JAMES MELLON, d/b/a HUNTINGTON METAL WINDOW SERVICE

OSHRC Docket No. 16258

Occupational Safety and Health Review Commission

April 25, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

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

James Mellon, Huntington Metal Window Service, 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 riview 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 [*2] the significance of an unreviewed 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.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Items 1 and 3 n1 of the citation should be vacated because the citation was not issued with reasonable promptness as required by 29 U.S.C. 658(a). Secretary v. Jack Conie & Sons, Corp., OSAHRC Docket No. 6794, June 25, 1976. Moreover, item 1 should be vacated also because the evidence does not establish that respondent subcontractor created or caused the alleged violative condition or was otherwise responsible therefor. Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975); Secretary v. Hayden Electric Services, Inc., OSAHRC Docket Nos. 4034 & 4147, July 28, 1976 (dissenting opinion); Secretary v. Anning-Johnson Company, OSAHRC Docket Nos. 3694 & 4409, May 12, 1976 (concurring and 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 [*3] and with their views regarding the significance of decisions rendered by Review Commission Judges.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Item 2 was withdrawn by complainant.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Since my colleagues do not address any of the matters covered in Judge Gold'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

Barnett Silverstien, Complainant

James Mellon, pro se, Respondent

This matter was heard on March 18, 1976, at New York City pursuant to Section 10(c) of the Occupational Safety and Health Act, 29 U.S.C. 659(c).

On December 4, 1975, Respondent was issued a nonserious citation containing three itemized charges. A total penalty of $310 was proposed by the Secretary of Labor. Respondent filed a notice of intent to contest all three charges on the ground that they were the responsibility of the general contractor.

By failing to deny paragraphs II and III of the complaint Respondent is deemed to have admitted n1 that Respondent has its place of business at Huntington, [*4] New York; that it engages as a contractor in the construction industry; that many of the materials and supplied used by Respondent were manufactured outside the State of New York; and that Respondent was and is engaged in a business affecting commerce within the meaning of Sections 3(3) and 3(5) of the Act. The foregoing establishes that the Commission has jurisdiction of the parties and the subject matter.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Commission Rule 33(b)(2), 29 C.F.R. 2200.33(b)(2).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Secretary alleged these violations:

Item 1. 29 C.F.R. 1926.500(b)(1), in that floor openings on the second floor were not guarded by a standard railing and toeboard or cover.

Item 2. 29 C.F.R. 1926.500(e)(1)(iii), in that on stairways 44 inches wide having both sides open, every flight of stairs having four or more risers was not equipped with standard stair railings or standard handrails, one stair railing on each side, including but not limited to the stairs between the first and second floors.

Item 3. 29 C.F.R. 1926.100(a), in that employees [*5] working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, were not protected by protective helmets.

The Secretary proposed a penalty of $160 for item 1, $85 for item 2, and $65 of ritem 3.

Upon the grant of Respondent's motion at trial (Tr. 6-11), all three charges were amended from nonserious in nature to serious, with no change in the proposed penalties. Respondent declined the offer of a continuance (Tr. 9-11).

Later in the proceedings (Tr. 30), the Secretary's motion to withdraw item 2 was granted, and it will be ordered vacated.

29 U.S.C. 654(a)(2) requires that each employer comply with occupational safety and health standards promulated under the Act.

Pursuant to 29 U.S.C. 666(b), an employer shall be assessed a civil penalty of up to $1,000 for each serious violation.

Section 666(c) provides that an employer may be assessed a civil penalty of up to $1,000 for each nonserious violation.

29 U.S.C. 666(j) declares that "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 [*6] 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."

Civil penalties shall be imposed only after considering the size of the business of the employer, the gravity of the violation, the good faith of the employer, and the history of previous violations. 29 U.S.C. 666(i).

On November 19, 1975, Messrs. Whitney and Roskoski, compliance officers of the Department of Labor, Inspected a worksite at Palisades, New York, where a two-story geological observatory was under construction (Tr. 13-14, 56-57). Two employees of Respondent, Messrs. Noto and Keller, were installing windows on the perimeter of the building (Tr. 21, 70). Mr. Noto was Respondent's foreman and Mr. Keller was shop steward (Tr. 21).

Item 1. There was a stairwell opening, 14 feet by 14 feet, at the second-floor level (Tr. 23, Exs. C-1, C-2). Located in the southeast corner of the opening were stairs that were about five feet wide (Tr. 24, 29, 32). The south side of the opening [*7] was guarded by a wooden top rail and toeboard (Tr. 24, 33). The east side was partially guarded by a rope, about 40 inches high (Tr. 34), that was supported at each end of the stairwell by wooden 2X4 posts, with a 2X2 post in the middle (Tr. 25). The same rope continued through the north side (Tr. 36-37). The west side had no protection (Tr. 37, Ex C-2). There was a 12-foot drop from the opening to the first floor level (Tr. 38).

Officer Whitney testified, "I observed Mr. Keller near the floor opening. I observed him walking on the east side and then on the west side" (Tr. 39). Then he was asked, "How close to the east and the west side did you observe him?" His reply: "He was walking between 12 and 18 inches away from the rope which would place him between two feet and thirty inches from the floor opening" (Tr. 39). This answer is confusing, since the west side had no rope.

According to the other inspector at the site, Officer Roskoski, he and Officer Whitney followed Respondent's two employees up the stairs; and after reaching the second-floor level, the two employees "turned left and walked about 12 to 18 inches from the open floor (Tr. 59). He quickly changed this to [*8] about two feet from the opening (Tr. 59), and went on to say that the employees walked approximately six feet along the edge of the floor opening before going to their work location (Tr. 59), and that this was the only time that he observed them near the opening (Tr. 60).

The testimony of the inspectors does not agree as to the number of employees seen near the opening, although obviously the inspectors were together at the time. Nor do they agree as to how long an employee stayed perilously close to the edge; Mr. Whitney said he saw Mr. Keller walk along two sides, but Mr. Roskoski claimed that both Mr. Keller and Mr. Noto turned away from the edge after walking about six feet (about two steps?) alone one side of the opening.

Mr. Noto, Respondent's foreman at the site (Tr. 70), admitted that the stairway was the only means of access to the second floor (Tr. 75), and that Respondent's employees used it when coming to work and leaving work, and also when going to lunch and returning (Tr. 75). Despite the inconsistencies in the testimony of the inspectors, I find that the record establishes that the employees of Respondent did on several occasions daily have to take a step or two [*9] within two or three feet of the floor opening when going to or returning from their work position on the second floor.

Respondent complained that if barricades were installed at the head of the stairs, then an employee would be unable to walk onto the floor at the second level (Tr. 53).

The cited standard reads:

(b) Guarding of floor openings and floor holes. (1) 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.

The last sentence of the standard exempts from the railing requirement any exposed side which is at an entrance to a stairway. The reason for this is obvious: a railing would prevent an employee from entering or leaving the stairway unless he climbed through or over the railing, thereby increasing the danger. However, the standard would be satisfied, and safety provided for employees, if a cover were installed at an entrance to a stairway. In this case, the floor opening had neither railing nor cover.

Mr. Noto claimed that Jenkins Construction Company, the general contractor at the site, had the [*10] responsibility of providing the necessary safety measures (Tr. 77); that the general contractor had been told by Respondent's shop steward "to put a barricade around the staircase," and he replied that he would do it, but the next day the inspectors came (Tr. 77, 79-80); that at that time he had been working at the site for about a week (Tr. 78); that only carpenters could have put up the railing; that as an ironworker, he is qualified to install a metal railing around a floor opening, but if the carpenters caught him doing it, this would cause a serious dispute between the two unions and the job would be closed down (Tr. 84-85).

Respondent's employees were exposed to the danger of falling into the floor opening about four times daily for very brief periods. I do not accept Respondent's claim that it was unable to provide for the safety of its employees. While it may not have been able to install a wood or metal railing without causing union problems, Respondent could have used planks, nailed together, to cover a sufficient portion of the opening to protect its employees. I cannot believe that such action would have caused a dispute with the carpenters' union. It is, therefore, [*11] my finding that Respondent did not take all reasonable steps to eliminate the hazard. In these circumstances, I hold Respondent accountable for the violation.

It is found there was a substantial probability that death or serious physical harm could have resulted from a fall through the opening, there being a 12-foot drop to the lower level. Respondent, through its foreman at the site, knew of the presence of the violative condition. This record establishes that the violation was of a serious nature.

A penalty of $160 was proposed by the Secretary. I feel that although death or serious physical harm could have resulted from a fall, the probability of a fall was low. Respondent operates a small business (Tr. 42). There is no evidence of prior violations. Respondent cooperated during the inspection; the employer has no formal safety program (Tr. 42-43). A penalty of $160 is appropriate, when viewed in the light of the criterial listed in 29 U.S.C. 666(i).

Item 3. Respondent's employees were working in the northwest corner of the second floor; employees of another contractor were in that area installing metal partition studs at ceiling height by fastening a metal plate to [*12] a steel beam with the use of a power tool (Tr. 21, 39-40). The Secretary charges that Respondent's employees were required to wear protective helmets (hard hats) because of the possibility of being hit by a metal stud (Tr. 40). Mr. Whitney described the hazard thusley (Tr. 40):

Metal fastening devices, if they are shot too close to the edge, they could deflect and shoot the metal stud with a great deal of force. They could penetrate the skull or cause injury. If the wrong size charge is used, it could go completely through the steel and ricochet from a piece of concrete, and in my past experiences as a safety officer, that could have caused an injury.

Mr. Whitney also felt that there was also a possibility of Respondent's employees being struck on the head while the studs were being positioned and carried (Tr. 40-41). He stated that he saw Respondent's employees walking within four feet of where the "explosive fastening device was being used" (Tr. 40). Mr. Roskoski said that he saw Respondent's employees walking about three to four feet from where the studs were being installed (Tr. 60); that he also observed them walking three to four feet from a ladder on which heating and [*13] ventilation men were putting up ducts, using a hammer, screwdriver, and other tools (Tr. 65-66, 69). Both compliance officers also felt that hard hats were needed by Respondent's employees when they were installing the windows (Tr. 41, 65). Mr. Whitney noted that these were large windows (stipulated by Respondent as about four feet high and maybe five feet wide (Tr. 42)) and if a window frame slipped while it was being put into position overhead, it could strike an employee on the head (Tr. 41).

Respondent stipulated that hard hats were not worn by its employees (Tr. 65), but the foreman claimed that they were not needed (Tr. 71). He also declared that he cannot wear one because of migraine headaches (Tr. 71). He asserted that the men shooting the studs into the ceiling were approximately 30 feet from where he was working, and that he did not recall ever walking within four feet of a sheet-metal man while he was working on the job (Tr. 71).

Respondent did not show that it had a safety program which included a requirement that its employees wear the hard hats it had issued. As far as item 3 is concerned, Respondent did not pursue at trial its claim in the notice of contest that [*14] the safety requirements were the responsibility of the general contractor. In any event, where the subcontractor has direct control of its employees, as in the instant case, the responsibility for assuring that its employees wear protective equipment logically must rest with the subcontractor rather than the general contractor.

It is found that the Secretary has established by a preponderance of the evidence that there was a possible danger of head injury from falling or flying objects, and that Respondent's employees needed the protection of protective helmets. The employees were issued the helmets (Tr. 71), but Respondent failed to require that they be worn. It is further found that there was a substantial probability that a serious head injury could have resulted if an employee were struck by a falling or flying object, and that Respondent, through the foreman, knew of the presence of the violation. Hence, the violation was of a serious nature. Taking into consideration the factors in 29 U.S.C. 666(i), it is concluded that a penalty of $65 is appropriate.

Accordingly, it is ORDERED that item 2 of the amended citation of December 4, 1975, be vacated; that items 1 and 3 [*15] be affirmed as serious violations; and that a penalty of $160 be assessed for item 1 and $65 for item 3.

Dated: August 5, 1976

Boston, Massachusetts

ABRAHAM GOLD, Judge, OSHRC