MUNRO WATERPROOFINGS, INC.
OSHRC Docket No. 16264
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
Robert H. Trainor, Vice President, Munro Waterproofings, Inc., 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 [*2] decision is accorded 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:
The citation should be vacated because the evidence fails to establish that respondent, a waterproofing subcontractor, either 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).
Since my colleagues do not address any of the matters covered in Judge Gold's decision, his decision [*3] is attached hereto as Appendix A so that the law in this case may be known.
Appendix A
DECISION AND ORDER
Rudolph E. DeMeo, for Complainant
Robert H. Trainor, pro se, for Respondent
This case arose under section 10(c) of the Occupational Safety and Health Act, 29 U.S.C. § 659(c), and came on for hearing on March 17, 1976, at New York City.
On December 3, 1975, Respondent was issued two serious citations. A $600 penalty was proposed by the Secretary for each charge. Respondent contested only Citation No. 2.
By failing to deny paragraphs II and III of the complaint, Respondent is deemed to have admitted n1 that it is a New York corporation engaged in waterproofing and other construction activities; that many of the materials and supplies 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. At trial Respondent admitted doing construction work in five states (Tr. 6-7). It is clear from the foregoing that Respondent engages in a business affecting commerce, and it is so found. The record shows, and it is concluded, that the Commission [*4] has jurisdiction of the parties and the subject matter.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 29 C.F.R. § 2200.33(b)(2), Commission Rule 33(b)(2).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
29 U.S.C. § 654(a)(2) requires that each employer comply with occupational safety and health standards promulgated 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 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 [*5] 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).
The contested serious charge, as amended at trial (Tr. 8-9, 59, 66), alleges that Respondent violated 29 C.F.R. § 1926.500(b)(1) or § 1926.500(b)(8) in that floor holes approximately 12 to 15 inches around the perimeter of the climbing tower on the 40th floor of Building No. 2, into which holes persons could accidentally walk, were not guarded by either a standard railing with standard toeboard on all exposed sides, or a floor hole cover of standard strength and construction that is secured against accidental displacement.
The relevant standards state:
Subpart M -- Floor and Wall Openings, and Stairways
§ 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 specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways.
* * *
(8) Floor holes, into which persons can accidentally walk, shall be guarded by either [*6] a standasrd railing with standard toeboard on all exposed sides, or a floor hole cover of standard strength and construction that is secured against accidental displacement. While the cover is not in place, the floor hole shall be protected by a standard railing.
These definitions are pertinent:
§ 1926.502 Definitions applicable to this subpart.
(a) "Floor hole" -- An opening measuring less than 12 inches but more than 1 inch in its least dimension in any floor, roof, or platform through which materials but not persons may fall, such as a bell hold, pipe opening, or slot opening.
(b) "Floor opening" -- An opening measuring 12 inches or more in its least dimension in any floor, roof, or platform through which persons may fall.
During the period from November 17 through 21, 1975, Fred Nemeth, a compliance officer of the Department of Labor, inspected a worksite at 7000 Boulevard East, Guttenberg, New Jersey, where Respondent was engaged as a subcontractor in a waterproofing operation on the Summit Towers (Tr. 13), whose construction had then reached the 48th or 49th floor (Tr. 49-50).
The inspecting officer testified that on the 40th floor he observed a floor opening around the [*7] perimeter of a square-shaped climbing tower; on each of the four sides, the floor opening was about 12 to 15 inches in width and 6 to 7 feet in length (Exh. C-1, Tr. 15, 17-18). The tower was a tubular structure extending from the base of the building to the top floor where a hoist was attached (Tr. 18). Mr. Nemeth stated that the opening was not guarded by a standard railing or cover to prevent an employee from falling through it (Tr. 18-19); that one corner of the opening was adjacent to a stairway (Tr. 17, Exh. C-1); and that in order to get to the 40th floor from the stairway, an employee of Respondent would have to straddle the opening while taking hold of a beam with one hand, and in so doing the employee would be exposed to the danger of falling through the opening (Tr. 17-18).
Mr. Nemeth also said that he was told by another compliance officer at the site that three employees of Respondent were on the 40th floor (Tr. 19, 23); that to his recollection this was the only stairway to the 40th floor (Tr. 17-18), but that he did not observe any person go from the stairway onto that floor (Tr. 19).
On cross-examination the inspector called it a "reverse-run" stairway (Tr. 32), [*8] which he later described as two stairways (Tr. 33). The two stairways were separated by a wall (Tr. 35). It was his testimony that both stairways came to a common stairway landing on the 40th floor, and that a person using either stairway would have to straddle the floor opening in order to reach the floor (Tr. 33-34).
Robert H. Trainor, Vice-President of Respondent (Tr. 4), testified that he felt that Tishman Construction Company, the general contractor at the site, was to provide all the protection necessary to meet the safety standards (Tr. 40-41); that it was in Tishman's contract to do so (Tr. 42); that Respondent could not have provided a railing or cover for the floor opening because it did not have the necessary materials, since it does not use lumber or plywood (Tr. 42-43); that if Respondent did have the materials, there was nothing to prevent Respondent from guarding the opening (Tr. 43). Mr. Trainor stated that after Respondent was cited he gave Tishman a copy of the citation and "told them that we didn't think we should get it and it ought to be taken care of" (Tr. 44).
This witness described the two stairways as scissor stairs that cross in the stairwell; and he [*9] claimed that they reach independent openings on each floor, with one stairwell leading to the tower crane on the 40th floor, the other coming out onto the floor opposite the tower (Tr. 48). Mr. Trainor put it this way (Tr. 48):
One of them leads to the tower crane. The other one leads away from it. Nowheres near it and there is a concrete wall around the elevator shaft and stairwell, so the only opening is that door.
I am convinced that Mr. Trainor's description of the stairways is more reliable than that of the compliance officer. It does not seem plausible for two stairways, separated by a wall, to be so constructed that they reach a single landing. It is far more likely that they would be scissor-shaped, rather than run parallel to each other. The testimony of the corporate officer appeared to be forthright. I find that one stairway reached the floor opening at the 40th floor, and the other led to an area away from the opening.
He went on to say that on occasion, at lower floors, he has used the stairway that comes out at the tower, and he has "stepped over that hole" (Tr. 50); that personnel hoists stopped only at about every fifth floor, and then the employee would [*10] use a stairway to reach his destination (Tr. 49); and that it was the custom of the employees to just start walking on either of the two stairways (Tr. 49).
On the basis of this record I find that Respondent's employees at the site, in the normal course of their duties, had access to, and did use, the stairway leading to the floor opening on the 40th floor, and that as a consequence these employees crossed the unguarded floor opening.
Since § 1926.502(a) defines a "floor hole" as an opening which measures less than 12 inches in its least dimension, the opening in the instant case is not a floor hole; the charge of § 1926.500(b)(8), therefore, does not apply herein and will be ordered vacated.
A "floor opening" is defined at § 1926.502(b) as an opening measuring 12-inches or more in its least dimension. Hence, the alternate charge of § 1926.500(b)(1) applies here.
The standard at § 1926.500(b)(1) was violated. Respondent does not claim that the floor opening was guarded by a railing or cover, but contends that the general contractor had contractually assumed responsibility for compliance with all applicable safety requirements. The lack of protection for the opening was obvious. [*11] The Vice-President of Respondent corporation testified that the building had reached the 48th or 49th floor at the time in question, and that as far as he knew, there had been no covers or perimeter guards installed for the floor openings at any floor (Tr. 50).
Respondent did not complain to the general contractor until after the citation was issued. It knew that its employees used the stairway leading to the floor opening. Despite the fact that Respondent, through its Vice-President, had knowledge of this hazardous condition, it permitted its employees to be exposed to the danger of falling through the opening, without making a demand upon the general contractor to install a railing or cover or ordering its employees to use the stairway that did not lead to the floor opening. Since Respondent failed to take reasonable action to avoid exposing its employees to this violative condition, it should be held accountable for the violation.
The opening was 12-15 inches wide and 6-7 feet long on each of the four sides. I find that a person could possibly have fallen through the opening at the 40th floor and that there was a substantial probability that death or serious physical harm [*12] could have resulted from such a fall. Respondent, through its Vice-President at the site, knew of the presence of the violative condition. On this record it is found that the violation was of a serious nature.
Upon consideration of the record in its entirety, it is concluded that Respondent violated 29 U.S.C. § 654(a)(2) during the period from November 17 to 21, 1975, by noncompliance with the standard at 29 C.F.R. § 1926.500(b)(1) and that said violation was of a serious nature within the meaning of 29 U.S.C. § 666(j).
A penalty of $600 has been proposed by the Secretary. While death or serious physical harm could stem from a fall, in my opinion the probability of a fall was low. At least three employees of Respondent were exposed to danger. Respondent's business is of considerable size, with gross income of about $1 million annually (Tr. 7). There is no evidence of previous safety violations. The compliance officer felt that Respondent displayed "average" safety responsibility, although it had no formal safety committee (Tr. 29). Considering all the factors in 29 U.S.C. § 666(i), it is found that a penalty of $600 is appropriate.
Accordingly, it is ORDERED that amended [*13] serious Citation No. 2, issued December 3, 1975, be vacated as to § 1926.500(b)(8) and affirmed as to § 1926.500(b)(1) and a penalty of $600 assessed therefor.
Dated: August 2, 1976
Boston, Massachusetts
ABRAHAM GOLD, Judge, OSHRC