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

OSHRC Docket No. 3042

Occupational Safety and Health Review Commission

July 23, 1976

  [*1]  

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

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

William J. Pastore, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

The issues presented in this case are whether Administrative Law Judge Jerome C. Ditore erred in (1) vacating a citation alleging a violation of the protective helmet requirements of 29 C.F.R. §   1926.100(a) n1 and (2) finding that Respondent's employees at certain locations were not exposed to falling hazards as a result of Respondent's noncompliance with the perimeter guarding requirements of 29 C.F.R. §   1926.500(d)(1). n2 For the reasons which follow, we reverse on those issues and affirm the remainder of the judge's report.

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n1 1926.100(a): Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, shall be protected by protective helmets.

n2 1926.500(d)(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. . . .

  [*2]  

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Respondent (Underhill) is the concrete subcontractor on a large high rise project.   Forty seven buildings are being erected on one hundred acres, and Underhill has responsibility for the buildings' superstructures.

Underhill has been inspected on a number of occasions, n3 and on this occasion Labor's compliance officer observed five buildings erected to a height of five stories each.   The buildings were temporarily designated as A-1, A-2, A-3, A-4, and A-5.   Underhill's employees were working throughout the buildings with the largest number being employed on the top levels.   All of the levels were opensided, and none had perimeter guarding.

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n3 See, for example Brennan v. O.S.H.R.C. and Underhill, 513 F.2d 1032, (2d Cir. 1975); Underhill Construction Corp. v. O.S.H.R.C., 526 F.2d 53 (2d Cir. 1975); Dic Underhill, Docket No. 3725, BNA 3 OSHC 1621, CCH OSHD para. 20, 067 (R.C. October 16, 1975).

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The compliance officer observed [*3]   some of Respondent's employees working without protective helmets. The record establishes that these employees were exposed to a possibility of head injury from impact or from falling or flying objects.   The record also establishes that these employees had been provided with protective helmets.

The citation alleged a violation of 29 C.F.R. §   1926.100(a) for a failure "to provide" protective helmets. Respondent argued, and the Judge agreed, that a violation was not established because helmets were provided, though not worn.   We disagree.   The cited standard states that employees "shall be protected by protective helmets. . . ." Further, the issue litigated at the hearing was whether there is a violation because helmets were not worn and, it is clear that both parties understood this to be the issue in the case.   In these circumstances, the Judge's basis to vacate was overly technical, and he should have acted on the merits.

The facts establish that Underhill's employees were not wearing the helmets. Accordingly, the terms of the standard have not been complied with.   Underhill argues that we should excuse the violation because "it is extremely difficult to wear a helmet" n4 when [*4]   an employee has to work in a bent over position.   At best the argument is one of inconvenience.   We have refused to accept a defense of this kind in the past, and Underhill gives us no reason for accepting it in this case.   Underhill Construction Corp., 15 OSAHRC 366, 369, BNA 2 OSHC 1556, CCH OSHD para. 19,276 (1975), aff'd. on other grounds, 526 F.2d 53 (2d Cir. 1975). Accordingly, we affirm the citation.

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n4 Underhill's brief at page 13.

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The citation alleged violations of 29 C.F.R. §   1926.500(d)(1) on all floors above the first floor level.   The Judge affirmed the citation to the extent it alleged a violation on the second floor of building A-4.   One of Respondent's employees was smoothing concrete on that floor at a point approximately 10 feet from its perimeter. The perimeter was opensided and unguarded. However, he vacated as to the top floor of building A-4 on the ground that guardrails would interfere with the work Underhill's men were performing. As to the rest of the buildings, and the third and fourth [*5]   floors of building A-4, he vacated on the ground that the evidence was either lacking or insufficient to establish that any of Underhill's employees were exposed to the hazard presently by unguarded, opensided floors. We adopt his report as to the second and fifth floors of building A-4, and we affirm the guardrail allegations of the citation as to buildings A-1, A-2, A-3, as to A-5, and the third and fourth floors of building A-4.

The Commission has recently reconsidered the issue of whether the Secretary must establish actual exposure to a hazard in order to prove the existence of a violation.   Gilles & Cotting, Inc., Docket No. 504, BNA 3 OSHC 2022, CCH OSHD para. 20,448 (R.C. February 20, 1976).   See also Brennan v. O.S.H.R.C. & Underhill, 513 F.2d 1032 (2d Cir. 1975). We said that the question is factual and is to be determined by considering the zones of danger created by the hazard, employee work activities, their means of ingress-egress, and their comfort activities on the jobsite.   We determined that an actual exposure requirement is inconsistent with the purposes of the Act, whereas an access theory furthers the purposes of the Act.   In that case we defined access [*6]   on a basis of reasonable predictability as requested by the Secretary.

In this case, Underhill's employees were involved in the installation of reinforcing rods and shoring, pouring concrete, stripping, shoring and passing it to a higher level, smoothing finished concrete, and cleaning finished floors. We find in these circumstances that it is reasonable to predict that these activities result in and will result in employee access to the hazard presented by unguarded, opensided floors in buildings A-1, A-2, A-3, and A-5.   Therefore, we conclude that the Secretary has established employee access to the hazards presented by the unguarded floors. Consequently the citations will be affirmed.

Respondent also argues that he is exempt from the guardrail requirements of 29 C.F.R. §   1926.500(d)(1) because 29 C.F.R. §   1926.700(b)(1) applies to the work his employees were doing.   The referenced standard does not require guardrail protection.   The same argument was advanced in Dic-Underhill, a Joint Venture, Docket No. 3257, BNA 4 OSHC 1051, CCH OSHD para. 20,563 (R.C. March 31, 1976), and was there rejected.   We are not persuaded to a different result in this case.

We turn now to the [*7]   assessment of appropriate penalties.   Underhill is a large employer.   It had approximately 450 employees at the site.   Underhill has a history of previous violations.   The gravity of the 29 C.F.R. §   1926.100(a) violation was moderate since injuries were possible.   However, the gravity of the 29 C.F.R. §   1926.500(d)(1) violation was greater, since serious injuries were possible and likely.   Respondent showed a modicum of good faith with regard to the violation of 29 C.F.R. §   1926.100(a) by providing helmets for its employees.   On balance, we conclude that a penalty of $175 is appropriate for the 29 C.F.R. §   1926.100(a) violation and a penalty of $460 is appropriate for the 29 C.F.R. §   1926.500(d)(1) violation.

Accordingly, we reverse the Judge's vacation of the citation for violation of 29 C.F.R. §   1926.100(a), affirm the violation, and assess a penalty therefor of $175.   We also reverse the Judge's decision to the extent that it vacated the 29 C.F.R. §   1926.500(d)(1) citation with regard to buildings A-1, A-2, A-3, and A-5, and the third and fourth floors of A-4, and assess a penalty of $460 for the violation.   We affirm the Judge's disposition in all other respects.   It is so ORDERED.  

DISSENTBY:   [*8]  

MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

In the decision being reviewed in this case, Judge Ditore correctly resolved the charges that respondent violated the Act because of its alleged noncompliance with the occupational safety and health standards codified at 29 C.F.R. § §   1926.100(a) and 1926.500(d)(1).   The full text of that decision is attached hereto as Appendix A.

His disposition of the latter charge was based on the failure of evidence:

"There is no evidence to establish where Respondent's employees were located on the fifth floors of Building A-1 and A-3 in relation to the unguarded open-sided floors."

* * *

"The evidence is either lacking or insufficient to establish that any of Respondent's employees were exposed to unguarded open-sided floor hazards on any floor of Buildings A-1, A-2, A-3, and A-5." (Emphasis added.)

Nevertheless - without any additional evidence whatsoever - my colleagues reverse the Judge's finding of no violation.   They state that they have changed the law since May 1, 1973 (when this case arose) so that a violation can now be established with evidence showing merely that employees of a cited respondent had "access" to the zone of danger   [*9]   resulting from the noncomplying conditions.   There is, however, no evidence at all in this record which would even show "access" to the danger of an unguarded, open-sided floor by this respondent's employees.   The only basis for such a conviction would be to assume that an experienced construction worker not working near the unguarded edge of the floor - would, for reasons unexplained - walk over to the edge and fall over it.   Such an assumption is outrageous.   It is equivalent to the assumption that a pedestrian on the sidewalk of a busy street would leave the sidewalk and dart headlong into the oncoming traffic if there were no physical barriers between the sidewalk and the street.   Under the Barnako-Cleary "access" theory, a sidewalk pedestrian has "access" to the highway just as the construction workers in this case had "access" to the edge of the floor where they were working.

I submit that the evidence before us shows no danger of the respondent's employees going over the edge of the building but that the majority decision clearly shows that Messrs.   Barnako and Cleary have themselves gone over the edge in assuming that experienced workers would be idiotic enough to do so.   [*10]  

The reversal of Judge Ditore on the §   1926.100(a) charge is equally absurd.   The citation charges:

"Failure to provide employee's working in areas where there is a possible danger of head injury from impact or from falling or flying objects with protection by protective helmets." [emphasis supplied.]

The evidence was clear: employees were so provided with protective helmets. Although some employees were observed not wearing the same, the employer was not charged with such an offense.   That doesn't matter says Mr. Barnako because "the terms of the standard have not been complied with." Under this theory, the citation served upon an employer is meaningless.   It is a requirement of 29 U.S.C. §   658(a), however, that "Each citation . . . shall describe with particularity the nature of the violation." The citation before us charged nothing except a "failure to provide." It was never amended.   What my colleagues do here is to ignore the statute and the case law which requires the Secretary of Labor - not the Commission - to put forth his own theory of the case n5 in order to reverse the Judge's no-violation finding.

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n5 National Realty and Construction Co., Inc. v. OSAHRC, 489 F.2d 1257 (D.C. Cir. 1973).

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Respondent also defended on the grounds that it was not subject to jurisdiction of the Act's safety standards on this particular job because it was advertised for bid prior to the effective date of the standards.   For reasons I expressed in Secretary v. Underhill Construction Corporation, 15 OSAHRC 366 (1975), I would sustain this defense.

APPENDIX A

DECISION AND ORDER

Francis V. LaRuffa, Regional Solicitor, United States Department of Labor and Louis D. DeBernardo, for Complainant

William J. Pastore, for Respondent

Ditore, J.:

PRELIMINARY STATEMENT

This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter called the Act), contesting a nonserious Citation issued by the Complainant against the Respondents under the authority vested in the Complainant by Section 9(a) of the Act.

The Citation alleges that as a result of the inspection of a workplace under the ownership, operation   [*12]   and control of the Respondents, located at Starrett City, Brooklyn, New York, and described as "47 Bldg. Apt. Complex", the Respondents 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 issued May 1, 1973, alleges that nonserious violations resulted from Respondents' failure to comply with standards promulgated by the Secretary by publication in the Federal Register on December 16, 1972 (37 F.R. 27503) and codified in 29 CFR 1926.252(a), 1926.450(a)(9), 1926.24, 1926.100(a) and 1926.500(d)(1) *.

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* One nonserious violation (item 5 of Citation) of 29 CFR 1926.304(f) and the penalty proposed were not contested by Respondents.   (T. 102)

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The descriptions in the Citation of the nonserious violations, and the standards as promulgated by the Secretary are as follows:

Item 1 of Citation - Description - 29 CFR 1926.252(a)

"Failure to provide an enclosed chute of wood   [*13]   or the Equivalent material whenever materials are dropped more than 20 feet. To any point lying outside the Exterior walls of the building.

Location:

BLDGS. A1-A2-A3-A4 & A-5"

Standard as promulgated

"§   1926.252 Disposal of waste materials.

(a) Whenever materials are dropped more than 20 feet to any point lying outside the exterior walls of the building, an enclosed chute of wood, or equivalent material shall be used.   For the purpose of this paragraph, an enclosed chute is a slide, closed in on all sides, through which material is moved from a high place to a lower one."

Item 2 of Citation - Description - 29 CFR 1926.450(a)(9)

"Failure to provide a ladder with siderails that shall extend not less than 36 inches above the landing.

Location: Bldg 19 2nd fl."

Standard as promulgated

"(9) The side rails shall extend not less than 36 inches above the landing.   When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point of access, shall be installed."

Item 3 of Citation - Description - 29 CFR 1926.24

"Failure to develop and maintain a effective fire protection & prevention program at the [*14]   job site through out all phases of construction.   The employer shall insure the availability of the fire protection and suppression.   Equipment required by subpart "F" of this part.

Location: BLDGS A1-A2 A3-A4-A5."

Standard as promulgated

"§   1926.24 Fire protection and prevention.

The employer shall be responsible for the development and maintenance of an effective fire protection and prevention program at the job site throughout all phases of the construction, repair, alteration, or demolition work.   The employer shall ensure the availability of the fire protection and suppression equipment required by Subpart F of this part."

Item 4 of Citation - Description - 29 CFR 1926.100(a)

"Failure to provide employee's working in areas where there is a possible danger of head injury from impact or from falling or flying objects with protection by protective helmets.

Location:

(a)(1) Employee working under Boom of manotower crane at BLDG A4

(b) 12 men working on top f2 of BLDG. A4."

Standard as promulgated

"§   1926.100 Head protection.

(a) Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects,   [*15]   or from electrical shock and burns, shall be protected by protective helmets."

Item 6 of Citation - Description - 29 CFR 1926.500(d)(1)

"Failure to provide guarding of open sided floors 6 ft. or more above adjacent floor or ground level 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 side, persons can past BLDGS A1-A2-A3-A4-A5 all floors above 1st floors."

Standard as promulgated

"(d) Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard."

Pursuant to the enforcement [*16]   procedure set forth in Section 10(a) of the Act, the Respondents were notified by letter dated May 1, 1973, from Nicholas A. DiArchangel, Area Director of the New York Area, that the Occupational Safety and Health Administration, United States Department of Labor, propose to assess the floowing penalties:

Citation

Proposed Penalty

Item 1

$175.00

Item 2

$ 65.00

Item 3

$175.00

Item 4

$175.00

Item 6

$460.00

 

The case was heard at New York, New York on October 16 and 17, 1973.

ISSUES

1.   Whether Respondents are exempt from complying with the construction standards because of the provisions of 29 CFR 1926.1050.

2.   Whether 29 CFR 1926 (Subpart Q) exempts Respondents from complying with 29 CFR 1926.500(d)(1).

3.   Whether Respondents were responsible for the violations set forth in the Citation as items 1, 2, 3, 4 and 6.

4.   If Respondents were responsible for one, or more, or all of the above violations, whether any of Respondents' employees were exposed to any occupational hazard.

5.   If Respondents' employees were exposed, whether the penalty or penalties proposed was or were reasonable.

STATEMENT OF THE EVIDENCE

Respondent Dic-Underhill, a joint venture [*17]   of the Respondent Underhill Construction Corporation, and the Respondent Dic Concrete Corporation, was engaged as a subcontractor in the construction of high-rise reinforced concrete buildings at a construction project in Brooklyn, New York, known as "Starrett City.   On April 5, 1973, Respondents were performing such work under contract with Starrett Brothers and Ekon, Incorporated, and Jespersen-Kay, a joint venture and general contractor of the site.   (T. 4-6, 18, 155, 157, 161, 225) The owner of record of the project was Starrett City, Incorporated.   (T. 229) The jobsite eventually would consist of forty-seven buildings on one hundred and thirty acres of land.   (T. 12-13; Exh. C-1)

On April 5, 1974, the time of inspection, work had started and was progressing on a group of five buildings known as A-1, A-2, A-3, A-4, and A-5.   (T. 14-16; Exh. C-1) The five buildings in this A series were being constructed on a one week cycle so that each building would rise one floor each week.   (T. 186-190) Work had progressed to the fifth floor of each of these buildings when Compliance Officer Peter H. Richardson started his inspection on April 5, 1973.   Richardson was accompanied on his walk-around [*18]   inspection of the A Buildings by a representative of Respondents, a Mr. Fenster.   (T. 19-23) Respondent employed 450 employees at the jobsite on April 5, 1974.   (T. 21)

Item 6 of Citation - 29 CFR 1926.500(d)(1) - Open-sided floors

Officer Richardson inspected Building A-4.   He observed that floors 2 through 5 were without perimeter guards.   On the 5th floor or work deck, he observed twenty of Respondents' employees laying down reinforcing rods upon which concrete would be later poured.   None of these employees were wearing safety belts.   (T. 24-34, 38; Exhs. C-2 (5th floor of A-4), C-3, T. 27, 30) On the 2nd floor of Building A-4, Richardson observed an employee of Respondents about ten feet from an opensided floor, grinding the concrete ceiling.   There were also Respondents' employees on the 3rd and 4th floors of A-4 doing stripping, reshoring and clean up work.   (T. 33)

Richardson did not enter and inspect during his walk-around with Mr. Fenster, Buildings A-2 through A-5.   He observed these buildings from Building A-4, and by walking around them.   (T. 39, 40) He observed that none of the floors in these four buildings had perimeter guards.   On the 5th floor of [*19]   each of these buildings, he observed employees of Respondents but did not know what work they were performing. (T. 25, 39-42, 44-48, 57, 58, 61, 63-74; Exhs. C-4, C-5)

Officer Richardson cited Respondents for a violation of the open-sided floor standard on the 2nd through 5th floors of each building in the A series.   It was Officer Richardson's belief, and Complainant's position at the hearing that it was only necessary to establish that Respondents had at one time or another employees working in the A buildings.   Proof of this fact established that the A Buildings were the place of Respondents' employees' employment and rendered immaterial and irrelevant further proof that any of Respondents' employees were observed "exposed" to any hazards of unguarded open-sided floors. (T. 32, 39, 50-55, 66, 71, 73, 74; Complainant's brief, point III)

The only employees of Respondents actually observed exposed to an unguarded open-sided floor, were those working on the top or fifth floor of Building A-4, and the employee performing grinding work on the ceiling of the second floor of A-4.   Richardson observed from a distance, employees on the fifth floors of the other four A Buildings whom   [*20]   he believed were close to the edge of the unguarded open-sided floors. (T. 133-138)

The distance between floors in each of the A Buildings was about eight feet. The distance from the second floor to the ground level was ten feet. (T. 36) The hazard involved was the possibility of an employee falling off an unguarded opensided floor, and the probability of serious or fatal harm befalling an employee to such an accident.   (T. 121-122)

Item 1 of Citation - 29 CFR 1926.252(a) - Waste Disposal

Officer Richardson, during his inspection, heard what he believed was debris fall from one of the upper floors of Building A-2.   When he looked up, he observed some men in red hats.   (Such colored hats were issued to Respondents' employees, T. 25) He observed no one throwing any debris.   (T. 78-81) Richardson found no waste disposal chutes in any of the A Buildings.   He was told that as soon as the buildings were enclosed with brick, disposal chutes were to be installed by the general contractor.   Although he observed no disposal containers in the A Buildings, he was told that Respondents removed their debris by containers, raised and lowered by a crane. (T. 77, 78, 81-82, 139-140,   [*21]   142-143)

The hazard involved was the possibility of debris coming off an upper floor and hitting an employee at ground level. Richardson did observe some employees of Respondents at ground level outside Building A-2.   (T. 116)

Item 2 of Citation - 29 CFR 1926.450(a)(9) - Inadequate Ladder

On April 10, 1973, during his inspection of another area of the construction site, Richardson observed six of Respondents' employees descending a ladder from the second floor of Building 19, to the ground floor. The ladder was leaning against the perimeter of the building with its top even with the second floor landing.   (T. 82-85) The hazard involved was the possibility of an employee losing his balance in climbing on or off the top of the ladder. (T. 118)

Item 3 of Citation - 29 CFR 1926.24 - Effective Fire Protection

During his inspection of Building A-4, Richardson observed that there were no fire extinguishers, water barrels or operating stand pipes on any floor of this building.   Richardson claims that at one time or another when making his inspection with other subcontractors, he entered each of the floors of Buildings A-1, A-2, A-3 and A-5.   He observed [*22]   no fire extinguishers, water barrels or operable stand pipes on any of the floors. (T. 87-90) Each floor was approximately 15,000 square feet, and composed primarily of reinforced concrete. (T. 93-94)

Richardson was informed that there were fire hydrants on the site.   The hydrants he observed were unpainted and hidden by brush but in working order.   He felt that some type of fire protection was necessary at the site, and that Respondents were required to keep fire fighting equipment on each of the A Building floors whether or not there were employees of Respondents working on any of the floors. (T. 87, 95, 98-99, 146)

The hazard claimed was that of employees being trapped on an upper floor if a fire broke out, and the possibility of such employees being overcome by smoke.   (T. 119)

Item 4 of Citation - 29 CFR 1926.100(a) - Failure to provide helmets

On April 5, 1973, Officer Richardson observed an employee of Respondents in a roadway, 40 feet from Building A-2, attaching small rods and angles to a choker or cable sling.   The load was lifted by a crane twenty feet above this employee's unhelmeted head.   A helmet had been issued to the employee but he was not wearing [*23]   it.   (T. 104-107)

Richardson also observed 20 of Respondents' employees placing reinforcing rods on the work deck or fifth floor of Building A-4.   Twelve of these workers were not wearing helmets. All of Respondents' employees were issued helmets, and some helmets were observed on the floor. Richardson was informed that some of these employees had to lean over in the course of their work which resulted in their helmets falling off.   (T. 109-110, 147-150; Exh. C-2)

The hazard was the possibility of materials lifted over the heads of these employees by a crane, falling and hitting the unprotected head of an employee.   (T. 110)

In determining the penalties for the above alleged nonserious violations, Complainant gave no credit for size, good faith or prior history.   The unadjusted penalties based on the gravity of the violations were reduced by a 50% abatement credit to the proposed penalties specified in the Notification of Proposed Penalty.   (T. 113-115, 118-126)

Item 5 of the Citation and the penalty proposed were not contested by Respondents, except as they may be affected by Respondents' overall defense of the inapplicability of the construction standards to the work it was [*24]   performing. (T. 102)

OPINION

Respondents raise as a legal defense the inapplicability of the construction safety and health standards to the work it and its employees were performing at the Starrett City project.

Respondents claim their Starrett City contract, * federally assisted and executed prior to April 24, 1971, exempted them from the construction safety and health standards pursuant to 29 CFR 1926.1050.

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* Respondents established that their subcontract was entered into with the predecessor builder of the project in June 1970, when the project was known as Twin Pines Village.   The project was taken over by Starrett Brothers and Ekan, Inc., and became known as the Starrett City Project.   This successor project received federal assistance.   However, there is no evidence of the date when the takeover and assistance began, i.e., whether prior to, or after April 24, 1971.

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The basis of Respondents' argument is posited on the actions of the Secretary of Labor in adopting for the Occupational Safety and Health [*25]   Act of 1970, the safety and health standards of the Contract Work Hours and Safety Standards Act (hereinafter referred to as the Construction Safety Act) (40 U.S.C. 333). Respondents reason that the Secretary in specifically excluding Subparts A and B of the Construction Safety Act from adoption under the Occupational Safety and Health Act, specifically adopted the remaining parts including Subpart X (29 CFR 1926.1050) dealing with effective dates and exemptions.

This issue or defense has arisen several times and has resulted in Judge's decisions for and against Respondents' position.   (See appendix to Respondents' Brief) No decision of the Commission has specifically addressed itself to this defense.     This Judge is not persuaded by Respondents' argument that the decision in Diesel is erroneous, and he adheres to that decision.

However, a further statement to supplement what was said in Diesel appears appropriate.   Although Respondents in [*26]   their argument rely exclusively and extensively on what the Secretary did or did not do in his adoption of the Construction Safety Act standards, Respondents appear to have overlooked the Occupational Safety and Health Act of 1970 (hereinafter referred to as the Act).

This Act is the fountainhead not only of Congressional intent and purpose but of the powers delegated to the Secretary.   The purpose and intent of the Act is clear and unambiguous.   The Act requires "[e]ach employer" to "furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees (29 USC §   654(a)).   The Act authorizes the Secretary of Labor to promulgate standards to implement this purpose and intent (29 USC §   655), and requires each employer to comply with the standards promulgated (29 USC §   654(a)(2) and (b).

To save time, and to allow the Secretary to proceed with reasonable speed, the Act permitted the Secretary without following the necessary rule making promulgation procedures to adopt as Occupational safety and health standards, National Consensus Standards and Established   [*27]    Federal Standards, (29 USCA §   655(a)).   (Emphasis supplied)

Congress did not leave the Secretary without guidelines to the terms it used in the Act.   The Act defines "occupational safety and health standard" as "a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment".   (29 USC §   652(8)) The Act further defines an "Established Federal standard" as "any operative occupational safety and health standard established by any agency of the United States and presently in effect, or contained in any Act of Congress in force on the date of enactment of this Act".   (29 USC §   652(10))

The Act also states that "[s]tandards issued under the laws listed . . . [among others, the Construction Safety Act (40 U.S.C. 333)] and in effect on or after the effective date of this Act shall be deemed to be occupational safety and health standards issued under this Act, as well as such other Acts." (29 USC §   653(b)(2))

Pursuant to the powers specifically delegated to the Secretary, the Established Federal Standards promulgated [*28]   under the Construction Safety Act were adopted and incorporated into the Act by the Secretary (29 CFR 1910.12(a)).

The Secretary was without authority to adopt any other feature or provision of the Construction Safety Act which was not an established Federal occupational safety and health standard.

The effective date of the Construction Safety Act (29 CFR 1926.1050), by plain reading and by the Act's definitions was not an Established Federal Standard and therefore was not legally adoptable by the Secretary.

The effective date of the adopted occupational safety and health standards under the Act is August 27, 1971.   (See preamble to 29 CFR Part 1910, 36 F.R. 10466, May 29, 1971; 29 CFR 1910.17, 37 F.R. 22105, October 18, 1972)

Since the purpose of the Act was to be put into operation as soon after the effective date of the Act as was possible (29 USC §   655(a)), and since statutes are to be interpreted, whenever possible to effectuate their underlying purpose and intention, United States v. Bryan 389 US 323, 338 (1949); Cawley v. United States 272 F.2d 443, 445 (2d Cir, 1959), this Judge will not attribute to the Secretary actions contrary to the purpose of the   [*29]   Act, or unauthorized by the Act.

In determining whether the Act intended to exempt construction employers from its requirements on the basis of their contractual relationships,

"[w]e are to put ourselves so far as we can in the position of the legislature that uttered (the words of the statute), and decide whether or not it would declare that the situation that has arisen is within that it wished to cover." Cawley, supra, page 445

The Act expresses no congressional intent, and delegates no authority to the Secretary, to exempt construction employers from the Act on the basis of contractual relationships with, or financial assistance received from, the Federal Government, or to deprive a class of affected workers from occupational safety and health protection upon such grounds.

If the Act is to be administered, as it was intended, it must apply and give equal protection to all affected employees of any employer in a business affecting commerce.

The construction safety and health standards were applicable to Respondents on the day of inspection.

Respondents raise the further defense that 29 CFR 1926.500(d)(1) which requires perimeter protection for open-sided floors is not   [*30]   applicable to the work being performed by their employees.

It is Respondents' position that they were engaged in structural concrete construction work; and that this work is specifically covered by Subpart Q of 29 CFR Part 1926 and the specific standards therein.   Therefore in general standard 29 CFR 1926.500(d)(1) found in Subpart M is not applicable.   (Brief pp. 16-18)

Respondents state that Subpart Q sets forth standards which are applicable to all equipment and materials used in concrete construction work, and provides a standard to protect concrete construction employees placing and tying reinforcing steel.   Respondents reason that since Subpart Q provides protection for some concrete construction employees working at heights (29 CFR 1926.700(b)(1)) but not for protection against unguarded floor perimeters, it follows that no safety protection in the form of perimeter guarding was deemed necessary.   Therefore Subpart Q required no perimeter protection for employees who were performing, as were Respondents' employees, concrete forming and stripping work.   (Brief, pp. 16-18)

Respondents claim that the Rule of 29 CFR 1910.5(c)(2) is inapplicable because 29 CFR 1926.500(d)(1) is [*31]   a general standard which must give way to 29 CFR 1926.701(a), a specific standard.   Further 29 CFR 1910.5(c)(2) is not controlling because that section requires that "none" of the specific standards apply whereas Subpart Q does have "some" specific provision for perimeter protection.   (Brief, pp. 19-20)

29 CFR 1910.5(c)(2) provides:

". . ., any standard shall apply according to its terms to any employment and place of employment in any industry, even though particular standards are prescribed for the industry, as in Subpart B [Section 1910.12(a) Construction] or Subpart R of this part [special industries], 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 paper board mills covered by Section 1910.261."

It is clear from the above section that the safety and health standards found in 29 CFR part 1926 are particular standards applicable to the construction industry as a whole.   There are occasions when these specific standards do not cover or give protection to construction employees engaged in certain specialties of work.   [*32]   Where these instances occur other specific standards are set forth to cover the work being performed.   To illustrate, 29 CFR 1926.500(d)(1) dealing with perimeter floor guarding in the construction industry does not afford protection to concrete construction employees working 6 or more feet above any adjacent working surface, placing and tying reinforcing steel in walls, piers, columns, etc.   To protect the employees working in this specialty, 29 CFR 1926.700(b)(1) requires that these employees use safety belts or equivalent devices.   In steel construction work where there is temporary flooring in a skeleton steel building, a special type of perimeter guarding is required (29 CFR 1926.750(b)(iii)).

These specialty safety standards promulgated to protect a class of construction employees, not otherwise protected, do not by inference, logic or context, defeat the application of other specific construction standards to protect construction workers not engaged in a specialty category of construction work.

29 CFR 1926.500(d)(1) is not inapplicable to Respondents by reason of 29 CFR 1926 Subpart Q.

THE STANDARDS CITED

Complainant presented its case on the theory that Respondents [*33]   were responsible and liable for the violations existing at the construction site if they had employees working at the site; and that exposure on an employee to a hazard from non-compliance with a standard was neither an essential element of the violations charged nor a requirement of proof necessary to sustain a violation.

Contrary to Complainant's contention, exposure of an employee to an occupational hazard is an essential element of a charged violation, and must be established before an employer can be held responsible for the violation.   Secretary v. City Wide Tuck Painting Service Co., CCH 1971-1973 OSHD, paragraph 15,767 (May 24, 1973); see also Secretary v. Dic-Underhill, 3 CCH Employ.   S&H Guide, paragraph 17,384 (March 9, 1974) (affirmance of Judge's decision on this issue).   The issue remains of whether any of Respondents' employees were actually exposed to the hazards created by the violations charged.

1.   Item 6 of Citation - 29 CFR 1926.500(d)(1) - Open-sided floors

It is not seriously contested herein that Buildings A-1 through A-5 lacked perimeter guarding on floors 2 through 5.   The only A Building actually inspected by Complainant   [*34]   with respect to Respondents, was the A-4 Building.

The observations of the Compliance Officer revealed that twenty of Respondents' employees were on the fifth floor of A-4 laying down reinforcing rods; and that one employee, ten feet from the unguarded open-sided second floor, was grinding the concrete ceiling.   (T. 24-34, 38; Exhs. C-2, C-3) The Compliance Officer observed the other A Buildings from Building A-4, or by walking around the outside of the other buildings.   These observations revealed Respondents' employees on the fifth floor of Buildings A-1, A-2, A-3 and A-5, performing work of an unspecified nature.   (T. 25, 39-40, 44-48, 57, 61, 63-74; Exhs. C-4, C-5) (Complainant's brief, point III)

There is no evidence to establish where Respondents' employees were located on the fifth floors of Building A-1 and A-3 in relation to the unguarded open-sided floors. Exhibit C-4 depicts an employee on the fifth floor of Building A-2, and Exhibit C-5 depicts about seven employees on the fifth floor of Building A-5.   Appearances from photographs taken at considerable distances and at various angles, cannot, without more, establish for fact finding purposes the exposure of an employee [*35]   to an open-sided floor hazard that actually existed.   (Compare the close-up photographs of Exhs.   C-2, C-3)

The evidence is either lacking or insufficient to establish that any of Respondents' employees were exposed to unguarded open-sided floor hazards on any floor of Buildings A-1, A-2, A-3, and A-5.   Respondent is not responsible for these open-sided floor violations.

The situation relative to Building A-4 is different.   Here the Compliance Officer not only observed employees of Respondents working at the edge of the unguarded open-sided fifth floor but these observations are corroborated by close-up photographs.   (Exhs. C-2, C-3)

The nuances or special stages of Respondents' work present certain difficulties with the applicability of 29 CFR 1926.500(d)(1).

The employees observed on the fifth floor of A-4 were laying reinforced steel rods preparatory to the concrete pouring stage.   The employees in Exhs C-2, and C-3 working at the edge of the floor were not only placing wooden forms at the edge but were laying the reinforced rods to the edge, and at the edge, vertical rods for the concrete columns.   Under the circumstances of the work being performed there is no question that [*36]   the employees were exposed to an open-sided floor hazard, but a perimeter guard at that area of work would have interfered and prevented such work.   The construction standards also recognize that when concrete workers are laying and tying reinforcing steel in walls, piers, columns, etc., six feet above any adjacent working surface, they must be provided with a safety belt or equivalent device.   (29 CFR 1926.700(b)(1))

No determination is made herein as to the applicability of 29 CFR 1926.500(d)(1) to concrete employees performing forming, shoring or stripping work near the unguarded edge of an open-sided floor. Respondents are presently seeking a variance frm the Secretary as to the requirements of 29 CFR 1926.500(d)(1).

The employees depicted in Exhs.   C-2, C-3, laying reinforced rods at or near the edge of the floor should have been provided with a safety belt or other equivalent device required by 29 CFR 1926.700(d)(1).   Respondents were not in violation of 29 CFR 1926.500(d)(1) on the fifth floor of Building A-4 at the time of the Compliance Officer's inspection.

The one employee of Respondents grinding the second floor ceiling of Building A-4, and within ten feet of the unguarded [*37]   open-sided floor was by the very nature of the work he was performing, exposed to the hazard of falling from an unguarded perimeter. No valid reason is offered by Respondents for their failure to protect this employee.   Respondents were in violation of 29 CFR 1926.500(d)(1) at the second floor of Building A-4.

Complainant proposed a penalty of $460.00 for the alleged violation of 29 CFR 1926.500(d)(1).   This penalty was based on Respondents' violation of the standard on the second through fifth floors of Buildings A-1, A-2, A-3, A-4, A-5.   Respondents are found in violation only at the second floor of Building A-4.   Based on the statutory factors of Section 17(j) of the Act, (29 USC §   666(j)) the penalty is reduced to $100.00

Item 1 of Citation - 29 CFR 1926.252(a) - Waste Disposal

The evidence is insufficient to establish that waste was being disposed from Building A-2.   The singular incident of a 4 X 4 board falling from some unspecified floor of A-2, does not indicate or establish that waste was being disposed by throwing it off a floor to the ground.   It may have been an accident, or caused by reasons other than waste disposal.

There is also the question of   [*38]   whether the waste chutes required by 29 CFR 1926.252(a), applies to a structure that lacks exterior walls.   Here Building A-2 had no exterior walls and was in an open incomplete superstructure stage.   (See Exhs.   C-4, C-5) Respondents were not in violation of 29 CFR 1926.252(a).

Item 2 of Citation - 29 CFR 1926.450(a)(9) - Inadequate Ladder

The evidence, not contested at the hearing by Respondents, establishes that six of Respondents' employees descended from the second floor to the ground from Building 19 by using a ladder that was not 36 inches above the second floor landing.   The proposed penalty of $65.00 considering the gravity of the violation and the statutory factors of Section 17(j) of the Act (29 USC §   666(j)), is reduced to $50.00 by allowing a credit for no prior history for this type of violation.

Item 3 of Citation - 29 CFR 1926.24 - Effective Fire Protection

29 CFR 1926.24 found in Subpart C dealing with General Safety and Health Provisions, is identical with the the requirements of 29 CFR 1926.150(a)(1) found in Subpart F entitled Fire Protection and Prevention.   Both 1926.24 and 1926.150(a)(1) places upon the employer the responsibility [*39]   for developing and maintaining an effective fire protection and prevention program at a construction jobsite, and for providing the necessary fire fighting equipment.

The Compliance Officer in inspecting Building A-4 on April 5, 1973, found no fire extinguishers, water barrels or operating standpipes on any floor of the building.   Subsequent to his April 5, 1973 inspection with Respondents' representative, the Compliance Officer made an inspection with other subcontractors.   He observed the same conditions to exist in Buildings A-1, A-2, A-3 and A-5.   There is no evidence that any employees of respondents were exposed to this violation in Buildings A-1, A-2, A-3 and A-5, during the Compliance Officer's inspection subsequent to April 5, 1973.

The floors of Building A-4 were about 15,000 square feet and were composed primarily of reinforced concrete. The Compliance Officer observed one employee on the second floor, and about 20 on the uncompleted fifth floor. He observed some employees on the third floor and fourth floor engaged in shoring work.

Officer Richardson cited Respondents for this alleged violation because he believed some type of fire protection and equipment should   [*40]   be kept on each floor, i.e., fire extinguishers, water barrels, etc., to protect employees in case of fire and smoke inhalation.

Respondents contended at the hearing and in their brief (among other grounds) that Standard 29 CFR 1926.24, was vague and unenforceable, and was inapplicable because there were specific standards available.   See 29 CFR 1926.150(b)(1) through 1926.150(c)(2)(iii).   There was no evidence that Respondents lacked a fire protection program but there was evidence that Respondents provided no firefighting equipment of any type specified in Subpart F of 29 C.F.R. Part 1926.   On this basis, 29 CFR 1926.24 is not unenforceable for it specifies the types of equipment (reference to Subpart F) that will satisfy compliance with the standard.   Respondents failed to comply with the standard only in Building A-4 where their employees were exposed.

The proposed penalty of $175.00 is based on violations in all five A Buildings.   The penalty is reduced to $35.00 to reflect violations only in Building A-4; to reflect that the gravity of the hazard was minimal due to the concrete structure of the building; and to reflect a lack of any established prior history as to this type [*41]   of violation.   The other factors of Section 17(j) were also considered.

Item 4 of Citation - 29 CFR 1926.100(a) - Failure to provide helmets

29 CFR 1926.100(a) requires that employees working in areas where there is a possible danger of head injury from impact or from falling or flying objects, be protected by protective helmets. Respondents were cited with a failure to provide such employees with protective helmets.

The employees involved one working under a crane outside Building A-4, and twelve working on the fifth floor of A-4.   (T. 104-107, 109-110; Exh. C-2)

The evidence establishes that the employees indicated were exposed to the hazard of materials falling or slipping from lifting cranes, hitting their unprotected heads.   The evidence also established that Respondents provided these and all its employees with protective helmets. Since Respondents were cited only for the failure to provide helmets, it follows that Complainant failed in its burden of proof as to this violation.   Respondents however, are cautioned that better supervision is required to ensure that their employees wear the helmets provided, and further that the helmets be provided with some [*42]   means to keep them from falling from the heads of employees whose work requires them to bend over or to lower their heads.

Item 5 of the Citation was not contested except to the extent that the construction standards were held inapplicable to Respondents because of their contract date.   That issue has been decided against Respondents.

FINDINGS OF FACT

The credible evidence, and the record as a whole, establishes substantial proof of the following specific findings of fact.

1.   Respondent Underhill Construction Corporation is a New York Corporation with its principal office located in Bayside, New York.   (T. 4-5)

2.   Respondent Dic Concrete Corporation is a New York corporation with its principal office located in Elmont, New York.   (T. 5)

3.   At all times relevant herein, Respondents traded as Dic-Underhill, a Joint Venture, with an office located in Bayside, New York.   (T. 5-6)

4.   Respondents regularly use substantial quantities of goods in their business which are imported from outside the State of New York.   (T. 6)

5.   At all times relevant herein, Respondents as a Joint Venture, were engaged, under contract, in the construction of high-rise reinforced concrete buildings [*43]   at a construction project in Brooklyn, New York, known as "Starrett City".   (T. 155, 157, 161)

6.   On April 5, 1973, Complainant inspected Buildings A-1, A-2, A-3, A-4 and A-5 at the Starrett City project.   (T. 14-16; Exh. C-1)

7.   These A Buildings were being constructed on a one week cycle in order that each building would rise one floor each week.   (T. 186-190) At the time of the inspection, construction had progresses to the fifth floor of each building.   (T. 19-23) Each floor was approximately eight feet high.   (T. 36)

Unguarded Open-sided Floor - Item 6 of Citation

8.   The perimeter of each of the five floors in each of the five A Buildings was unguarded. (T. 24-34, 39-42, 44-48, 57, 58, 60-74; Exhs. C-2, C-3, C-4, C-5)

9.   Twenty of Respondents' employees were working on the fifth floor of Building A-4, laying reinforced steel rods. At least five of these employees wee performing this work at the edge or close to the edge of Building A-4 and were exposed to a falling hazard. (Exhs. C-2, C-3)

10.   The employees performing their work at or close to the edge of the fifth floor of Building A-4, could not have performed their work if perimeter guards were installed.   [*44]   They were not but should have been provided with safety belts.   (29 CFR 1926.700(b)(1))

11.   There is no evidence as to the location of the remaining employees on the fifth floor of Building A-4 in relation to the unguarded open-sided floor, and no evidence that these employees were exposed to any falling hazard from an unguarded open-sided floor.

12.   One of Respondents' employees, grinding the second floor concrete ceiling of Building A-4, was within ten feet of an unguarded open-sided floor. The nature of his work exposed him to an unguarded open-sided floor hazard. (T. 33)

13.   Evidence is either lacking or insufficient to establish a finding that Respondents' employees on the third and fourth floors of Building A-4, and on the fifth floor of Buildings A-1, A-2, A-3 and A-5, were exposed to any unguarded open-sided floor hazard. (T. 25, 39-40, 44-48, 57, 61, 63-67; Exhs. C-4, C-5)

Waste Disposal - Item 1 of Citation

14.   There is no affirmative evidence that Respondents or their employees were disposing waste materials from Building A-2 by throwing such material from any floor to ground level. (T. 77, 78, 81-82, 139-140, 141-143; see Opinion)

Inadequate Ladder   [*45]    Extension - Item 2 of Citation

15.   Six of Respondents' employees used a ladder to descend from the second floor of Building 19 to ground level. The top of the ladder was not 36 inches above the second floor landing but was even with the landing.   These employees were exposed to a falling hazard by using the inadequate ladder. (T. 82-85, 118)

Fire Prevention and Equipment - Item 3 of Citation

16.   All five floors of Buildings A-1 through A-5 lacked firefighting equipment required of 29 CFR 1926.24 and specified in Subpart F of 29 CFR Part 1926.   (T. 89-90, 93-94)

17.   There is no affirmative evidence that any of Respondents' employees were observed exposed to this hazard in Buildings A-1, A-2, A-3, and A-5.   (See Opinion)

18.   Employees were exposed to this hazard on the second, third, fourth and fifth floors of building A-4.   (See Opinion)

19.   The nature and extent of the construction of Building A-4 (open concrete superstructure) rendered a fire hazard minimal.

Protective Helmets - Item 4 of Citation

20.   Respondents were cited with a violation of 29 CFR 1926.100(a) for failing to provide their employees with protective helmets. (Citation)

21.   [*46]   One employee was observed unhelmeted working under a lifting crane outside Building A-4, and twelve employees were observed unhelmeted working on the fifth floor of Building A-4.   (T. 104-107, 109-110; Exh. C-2)

22.   Respondents provided the above employees, and all of their employees with protective helmets. (T. 109-110, 147-150)

CONCLUSIONS OF LAW

1.   Respondents are, and at all time relevant herein were, engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2.   The Occupational Safety and Health Review Commission has jurisdiction over the subject matter of, and parties to, this Action.

3.   The Construction Health and Safety standards were applicable to Respondents on April 5, and 10, 1973.

4.   Respondents were in violation of Standard 29 CFR 1926.500(d)(1) on the second floor of Building A-4 on April 5, 1973.

5.   Considering the statutory factors of Section 17(j) of the Act (29 USCA §   666(j)), a penalty of $100.00 is assessed for this violation.

6.   Respondents were not in violation of Standard 29 CFR 1926.252(a) on April 5, 1973.

7.   Respondents were in violation of Standard 29 CFR 1926. 450(a)(9)   [*47]   on April 10, 1973.

8.   Considering the statutory factors of Section 17(j) (29 USCA §   666(j)), a penalty of $50.00 is assessed for this violation.

9.   On April 5, 1973, Respondents were in violation of Standard 29 CFR 1926.24, on the second, third, fourth and fifth floors of Building A-4.

10.   Considering the statutory factors of Section 17(j) (29 USCA §   666(j)), a penalty of $35.00 is assessed for this violation.

11.   On April 5, 1973, Respondents were not in violation of 29 CFR 1926.100 (a).

ORDER

Due deliberation having been had on the whole record, it is hereby

ORDERED that the Citation for a nonserious violation of 29 CFR 1926.500(d)(1) (item 6) is amended to reflect a violation only at the second floor of Building A-4, and as amended it is affirmed, it is further

ORDERED that the proposed penalty of $460.00 for the violation of 29 CFR 1926.500(d)(1) is vacated, and a penalty of $100.00 is assessed; it is further

ORDERED that the nonserious Citation for violations of 29 CFR 1926.252(a) (item 1), and 29 CFR 1926.100(a) (item 4) and the penalties proposed for each of these alleged violations are vacated, it is further.

ORDER that the nonserious Citation for a violation [*48]   of 29 CFR 1926.450(a)(9) (item 2) is affirmed, and a penalty of $50.00 is assessed, it is further

ORDERED that the Citation for a nonserious violation of 29 CFR 1926.24 (item 3) is amended to reflect a violation only on the second, third, fourth and fifth floors of Building A-4, and as amended is affirmed, and a penalty of $35.00 is assessed.

JEROME C. DITORE, JUDGE, OSAHRC

Dated: May 15, 1974

New York, New York