MERIT CONSTRUCTION COMPANY

OSHRC Docket No. 4079

Occupational Safety and Health Review Commission

July 15, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge James A. Cronin, Jr., dated January 25, 1974, has been before this Commission for review pursuant to 29 U.S.C. 661(i) for more than a year. Rather than further delaying the disposition of this case until a third member is appointed to the Commission, the Commission as presently constituted agrees to decide this case at this time.

The Commission is equally divided on whether the Judge correctly found that the respondent violated 29 U.S.C. 654(a)(2) by failing to comply with the occupational safety standard codified at 29 C.F.R. 1926.500(b)(4). That standard provides that an employer must guard the openings of skylights "[w]herever there is danger of falling through a skylight opening . . . ."

Chairman Moran would vacate the citation. He concludes that the above-quoted language limits the applicability of the cited standard to a worksite where there is a foreseeable danger that is recognized by the respondent or a reasonably prudent man familiar with the circumstances of the respondent's industry. See Cape Vineyard Division of the New Bedford Gas and Edison [*2] Light Company v. OSHARC, 512 F.2d 1148 (1st Cir. 1975). The Chairman finds the evidence insufficient to establish this crucial element of the charge.

Commissioner Cleary agrees with the Judge's disposition and reasoning. He finds that the record sufficiently establishes a foreseeable danger of falling through a skylight opening for the reasons stated by the Judge in his decision.

Accordingly, the Judge's decision is affirmed by an equally divided Commission, and the decision thereon has no precedential weight. Secretary v. Garcia Concrete, Inc., 18 OSAHRC 184 (1975).

[The Judge's decision referred to herein follows]

CRONIN, JUDGE: This is a proceeding under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter called the Act) contesting a Citation for Serious Violation and Notification of Proposed Penalty issued by the Complainant against the Respondent on August 1, 1973. The citation was the result of an investigation of a Respondent work place at 2320 North Alameda Avenue, Compton, California, conducted on July 25, and 26, 1973 and alleges that Respondent committed a "serious violation" of 29 C.F.R. 1926.500(b)(4), [*3] The Complainant proposes a penalty of $500.00.

The alleged "serious" violation of 29 C.F.R. 1926.500(b)(4), to be abated, "immediately upon receipt of this citation" was described in the citation as follows:

The employer failed to protect his employees from falling through a skylight opening by either providing fixed standard railings on all exposed sides or a cover capable of sustaining the weight of a 200-pound person.

The standard as promulgated by the Secretary provides:

(4) Wherever there is danger of falling through a skylight opening, it shall be guarded by a fixed standard railing on all exposed sides or a cover capable of sustaining the weight of a 200-pound person.

Pursuant to due notice, this case was heard at Los Angeles, California on November 20, 1973. Subsequently, both parties filed briefs in support of their respective positions.

JURISDICTION AND ISSUES

Respondent contests Commission jurisdiction over its person by denying that it is engaged in a business affecting commerce within the meaning of Sections 3(3) and (5) of the Act.

The Respondent also denies all allegations of violation and therefore the issues to be resolved and determined are:

1. Whether [*4] Respondent is an employer engaged in a business affecting commerce?

2. Whether Respondent committed a violation of 29 C.F.R. 1926.500(b)(4), and if so, whether the violation was "serious" as that term is defined in Section 17(k) of the Act?

3. If Respondent violated the cited standard, what penalty is appropriate?

SUMMARY OF EVIDENCE

The Respondent, Merit Construction Company, a California corporation whose stock is 50% owned by Diminu-Bridge of Canada, employs 21 persons and is engaged in the construction industry, primarily in the erection and repair of steel buildings. The persons and firms contracted with are engaged in interstate commerce. The Respondent also has labor agreements with international labor organizations such as the International Association of Bridge, Structural and Ornamental Iron Workers.

Steel used by Respondent in its business is supplied in part by Crest Steel, Long Beach, California, which obtains 80% of its steel from outside the State of California. Respondent concedes that "in all probability" some of the steel imported from Japan by Crest Steel has been used by the Respondent in various job projects.

On July 24, 1973, Respondent [*5] was under contract to replace skylight panels on the roof of Treasure Craft Company located at 2320 North Alameda Avenue, Compton, California. The replacement of some of these skylights was accomplished two or three days previously by Respondent's foreman, Paul D. Georges and an iron worker, David Mead. On the afternoon of July 24, 1973 Foreman Georges and three other experienced iron workers, Mead, Faraci and Bishop, were to complete the replacement of the remaining panels on the "inside" half of the roof.

Upon arrival at the worksite at 1:00 p.m., Foreman Georges instructed Iron workers Faraci and Mead to go up onto the roof and start taking the fastening screws out of the skylights. He told Iron Worker Bishop to remain on the ground while he made a telephone call to Respondent's main office and that upon his return they would go up onto the roof together and install the new skylight panels. The reason given for instructing Iron Worker Bishop to wait on the ground was because the foreman wanted to be with him and tell him exactly what he was to do. The work plan was for Foreman Georges and Mr. Bishop to take the old panels out, "slide them down and slide new panels in their [*6] place." Foreman Georges would then fasten the new panels by means of a screw gun.

Before making the telephone call, Foreman Georges warned the employees "not to walk directly on the skylights" and told them to walk on the sheet metal. He also told Iron Worker Faraci to go up on the roof with a screw gun and hand down the end of the electric cord already there. After Foreman Georges left to make the phone call Iron Worker Faraci climbed the ladder to the roof and Iron Worker Mead went inside the building to get, and plug in, an electric cord. Mr. Faraci went to the other side of the roof, picked up the cord and was in the process of lowering it down when Iron Worker Bishop climbed the ladder with the other end of the cord to be plugged in. Mr. Faraci then connected together both ends of the cords and tied the cord to the ladder. In the meantime, Iron Worker Mead also climbed the ladder and came onto the roof.

Mr. Faraci then said to Mr. Bishop, "Sit right here, (near the ladder) Bob," "Just wait here and I'll find out what we got to do." He also said, "Now, be careful of these skylights. There's one right here next to you" (2 or 3 feet distant). He then went over [*7] the apex of the roof and down the other side, joining Mr. Mead.

Iron Workers Faraci and Mead proceeded to walk towards the north end of the building over several rows of three-foot wide skylights (Respondent's Exhibit No. 1). Mr. Mead stopped at a row of skylights and showed Mr. Faraci the screws fastening the skylights and discussed with him their removal. Shortly thereafter, while they were bent over discussing the work to be performed, and upon hearing a noise, they looked up and observed Iron Worker Bishop walking toward them along the ridge cap at the roof's peak. When they looked up a second time Iron Worker Bishop was standing still but with one foot on a skylight. Mr. Mead hollered, "Don't step there. There's a skylight there." Mr. Faraci also shouted a warning. Mr. Bishop nodded, "like he understood." Mr. Meade turned away for a moment and then back, and saw Mr. Bishop going through a skylight feet first.

Mr. Bishop at the time of the accident weighed 165 or 170 pounds, had colored glasses on, was carrying a screw gun, and wearing a leather sheeter's apron and hard hat. When falling Mr. Bishop struck a rack located beneath the opening, became inverted and hit his [*8] head fatally on the concrete floor.

On July 24, 1973 the galvanized steel roof was weathered to a silvery gray color and the skylight panels to be replaced were a dark green. In the opinion of Compliance Officer, Paul W. Thomas, the new panels were "very, very light (color) and stood out with regard to the comparison of the roof, whereas, the older material more or less blended into the roof." He, however, did not go on the roof to observe the prevailing conditions.

From a north to south direction there were approximately six rows of skylight panels approximately 20 feet distant from each other. Each row consisted of about 12, 3 by 12 foot, skylight panels. The roof measured approximately 144 feet wide. About 36 feet in, from both side eaves, the roof peaked at two apexes, some 28 to 30 feet above ground level. The slope of the roof from each eave to the apexes consisted of a four-foot rise every 12 feet.

The roof was not slippery, but rough, and covered with a silver mastic. According to Respondent's foreman and the employees on the roof on July 24, 1973 there was no difficulty in distinguishing the location of the skylights and none felt there was any danger of [*9] falling through the skylights.

In the opinion of Officer Thomas, who investigated Mr. Bishop's fatal fall, it would not have been feasible for Respondent to install a standard guard-railing on the corrugated roof around the roof skylight openings but it would have been feasible to have covers over the openings.

Officer Thomas testified that the existing danger in this case was from an employee inadvertently stepping on and through the skylight, and not because of any danger from falling or slipping on the roof. n1 Because the old skylight panels were in a "flimsy" condition, and because the panels gave "a false sense of security," he felt there was a danger of falling through the skylights. In his opinion, were an employee to step through a skylight he would fall a distance of 16 feet to approximately 28 feet, depending on his location and would suffer serious physical harm. consisting of possible broken bones, sprains, or death.

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n1 On redirect examination Officer Thomas appeared to recant by indicating there was danger of falling into the skylight.

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There were storage shelves or racks beneath some of these skylights which could "break" a fall. At other locations any fall would end directly on the concrete floor.

To an unadjusted penalty of $1000 for the alleged violation, the Secretary awarded credit reductions of 10 per cent for Respondent's size (on the basis of four employees at the work site), 20 per cent because Respondent had no history of any prior violations under the Act, and 20 per cent for Respondent's good faith, resulting in proposed penalty of $500.00.

DISCUSSION

A. As to Jurisdiction

The first issue to be resolved is whether Respondent is a business affecting commerce and therefore, subject to the provisions of the Act.

The Act provides:

Sec. 3. For the purposes of this Act --

(3) The term 'commerce' means trade, traffic commerce, transportation or communication among the several states, or between a state and any place outside thereof . . .

(5) The term 'employer' means a person engaged in a business affecting commerce who has employees . . .

Sec. 5(a) Each employer --

(2) Shall comply with occupational safety and health standards promulgated under this [*11] Act.

Based on its finding in Section (2) of the Act that injuries and illnesses arising out of work situations "impose a substantial burden upon, and are a hindrance to, interstate commerce," Congress declared its purpose and policy "to assure so far as possible every working man and woman in the nation safe and healthful working conditions . . ." n2 (emphasis supplied).

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n2 Sec. (2)(b) of the Act.

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The Act's provisions and legislative history n3 make clear that Congress intended that every worker would receive the protections afforded by the Act and that the Act was purposely designed to apply to all businesses having employment-related hazards as a class of activities affecting commerce.

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n3 Legislative History of the Occupational Safety and Health Act of 1970 (S. 2193 P.L. 91-596. See pp. 316, 317, 320, 324, 326, 329, 330, 334, 396, 403, 422, 440, 445, 525).

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Therefore, the Secretary need not prove in each case how a Respondent's business directly or indirectly affects commerce; only that the Respondent's activity belongs to the class of activities intended to be regulated. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964), Katzenbach v. McClung, 379 U.S. 294 (1964), and Perez v. United States, 402 U.S. 146 (1971).

On this record, we find that Respondent's construction business falls within the class of activities Congress intended to be regulated by the Act and that Respondent is an "employer" as that term is defined in Section 3(5) of the Act.

A. As to Violation

Respondent's motion to dismiss made at the close of the Complainant's presentation is denied and Respondent found in violation of 29 C.F.R. 1926.500(b)(4).

This standard requires that wherever there is a danger of an employee falling through a skylight opening an employer is obliged either to install a standard railing around the opening or place a cover, capable of withstanding the weight of a 200-pound person, over it.

The word "danger," of course, is the general term for liability to injury, of whatever [*13] degree or likelihood of occurrence. In the context of this standard, however, the word, "danger," implies a foreseeable possibility that an employee could fall through a skylight opening under prevailing conditions. Although the evidence does not prove that the roof's surface condition, or the color and location of the skylight fiberglass panels, created any risk of falling, the fatal plunge of an experienced iron worker does establish that a possibility of falling through a skylight opening did exist on July 24, 1973, were a worker to step directly on a skylight panel.

A somewhat more difficult question to answer is whether the risk should have been anticipated under the circumstances. Because Respondent's work plan permitted employees to traverse over several rows of unprotected skylight openings, the potential for stepping on, and through, a skylight panel appears plain. Moreover, the oral instructions of Respondent's foreman and the shouted warnings of fellow employees to Iron Worker Bishop to avoid stepping on the skylights make evident that the danger of a skylight panel collapsing, if stepped upon, was in fact recognized and that the likelihood of such an occurrence [*14] considered within the realm of a distinct possibility.

Respondent argues that the Secretary failed to establish that the skylight panels were incapable of withstanding the weight of a 200-pound person. We do not agree. Evidence that a person weighing 165 or 170 pounds stepped on, and through, an old skylight panel consisting of "flimsy" material raises a presumption, until refuted, that the old skylight panels were incapable of sustaining the weight of a 200-pound person. Respondent's theories that Iron Worker Bishop may have weighed more than 170 pounds; that the weight of his equipment may have brought his over the 200-pound mark, or that he may have struck the panel with a force of more than 200 pounds, are sheer speculation, factually unsupported by the record, and therefore, do not constitute a refutation of the Secretary's prima facie evidence on this issue. We also point out that even Respondent's Vice President, John M. Priest, who surveyed the particular roof prior to the accident, was of the opinion that the old translucent panels could not have sustained the weight of a 200-pound man.

Although the likelihood of an employee stepping onto a skylight was not shown to [*15] be substantially probable, this does not preclude a finding of a "serious" violation. A number of past Commission decisions have held that the Secretary must establish only a likelihood of an accident and prove a substantial probability that the consequences of an accident resulting from a violative condition could be death or serious physical harm. Secretary of Labor v. Crescent Wharf and Warehouse Company, Secretary of Labor v. Standard Glass and Supply Company, OSHARC Docket No. 585.

The distance that an employee would fall (ranging from 16 to 28 feet), the proven possibility that an employee could strike head-first onto a concrete floor, and common sense, require a finding that there is a substantial probability that serious physical harm or death could result from the failure to guard or cover the skylight openings.

With respect to Respondent's contention that it did not know, and could not have known, of the presence of the violation, Respondent's foreman and vice-president are presumed to have been aware that there was a danger of falling if any employee were to step on a skylight panel and knew that no guarding or covering [*16] was to be provided and their knowledge is imputed to the Respondent. Respondent, of course, also is chargeable with knowledge of the standard's requirements.

Finally, Respondent makes the additional point in defense that it was highly impractical, if not impossible, to erect fixed standard railings or to provide the covers required by the standard. The record indicates that standard railings around the skylight openings could not have been affixed readily onto the metal roof and, that even if the installation had been possible, it would have prevented accomplishment of the assigned work. However, covers could have been provided and installed in a manner that would have substantially reduced the danger of stepping on a skylight opening. Moreover, we would point out that although not required by the standard, Respondent had available another course of action; by using safety lines and belts the danger to employees replacing the panels would have been completely eliminated.

C. As to Penalty

All evidence relating to the four factors prescribed by Section 17(j) of the Act, the size of Respondent, its good faith and history of no prior violations, and the gravity of the violations, [*17] has been duly considered in determining the penalty to be assessed.

Respondent employs 21 persons, has a "good" safety record with no prior violations under the Act and an "on-going" safety program. From Officer Thomas' testimony it also is reasonable to infer that Respondent officers have a cooperative attitude toward safety matters.

The gravity of the violation, however, is relatively high. Three employees were exposed to a violative condition which could result in death and did for one of them. Under these circumstances, a penalty of $500.00 is considered appropriate.

FINDINGS OF FACT

Upon the entire record the following facts are found:

1. The Respondent, a California corporation, employs 21 persons and is engaged in the construction and repair of steel buildings for persons and firms engaged in interstate commerce.

2. Some of the construction steel used by the Respondent is imported from Japan.

3. On the afternoon of July 24, 1973, three of the Respondent's employees were exposed to the danger of stepping on skylight panels and falling through skylight openings located on the roof of Treasure Craft Company, 2320 North Alameda Avenue, Compton, California. [*18]

4. None of the skylight openings on said roof were guarded by a fixed standard railing on all exposed sides or a cover capable of sustaining the weight of a 200-pound person.

5. The Respondent knew, or could have known with the exercise of reasonable diligence, of the conditions set forth in Findings 3 and 4, above.

6. There was a substantial probability that death or serious physical harm could result from the conditions set forth in Findings 3 and 4, above.

7. The Respondent has no prior history of violations under the Act, and has a good safety record.

CONCLUSIONS OF LAW

1. The Respondent is an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.

2. On July 24, 1973, the Respondent was in violation of 29 C.F.R. 1926.500(b)(4) and this violation was "serious" within the meaning of Section 17(k) of the Act.

3. A penalty of $500.00 for Respondent's violation of 29 C.F.R. 1926.500(b)(4) is appropriate.

ORDER

Based on the foregoing findings, conclusions of law and the entire record, it is ORDERED that:

1. A violation of 29 C.F.R. 1926.500(b)(4) is hereby AFFIRMED.

2. A penalty of $500.00 for violation of [*19] 29 C.F.R. 1926.500(b)(4) is hereby ASSESSED.