W.C. SIVERS COMPANY

OSHRC Docket No. 239

Occupational Safety and Health Review Commission

May 14, 1974

  [*1]  

Before VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

  VAN NAMEE, COMMISSIONER: This matter is before the Commission upon my order directing review of a decision issued by Judge Robert N. Burchmore.   Judge Burchmore affirmed Complainant's citation alleging that Respondent committed a non-serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") by violating a regulation published at 29 C.F.R. 1926.500(b)(8). n1 The Judge assessed no penalty for the violation.

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n1 The cited standard provides:

Floor holes, into which persons can accidentally walk, shall be 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. While the cover not in place, the floor hole shall be protected by a standard railing.

A floor hole is defined in 29 C.F.R. 1926.502(a) as:

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 belt hold, pipe opening, or slot opening.

  [*2]  

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This is the second time this case has been on review.   See BNA 1 O.S.H.R. 1074 (1972).   Originally, Judge Burchmore rendered decision on the pleadings and concluded that Respondent by its answer had admitted its violation of the cited standard.   Respondent's pleading indicated that its so called unguarded floor holes were pipe sleeves having diameters of four to   twelve inches.   The pleading also indicated that Respondent was installing pipes in the sleeves at the time of inspection.

On our initial review we held that an admission that the pipe sleeves had diameters of the indicated size does not establish a violation of the cited standard.   We pointed out that the standard requires guards or covers for floor holes that are of such size that employees could accidentally walk into the holes. For pleading purposes, we said it is enough if the contesting employer denies the existence of such holes in the workplace.   Moreover, the answer filed in the case indicated that Respondent, appearing pro se, may have been raising impossibility of compliance as a defense.   Accordingly, we reversed and [*3]   remanded for further proceedings.

On remand, Judge Burchmore called the parties in and held an informal conference.   We have no record of what took place at the conference.   The parties did not file a stipulation with the Judge, and the proceedings were not transcribed.

We are told by Judge Burchmore's decision after remand that Respondent (1) did not intend to assert impossibility of compliance as a defense, (2) maintained its original position that employees could not accidentally walk into the pipe sleeves, and (3) conceded that a person could accidentally step into a 12 inch hole with one foot.   We are then told it would be "folly" to let the decision turn on an "argument as to whether a hole into which one can accidentally 'step' is a hole into which one could, in the words of the regulation, 'walk'." He affirmed the citation on Respondent's concession.

We need express no opinion regarding the correctness of the Judge's interpretation of the standard.   A more fundamental question is before us.   The question   is whether we should affirm or vacate the citation in the absence of anything of record concerning Respondent's supposed concession other than the Judge's [*4]   memory of the conference as expressed in his decision.   The problem is this, Respondent might be of a different mind concerning what it conceded and appeal an affirmance of the citation.   On the other hand, were we to accept the fact of concession but interpret the standard as not having been violated the fact would not appear on the record should Complainant appeal.

After review was ordered for a second time we asked the parties to stipulate the facts.   Complainant replied with a brief wherein he states that the facts are stipulated.   Respondent did not endorse Complainant's brief, and as indicated infra there is no stipulation of record.   Respondent did not reply to our request.

In view of Respondent's failure to reply and for the reason that we do not seriously doubt the Judge's understanding of the conference we assume Respondent does not seriously contest the citation.   Our assumption may be wrong.   Accordingly, we will affirm the citation, however, we will delay the effective date of our affirmance so that Respondent might have an opportunity to object to such affirmance.

In order that Respondent be fully apprised in the circumstances we would point out that an affirmance [*5]   of the citation means that it will have a prior history under the Act.   Such history could form the basis for a future citation under section 17(a) and be useable for penaity purposes in the future under section 17(j).

Accordingly, the decision of the Judge to affirm the citation and assess no penalty is affirmed unless Respondent objects thereto within 15 days of receipt of this decision and requests a hearing in writing, and it is so ORDERED.

  [The Judge's decision referred to herein follows]

BURCHMORE, Judge OSAHRC: By Decision and Order dated November 9, 1972, the Commission set aside the initial decision of the undersigned judge herein and remanded the case for further proceedings consistent with the Commission's decision.

The case involves a single, non-serious violation which the Secretary alleges under the regulation contained in 29 C.F.R. 1926.500(b)(8).   It is therein provided:

Floor holes, into which persons can accidentally walk, shall be 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. While the cover is not in place,   [*6]   the floor hole shall be protected by a standard railing.

The pleadings revealed no genuine dispute as to any material fact, it being admitted by respondent that it had been engaged in constructing a building, that there was a series of holes in the floor (pipe sleeves) ranging in size from four to twelve inches in an area where employees might accidentally walk, that while covers were provided for the holes they had been removed by workmen who were below the floor installing pipe through the holes and the holes were not guarded by any railing, and that some 82 employees were affected.   The sole defense pleaded by the employer was its opinion that it was not reasonable to barricade the holes and that the risk of injury was minimal.   The initial decision was made on the pleadings; it was that the defense offered was insufficient in law.   The order therefor affirmed the citation and the proposed penalty of $5.

The decision of the Commission points to the fact that men were installing pipe from below the involved holes and concludes that respondent may have   intended to raise impossibility of compliance as an affirmative defense. The Commission also pointed out that the regulation [*7]   only requires employers to guard floor holes which are of such size that employees could accidentally walk into them; it noted respondent's statement that the only holes were pipe sleeves measuring four to twelve inches in size and held that this constituted a denial of the existence of unguarded holes of the type which the regulation requires guarding.

Further proceedings have been conducted consisting of a conference of the parties to clarify respondent's position.   Respondent stated therein that it does not raise or rely upon the suggested defense of impossibility of compliance.   While the holes were uncovered to permit the workmen to insert pipe from below, respondent concedes that it would have been entirely possible to guard the holes with a standard railing as called for by the regulation. Respondent's true position and sole defense is the other matter noted in the Commission's decision, which was stated by the respondent in its submission on review:

We contend that the holes cited were not of a big enough size that a person could walk into them.   It is conceivable that a person could trip over the holes, but this is not considered an unsafe condition as shown in other parts [*8]   of the code.   As an example, curbs are permitted that workmen could trip over; edges of platforms or concrete floors are not required to be barricaded if less than 4 feet high; even holes or depressions such as were cited are permissible under the examiners interpretation if they did not go entirely through the floor.

In conference, respondent conceded that a person could accidentally step into a twelve inch hole, although of course one could not walk into it with both feet and the regulation specifies holes into which persons can accidentally "walk."

Upon the undisputed facts this is plainly a close case   in that the existence of the smaller holes probably did not constitute a real hazard or violation.   But it is common knowledge and respondent readily concedes that a person could accidentally step into a hole one foot in diameter; and such a hole was left unguarded in this case in an area where employees could walk. In my opinion, it would be folly to let the decision herein turn upon a technical argument as to whether a hole into which one can accidentally "step" is a hole into which one could, in the words of the regulation, "walk." The only purpose of the regulation [*9]   is to prevent accidental injury, and it requires no expert testimony to learn what common experience teaches, namely, that stepping into a one foot hole can very possibly cause painful and even disabling injury.   At the same time, the likelihood of stepping into a one foot hole is less than it would be if the hole were larger.   The Secretary demonstrated by his proposal of a $5 penalty that he regarded the violation as being of very slight gravity, and in my opinion he was right in that view.   Moreover, this Commission has frequently questioned the efficacy of such small penalties for violations of minor gravity; the important thing is to secure compliance with the law and the proposed penalty is not, in the Commission's view, appropriate to that end.   Accordingly, it should be vacated, while at the same time the citation should be affirmed in substance.

Premises considered, and in compliance with the Decision and Order herein, IT IS ORDERED that the citation be and the same is hereby affirmed, that the proposed penalty be and the same is hereby vacated and that this proceeding be and the same is hereby discontinued.

November 9, 1974

Before MORAN, Chairman, VAN NAMEE and BURCH, Commissioners [*10]  

  ORDER OF REMAND

VAN NAMEE, COMMISSIONER: This matter is before the Commission upon my order directing review of a decision and order rendered by Judge Robert N. Burchmore.   In accordance with his decision, Judge Burchmore ordered affirmance of a citation for nonserious violation and of a penalty proposed therefor, and he ordered discontinuance of the proceedings prior to hearing.   For the reasons given hereinafter we reverse and remand.

On November 10, 1971 the Secretary of Labor (hereinafter "the Secretary") issued a citation to Respondent in which he alleged, inter alia, that Respondent was in non-serious violation of the requirements of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., hereinafter "the Act") in that Respondent had not complied with the safety standard prescribed by 29 C.F.R. 1518.500(b)(8) (subsequently redesignated as 29 C.F.R. 1926.500(b)(8)).   The alleged violation is described as follows:

No covers over floor holes that are secured against accidental displacement.

Respondent thereafter timely filed its notice of contest. Respondent protested the allegation of a violation, saying:

The openings listed as uncovered [*11]   range in size from 4 inches to 12 inches in diameter and were being worked on by plumbers and sheet metal workers.

Subsequently, the Secretary filed his complaint.   He therein, and without explanation, enlarged upon the allegation of a violation by saying that Respondent had failed to   . . . otherwise guard or protect floor holes in areas into which persons including employees may accidentally walk. . .

No answer was filed, and on February 14, 1972, the Commission received the Secretary's motion to dismiss the notice of contest and affirm the citation and proposed penalty. On the same day, Judge Burchmore issued an order to Respondent advising it of its failure to answer and giving it additional time within which to comply with our rules.

Respondent, appearing pro se, thereafter timely filed its answer.   The allegations made in the notice of contest are asserted by the answer.   In addition, Respondent therein describes the 4 to 12 inch holes as pipe sleeves in which men were in the process of installing pipes.

Judge Burchmore construed the answer as an admission of the facts alleged in the complaint.   He therefore concluded that Respondent had clearly admitted that [*12]   it was in violation of the standard and of the Act.   In reaching his conclusions Judge Burchmore noted that Respondent had not denied that the holes were unguarded and had not denied that they were in areas where persons could accidentally walk. Judge Burchmore, therefore, accepted the Secretary's interpretation of the safety standard as expressed in the Secretary's complaint.   That interpretation misconstrues the scope of application of the standard.

The standard is as follows:

Floor holes, into which persons can accidentally walk, shall be 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. While the cover is not in place the floor hole shall be protected by a standard railing (Emphasis added).

By its plain terms this safety standard is limited in application.   It only requires employers to guard floor   holes of such size that employees could accidentally walk into such holes.

Consequently, an employer charged with a violation of this standard need not deny the existence of unguarded floor holes per se in his place of employment.   [*13]   For pleading purposes, it is enough if the employer denies the existence of unguarde floor holes which are of the type that require guarding under the standard.

Respondent, by alleging that the only unguarded floor holes in its place of employment comprised pipe sleeves having diameters of 4 to 12 inches, has made a sufficient denial in this case.   It remains for the Secretary to prove that these holes are of the type which require guarding under the standard.

In addition, Respondent alleged that men were in the process of installing pipe in the sleeves at the time of the inspection.   It may well be that Respondent, by this allegation, intended to raise (albeit inartfully) impossibility of compliance as an affirmative defense. We would give Respondent the opportunity to present the defense without venturing any opinion at this time concerning the question of the completeness of the defense, if established, under the Act.

Accordingly, it is ORDERED that (1) the Judge's decision and order be and the same is hereby set aside, and (2) the case is remanded for further proceedings consistent with this decision.  

DISSENTBY: BURCH

DISSENT:

  BURCH, Commissioner, dissenting: I dissent to the order [*14]   of remand in this case.   I do agree, however, with the opinion of the other Commissioners that the decision of the Judge must be set aside, as the Judge was in error in holding that mere non-compliance with a standard is sufficient to establish a non-serious violation of the Act.   I submit that this establishes only a   prima facie violation to which an employer may have affirmative defenses.

In this case, respondent, by letter contesting item 2 of the citation, asserted that the floor holes were uncovered because its employees were in the process of installing ductwork through them.   I do not agree that, "It may well be that Respondent, by this allegation, intended to raise (albeit inartfully) impossibility of compliance as an affirmative defense." There is no question in my mind but that respondent did raise impossibility of compliance as an affirmative defense, and there is some question as to whether the standard was intended to be applied in all circumstances.   My fellow Commissioners would remand for purposes of taking testimony necessary to establish or refute this defense.   In view of the passage of time since the citation was issued, I do not conceive [*15]   that either due process or the purposes of the Act will be well served by remand at this late date.

This case was decided by the Judge on February 28, 1972, and directed for Commission review on March 7, 1972.   An inordinate length of time has elapsed, and it may reasonably be assumed that conditions at the site of the alleged violation no longer exist and that the employees involved are scattered to other jobs, rendering doubtful the adducement of evidence to either support or controvert respondent's defense.   The citation was issued for three other-than-serious violations and penalties of $5 were proposed for each violation.   Only item 2 thereof was contested.   Considering the above facts, I question whether the purposes of the Act will be served by remand.   I would set aside the decision of the Judge and vacate the citation and the penalty proposed.

[The Judge's decision referred to herein follows]

  BURCHMORE, Judge, OSAHRC: By motion dated February 11, 1972, the Secretary of Labor seeks dismissal of the notice of contest on the grounds, among others, that the respondent employer has failed to answer the complaint.   Respondent is not represented by an attorney and the [*16]   examiner allowed it extended time to submit an answer.   The answer was made in letter form.   For the reasons stated below, the answer does not set forth a defense and the motion must therefor be allowed.

The violation alleged in the citation and complaint was a failure to comply with section 500(b)(8) of the Safety and Health Regulations for Construction (29 C.F.R. 1518.500(b)(8); see 29 C.F.R. 1910.12(b)).   The regulation provides:

Floor holes, into which persons can accidentally walk, shall be 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. While the cover is not in place, the floor hole shall be protected by a standard railing.

The complaint avers that the employer was engaged in constructing a building, that it failed to cover or otherwise guard floor holes in areas where employees might accidentally walk, that some 82 employees were affected by the violation and that the violation was not of a serious nature within the meaning of section 17(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq ).   A penalty [*17]   of $5 was proposed.

The employer's answer (as amplified by an earlier letter which it sent to the Commission) states simply that the only holes in the floor were a series of pipe sleeves ranging in size from four to six inches, that covers were provided but that they were removed by workmen who were below the floor installing pipe through the holes, and that the employer feels that it   is not reasonable to barricade the holes and that the risk of injury was minimized.

Even if the answer is accepted as true in fact, as it is, it must be noted that it does not deny that the open holes were unguarded or that they were in areas where persons could accidentally walk. Accordingly, the answer plainly constitutes an admission of the facts alleged in the complaint [Rules 2(a) and 7(e) of the Commission's rules of procedure (29 C.F.R. 2200.3(a) and 7(e); See Rule 8(d) of the Rules of Civil Procedure for the District Courts of the United States].   The facts so admitted clearly amount to a violation of the quoted regulation and hence of section 5(a) of the Act.   The opinion of the employer that it is not reasonable to barricade the uncovered holes while men are working below does   [*18]   not constitute a sufficient defense under the law because the regulation expressly requires that such holes be guarded. The answer is therefor legally insufficient.   Under the circumstances, the motion by the Secretary is treated as a motion for a decision on the pleadings and, as such, it is granted (Rule 12(c) of the Rules of Civil Procedure).

It is ORDERED that the citation and proposed penalty be and the same are hereby affirmed and that this proceeding be and the same is hereby discontinued.