toward the stairs from the elevator shafts, the employees had to walk diagonally to their right in order to reach the stairs. To expose themselves to the inadequately guarded stairwell, however, the employees would have had to walk past the right-hand side of the top step of the stairway, avoid the steel column and then circle around to their left at the stairwell opening. The Secretary did not establish that the employees [*21] had any reason for going into this area of the floor. I would, therefore, vacate this item because the Secretary failed to establish by evidentiary facts that there was a reasonable predictability that Otis's employees would have been or had been in the zone of danger.