A. J. McNULTY & CO., INC.

OSHRC Docket No. 2295

Occupational Safety and Health Review Commission

April 8, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners

COUNSEL:

Albert H. Ross, Regional Solicitor, U.S. Department of Labor

Paul Weiss, Vice-President and Lawrence Weiss, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On January 2, 1974, Judge Joseph Chodes issued his decision affirming one "serious" and one "non-serious" citation and assessing penalties of $650 and $100, respectively. Pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter "the Act"), review of that decision was ordered. The issues on review before the full Commission are:

(1) Whether 29 CFR 1926.28(a) is (a) an occupational safety and health standard as that term is defined in section 3(8) of the Act, and (b) if so, whether it is unenforceable by reason of being vague and ambiguous.

(2) Whether complainant sustained his burden of proving exposure of respondent's employees to the hazards of non-compliance with 29 CFR 1926.750(b)(1)(iii).

In addition, respondent argues on review that there is insufficient evidence showing that, with regard to 29 CFR 1926.750(b)(1)(iii) and .28(a), the workmen exposed to the noncomplying conditions [*2] were its employees, and that it did not have a duty to abate the conditions not in compliance with 29 CFR 1926.750(b)(1)(iii). n1 We affirm Judge Chodes' decision.

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n1 On review, respondent also argues that the inspection of its workplace did not conform to the requirements of section 8(e) of the Act. The record shows that respondent, through its site-superintendent, did receive an opportunity to accompany the compliance officers. When the two compliance officers arrived at the site, they noticed some employees in a precarious situation, and looked for the person in charge. They were directed to Mr. Alexander Delaney, to whom they presented their credentials. The three then proceeded to the area where the alleged violations took place. Cf. Hoffman Construction Company, 15 OSAHRC 327, 328 n.3, 339-340, 2 BNA OSHC 1523, 1524 n.3, CCH 1974-75 OSHD para. 19,275 (No. 644, January 31, 1975). For my own part, I would add that it is questionable whether consideration of this point is properly before us. The issue was but parenthetically referred to before the Judge, and then only in a post-hearing brief. Cf. River Terminal Railway Company, 3 BNA OSHC 1808, CCH 1975-76 OSHD para. 20,215 (No. 4414, December 12, 1975); N.L.R.B. v. Majestic Weaving Co., 355 F.2d 854, 861 (2d Cir. 1966).

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Respondent is a New York corporation engaged in the business of steel construction. As a subcontractor, it had been constructing a multi-floor steel frame structure in Hartford, Connecticut, when on February 7, 1973, two compliance officers conducted an inspection of its worksite.

The "Serious" Citation

As a result of that inspection, the Secretary issued to McNulty one "serious" and one "non-serious" citation. The Secretary proposed penalties of $750 and $280, respectively. The "serious" citation alleged noncompliance with 29 CFR 1926.28(a) for failure to require the use by employees on the fourth floor of safety belts, lanyards or safety nets. That standard provides:

1926.28 Personal Protective Equipment

(a) the employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees. [Emphasis added.]

We have consistently held that 29 CFR 1926.28(a) is not unenforceably vague and [*4] may be cited by itself. See the separate opinions in Isseks Brothers, Inc., No. 6415 (January 29, 1976) and cases cited therein. Whether the standard is an occupational safety and health standard within the meaning of section 3(8) of the Act need not be considered. This point was not briefed by the respondent, and more importantly, it is not a jurisdictional issue to be raised at any stage of the proceedings. Cf. Puterbaugh Enterprises, Inc., 9 OSAHRC 718, 721, 2 BNA OSHC 1030, 1032, CCH 1973-74 OSHD para. 18,158 (No. 1097, July 1, 1974); Martin Iron Works, Inc., 15 OSAHRC 33 & n.2, 2 BNA OSHC 1531, 1533 n.2, CCH 1974-75 OSHD para. 19,219 & n.2 (No. 1690, January 17, 1975).

The respondent contends that the Secretary failed to show both hazardous conditions, and that the endangered workmen were respondent's employees. The compliance officers observed three workmen on the fourth floor, none of whom wore safety belts or lanyards; none was protected by safety nets. The fourth floor was forty to fifty feet high. The record is clear that a fall from this height would have caused death or serious injury. All three of the workmen were observed to be "very close to [*5] the edge." Two stood directly behind the third, who was working with a torch while "hanging over the edge, or straddling the support on the very edge. . . ."

This workman was wearing a welder's hood over his face. The hood completely covered the workman's face. According to Mr. Harold R. Smith, Area Director for the Occupational Safety and Health Administration, the arc created by the employee's torch tends to dilate the pupils so that momentary blindness would occur when the hood was lifted off. Mr. Smith, relying on his wide experience in industrial safety, explained:

A At that height, . . ., any time that you put your head under a hood, . . ., hanging over the side as this employee was, he has no knowledge if he is concentrating on the welding, he has no knowledge of his surroundings or his environment at that particular time that he has the hood down. Therefore, a lot of things could happen. He has no idea of what may be behind him; he has no idea that some other employee could in fact come along and possibly grip (sic) over the welding line, or the burning line, or whatever he may have. Plus, if he is welding structural steel and he has the rod in his hand and he should, [*6] by chance, fracture the insulation on that current-carrying rod or line and get a temporary shock, it could jolt him enough that he could go off. There are many, many ways that he could fall off of there. He could just have a fainting spell and fall off, which happened in another case that we had where it did happen. He may lose his sense of balance and, plus the fact that under the hood it is very dark for the reason of the at least ten point zero shade of glass. When he lifts this up, he has to now adjust his eyesight to daylight. He is coming out of almost total darkness looking through that lens, with your eyes will then dilate and get larger and you come into the sunlight, or the light, and then they have got to contract quickly. You have the sense of losing balance or you could and topple over.

Q Are you saying, then, that a person in the position that you have described and performing the work that you describe, there would be a possibility or high probability that this individual could fall?

A Yes, sir. That's one of the highest accident rates.

Q What would happen if he fell?

A Well, if he were to fall, the chances are great that he would be dead upon impact with [*7] the ground or with any material that might be stored on or near the ground. n2

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n2 This testimony was corrobrated by Mr. Nooney, one of respondent's welders.

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The Judge concluded that all three of these workmen were exposed to the hazard of falling. Both compliance officers testified that these workmen were so endangered. We agree with the Judge that these workmen were exposed to hazardous conditions. n3 See Hoffman Construction Company, 15 OSAHRC 327, 328, 2 BNA OSHC 1523, CCH 1974-75 OSHD para. 19,275 (No. 644, January 31, 1975). In any event, the standard does not require a finding that employees were teetering on the edge of the fourth floor. See Brennan v. O.S.H.R.C. & Underhill Constr. Corp., 513 F.2d 1032, 1039 (2d Cir. 1975). Clearly, in view of the nature of the work performed by McNulty employees, a failure to require protection in the face of those dangers was noncompliance with the standard.

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n3 Indeed, respondent, in its brief on review, suggested that an employee four feet from an edge requires protection from falls.

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Respondent has vigorously contended that there was no evidence that any of these three workmen were respondent's employees. The contention lacks merit. Both compliance officers testified that respondent's superintendent at the site, Mr. Alexander Delaney, identified the three as McNulty employees. n4 Compliance officer Richard Koletsky testified that after the citations were issued, Mr. Delaney came to his office to discuss the citations, and admitted that McNulty employees "were in fact up there. n5 On cross-examination Mr Delaney confirmed the presence of McNulty employees on the fourth floor. In his words, McNulty employees "would be all over the job," and "from the cellar to the top floor." Moreover, Mr. David Nooney testified, upon cross-examination that there were five McNulty employees on the fourth floor. We agree with the Judge that the evidence showing that the workmen were respondent's employees preponderated. n6

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n4 Compliance officer Sindo E. Cavalieri testified that:

We . . . asked [Mr. Alexander Delaney, respondent's superintendent] if the employees up on the fourth floor were his employees. He said, "Let's take a look," . . . . When we got to the front of the building, there were three men upon the edge of the floor. I asked Mr. Delaney specifically if they were his employees and he said that they were. [Emphasis added.]

Compliance officer Richard Koletsky corroborated this testimony. See Tr. at 63. Mr. Delaney's own recollection was self-contradictory, at best. See Tr. 170-176, 178-180.

n5 This, like some of the other evidence on this point is arguably hearsay. Respondent did not object at the hearing to the admission of this testimony, nor has it raised this point before the Judge or on review before the full Commission. See 6 A.L.R. Fed. 76, 83-85 (1971).

We give the evidence probative weight. The value of this evidence was bolstered in several ways. First, it was corroborated by the testimony of Mr. Nooney. Second, both compliance officers had virtually identical recollections of Mr. Delaney's declarations. Third, this evidence was reliable because it would have been competent evidence in a court of law. These admissions were of a party-opponent by an employee concerning a matter within the scope of his employment. See McCormick, Handbook of the Law of Evidence 267 (1972). The Federal Rules of Evidence characterize such admissions as non-hearsay, F.R. Ev. 801(d)(2), and freely admissible to prove the truth of the matter asserted. Fourth, Mr. Delaney's testimony on the point was self-contradictory, at best. Judge Chodes resolved this testimonial conflict in favor of the Secretary; this judgment is entitled to respect. See Universal Camera Corp. v. N.L.R.B., 340 U.S. 474 (1951). Together with the other evidence, Judge Chodes' findings were amply supported by reliable, probative and substantial evidence. 5 U.S.C. 556(d).

n6 We further agree with Judge Chodes that it was not positively established whether Mr. Nooney was the workman seen straddling the beam on the fourth floor, though a fair reading of the evidence would certainly allow the inference. While we agree with the respondent to this limited extent, we agree with Judge Chodes' finding that a workman employed by respondent was in a precarious position on the fourth floor. In any event, two other employees of McNulty were seen in a hazardous position. Noncompliance was therefore plainly established.

[*9]

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We therefore find that respondent's employees were exposed to hazardous conditions, and did not use appropriate personal protective equipment. To this respondent replies that the employer has met his responsibility by furnishing and requiring the use of safety equipment, and that the employees' failure to wear safety belts were such isolated instances that the citation should be vacated. We reject this contention.

The Commission has consistently held that the mere issuance of safety instructions does not satisfy the employer's duty under section 5(a)(2) of the Act. Similarly, employee misbehavior standing alone does not relieve an employer from liability. See e.g., Leone Construction Company, No. 4090 (February 10, 1976); J.A. McCarthy & Company, Nos. 6565 et al. (January 20, 1976); Atlantic & Gulf Stevedores, Inc., 16 OSAHRC 770, 3 BNA OSHC 1003, CCH 1974-75 OSHD para. 19,526 (No. 2818 et al., April 11, 1975). Where the existence of a violative condition hae been shown, the employer may, however, affirmatively defend by showing that the employee's behavior was [*10] a deviation, of which the employer had neither actual nor constructive knowledge, from a uniformly and effectively enforced work rule. See Murphy Pacific Marine Salvage Company, 15 OSAHRC 1, 2 BNA OSHC 1464, CCH 1974-75 OSHD para. 19,205 (No. 2082, January 13, 1975) (concurring opinion). See also Otis Elevator Company, 3 BNA OSHC 1736, CCH 1975-76 OSHD para. 20,159 (No. 1184, November 19, 1975). Cf. Ocean Electric Corporation, 3 BNA OSHC 1705, CCH 1975-76 OSHD para. 20,167 (No. 5811, November 21, 1975). But the evidence here does not support such a defense.

The Judge found that respondent, through its superintendent, Mr. Delaney, knew that the equipment was not being used. The testimony showed that Mr. Delaney did not instruct the employees to use safety belts even after the matter was brought to his attention by Mr. Cavalieri. In addition, the evidence showed that respondent had been put on notice that failure to use safety belts was a recurring and not an isolated practice of his employees. A safety engineer for the prime contractor, Mr. Luke Hoffman of Gilbane Construction Company, inspected respondent's worksite on January 15, 1973. He thereafter [*11] sent respondent a notice asking for immediate compliance wit requirements for safety belts. Mr. Hoffman explained that he had found two workmen not tied off, and that he had discussed this with Mr. Delaney.

The "Non-Serious" Citation

The Secretary also alleged noncompliance with 29 CFR 1926.750(b)(1)(iii). That standard provides:

1926.750 Flooring Requirements.

* * *

(b) Temporary flooring - skeleton steel construction in tiered buildings.

(1) . . .

* * *

(iii) Floor periphery -- safety railing.

A safety railing of 1/2 inch wire rope or equal shall be installed, approximately 42 inches high, around the periphery of all temporary -- planked or temporary metal-decked floors of tier buildings and other multifloored structures during structural steel assembly.

The Judge recognized that "[t]he proof with respect to the violation of 29 CFR 1926.750(b)[(1)](iii) is not exactly as one would wish." He nevertheless found that the respondent had failed to comply with the standard. We adopt this finding.

The evidence was virtually undisputed that the third floor of the structure lacked wire rope on its periphery, and was partially covered by steel decking. Respondent [*12] argued that none of its employees was actually exposed to the hazards presented by noncompliance, and therefore the citation should be vacated. We disagree.

As noted above, an employee need not actually teeter on the edge of an open floor before his employer's duty to comply with this standard arises. See Brennan v. O.S.H.R.C. & Underhill Construction Corp., supra. The evidence is clear that respondent's employees were working on the third floor and that their duties took them "all over the job." Respondent's employees were performing work "right from the cellar to the top floor," including the third floor. We therefore find that the violative conditions on the third floor were accessible to respondent's employees. Gilles & Cotting, Inc., No. 504 (February 20, 1976) (on remand).

However the respondent claims that the citation cannot stand because it had no obligation to install peripheral cable on the third floor. It claims that because a fellow subcontractor on the site, Marrod Building Products, had purported to assume the responsibility of installing wire rope on the third floor, respondent's duty under the Act was at an end. We do not agree.

Our decisions [*13] have recognized the general principle that an employer's statutory duty to protect the safety and health of its employees cannot be delegated to others by contractual arrangements. Theodore D. Bross Line Constr. Co., No. 5421 (January 27, 1976); R.H Bishop Company, 8 OSAHRC 930, 1 BNA OSHC 1767, CCH 1973-74 OSHD para. 17,930 (No. 637, May 30, 1974); Robert E. Lee Plumbers, Inc., 17 OSAHRC 639, 3 BNA OSHC 1151, CCH 1974-75 OSHD para. 19,594 (No. 2431, May 2, 1975) (concurring opinion). The decision of the Seventh Circuit, in Anning-Johnson Co. v. O.S.H.R.C., 516 F.2d 1081 (7th Cir. 1975), would carve a narrow exception into this principle. The Court was much concerned about possibly imposing "inequitable" abatement duties on employers who lack the skill, resources and opportunity to identify and correct safety violations. We need not, however, decide in this case whether the Commission should follow, as a matter of national policy, the opinion of the Seventh Circuit. It is enough here to note that McNulty's activities as a subcontractor are easily distinguishable from those of the subcontractor in Anning-Johnson. Respondent had the skill, resources and opportunity [*14] to install the wire rope on the third floor, just as it did on the second floor. It did not, therefore, have to go so far as removing its employees from the work site in order to protect them. n7 The most record does show is that respondent had privately agreed that Marrod would protect the periphery of the third floor, but that Marrod had failed to do so. While the respondent is of course free to pursue its private remedies if any with Marrod, any balance to be struck between the need to eliminate the fall hazard and any consequent inefficiency, lack of economy or inequity clearly weighs here is favor of requiring McNulty to protect its own employees. The enforcement of the standard is realistic on the facts, and recognizes that the safety protection of employees is the summum bonum of the Act.

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n7 For my own part, I would note that in any event respondent should have, given the gravity of the hazard, notified the general contractor or Marrod, and taken some adequate steps, short of full compliance with the standard, to protect his employees. See Peter Bratti Associates, Inc. and D'Adderio Construction Company, Inc., 15 OSAHRC 68, 71, 2 BNA OSHC 1573, 1575, CCH 1974-75 OSHD para. 19,217 at 22,973 (Nos. 1990 & 1956, January 17, 1975) (dissenting opinion).

[*15]

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We therefore find respondent to have failed to comply with the cited standard. A non-serious violation of the Act is therefore found.

The Judge found penalties of $650 for the serious violation and $100 for the non-serious violation to be appropriate. We agree with the Judge for the reasons he assigned.

The Judge's order is therefore AFFIRMED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Both citations should be vacated because the evidence is insufficient to establish that employees of respondent were exposed to the allegedly hazardous conditions.

The worksite inspected was located at the corner of Main and Pearl Streets in Hartford, Connecticut. Neither of the complainant's safety inspectors, whose testimony served as the basis for the affirmance of the alleged violation of 29 C.F.R. 1926.28(a), entered the structure at any point during the inspection. The inspectors testified that from street level on the Main Street side of the building they observed a workman wearing a welding hood who was hanging or leaning over the edge of the fourth floor. Two other workmen were observed an unspecified [*16] distance behind him. They stated that from their vantage point it did not appear that these workmen were wearing safety belts.

The inspectors testified that, after making these observations, they went to the Pearl Street side of the building where they contacted respondent's superintendent. According to the inspectors, the superintendent then accompanied them back to the Main Street side and identified the welder as an employee of respondent. n8

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n8 One of the inspectors testified that the superintendent also identified the two workmen behind the welder as employees of respondent; the other could not recall if identification of the other two workmen was made. Neither of the inspectors knew what these employees were doing.

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The superintendent disputed the testimony of the inspectors. He stated that at the time of the inspection he believed that the welder observed was an employee of respondent based on the description of the location of the welder he was given by the inspectors and the fact that the union steward [*17] told him that the welder in question was a welder named Nooney who was a McNulty employee. The superintendent testified that he did not accompany the inspectors back to Main Street, was never asked to accompany them, and did not identify the workmen as McNulty employees.

Although the Judge did not specifically address this conflict in the evidence, he apparently resolved the conflict in favor of the inspectors since he concluded that the employees observed were employees of respondent. I would readily agree that we should defer to the credibility assessment made by the Judge and adopt his finding if the only evidence in the record casting doubt on the reliability of the inspectors' testimony was the contrary account of the superintendent. However, other evidence, proffered by the inspectors themselves and not addressed by the Judge, shows that their recollections about what transpired were shaky and ambiguous at best.

Complainant submitted five photographic exhibits into evidence. Four of the photos depicted the Pearl Street side of the building and the remaining photo depicted the Main Street side of the building. One of complainant's inspectors testified that none of the [*18] photos depicted the alleged safety belt violation. The Pearl Street photos, he testified, did not depict the alleged violation because the welder in question was not working on that side of the building. The Main Street photo, he conceded, did not show this individual because, as is apparent from the exhibit, the photo was taken at too great a distance to show any more than the contours of the building. The second inspector initially agreed with this assessment. He then discovered, however, that three of the Pearl Street photos showed the welder whose failure to wear a safety belt formed the basis of the citation. Only one barely discernible leg of this individual can be seen in these photos. It would be thus clearly impossible for a person standing on the ground to ascertain with any certainty who this individual was, let alone whether he was wearing a safety belt. n9 In any event, as there was at least one other contractor with iron workers and welders at the job at the time, the mysterious leg in the Pearl Street photos may well have belonged to an employee of another contractor.

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n9 The superintendent also stated that complainant's photos which purported to show the violation were taken at a different location from where he was told that the men in question were working.

[*19]

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The Commission has long held that complainant has the burden of proving that an employee who is engaged in a hazardous activity or who is exposed to a hazardous condition is an employee of the cited employer. This proof must be clear and convincing and must be established by facts and not assumptions. Secretary v. Otis Elevator Company, 12 OSAHRC 127 (1974); Secretary v. Sletten Construction Company, 12 OSAHRC 40 (1974); Secretary v. Ellison Electric, 1 OSAHRC 547, 553 (1972). I submit that the confused, and contradictory, and sketchy testimony presented by complainant in this case is patently inadequate to satisfy this burden of proof.

The inadequacy of complainant's proof with respect to the alleged safety belt violation, however, does not stop here. Even if it were assumed that the workers on the fourth floor observed by complainant's witnesses were employees of respondent, the evidence is insufficient to show that they were exposed "to hazardous conditions" within the meaning of 29 C.F.R. 1926.28(a). n10

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n10 It is my view that 29 C.F.R. 1926.28(a) standing alone does not impose the duty to wear safety belts. This standard requires the use of safety belts only when another standard in Part 1926 requires the use of this equipment and when the failure to use this equipment exposes an employee to a hazardous condition. The standard set forth at 29 C.F.R. 1926.105(a) has been interpreted to require the use of safety belts when work is performed at heights in excess of 25 feet. Brennan v. Southern Contractor's Service, 492 F.2d 498 (5th Cir. 1974). As the record in this case shows that the fourth floor was in excess of 25 feet, one of the elements necessary for establishing a violation of this standard has been shown. The other element however, that failure to use a safety belt exposed an employee to a hazardous condition, has not been established.

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The major deficiency in proof with respect to this question is that the inspectors' observations that workmen on the fourth floor lacked safety belts, which are typically no more than a couple of inches in width, were simply made from too great a distance to be reliable. That observations made from such a distance can be unrealistic is vividly illustrated in this case. In the nonserious citation, respondent was charged with failure to install a safety railing of wire rope around both the second floor and the third floor. The photographic exhibits show, and the Judge found, that the required peripheral guarding was indeed in place around the second floor. Despite the fact that the inspectors' observations of the second floor were shown to be inaccurate, the Commission nevertheless accepts the observations they made about the lack of safety belts on the fourth floor as accurate. They have done this despite the fact that employee Nooney, who complainant alternatively contended and denied was the welder observed by the inspectors, n11 testified that he had a safety belt with him on the afternoon of the inspection, that he used it whenever [*22] he went outside of the building to weld, and that it would be foolish to do otherwise.

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n11 When Nooney was called to testify on behalf of respondent, complainant's counsel strenuously objected on the ground that there was no evidence identifying Nooney as the workman who had been observed hanging over the edge of the building. Curiously and without explanation, complainant claimed in his post-trial brief that Nooney was indeed the culprit.

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Similarly, the finding that respondent violated the Act by failure to comply with the requirements of 29 C.F.R. 1926.750(b)(1)(iii) cannot stand because of failure to establish that any employee of the respondent was exposed to a hazard. The Judge found that the absence of wire railing around the periphery of the third floor exposed "at least one" of respondent's employees to the hazard of falling off the third floor. n12 I can find no such evidence in this record.

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n12 This seems inconsistent with his finding in footnote 1 of his decision that:

"While the Exhibits show that men were working near the edge of the third floor there is no evidence that these men were employees of the Respondent."

[*23]

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The record in this case is insufficient to establish either that employees of the respondent were working on the third floor or, if they were there, that the work being performed exposed them to the hazard of falling off the periphery of the floor. No employees of the respondent were identified on the third floor during the inspection. This deficiency in the proof is not remedied by the photographs which were submitted in evidence by the complainant because respondent's superintendent was unable to identify any of the workers appearing in the pictures. At least one other subcontractor had employees at the job site at the time of the inspection. Since the third floor was in the process of being decked at the time of the inspection and another contractor at the site was a decking contractor, the workers on the third floor may very well have been employees of the decking contractor.

The only evidence which tends to show that employees of the respondent may have been on the third floor were statements of respondent's superintendent that he had men working all over the job and that some of his employees [*24] may therefore have been working on the third floor. He testified that what was being done by his workman at the time was putting "additional cables right through to the fourth floor." He testified further that his employees had finished work on the third floor and had moved up to the floor above. n13 An inspector testified that he did not know what employees of the respondent might have been doing on the third floor. Since the process involved in putting up cables to the fourth floor is not explained in the record, it is not possible to conclude that this work exposed employees of the respondent to the danger of falling off the edge of the third floor.

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n13 The standard allegedly violated requires wire railings only after temporary planks or temporary metal-decked floors are installed. The record does not reveal that employees of respondent were on the third floor after these floors had been installed and, thus, does not reveal if respondent's employees had been on the third floor when this requirement was applicable.

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"We would expect the proofs to show that employees either while in the course of their assigned working duties, their personal comfort activities while on the job, or their normal means of ingress-egress to their assigned workplaces, will be, are, or have been in the zone of danger."

I differed with this view since I believe, for the reasons given in my dissent in that case, that exposure should only be found when direct or circumstantial evidence shows actual employee exposure to a hazard.

It is clear to me, however, that on the facts of this case, employee exposure has not been shown under the exposure rule formulated by the majority. There has been no showing that the assigned work duties of respondent's employees on the third floor would expose them to the danger of falling off the third floor simply because there is no evidence of the nature of the assigned duties [*26] of respondent's employees who might have been on the third floor. Similarly, there is no evidence that any of the order activities enumerated above would have taken respondent's employees into the zone of danger.

Finally, it should be noted that responsibility for erecting safety railings around the metal-decked floors, which were the odd-numbered floors, was expressly assigned by the general contractor to the decking contractor. Respondent had responsibility for railings on the even-numbered floors and had discharged that obligation on the second floor, the only even-numbered floor that required a railing at the time of the inspection. n14 In Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975), the court held that subcontractors should not be held responsible for nonserious violations that they did not create and were not responsible for, even if the subcontractor's employees were exposed to these violations. Although, as the majority opinion notes, Anning-Johnson is in some respects factually distinguishable from this case, the distinguishing factors are insignificant. As the court so wisely stated:

"We fail to see how requiring several different employers [*27] to [correct the same condition] fulfills the purposes of the Act any more effectively than requiring only one employer to do so. The Secretary's position is premised on the theory that the more people responsible for correcting any violation, the more likely it will get done. This is, of course, not necessarily true. Placing responsibility in more than one place is at least as likely to cause confusion and disruption in normal working relationships on a construction site. Such a policy might in effect prove to be counterproductive."

Anning-Johnson Company v. OASHRC, supra at 1089. This rationale is applicable in the instant case, and the Commission errs in not applying it.

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n14 See the discussion in Judge Chodes' decision which is attached hereto as Appendix A.

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The majority's decision also errs by standing on its head the burden-of-proof rule which has been uniformly followed in cases under this Act; to wit, that the Secretary must affirmatively prove employer knowledge of the offense. Messrs. Barnako [*28] and Cleary, however, ignore the law and state:

"Where the existence of a violative condition has been shown, the employer, may, however, affirmatively defend by showing that the employee's behavior was a deviation of which the employer had neither actual nor constructive knowledge, from a uniformly and effectively enforced work rule."

This is exactly the position that the Secretary of Labor has taken and which the courts have rejected. Obviously, this demonstrates that when the courts overrule the Secretary, the Secretary's friends on this Commission refuse to budge.

In Brennan v. OSAHRC and Raymond Hendrix d/b/a Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1975), the following appears:

"The Secretary insists that he need not prove the existence of that element [employer knowledge] and that the respondent must prove its absence . . . . We disagree."

and the court continues:

"In effect the Secretary argues that only the unsafe conditions must be proved. To so hold would frustrate the intent of Congress in amending the original House bill to insert the element of employer knowledge." [emphasis by the court.]

The rejection of the court's ruling in this case and the [*29] espousal of the Secretary's discredited theory represents a flip-flop for Chairman Barnako. Only five months ago, he joined in a Commission decision which stated:

"We agree with the conclusion reached in Brennan v. OSAHRC and Raymond Hendrix d/b/a Alsea Lumber Company, 511 F.2d 1139, 1145 (9th Cir. 1975) . . ." Secretary v. Engineers Construction, Inc., 20 OSAHRC 348 (1975).

His reversal of position, however is reminiscent of the passenger who changed his mind at the last minute by deciding not to cancel his reservation for the Titanic's last voyage - for the Secretary's theory continues to be rejected by the courts.

In Horne Plumbing v. OSAHRC,    F.2d   , (5th Cir., No. 74-3897, decided February 26, 1976), the Court of Appeals for the Fifth Circuit also held that the Secretary must affirmatively establish employer knowledge in order to prove a violation. This decision quoted extensively from Hendrix and stated:

"We adopt the reasoning of the Ninth Circuit . . . ."

APPENDIX A

STATEMENT OF THE CASE

Nicholas J. Laezza, for the Secretary of Labor

Paul Weiss of Maspeth, for the respondent

Joseph Chodes, Judge, OSAHRC

This is a proceeding pursuant to [*30] Section 10 of the Occupational Safety and Health Act of 1970 (29 USC et seq., hereafter called the Act), in which the Respondent is contesting a Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of the Act. The Citation states that as a result of an inspection of a workplace under the ownership, operation or control of the Respondent, located at the corner of Main Street and Pearl Street, Hartford, Connecticut, the Respondent is alleged to have 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 Citation, which was issued on February 15, 1973, alleges that the violation resulted from a failure to comply with certain of the standards promulgated by the Secretary by publication in the Federal Register and codified in 29 CFR Part 1926. The standards prescribed by Part 1926 were adopted as standards under the Occupational Safety and Health Act at 29 CFR 1910.12.

Specifically, the Respondent was charged with serious violation of the standard set forth at 29 CFR 1926.28(a) which provides: [*31]

"Personal protective equipment. (a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees."

and with the nonserious violation of 29 CFR 1926.750(b)(iii) which provides, under the heading "Flooring requirements", as follows:

"(iii) Floor peripherey -- safety railing. A safety railing of 1/2-inch wire rope or equal shall be installed, approximately 42 inches high, around the periphery of all temporary-planked or temporary metal-decked floors of tier buildings and other multifloored structures during structural steel assembly."

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated February 15, 1973, from Harold R. Smith, Area Director of the Hartford Connecticut area, Occupational Safety and Health Administration, U.S. Department of Labor, of a proposed penalty for the alleged serious violation in the amount of $750 and for the alleged nonserious violation in the amount of $280, for a total penalty [*32] of $1030.

After Respondent contested this enforcement action, and a Complaint and Answer had been filed by the parties, the case came on for hearing at Hartford, Connecticut on August 6, 1973.

STIPULATIONS

At the hearing the parties herein agreed to the following stipulations which were reduced to writing and admitted in evidence as Joint Exhibit -1.

1. Respondent, A.J. McNulty and Company, Inc., is, and at all times hereinafter mentioned was a New York corporation with a principal office located at 53-20 44th Street, Maspeth, New York, and is engaged in the business of steel construction (structural steel erectors).

2. Pursuant to such business and activity, respondent employs approximately twenty-eight (28) employees who regularly receive, handle and/or work with goods which have been moved across state lines in interstate commerce.

3. The respondent was and is engaged in a business affecting commerce within the meaning of section 3(5) of the Act.

4. The respondent on February 7, 1973, was engaged in the steel construction of a multi-floored structure at a worksite located at the corner of Main Street and Pearl Street, Hartford, Connecticut.

5. The respondent employed [*33] twenty-eight (28) employees on February 7, 1973, at the worksite located at the corner of Main Street and Pearl Street, Hartford, Connecticut.

6. The respondent was sometimes known as McNulty Steel Erecting Co. at the worksite located at the corner of Main Street and Pearl Street, Hartford, Connecticut.

7. The respondent employed on February 7, 1973, Alexander J. Delaney as superintendent at the worksite located at the corner of Main Street and Pearl Street, Hartford, Connecticut.

8. As a result of an inspection at the worksite located at the corner of Main Street and Pearl Street, Hartford, Connecticut by an authorized representative of complainant, respondent was issued and received two (2) citations; citation for serious violation alleging violation of the standard 29 CFR 1926.28(a) and citation for nonserious violation, alleging violation of the standard 29 CFR 1926.750(b)(iii).

9. As a result of an inspection at the worksite Located at the corner of Main Street and Pearl Street, Hartford, Connecticut by an authorized representative of complainant, respondent was notified of and received Notice of Proposed Penalties, $750 serious violation, and $280 nonserious violation. [*34]

AMENDMENT OF COMPLAINT

The parties in the Stipulation marked Joint Exhibit -1, agreed to the amendment of the opening statement of the Complaint to delete reference to any violation of Section 5(a)(1) of the Act. The Complaint is amended accordingly.

SUMMARY OF EVIDENCE

On February 7, 1973, Sindo E. Cavalieri and Richard Koletsky, Compliance Officers of the Complainant, inspected the workplace revolved in this case which was a steel structure four stories high with temporary planked flooring. Three of the Respondent's employees were working at the edge of the fourth floor about 40 to 50 feet high. One of the employees was hanging or leaning over the edge and straddling a support at the very edge doing some "cutting" or welding with a torch. Two other employees were standing very close to the edge directly behind the employee with the torch. The Compliance Officer didn't know what the two employees were doing. Although personal protective equipment was supplied by the Respondent, none of the employees had no safety belts, lifelines or lanyards and there were no safety nets. Mr. Alexander J. Delaney, the superintendent on the job, knew that the employees were working [*35] on the fourth floor (T-12, 13, 14, 18, 19, 21, 28, 29, 62, 63, Exhibits 2, 3 and 5).

David Nooney, one of Respondent's welders, testified (T-193) that on the day of inspection he was welding clips lying prone on the planked floor. Paul Trahan, an officer of Ironworkers Local Union 15, and an ironworker and welder with 25 to 30 years experience, was of the opinion that a welder could straddle the beam as shown in Exhibits C-1, C-3 and C-5, for two or two and a half hours without falling off (T-158). However, it is not established that Mr. Noonan is the employee that the Compliance Officers observed "hanging or leaning" over the edge of the fourth floor.

Mr. Cavalieri was of the opinion that the employees working at the edge of the fourth floor were in a hazardous situation and there was a substantial possibility that if a fall occurred it would result in either death or serious injury. He considered that the violation was serious and proposed an unadjusted penalty of $1,000. The Respondent was allowed a 20% deduction for history of previous violations inasmuch as this was the first inspection of the Respondent's worksite. A 5% deduction was made for the size of Respondent's [*36] business in accordance with the rules of the Occupational Safety and Health Administration for a business with 26 employees. Respondent was allowed no deduction for good faith because Mr. Maloney did not instruct the employees to use safety belts even after the matter was brought to his attention by Mr. Cavalieri (T-19, 20, 23-25).

There were other workmam, including employees of the Respondent (the exact number not established) working on temporary planking on the second and third floors of the structure. None of the Respondent's employees were seening be near the edge of these floors n1 but to perform their work they had to move all around to land steel, take off chokers, make the steel safe and put in cables from the ground up. The Citation alleges that the second and third floors were without peripheral safety railings but the evidence sufficiently established that there was a 42 inch high 1/2 inch wire rope around the periphery of the second floor as shown on Exhibits C-1, C-3 and C-5. No peripheral guarding was provided on the third floor presumably because another firm doing ironwork had the responsibility for guarding that floor (T-15, 27, 29, 159, 161, 180-182, 186, 203). [*37]

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n1 While the Exhibits show that men were working near the edge of the third floor there is no evidence that the men were employees of the Respondent.

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Mr. Cavalieri considered that it was hazardous for employees to work on these floors because of the possibility that they could fall off. This was considered a nonserious violation because none of the employees were on the edge of the floors and the distance to the ground was only about 30 feet. An unadjusted penalty of $750 was proposed which was adjusted by allowing 25% deduction for the same factors considered in connection with the serious violation, resulting in a proposed penalty of $652.50. An additional deduction of 50% was allowed for the expected abatement of the alleged violation, resulting in a final proposed penalty of $280 (rounded out) (T-25, 27, 28, 63, Exhibits C-1 through C-6).

There is evidence that prior to the date of inspection the Respondent was informed by the Safety Engineer of the prime contractor, the Gilbane Building Company, of the need [*38] for a wire rope safety railing around the periphery of temporary planked floors and of the requirement that ironworkers doing welding or burning be tied off with safety belts and lanyards at all times (T-136-140, 143, Exhibits C-7, 8 and 9).

Harold R. Smith, Area Director for the Occupational Safety and Health Administration U.S. Department of Labor, participated with Mr. Cavalieri in determining thje seriousness of the violations and the penalties proposed and it was on his authority that the citations were issued and the proposed penalties assessed (T-100-102).

DISCUSSION

The evidence establishes that Respondent's employees were engaged in welding at the edge of the fourth floor of the workplace involved in this case. The Compliance Officers saw one employee "hanging or leaning" over the edge to perform his work. Mr. Noonan, Respondent's employee, testified he was welding from a prone position. In either event the work was hazardous and the use of safety equipment, such as safety belts, lanyards and lifelines was indicated to reduce the hazard to the employees. Although Respondent supplied its employees with safety equipment they were not using the equipment when the [*39] inspection was made and this was known to the Respondent through Mr. Delaney, its superintendent at the worksite. As accidental fall from the fourth floor would undoubtedly result in serious physical harm or death. Accordingly, in the opinion of the undersigned a serious violation of 29 CFR 1926.28(a) is established.

With respect to the penalties, Section 17(j) of the Act provides that due consideration shall be given "to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations". Insofar as gravity is concerned, the evidence shows that at least three employees (the welder who was leaning over the edge and the two employees directly behind him) were exposed to the hazard of falling off the fourth floor so that an unadjusted penalty of $1,000 as proposed by the Complainant is considered appropriate. The considerations given to the factors of size, good faith and history as testified to by the Compliance Officer are considered to be appropriate except as they relate to the factor of good faith for which the Respondent was given no reduction because the violation was not abated immediately. [*40] Another factor mitigating against the Respondent is the notice it received from the prime contractor of violation of the safety standards involved in this case. However the Respondent did supply its employees with safety belts and even though they were not used, it is an indication that Respondent was concerned with safety. An allowance of 10% for good faith is considered to be appropriate, resulting in an assessment of a penalty of $650 for violation of 29 CFR 1926.28(a).

The proof with respect to the violation of 29 CFR 1926.750(b)(iii) is not exactly as one would wish. While the Citation alleges that there were no safety railings on the second and third floors, the Respondent has established that a wire railing was present on the second floor. Moreover, the number of Respondent's employees on the floors is not established, except that "some" of the employees on the pertinent floors were employees of the Respondent. However, the evidence did establish that there was no safety railing on the third floor, "some" of Respondent's employees were working on that floor, and, while Respondent's employee was not seen near the edge of the floor by the Compliance Officer, the employees [*41] on the third floor moved all around the floors to perform their work and consequently were exposed to the hazard of falling off the roof. A violation of the standard has been established notwithstanding the Respondent's contention that it did not have the responsibility for erecting the railings. Under the Act, each employer is responsible for providing its employees with a safe and healthful place of employment and the employer cannot avoid compliance even though the contracted responsibility for providing the protection is assumed by others.

In view of the circumstances present, the Complainant's assessment of a proposed penalty of $280 is considered to be excessive under the criteria set forth above. The gravity of the violation is diminished when it is considered and none of the Respondent's employees were observed near the edge of the floor so that the degree of probability of an injury occurring in low. Additionally, the number of employees affected by the violation definitely established is only one, even though it is quite possible [*42] that more that one of Respondent's employees were on the third floor. In the opinion of the undersigned a penalty of $100 is appropriate giving due consideration to all factors referred to in Section 17(j) of the Act.

Respondent argues that 29 CFR 1926.28(a) is unenforceable as a standard because it is impermissibly vague as a matter of law and does not give the employer clear and adequate notice of the standard sought to be enforced.

". . . personal protective equipment for . . . extremeties . . . shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment . . . [*43] encountered in a manner capable of causing injury or impairment in the function of any part of the body through . . . physical contact."

The Respondent was charged with permitting its employees to perform "foot hazardous tasks" without wearing foot (toe) protection. The majority opinion of the Commission sustained the vacating of this item of the citation on the ground that the Secretary had failed to prove that "hazards of processes or environment" in the workplace of such a nature as to necessitate the use of toe protection. However, Chairman Moran, in a concurring opinion, was emphatically of the opinion that the terminology of the standard, to wit "personal protective equipment for . . . extremities" was so broad as to be meaningless. The conclusion to be drawn from this case is that a majority of the Commission does not view language in a standard that requires "personal protective equipment" to protect against hazardous conditions as unenforceable.

While the question [*44] of whether the standard was so vague as to be unenforceable was not discussed, Judge Cronin's decision became the final order of the Commission on July 20, 1973.

The weight of authority appears to be that 29 CFR 1926.28(a) is not so general or vague as to be unenforceable if the facts establish a situation where protective equipment is necessary to avoid exposure to hazardous conditions.

The Respondent also raised the question whether it was afforded an opportunity to accompany the Compliance Officer during his inspection in compliance with Section 8(e) of the Act which provides:

"Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) for the purpose or aiding such inspection."

held that "the failure . . . to afford an employer representative the opportunity to accompany the Compliance Officer is nonprejudicial and will not serve as a basis for vacating the Citation."

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 basis of the record as a whole, substantial evidence supports the following findings of fact:

1. Paragraph 1 through 9 of the Stipulations are incorporated herein as findings of fact.

2. On February 15, 1973, the Complainant issued to the Respondent a Citation for serious violation of the standards set forth at 29 CFR 1926.28(a), for failure to require the wearing of appropriate personal protective equipment on the fourth floor of the workplace referred to in paragraph (4) of the Stipulations and for a nonserious violation of i9 CFR 1926.750(b)(iii) for failure to provide safety railings around the periphery of the second and third floors of the workplace.

3. On February 15, 1973, the Respondent was notified by the Complainant of a proposed penalty of $750 for [*46] the serious violation and a proposed penalty of $280 for the nonserious violation.

4. On February 23, 1973, the Respondent filed with the Complainant a notice of its intention to contest the Citation and proposed penalties referred to in paragraphs (2) and (3) above.

5. On February 7, 1973, three of the Respondent's employees were near the edge of the fourth floor at the workplace referred to in paragraph (2) above. One of the employees was at the edge welding with a torch and the other two employees were standing directly behind him.

6. The employees referred to in paragraph (5) above were working without personal protective equipment.

7. The work the three employees referred to in paragraph (5) above were doing exposed them to hazardous conditions, that of falling to the ground a distance of about 40 to 50 feet, requiring personal protective equipment, such as safety belts, to reduce the hazards to the employees.

8. The Respondent knew, or with the exercise of reasonable diligence could have known, of the presence of the facts recited in paragraphs (5), (6) and (7) above, which constituted a serious violation of 29 CFR 1926.28(a).

9. Giving due consideration to the [*47] size of the Respondent's business, the gravity of the violation, the good faith of the Respondent and the history of previous violations the appropriate penalty for serious violation of 29 CFR 1926.28(a) is $650.

10. On February 7, 1973, at least one of the Respondent's employees was working on the third floor of the workplace referred to in paragraph (2) above, about 30 feet above the ground.

11. The third floor of the workplace had temporary planking and was without peripheral safety railing.

12. The employee of the Respondent referred to in paragraph (10) above was exposed to the hazard of falling off the third floor to the ground a distance of about 30 feet.

13. Giving due consideration to the size of the Respondent's business, the gravity of the violation, the good faith of the Respondent and the history of previous violations, the appropriate penalty for serious violation of 29 CFR 1926.750(b)(iii) is $100.

CONCLUSIONS OF LAW

1. The Respondent at all times material hereto were engaged in business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2. The Respondent at all times material hereto were subject [*48] to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder, and the Commission has jurisdiction of the parties and of the subject matter herein.

3. Respondent violated the Occupational Safety and Health standard set forth at 29 CFR 1926.28(a) and is assessed a penalty of $650.

4. Respondent violated the Occupational Safety and Health standard set forth at 29 CFR 1926.750(b)(iii) and is assessed a penalty of $100.

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 February 15, 1973, for serious violation of 29 CFR 1926.28(a) is affirmed and the penalty proposed by the Complainant is modified and a penalty of $650 is assessed.

2. The Citation issued on February 15, 1973, for nonserious violation of 29 CFR 1926.750(b)(iii) is affirmed and the penalty proposed by the Complainant is modified and a penalty of $100 is assessed.

JOSEPH CHODES, JUDGE, OSAHRC

Date: June 7, 1973