DIC-UNDERHILL, A JOINT VENTURE

OSHRC Docket No. 2081

Occupational Safety and Health Review Commission

March 7, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On July 12, 1973, Judge Joseph Chodes issued his decision and order in this case affirming the Secretary's citation for serious violation and vacating the Secretary's citation for non-serious violation. A penalty of $600 was assessed for the serious violation.

On August 14, 1973, the Judge's decision and order was directed for review by the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ).

The Commission has reviewed the entire record in this case and concludes that the Judge has correctly disposed of all material issues.

Accordingly, it is ORDERED that the Judge's decision and order is hereby affirmed in all respects.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, CHAIRMAN, concurring in part, dissenting in part: I agree that the Judge properly disposed of a citation alleging a violation of the Act because of noncompliance with the occupational safety and health standard published as 29 C.F.R. 1926.250(b)(1) when he vacated the same.

I dissent from the Commission's affirmance of the Judge's finding that respondent [*2] violated the Act by failure to comply with the requirements of 29 C.F.R. 1926.500(d)(1). I do so because I do not believe the evidence demonstrated any employee exposure to hazard -- an essential element of proof of any violation of this Act.

The citation avers that the requirements of the lastcited occupational safety and health standard were not observed by the respondent because of a failure "to guard open-sided floors, six feet or more above the adjacent floor or ground level, by standard railings or the equivalent thereof."

The citation describes three separate hazards as the basis for the citation. The only witness at the trial was a Labor Department compliance officer who testified for the complainant relative to an inspection he conducted which formed the basis for the citation. His testimony establishes that, on November 22, 1972, he observed two of the respondent's field engineers "checking targets" by "hanging over the edge" of a floor. On the same day on a different floor, he saw two of the respondent's cement finishers sanding the ceiling with a "giraffe," a machine with a long extension arm. They were about 10 feet from the edge of the floor. On all [*3] three occasions, the height of the floors was sufficient to require guards, the sides of the floors were open and unguarded, and the workmen were not using personal protective equipment.

As to the work of the field engineers, the compliance officer expressed the opinion on cross-examination that they could not have performed their work if perimeter guards had been in place. Although his subsequent testimony indicated that he was not entirely sure that his opinion was correct, that opinion was not rebutted.

The Commission has held in several cases that noncompliance with the requirements of an occupational safety and health standard is justified when necessary to permit the accomplishment of required work. Secretary of Labor v. Masonry, Inc., Secretary of Labor v. La Sala Contracting Company, Inc., Secretary of Labor v. DeLuca Construction Corporation, In view of the unrebutted testimony of the compliance officer in the instant case, the evidence concerning the activities of the field engineers is insufficient to support [*4] the complaint.

As to the other three workers, no evidence was introduced to show that their jobs required them to move from the locations where they were observed to positions closer to the edge of the floors on which they were working. The lack of this evidence is a fatal deficiency in the proof required to establish a violation of the Act.

The Congressional intent behind the Act is to protect working people from hazards at their place of employment. Secretary of Labor v. City Wide Tuckpointing Service Co., In this connection, the following remarks in Secretary of Labor v. A. Munder & Son, Inc.,

"The crux of any violation is whether there has been employee exposure to an unsafe working condition rather than the fact that specifications of a standard have not been followed . . . . There could have been no employee injury without exposure to the hazard for which the standard was promulgated. Since the primary objective of the standards is to protect employees, the objective would have been achieved by employer restraint on the actions of his employees."

In this case, [*5] there is no evidence that the three workers were required to move closer than 10 feet from the floor perimeters in order to accomplish their work. The fact that they could have moved closer is not controlling. Therefore, as was held in Munder, evidence of work performance at distances of 10 feet or more from the edge of a floor, standing alone, is not sufficient to establish that the carpenter and the two cement finishers were in any danger. See Secretary of Labor v. Ellison Electric,

Occupational safety and health standards are not building codes. They are devices for protecting employees from hazard. One can violate the Occupational Safety and Health Act by failing to comply with an occupational safety and health standard -- but one cannot be in violation of a standard unless his failure to observe the requirements thereof has thereby exposed one or more of his employees to hazard. In other words, the standards cannot stand alone. They implement the Act and both the Act and the standards must be considered as a single legislative scheme. I am afraid the Commission's decision in this case had failed to [*6] take cognizance of this.

[The Judge's decision referred to herein follows]

CHODES, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. et seq., hereafter called the Act), in which the Respondent is contesting two Citations issued by the Complainant against the Respondents under the authority vested in Complainant by Section 9(a) of the Act. The Citations allege that as the result of the inspection of a workplace under the ownership, operation or control of the Respondents, located at the Harlem River Park Housing Project, Depot Place and Harlem River, Bronx, New York, the Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citations which were issued on January 3, 1973, allege that the violations resulted from a failure to comply with certain standards promulgated by the Secretary by publication in the Federal Register and codified in 29 C.F.R. Part 1518. The standards prescribed by Part 1518 were adopted as standards under the Occupational Safety and [*7] Health Act at 29 C.F.R. 1910.12. Effective on December 30, 1971, Part 1518 was redesignated as Part 1926.

Specifically, the Respondents were charged with serious violation of 29 C.F.R. 1926.500(d)(1) which provides:

(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 whereever, beneath the open sides, persons can pass, or there is moving machinery or there is equipment with which falling materials could create a hazard.

Respondents were also charged with nonserious violation of 29 C.F.R. 1926.250(b)(1) which provides:

(b) Material storage. (1) Material stored inside buildings under construction shall not be placed within 6 feet of any hoistway or inside floor openings, nor within 10 feet of an exterior wall which does not extend above the top of the material stored.

Pursuant to the enforcement procedure set forth in Section 10(a) [*8] of the Act, the Respondents were notified by letter dated January 3, 1973, from Nicholas A. DiArchangel, Area Director of the New York, New York area, Occupational Safety and Health Administration, U.S. Department of Labor, of a proposed penalty for the alleged serious violation in the amount of $600 and of a proposed penalty for the alleged non-serious violation in the amount of $35, for a total of $635.

After Respondents contested this enforcement action, and a Complaint and Answer had been filed by the parties, the case came on for hearing at New York, New York, on April 24, 1973.

COMPLAINT AMENDED

At the hearing the Judge granted the Complainant's motion to amend the Complaint, paragraph IV, first line, by inserting "and November 27, 1972" after "November 22, 1972." (T-63).

STIPULATIONS

1. The Respondent, Underhill Construction Corp., is a New York corporation with its principal office located in Bayside, New York (T-4).

2. The Respondent, Dic Concrete Corp., is a New York corporation with its principal office located in Elmont, New York (T-4).

3. The Respondents traded as Dic-Underhill, a Joint Venture, with an office in Bayside, New York (T-4, 5).

4. Respondents [*9] regularly use cement imported from Norway, cranes manufactured in Wisconsin and trucks manufactured in Detroit, Michigan (T-5).

5. In the year 1972 the Respondents had a net worth of two million dollars (T-5).

6. During 1973 the Respondents had a daily average of more than a thousand employees (T-5).

7. The materials referred to in the Citation for nonserious violation of 29 C.F.R. 1926.250(b)(1) were under the control of the Respondents (T-6).

8. The Respondents were served with the Citations and Notification of Proposed Penalty which are the subject of this proceeding and the Citations were posted within three days after receipt (T-5, 6).

APPLICABILITY OF STANDARDS TO RESPONDENT'S WORKPLACE

Respondent, in its brief, asserts that the violations charged against it do not apply to contracts for which negotiations were commenced prior to April 28, 1971, or to contracts entered into prior to April 28, 1971. The standards the Respondent is alleged to have violated, to wit, 29 C.F.R. 1926.500(d)(1) and 29 C.F.R. 1926.250(b)(1), were originally promulgated under the authority of the Contract Work Hours and Safety Standard Act, as amended, (83 Stat. 96; 40 U.S.C. 333) [*10] commonly referred to as the Construction Safety Act. These standards were adopted as occupational safety and health standards under the authority of Section 6(a) of the Occupational Safety and Health Act of 1970 in 29 C.F.R. 1910.12(a). As a result, the standards in 29 C.F.R. Part 1926, although originally applicable only to Federal and Federally assisted contracts, became applicable "to every employment and place of employment of every employee engaged in construction work" under the provisions of 29 C.F.R. 1910.12(a).

29 C.F.R. 1926.1050 provides, in pertinent part, that the standards "shall become effective on April 24, 1971 for all Federal and Federally assisted advertised contracts subject thereto which are advertised after that date and on April 27, 1971, for all such negotiated contracts for which negotiations begin after that date." However, 29 C.F.R. 1910.17(a) provides, in pertinent part, that the standards adopted under 29 C.F.R. 1910.12(a) shall be effective on August 27, 1971.

The question to be resolved is whether, assuming that the Respondent entered into its contract for construction work at the Harlem River Park Housing Project before April 28, 1971, the effective [*11] date of the standards charged against the Respondent are to be determined under the provisions of 29 C.F.R. 1926.1050 or 29 C.F.R. 1910.17(a).

In the case of Secretary of Labor v. Diesel Construction Co., Judge Ditore pointed out that 29 C.F.R. 1926.1050, dealing with effective dates, was not a standard and consequently the effective dates and exemptions therein were not adopted by 29 C.F.R. 1910.12(a). The results reached in the Diesel case were cited with approval in the U.S. District Court case of United States of America v. J.M. Rosa Construction Co., Inc., decided April 2, 1973, CCH, Employment Safety and Health Guide, paragraph 15, 643. This was a suit to recover a penalty incurred under the Occupational Safety and Health Act of 1970. Judge Newman held that with respect [*12] to a Federally assisted contract advertised before April 24, 1971, the standards became effective on August 27, 1971 as provided in 29 C.F.R. 1910.17(a).

In Secretary of Labor v. Kesler & Sons Construction Co., This case was called for review by the Commission on another question. See CCH Employment Safety and Health Guide, Current Topical Index, p. 5914.

Two contrary decisions are cited by the Respondent. Secretary of Labor v. Underhill Construction Corporation, It is not clear whether or not the contract involved was Federal or Federally assisted. In any case, on June 20, 1973, the Review Commission called up the decision for review. In Secretary of Labor v. Universal Sheet Metal Corporation, [*13] The case is currently under review by the Review Commission.

In the opinion of the Judge, there is no question but that, at least insofar as non-Federal construction contracts are concerned, the effective date of the standards in 29 C.F.R. Part 1926 is August 27, 1971 as provided in 29 C.F.R. 1910.17(a). Whether the same effective date applies to Federal or Federally assisted contracts is not necessary to decide here as there is no evidence in the case that the Respondent was operating under a Federal or Federally assisted contract. Accordingly, the Respondent may be held accountable for the violations charged which occurred subsequent to August 27, 1971, namely, on November 22, 1972.

SUMMARY OF EVIDENCE AND OPINION

Henry Grudzwick, one of the Complainant's Compliance Officers was the only witness at the hearing. He testified that from November 21 to November 27, 1972 he inspected the Harlem River Park Housing Project where four high-rise buildings [*14] were under construction. The buildings were designated A, B, C and D and at the time of inspection had reached a height of about 21 floors (T-9, 10).

1. Alleged violation of 29 C.F.R. 1926.500(d)(1)

On November 22, 1972, Mr. Grudzwick inspected the fifteenth floor of Building D and found two field engineers, employees of the Respondents, "checking targets" at the edge of the floor which had no perimeter guarding (T-19, 20). The men had no safety belts or other type of personal safety equipment, and they were "hanging over the edge" (T-21, 49).

Mr. Grudzwick inspected the seventeenth floor of Building B on November 27, 1972, and saw an employee of the Respondent's, a carpenter, working on forms, approximately fifteen feet from the edge. There was no perimeter guarding on the floor which was opensided nor was he wearing any personal protective equipment (T-22, 26, 31).

Mr. Grudzwick also inspected the eighteenth floor of Building B on November 27, 1972 where he observed two of Respondent's cement finishers using a Giraffe, a machine with a long extension and a sander on the end, to sand the ceiling. The floor was opensided and had no perimeter guarding and the men had no personal [*15] protective equipment. The men were working about ten feet from the edge of the floor (T-26-29).

There was no perimeter guarding on any of the floors of the housing project and this was visible at the site (T-32).

Mr. Grudzwick testified that he considered the lack of perimeter guarding a serious violation because the Respondent had knowledge of the violation and the violation would probably result in a fatality or serious injury (T-32). In accordance with the administrative procedures under which he operated he proposes an unadjusted penalty of $1,000. This was reduced by 20% for "good faith" because the Respondent was cooperative and did not hinder his inspection in any way (T-36). No deduction was allowed for the size of the Respondent's business as it had 437 employees at the job site (T-38, 39). An additional deduction of 20% was allowed for "history" as the Respondent had no record of any previous violations of safety standards (T-39). The adjusted penalty proposed was $600.

Section 17(j) of the Act provides that the Commission has authority to assess all civil penalties and that in assessing penalties due consideration shall be given to the appropriateness [*16] of the penalty with respect to the size of the business, the gravity of the violation, the good faith of the employer, and the history of previous violations.

With respect to gravity of the violation, the Judge is in agreement with the Compliance Officer that the violation charged against the Respondent was serious. Section 17(k) of the Act provides 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.

In the recent case of Secretary of Labor v. Natkin and Co., In the instant case, a fall from the fifteenth, seventeenth or eighteenth floor of [*17] the buildings in question would in all probability have grave consequences. With respect to the element of knowledge of the presence of the violation, the evidence shows that there was no perimeter guarding on any of the floors of the buildings and this was visible to anyone on the job site, including of necessity the employees of the Respondent in charge of the work on the project.

The gravity of the violation can be measured by the number of employees affected by the violation, the probability and degree of injury and the extent to which the standard involved was violated. There were five of Respondent's employees exposed to the hazard which existed on three separate floors, and an accidental fall would have grave consequence. The Judge is of the view that the penalty of $600 proposed by the Complainant gives due consideration to the factors of good faith and the Respondent's negative history of safety violations and is an appropriate penalty under the circumstances of this case.

2. Alleged violation of 29 C.F.R. 1926.250(b)(1).

On November 22, 1972, Mr. Grudzwick observed shoring material, 4 by 4 inches and 8 feet in length, stored on the eleventh floor of the Building C. [*18] There was no guarding at the edges of the floor (T-14). The material was piled about four feet wide and four and a half feet high and extended about a foot over the edge of the floor (T-12, 15). On looking over the edge he observed bricklayers, not employees of the Respondents, working on a scaffold at about the third or fourth floor (T-13).

On the fourteenth floor of Building D which had no perimeter guarding, Mr. Grudzwick observed steel braces stored at the edge of the building and extending about a foot over the edge (T-15, 16). The steel braces, which were used to tie in forms, were stored in stacks of eight about three feet wide and three feet high (T-15, 16). Mr. Grudzwick saw workers of different trades walking below the place where the steel braces were stored and there were bricklayers working on a scaffold at the third or fourth floor, but none were employees of the Respondent's (T-15-17).

The Respondent in its brief raised the question whether the Complainant had established that materials stored in Buildings C and D belonged to the Respondent. This matter was settled by the parties at the hearing by stipulation (see Stipulation No. 7 above).

The first [*19] question presented for determination is whether the standard allegedly violated is applicable to the facts in this case. The standard, in pertinent part, prohibits storing of material "within 6 feet of any hoistway or inside floor openings" (emphasis supplied). In the instant case, the material was stored at the outer edges of the floors. The intent of the standard appears to be to prevent material from falling into openings in the floors, and not to protect material from falling off the floors and outside the building. It is the opinion of the Judge that the standard was not violated by the storage of material at the peripheral edges of the floors.

Another reason, in the opinion of the Judge, that the alleged violation cannot be sustained, is that none of the Respondent's employees were exposed to the hazard contemplated by the standard, namely, being struck by falling material. The only persons endangered by the possibility that the stored material would fall were workmen not employed by the Respondents. In the case of Secretary of Labor v. City Wide Tuckpointing Service Co., [*20] involving a standard which required a screen on a scaffold where persons were required to work or pass underneath, that the applicability of the standard could not be extended to provide protection for pedestrians or other non-employees. The decision specifically held that only where employees of a cited employer are affected by noncompliance with a standard can such an employer be in violation of Section 5(a)(2) of the Act. To the same effect is the decision of Judge Watkins in Secretary of Labor v. Martin Iron Works, Inc.,

FINDINGS OF FACT

On the basis of the Citation, Notice of Proposed Penalty, Notice of Contest, pleadings, stipulations, the testimony adduced at the hearing and the representations of the parties, it is concluded that on the record as a whole, substantial evidence supports the following findings of fact:

1. Paragraph 1 through 8 of the Stipulations are incorporated herein as findings of fact.

2. There is no history of previous violations of the Occupational Safety and Health Act of 1970.

3. As a result of inspection on November 22, 1972 and November 27, [*21] 1972 of a workplace under the operation and control of the Respondents at the Harlem River Park Housing Project, Depot Place and Harlem River, Bronx, New York, the Complainant, on January 3, 1972, issued to the Respondents a Citation for serious violation 29 C.F.R. 1926.500(d)(1) for failure to ensure that the opensided fifteenth floor of Building D, and the seventeenth and eighteenth floors of Building B were guarded by standard railings or equivalent.

4. As a result of inspection on November 22, 1972 of a workplace under the operation and control of the Respondents at the Harlem River Park Housing Project, Depot Place and Harlem River, Bronx, New York, the Complainant, on January 3, 1973, issued to the Respondents a Citation for violation of 29 C.F.R. 1926.500(b)(1) for failure to ensure that material stored inside of Building C on the eleventh floor and inside Building D on the fourteenth floor, were not placed within six feet of any hoistway or inside floor openings.

5. On January 3, 1973, the Respondents were notified by the Complainant of a proposed penalty of $600 for the serious violation of the standard referred to in paragraph (3) above and of a proposed penalty [*22] of $35 for the violation of the standard referred to in paragraph (4) above, for a total penalty of $635.

6. On January 15, 1973, the Respondents filed with the Complainant a notice of its intention to contest the Citations and proposed penalties referred to in paragraphs (3), (4) and (5) above.

7. On November 22, 1972, the fifteenth floor of Building D at the workplace referred to in paragraph (3) above was more than 6 feet above the adjacent ground level, the floor was open-sided and the floor was not guarded by a standard railing or equivalent. Two of Respondent's employees were exposed to the hazard of falling off the edge of the floor to the ground, a distance of about 150 feet.

8. On November 27, 1972, the seventeenth floor and eighteenth floor of Building B at the workplace referred to in paragraph (3) above was more than 6 feet above the adjacent ground level, the floor was open -- sided and the floor was not guarded by a standard railing or equivalent. One of the Respondents' employees was exposed to the hazard of falling off the edge of the seventeenth floor to the ground, a distance of about 170 feet, and two of the Respondents' employees were exposed [*23] to the hazard of falling off the eighteenth floor, a distance of about 180 feet.

9. The Respondents knew, or with the exercise of reasonable diligence could have known, of the presence of the facts recited in paragraphs (7) and (8) above, which constituted a serious violation of 29 C.F.R. 1926.500(d)(1).

10. Giving due consideration to the size of the Respondents' business, the gravity of the violation, the good faith of the Respondents and the negative history of previous violations, the appropriate penalty for serious violation of 29 C.F.R. 1926.500(d)(1) is $600.

11. On November 22, 1972, there was material stored inside Building C on the eleventh floor and inside Building D on the fourteenth floor so that the material extended about a foot over the edge of the floors.

12. There were tradesmen working on the outside of the Buildings C and D beneath where the material was stored, but they were not employees of the Respondents.

13. None of the Respondents' employees were exposed to the hazard contemplated by 29 C.F.R. 1926.250(b)(1).

CONCLUSIONS OF LAW

1. The Respondents are, and at all times material hereto were, engaged in business affecting commerce within the meaning [*24] of Section 3(5) of the Occupational Safety and Health Act of 1970.

2. The Respondents are, and at all times material hereto were, subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder, and the Commission has jurisdiction of the parties and the subject matter herein.

3. Insofar as the Respondents are concerned, the effective date of the standards referred to in paragraphs (4) and (5) below is August 22, 1971.

4. Respondents violated the Occupational Safety and Health standard cited in 29 C.F.R. 1926.500(d)(1) and is assessed a penalty of $600.

5. Respondents did not violate 29 C.F.R. 1926.250(b)(1) and no penalty should be assessed.

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is ORDERED

1. The Citation issued on January 3, 1973, for serious violation of 29 C.F.R. 1926.500(d)(1) and the penalty proposed by the Complainant of $600 are affirmed.

2. The Citation and Notification of Proposed Penalty issued on January 3, 1973 for violation of 29 C.F.R. 1926.250(b)(1) are vacated.