ANIERO CONCRETE CO., INC.

OSHRC Docket No. 16169

Occupational Safety and Health Review Commission

April 18, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Reg. Sol., USDOL

Robert A. Baron, for the employer

OPINION:

DECISION

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 Judge's decision. [*2] 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.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Both charges should be vacated. Complainant failed to establish that the conditions cited in the 29 C.F.R. 1926.500(b)(1) charge constituted a hazard in view of respondent's use of plywood covers as authorized by the cited standard. See Secretary v. Alfred S. Austin Construction Co., OSAHRC Docket No. 4809, April 28, 1976 (dissenting opinion). Although Judge Ditore properly concluded that the part of the 29 C.F.R. 1926.500(d)(1) charge pertaining to the penthouse roof should be vacated, n1 he erred in affirming the remainder of the charge because the evidence establishes that the guardrails were dismantled so as to permit removal of materials and debris by a crane. Secretary v. Underhill Construction Corp., 15 OSAHRC 695 (1975).

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n1 Secretary v. Central City Roofing Company, Inc., OSAHRC Docket No. 8173, June 4, 1976.

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Furthermore, [*3] 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 Ditore's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

APPENDIX A

DECISION AND ORDER

Francis V. LaRuffa, Regional Solicitor, United States Department of Labor and Anthony C. Ginnetto, for complainant

Robert A. Baron, for respondent

Ditore, J.

PRELIMINARY STATEMENT

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter called the Act), contesting citations for serious violations of occupational safety and health standards issued by complainant against respondent under the authority vested in the complainant by section 9(a) of the Act (29 U.S.C. 658(a)).

The citations allege that as a result of an inspection on December 2, 1975, of a workplace located at [*4] Meadow Lands Parkway, Secaucus, New Jersey, and described as "Building Site", the respondent violated section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)) by failing to comply with occupational safety and health standards promulgated by the Secretary by publication in the Federal Register on June 24, 1974 (39 F.R. 22801) and codified in 29 CFR 1926.500(d)(1) and 1926.500(b)(1). *

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* Respondent was incorrectly cited for violating 29 CFR 1926.500(b)(8). By motion of complaint over respondent's objection, the citation and complaint was amended to cite 1926.500(b)(1) to cover floor openings (T. 20-25).

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The description of the violations and the standards as promulgated by the Secretary are as follows:

Citation for serious violation of 29 CFR 1926.500(d)(1)

Description

"The open sided floors which were more than (6) feet above adjacent floors, or ground level, were not guarded by a standard railing or the equivalent, on the 7th., 8th., and 9th., 10th. floors and the penthouse level."

Standard as promulgated [*5]

" 1926.500 Guardrails, handrails and covers

(a) . . . .

(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.

Citation for serious violation of 29 CFR 1926.500(b)(1)

Description

"Floorholes were not guarded by a standard railing or floor hole cover of standard strength and construction and secured against accidental displacement, at the following locations.

The front stairway areas on the 8th., 9th., and 10th. floors and on the penthouse level."

Standard as promulgated

" 1926.500 Guardrails, handrails and covers.

(b) Guarding of floor openings and floor holes.

(1) Floor openings shall be guarded by a standard railing and toeboards or cover, as [*6] specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways."

Pursuant to the enforcement procedure set forth in section 10(a) of the Act (29 U.S.C. 659(a)), the respondent was notified by letter dated December 8, 1975 from the area director of the Newark, New Jersey, area that the Occupational Safety and Health Administration proposed to assess a $650.00 penalty for each of the two serious violations. The action was heard at New York, New York, on April 2, 1976.

ISSUES

1. Whether violations of 29 CFR 1926.500(d)(1) and 1926.500(b)(1) existed at respondent's workplace on December 2, 1975.

2. If the violations existed whether any of respondent's employees were exposed or had access to the hazards created by the violation or violations.

3. If respondent's employees were exposed to or had access to the hazards, whether the violations were serious.

4. If the violations were serious, whether respondent was responsible for the violation or violations.

5. If respondent was responsible, whether the penalties proposed were reasonable and proper.

STATEMENT OF THE EVIDENCE

Respondent, [*7] Aniero Concrete Co., Inc., is in the concrete construction business and admits its business affects commerce (complaint, answer; T. 5 *).

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* Reference key: T. refers to pages of hearing minutes.

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On December 2, 1975, respondent was the concrete construction subcontractor at a 10 story office building under construction at Meadow Lands Parkway, Secaucus, New Jersey (T. 8, 44). Hartz Mountain Industry was the general contractor at the site (T. 9, 70, 73, 101; Exh. R-1A).

On December 2, 1975, compliance officer Louis W. Baumgart inspected the construction worksite. He arrived about 8:15 a.m. and after an opening conference with Stuart Fritzsch, the general contractor's supervisor, he made a walkaround inspection with Mr. Fritzsch and two union stewards (T. 8-10, 101). Upon arriving on the 6th floor about 10:30 a.m., officer Baumgart met with Mr. Fonseca, respondent's supervisor who then joined the walkaround party (T. 10, 42, 43).

Officer Baumgart observed employees of respondent working within 1 to 3 feet of the [*8] unguarded upon south side of the 7th, 8th 9th and 10th floors, and the penthouse area; and walking close to improperly guarded 6 feet by 6 feet floor openings on the same floors and penthouse area. The floor openings were covered with loose plywood which was not secured to the floors (T. 12, 13, 28, 29, 30, 31, 35, 62). Officer Baumgart did not remember how many of respondent's employees he observed on each of the upper floors or penthouse area but did observe a total of 25 of respondent's employees (T. 14, 27-28). The employees were in the process of removing wood forms, other material and debris from the upper floors, specifically on the 9th and 10th floors by means of a crane. He observed this work for about 3-1/2 hours (T. 14, 15).

The upper floors were rectangular in shape and about 100 X 75 feet in dimension (T. 13, 27). All four open sides of the 7th, 8th, 9th and 10th floors were unguarded, as were the roof of the 10th floor and the penthouse roof (T. 27-28). Respondent had finished its work except for the penthouse area and would leave the upper floor and penthouse jobsite that day or the next morning.

Respondent's employees were removing material and debris from the [*9] 9th and 10th floors by crane. The employees working with the crane came within a foot of the unguarded open south sides of the the 9th and 10th floors, while other employees who were moving materials from the center of the floor, came within 2 to 3 feet of the unguarded open south sides of these two floors (T. 28, 32, 62).

Respondent's employees were also working on the penthouse which was on the 10th floor's roof and set in about 40 feet from the unguarded open sides of the roof. The height of the penthouse was 10 feet or one story (T. 34, 39, 40).

Officer Baumgart believed the unguarded floor perimeter and floor opening violations were serious in that an employee falling from any of the open sides of the upper floors or through the floor openings would suffer fatal or serious physical harm. Based on the seriousness and gravity of the violations, after deducting certain credit items, he recommended a proposed penalty of $650.00 for each of the two violations (T. 25).

Manuel Fonseca, respondent's job superintendent, stated that he met with officer Baumgart about 10:30 a.m. on December 2, 1975, and that respondent's employees were in the process of cleaning up and removing materials [*10] from the 7th, 8th, 9th and 10 floors (T. 43, 50). The cleaning up process which included the removal of all lumber, debris, floor opening covers and perimeter cables from the 7th, 8th, 9th and 10th floors, was being done that day in order to utilize the services of a crane which was to be removed to another jobsite on the following day, December 3, 1975 (T. 43, 68).

The perimeter cables on the 7th, 8th, 9th and 10th floors had been removed at the time of inspection and prior to the time that all of respondent's material and equipment had been removed. Perimeter cables were up at the time the cleanup work started on the morning of December 2nd. The cables were attached to the outside of columns which were 30 feet apart at the edge of the upper floors and were stretched along the front edge of those floors a distance of 150 feet (T. 45-46, 47, 48, 49, 54, 55).

Respondent had two men on the 9th and 10th floors whose job it was to attach the bundled lumber and other material to the crane's hook for removal by the crane. They were about 3 feet from the unguarded open south sides of these floors and wore no safety belts because they could not be tied off. Nets were not used (T. 44, [*11] 60, 61-63).

Respondent's other employees on the 9th and 10th floors were engaged in collecting the lumber and other materials, and stacking it at the edge of each floor (T. 44, 47, 50, 59, 62). Removal work on each floor took about one hour (T. 63).

Mr. Fonseca did not believe any of respondent's employees were working on the 7th and 8th floors. The bulk of respondent's employees, about 20 men, were working on the roof of the 10th floor where the penthouse was being constructed (T. 51).

Mr. Fonseca further stated that the floor openings were covered by loosely nailed 3' X 3' and 4' X 4' plywood lumber; and that the perimeter cables were taken down at the time respondent's employees were removing material and lumber from the upper floors because in a few hours, the general contractor was to put up new perimeter floor and floor opening guards (T. 54, 55).

There was no perimeter protection on the 10th floor roof where the penthouse was being constructed, and no guarding on the penthouse roof. No safety belts were used. The penthouse was one story or ten feet high and was set back about 40 feet from the unguarded open sides of the 10th floor's roof (T. 56-58). Materials were [*12] brought to the 10th floor roof by crane and taken by hand by an employee at the edge of the roof who passed it up to employees working on the penthouse roof (T. 64-66).

At the time of the inspection, Mr. Fonseca believed that the general contractor was installing perimeter protection on the 6th and 7th floors. In addition to the two employees working with the crane and the four employees stacking material on the 10th floor, two other employees passed up lumber to the 10th floor's roof through a foot opening made by moving the floor opening's cover (T. 63-64).

Respondent maintains a safety program and instructs its employees to stay clear of unguarded opensided floors. It is the duty of respondent's superintendent to report unsafe conditions to respondent (T. 67-68).

Stephen Crevani, respondent's president, testified that pursuant to contract with the general contractor, the general contractor assumed responsibility for guarding floor openings and opensided floors at the time respondent terminated its construction work on each floor (T. 73; Exh. R.1A). "Termination of the construction work" under the contract meant the removal of all of respondent's material including perimeter [*13] protection and debris, and respondent's employees from the floor (T. 89, 90, 98).

Mr. Crevani visited the jobsite on December 2, 1975, about 2:30 p.m. At that time his employees were in the process of stripping the penthouse roof (T. 79). Respondent's employees started removing the perimeter floor guarding and floor opening covers on the 7th, 8th, 9th and 10th floors at 8:00 a.m. (T. 81-85, 90). The removal of all of respondent's material on these floors had to be completed by 3:30 p.m. in order to utilize the services of the crane which was to be removed to another site on December 3rd (T. 86-87).

Mr. Crevani stated that respondent had fifty safety belts which are used when feasible but whose use was not feasible on the penthouse roof as there was no way to tie the belts off, and made work difficult for the employees on the 7th, 8th, 9th and 10th floors because the employees had to move from floor to floor (T. 85, 86, 92, 93)

Mr. Crevani further stated that respondent held quarterly safety meetings with its supervisors, foremen and other key personnel; and that the shop stewards as well as the job superintendents were delegated job safety responsibilities (T. 76, 77).

Stuart [*14] Fritzsch, the general contractor's job supervisor and complainant's rebuttal witness, stated that opensided floor guarding was installed on the 7th, 8th, 9th and 10th floor at 8:00 a.m. on December 2, 1975. He did not know about the penthouse area (T. 101, 102, 110). Thereafter respondent's employees began taking everything down because it was leaving the job, except for some things still to be done at the penthouse the next day (T. 102).

Respondent had two employees on the 7th and 8th floors doing cleanup work. Employees of respondent on the 9th and 10th floors were stripping and removing materials from these two floors by crane (T. 102, 103, 111). Other than respondent's employees there were no employees of any subcontractor on the 7th, 8th, 9th and 10th floors and penthouse (T. 103). Respondent had no employees on the upper floors after December 2, 1975 (T. 108).

Floor openings were covered by 4' X 4' plywood. Some of the covers were tacked down on the upper floors and later removed by respondent's employees (T. 102).

Mr. Fritzsch further stated that it was the general contractor's responsibility to install perimeter and floor opening guarding on each floor only after [*15] respondent had completed its work and had removed all of its material, debris and employees from the floor (T. 104, 109); and that the general contractor had erected perimeter and floor opening guarding on all floors through the 10th floor within a day after respondent had terminated its work on the floors (T. 104).

OPINION

Respondent was cited with serious violations of 29 CFR 1926.500(d)(1) and 1926.500(b)(1) in that on December 2, 1975, it failed to guard the open sides of the 7th, 8th, 9th and 10th floors and penthouse at its workplace and failed to adequately guard a floor opening on each of the same floors and penthouse.

The evidence clearly establishes that at eight o'clock on the morning of December 2, 1975, respondent had proper perimeter protection on the four upper floors and had properly guarded the floor openings on each of the upper floors including the 10th floor roof. There was no perimeter protection on either the 10th floor roof or the penthouse roof.

At 8:00 a.m. on December 2, 1975, respondent's employees began the process of removing respondent's materials and debris from the four upper floors. The removal work included the taking down of all perimeter [*16] guarding and the removal of floor opening covers. The removal work continued during the inspection period - about three and one-half hours.

Respondent had at least two employees on the 7th and 8th floors performing cleanup work, and about 6 to 8 men performing removal and cleanup work on the 9th and 10th floors during the inspection period. In the performance of their work these employees came within one to three feet of the unguarded open sides of these floors and some walked close to the floor openings which were covered with unsecured 3 X 3 foot or 4 X 4 foot pieces of plywood.

These employees were exposed and had access to falling hazards greater than ten feet, created by the unguarded open sided upper floors and by the inadequately covered floor openings.

Respondent knew of the existence of the hazards but its desire to remove all of its materials and debris from the upper floors in order to utilize the services of a crane which was available to it only for that day, caused respondent to remove the floors' perimeter guards prematurely without providing alternate protection for its employees.

There is no evidence that the use of safety belts and lines was not feasible or [*17] could not be tied off on each of the upper floors once the perimeter guarding was removed, to afford respondent's employees protection from the open-sided floors and from the inadequately guarded floor openings.

Normally the same principle would apply to the 10th floor roof. However, in this case, four columns of the penthouse, 40 feet in from the edge of the 10th floor roof, had been erected on the 10th floor roof and these columns provided a tie off place for safety lines. Respondent had at least one employee who approached the unguarded edge of the 10th floor's roof to receive lumber from the crane which he passed up to employees on the penthouse roof. This employee should have been provided with and required to wear a [*18] safety belt properly tied off to protect him from a possible falling hazard from the edge of the 10th floor's roof.

The violations were serious in that an employee falling from any of the unguarded open sides of the upper floors and the 10th floor roof or through any of the inadequately guarded floor openings, a distance greater than ten feet, would more likely than not suffer fatal or serious physical harm. Respondent knew of the violations or with the exercise of reasonable diligence should have known of the serious conditions that existed at its workplace.

The gravity of the violation of 29 CFR 1926.500(d)(1) was above normal. From two to eight employees on each of the upper floors and 10th floor roof were exposed to this hazard for a period of at least three and one-half hours. The gravity of the violation when considered with the other factors of section 17(j) of the Act, and with the proper protection provided prior to 8:00 a.m., on December 2, 1975, renders the proposed penalty of $650.00 unreasonable. A penalty of $450.00 will be assessed for this violation.

The gravity of the violation of 29 CFR 1926.500(b)(1) is low. Although there were two to four employees working [*19] near the floor opening on each of the upper floors, the openings were covered with unsecured 3 X 3 or 4 X 4 foot plywood. There is no evidence that the covers could be easily dislodged. They appear to have been the last materials removed.

Under all the circumstances including consideration of the statutory factors of section 17(j), the $650.00 is unreasonable. A penalty of $150.00 will be assessed.

FINDINGS OF FACT

The credible evidence and the record as a whole establishes preponderant proof of the following specific findings of fact.

1. Respondent, Aniero Concrete Co., Inc., is in the concrete construction business and admits its business affects commerce.

2. On December 2, 1975, respondent was the concrete construction subcontractor at a ten-story office building under construction at Meadow Lands Parkway, Secaucus, New Jersey. Hartz Mountain Industry was the general contractor at the construction site.

3. On December 2, 1975, compliance officer Louis W. Baumgart inspected respondent's worksite at Secaucus, New Jersey.

Citation for a serious violation of 29 CFR 1926.500(d)(1)

4. Prior to and at 8:00 a.m., on December 2, 1975, respondent had proper perimeter [*20] guarding on the open sides of the 7th, 8th, 9th and 10th floors of the construction site and had properly secured covers guarding a 6 foot by 6 foot floor opening on each of the same floors.

5. There was no perimeter guarding on the roof of the 10th floor or on the roof of the penthouse.

6. On December 2, 1975, at 8:00 a.m., respondent's employees started the process of removing respondent's materials including perimeter cables and floor opening covers from the four upper floors of the construction site.

7. Respondent sped up its removal work in order to utilize the services of a crane which was available to respondent only that day.

8. Respondent removed the guarding perimeter cables on the 7th, 8th, 9th and 10th floors while its employees were still on each of these floors removing respondent's material and debris. Respondent provided no alternate means of protection for its employees working one to three feet from the unguarded south side perimeter of the four upper floors.

9. Respondent had two employees on the 7th and 8th floors and six to eight employees on the 9th and 10th floors performing removal and cleanup work. These employees during the time of the inspection, [*21] 3-1/2 hours, were exposed, or had access, to the unguarded open side south sides of the four upper floors.

10. The condition was serious in that an employee fall from the open sides of the four upper floors would more likely than not result in fatal or serious physical harm to the employee.

11. Respondent knew of the serious condition on the four upper floors.

12. Respondent had no perimeter guarding on the 10th floor roof or on the penthouse roof.

13. The penthouse was erected on the 10th floor's roof, 40 feet in from the roof's edges. The penthouse was ten feet or one story high.

14. Respondent was not required to install perimeter protection on the penthouse roof and there was no means for the feasible utilization of safety belts by employees working on the penthouse roof.

15. Respondent had one employee who worked on the 10th floor roof receiving lumber near the edge of the roof which he passed on to respondent's employees on the penthouse roof. This employee was exposed to a falling hazard created by the unguarded oepn-sided 10th floor roof and should have been provided with and required to wear a safety belt and line, as an alternate means of protection. The safety [*22] belt could have been tied off to a safety line secured to one of the penthouse's four columns.

16. There is no evidence that the use of the safety belts and safety lines on the four upper floors and the 10th floor roof was not feasible, or that, if used, made respondent's removal work impossible to perform.

17. Respondent is responsible for the serious violation of 29 CFR 1926.500(d)(1) on the 7th through 10th floors and the 10th floor roof on December 2, 1975.

Citation for a serious violation of 29 CFR 1926.500(b)(1)

18. On the 7th, 8th, 9th and 10th floors a floor opening measuring 6 feet by 6 feet was guarded by 3 X 3 and 4 X 4 foot plywood covers which were either not secured or loosely tacked down.

19. Respondent's employees during the course of their removal and cleanup work walked close to the unsecured or loosely secured floor opening covers. There is no evidence that these floor covers could be easily dislodged although that possibility existed.

20. The failure to properly comply with 29 CFR 1926.500(b)(1) created a serious violation in that respondent's employees had access to a possible falling hazard in excess of ten feet, through the inadequately [*23] guarded floor openings. If such an accident occurred to any employee, he more likely than not would have suffered fatal or serious physical harm.

21. Respondent was responsible for the serious violation of 29 CFR 1926.500(b)(1).

CONCLUSIONS OF LAW

1. Respondent is, and at all times material herein, was engaged in a business affecting commerce within the meaning of section 3(5) of the Act (29 U.S.C. 652(5)).

2. The Occupational Safety and Health Review Commission has jurisdiction over the subject matter and parties to this action.

3. On December 2, 1975, respondent was in serious violation of 29 CFR 1926.500(b)(1) for its failure to protect its employees from the hazards created by the unguarded open sides of the 7th through 10th floors and the 10th floor roof.

4. Under the circumstances of this case with due consideration to the statutory factors of section 17(j) of the Act, the proposed penalty of $650.00 for the serious violation of 29 CFR 1926.500(d)(1) is reduced to $450.00.

5. On December 2, 1975, respondent was responsible for the serious violation of 29 CFR 1926.500(b)(1) in that it failed to properly secure floor opening covers on the 7th through [*24] 10th floors of its workplace.

6. Under the circumstances of this case with due consideration to the statutory factors of section 17(j) of the Act, the proposed penalty of $650.00 for the serious violation of 29 CFR 1926.500(b)(1) is reduced to $150.00.

ORDER

Due deliberation having been had on the whole record, it is hereby

ORDERED that the citation for a serious violation of 29 CFR 1926.500(d)(1) only on the 7th through 10th floors and the 10th floor roof of the worksite, is affirmed, it is further

ORDERED that the proposed penalty for the serious violation of 29 CFR 1926.500(d)(1) is reduced to $450.00, and as reduced is affirmed, it is further

ORDERED that the citation for a serious violation of 29 CFR 1926.500(b)(1) only on the 7th through 10th floors of the worksite, is affirmed, it is further

ORDERED that the proposed penalty for the serious violation of 29 CFR 1926.500(b)(1) is reduced to $150.00 and as reduced is affirmed.

JEROME C. DITORE, JUDGE, OSHRC

July 28, 1976

New York, New York