UNDERHILL CONSTRUCTION CORP., individually, and DIC CONCRETE CORP., individually and trading as DIC-UNDERHILL, A JOINT VENTURE

OSHRC Docket No. 2516

Occupational Safety and Health Review Commission

April 19, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

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

William J. Pastore, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On February 13, 1974 Administrative Law Judge Joseph Chodes issued his decision affirming item two of a citation for a non-serious violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. The item alleged a failure to comply with 29 CFR 1926.500(d)(1). Respondent filed a petition for discretionary review, setting forth various objections to the Judge's report. The petition was not granted, but review was directed on his own motion by Commissioner Moran on an issue not raised in the petition:

Whether the evidence adduced in this case establishes that employees were exposed to any hazard as a result of respondent's noncompliance with 29 CFR 1926.500(d)(1).

The accompanying cover letter stated, however, that "submissions need not be limited to" the issues specified in the direction for review. Underhill has not filed a brief on review. It has, however, filed a letter in which it continues to press its view that the effective date provisions [*2] of 29 CFR 1926.1050 exempts it from compliance with the cited standard. The Secretary's brief on review speaks to the exposure issue only. Under these circumstances, we consider Underhill's failure to brief the issues raised in its petition to consititute a waiver of further consideration of all but the 1926.1050 issue and the issue specified in the direction order quoted above.

Respondent was engaged in the construction of a complex of highrise buildings and a garage. The perimeter of the second floor of the garage was not guarded. Fifteen Underhill employees were on this floor; some were working within four feet of the edge and were moving about. We agree with the Judge's finding that these circumstances show actual exposure of the employees to the unguarded perimeter. In any event, access to the hazard of falling was also shown, and that is sufficient. Gilles & Cotting, Inc., No. 504 (February 20, 1976) (on remand). See also Brennan v. O.S.H.R.C. and Underhill Construction Corp., 513 F.2d 1032, 1039 (2d Cir. 1975) (employees need not teeter on edge; access sufficient). The effective date issue is now well settled. Underhill Construction Corp., [*3] 15 OSAHRC 366, BNA 2 OSHC 1556, CCH 1974-75 OSHD para. 19,276 (No. 1307, January 1, 1975), aff'd 526 F.2d 53 (2d Cir. 1975).

Accordingly, the Judge's decision is AFFIRMED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

For the reasons expressed in my dissenting opinion in Secretary v. Underhill Construction Corporation, 15 OSAHRC 366 (1975), I would hold that the construction standards cited in the instant citation were not applicable to the respondent by virtue of the exemption contained in 29 C.F.R. 1926.1050. Accordingly, I would vacate the citation in its entirety.

Since this decision does not cover all matters discussed in Judge Chodes' decision, the same is attached hereto as Appendix A.

APPENDIX A

STATEMENT OF THE CASE

Louis D. DeBernardo, for the Secretary of Labor

William J. Pastore, for the respondent

Joseph Chodes, Judge, OSAHRC

This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act), in which the Respondents are contesting a Citation issued by the Complainant against the Respondents under the authority vested in Complainant by Section 9(a) of the Act. The Citation [*4] states that as the result of the inspection of a workplace under the ownership, operation or control of the Respondents, located at 25th Street and FDR Drive, New York, New York, 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 March 9, 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 Respondents were charged with violations of the following standards:

1. 29 CFR 1926.304(f):

(f) Other requirements. All woodworking tools and machinery shall meet other applicable requirements of American National Standards Institute, 01.1-1961, Safety Code for Woodworking Machinery.

2. 29 CFR 1926.500(d)(1);

(d) Guarding of open-sided floors, platforms, and runways. [*5] (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)(1) 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 toe-board wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hzard.

3. 29 CFR 1926.350(a)(1):

(a) Transporting, moving, and storing compressed gas cylinders. (1) Valve protection caps shall be in place and secured.

4. 29 CFR 1926.350(a)(9):

(9) Compressed gas cylinders shall be secured in an upright position at all times except, if necessary, for short periods of time while cylinders are actually being hosted or carried.

5. 29 CFR 1926.450(a)(10):

(10) Portable ladders in use shall be tied, blocked, or otherwise secured to prevent their being displaced.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondents were notified by letter dated March 9, 1973, from Nicholas DeArchangel, [*6] 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 violations in the amount of $635.

The Respondents did not contest the alleged violations of items (3) and (4) above for which penalties totalling $190 were proposed, and consequently the Citation and the proposed penalties insofar as these items are concerned, became the Final Order of the Commission under the provisions of Section 10(a) of the Act.

The Respondents contested the enforcement action with respect to items 1, 2 and 5, a Complaint and Answer was filed by the parties, and the case came on for hearing at New York, New York on August 16, 1973.

STIPULATIONS

1. The Respondent, Underhill Construction Corp., is a New York corporation with its principal office located in Bayside, New York (T-5).

2. The Respondent, Dic Concrete Corp., is a New York corporation with its principal office located in Elmont, New York (T-6).

3. The Respondents traded as Dic-Underhill, a Joint Venture, with an office in Bayside, New York (T-6).

4. Respondents regularly use cement imported from Norway, nails imported from Japan, cranes [*7] manufactured in Wisconsin, trucks manufactured in Detroit, Michigan, and gasoline produced outside the State of New York (T-6, 7).

5. In the year 1972, the Respondents had a net worth in excess of two million dollars (T-7).

6. During 1973, the Respondents had a daily average of more than a thousand employees (T-7).

7. The Respondents were served with the Citation and Notification of Proposed Penalty which are the subject of this proceeding and the Citation was posted within three days after receipt (T-7).

8. The Respondents entered into a contract with RHR Construction Corporation for the performance of the structural concrete construction work at the workplace that is involved in this proceeding. The contract was entered into prior to April 21, 1972 (T-12).

9. under review by the Commission (T-17).

SUMMARY OF EVIDENCE

The worksite herein is a complex consisting of four hi-rise superstructure reinforced buildings, 35 to 38 floors, plus a garage designated as Building D. On March 5, 1973, an employee of the Respondents, Timothy Topurcer, was working on the ground floor of the garage area at a gasoline operated table saw. The table was made of metal, four by five feet square and high enough for a perston to stand erect and move wood across the table. The saw was circular with blades of about seven and a half inches, with about three inches of the blade exposed above the table. The employee was cross-cutting 2 X 4's and 2 X 6's without a hood over the cutting blade. There was another table saw without a hood in the area which was ready for operation, but it was not in use and consequently, the blade was not raised above the table level (T-22, 25-29, 61). At a closing conference between the Complainant's Compliance Officer and the Respondent's general supervisor, the superintendent stated that there guards for the saws on the premises and that they would be put in place immediately (T-45).

The second floor of the garage area, which [*9] was thirteen to thirteen and a half feet from the ground floor, had no perimeter guarding. The floor was dry poured concrete and about 500 feet long and 200 feet wide. There were about fifteen of Respondents employees, carpenters, concrete workers and laborers working on the floor engaged in the continuation of framing and getting ready to go up to the third floor. There was a crane loading lumber into the area. The employees moved about the floor and were observed as near as four feet from the edge of the floor (T-32, 35, 37, 39).

Along the west side of Building D, in the middle area, there was a portable job-made wooden ladder, about ten feet long, in position leading from the second to the third floor, which was being used by Respondents' employees to go back and forth to do their work The ladder was not blocked at the bottom or tied off at the top. A crane was swinging loads of 4 X 4 pieces of lumber and there was a possibility that the crane could hit the ladder and knock it down while it was being used (T-39, 40, 42).

The Complainant's Compliance Officer recommended an unadjusted penalty of $290 for the failure to have guards or hoods on the saw because of the hazard [*10] of teeth coming off the blade and splinters of wood hitting the operator and the possibility of amputation. Respondents were allowed a deduction of ten percent (against a maximum of twenty percent allowable under the Complainant's guidelines) because, while the Respondents did abate some of the alleged violations, their explanation about the alleged violations were not considered "good", and there seemed to be a lack of cooperation in that Respondents were reluctant to walk around with the Compliance Office No allowance was made for the size of the Respondents' business because there were over 95 employees of the Respondents on the job. No allowance was given for history of previous violations inasmuch as the Respondents had been charged with numerous violations, particularly the standard relating to perimeter guarding, within the past year or two. The unadjusted proposed penalty of $290 after being reduced ten percent to $260 (rounded out) was then again reduced by fifty percent for anticipated abatement of the violation resulting in a proposed penalty of $130 (T-47-51).

With respect to the alleged violation for failure to provide guarding for open sides of the second floor, garage [*11] area, the Compliance Officer recommended a proposed penalty of $570 because the absence of perimeter guarding exposed the Respondents' employees to the hazard of falling off the floor, a distance of about thirteen feet. It was considered a nonserious violation because, if there was a fall, it would be for only thirteen feet. The same ten percent deduction for good faith and fifty percent deduction for expected abatement was allowed as was allowed for the alleged violation involving failure to provide hoods or guards for the table saws. The final proposed penalty was $225 (T-51-53).

A penalty of $155 was proposed for the alleged failure to secure the ladder from the second to the third floors. The hazard involved was that an employee going up the ladder could fall if the ladder moved away from the landing. An additional hazard was the possibility that the top of the ladder could be hit by the crane that was working in the area and knock the ladder down. The unadjusted proposed penalty was reduced to a proposed penalty of $70 after allowances for good faith and expected abatement as discussed above (T-53-55).

DISCUSSION

The basic question whether the Respondents can be [*12] cited for violations of the occupational safety standards set forth in 29 CFR Part 1926 is raised by the Respondents. The argument is that, since its contract for performing the work at the site where the alleged violations took place was entered into prior to April 21, 1971, under the provisions of 29 CFR 1926.1050 the standards are not applicable to the Respondent. Section 29 CFR 1926.1050 provides, in pertinent part that

"the safety and health standards published in Subparts C through U of this part 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."

The question of the applicability of this section to construction contracts generally has been considered in a number of cases cited by the Respondent in its very informative brief. No. 657; and Secretary v. Kessler & Sons Construction Co., Docket No. 306. Another case involving this issue was decided by the undersigned in a decision rendered on July 12, 1973, which involved the Respondents in the instant case (Docket No. 2081). That case involved a Citation against the Respondents for violation of certain standards set forth in 29 CFR Part 1926, and it was held that Section 1926.1510 was not applicable to a contract entered into by the Respondents prior to the pertinent dates set forth in the section, but rather that the applicable effective date was August 27, 1971, as provided in 29 CFR 1910.17(a). Absent a definitive ruling by the Commission, the basis for arriving at the conclusion of law in Docket No. 2081, is adopted in this decision and it is held that after August 27, 1971, the Respondents may be cited for violations of the standards set forth in 29 CFR Part 1926.

In the light of the above ruling, the fact that the Respondents were previously cited for violation of one of the standards involved in the instant case, to wit, 29 CFR 1926.500(d)(1), is no bar to a citation for a violation allegedly occurring at a later date. [*14] Section 10(b) of the Act, cited by Respondent, relates to failure to correct a violation for which a citation has been issued and has no pertinency to the situation presented in the instant case where the citation is for a violation (albeit of the same standard), which occurred at a different time and place.

Respondents make the point that they were engaged in structural concrete construction involving the construction of concrete forms, placing of concrete, and shoring. Therefore it is argued, any violation in the performance of this type of activity must be cited under Subpart Q of Part 1926, headed "Concrete, Concrete Forms and Shoring", and since there is no standard relating to perimeter guarding under this Subpart, the Respondents were not required to erect such guarding. The difficulty with this argument is that because Subpart Q has no standard relating to perimeter guarding, the applicable standard is 29 CFR 1926.500(d)(1) under Subpart M, headed "Floors and Wall Openings and Stairways". The provisions of 29 CFR 1910.5(c) adequately covers the situation by providing in pertinent part, that

". . . any standard shall apply according to its terms to any employement [*15] and place of employment in any industry, even though particular standards are also prescribed for the industry, as in Subpart B, or Subpart R of this part, to the extent that none of such particular standards applies. To illustrate, the general standard regarding noise exposure in Section 1910.95 applies to employments and places of employment in pulp, paper and paperboard mills covered by Section 1910.261."

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n1 Subpart Q, in Section 1926.700(a) refers to concrete construct and masonry work.

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Turning to consideration of the three contested violations, the Respondents assert that the violation of 29 CFR 1926.304(f) cannot be sustained because it is vague and unenforceable. The standard, which is set forth above under "Statement of the Case", requires conformance with applicable [*16] requirements of American National Standards Institute, 01.1-1961, Safety Code for Woodworking Machinery. n2 The Citation and the Complaint did not specify which section of this publication was violated. The publication has 23 pages containing seven sections, each of which is subdivided into subsections. It would appear that the Citation violated Section 9(a) of the Act which provides, in pertinent part, "Each Citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard or rule, regulation, or order alleged to have been violated." However, testimony concerning this violation, the failure to provide hoods or guards for two power table saws was received at the hearing without objection. The relevant section of the publication is 4.1.2(a) which provides, in pertinent part, "Each circular hand-fed rip saw shall be guarded by a hood which shall completely enclose that portion of the saw above the table and that portion of the saw above the material being cut". Section 4.1.3(a) adopts the requirements for hoods of 4.1.2 for circular cross-cut table saws. It is considered too late at this time [*17] to raise the objection of the vagueness of the standard or the Citation See Rule 12(b) of the Rules of Procedure of the U.S. District Court

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n2 The Respondents assert that the publication is out of print and not available. Admittedly the publication is not readily available, but the undersigned had no difficulty in obtaining a copy from the Complainant's area office and presumably the Respondents would have the same accessibility to the publication

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However, in that case, the Respondent tried to obtain a copy of the publication without success and, at the hearing, the Compliance Officer was asked about the wording of the standard involved and was unable to supply the information. As pointed out above, in [*18] the instant case, no effort was made to obtain the pertinent publication and no question concerning any possible defect in the Citation was raised at the hearing.

With regard to the proof of a violation, the evidence is uncontradicted that an employee of the Respondent was using a circular cross-cut table saw without a hood. Another table saw, while not in use, was available and ready to be used. The penalty proposed by the Complaint of $130 is considered not inappropriate under the criteria set forth in Section 17(j) of the Act which provides that in assessing penalties due consideration shall be given to the appropriateness 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.

A violation of 29 CFR 1926.500(d)(1) for failure to guard an oepn-sided floor is established by testimony that Respondents' employees were observed on the open-sided second floor of Building D and, as part of their work, moved to within four feet of the edge. The exact number of employees involved is not established, but the Compliance Officer estimated about 15 and he had the names of at least four. [*19] The hazard of falling off the edge was present and in the event of an accidental fall, substantial injury would probably result.

Respondents argue that there was a crane in the area swinging loads of wooden forms onto the floor which would make it necessary, in order to perform this work, to remove any peripheral guarding which might be put in place, and that as a consequence guarding was not required. The argument would be well taken if the facts supported the premise on which it is based. The record shows that a crane was in operation in the area, but it does not show that the work the crane was doing would require the removal of perimeter guarding, had it been in place in the area where the Respondents' employees were working.

Insofar as the penalty of $255 proposed by the Complainant it is considered appropriate under the criteria set forth above.

A violation of 29 CFR 1926.450(a)(10) is established by the testimony of the Compliance Officer who observed Respondents' employees going up and down a portable ladder placed from the second to the third floor. Respondents' question whether the evidence establishes that the ladder was not "tied, blocked or otherwise secure to [*20] prevent its being displaced as required by the standard. The testimony of the Compliance Officer that "We looked at it. We looked at the top and bottom of the ladder" (T-64) is sufficient to establish that the ladder was not secured and the testimony must be accepted since no contradictory evidence was offered. Needless to say, an unsecured ladder that is constantly used by employees presents the hazard of injuries resulting from falls which could occur if the ladder was dislodged at the top or bottom. The proposed penalty of $70 is considered appropriate under the criteria set forth above.

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, a preponderance of the evidence supports the following findings of fact:

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

2. On March 9, 1973, the Complainant issued to the Respondents a Citation for violation of the standards set forth at 29 CFR 1926.304(f) for failure to provide hoods [*21] for two power table saws; 29 CFR 1926.500(d)(1) for failure to provide guarding for an open-sided floor; and 29 CFR 1926.450(a)(10) for failure to make secure a portable ladder at the workplace referred to above under the heading "Statement of the Case".

3. On March 9, 1973, the Respondents were notified by the Complainant of proposed penalties totalling $455 for the violation of the standards referred to in paragraph (2) above.

4. On March 26, 1973, the Respondents filed with the Complainant a notice of its intention to contest the Citation and proposed penalyties referred to in paragraphs (2) and (3) above.

5. On March 5, 1973, an employee of the Respondent was working on the ground floor of Building D at the workplace referred to in paragraph (2) above, operating a circular cross-cut table saw that was not guarded by a hood, thereby exposing the employee to the hazard from teeth coming off the blade and being hit by splinters. Another table saw without a guarding hood was not in use but was available for use by the Respondents' employee.

6. On March 5, 1973, the second floor of Building D at the workplace referred to in paragraph (2) above was more than 6 feet above the [*22] adjacent ground level, the floor was open-sided and the floor was not guarded by a standard railing or equivalent.

7. On March 5, 1973, about 15 employees of the Respondents were working on the second floor of Building D referred to in paragraph (6) above within four feet from the edge of the floor and the employees were exposed to the hazard of falling from the floor to the ground, a distance of approximately 13 feet which could result in substantial physical injury.

8. On March 5, 1973, about 15 employees of the Respondents used a portable ladder placed between the second and third floor of Building D at the workplace described in paragraph (2) above, that was not tied, blocked, or otherwise secured, thereby exposing the employees to the hazard of sustaining injuries from falls should the ladder be dislodged.

9. Giving due consideration to the size of the Respondents' business, the gravity of the violation, the good faith of the Respondent and the history of previous violations, the appropriate penalty for violation of 29 CFR 1926.304(f) described in paragraph (5) above is $130; for violation of 29 CFR 1926.500(d)(1) described in paragraphs (6) and (7) above is $255; and for [*23] violation of 29 CFR 1926.450(a)(10) described in paragraph (8) above is $70.

CONCLUSIONS OF LAW

1. The Respondents 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 Respondents 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 of the subject matter herein.

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

4. Respondents violated the Occupational Safety and Health standards set forth at 29 CFR 1926.304(f), 29 CFR 1926.500(d)(1) and 29 CFR 1926.450(a)(10) and are assessed penalties of $130, $255 and $70, respectively.

ORDER

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

1. The Citation issued on March 9, 1973, for violation of 29 CFR 1926.304(f), CFR 1926.500(d)(1) and 29 CFR 1926.450(a)(10) and the penalties proposed by the Complainant totalling [*24] $455 are affirmed.

JOSEPH CHODES, JUDGE, OSAHRC

Dated: Feb. 13, 1974

New York, New York