CIRCLE INDUSTRIES CORP.

OSHRC Docket No. 4356

Occupational Safety and Health Review Commission

September 22, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

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

Arnold E. Rubinstein, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On March 25, 1974, Administrative Law Judge Ben D. Worcester issued a decision vacating a citation for serious violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., [hereinafter cited as "the Act"] issued to respondent, Circle Industries Corp. The citation alleged that respondent failed to comply with the safety standard published at 29 CFR 1926.500(d)(1). n1 A penalty of $1,000 was proposed by the Secretary.

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n1 29 CFR 1926.500. Guardrails, handrails, and covers.

* * *

(d) Guarding of open-sided floors, platforms, and runways.

(i) Every opensided 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 whenever, beneath the open sides, persons can pass, or other is moving machinery, or there is equipment with which falling materials could create a hazard.

[*2]

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The Secretary of Labor petitioned for review of the Judge's decision. The Secretary took exception to the holding of the Administrative Law Judge that respondent's employees were not exposed to any hazard. The petition was granted.

For reasons given below we reverse the Administrative Law Judge's decision, and affirm the citation.

In July and August 1973, respondent was engaged as a carpentry subcontractor to Starrett Brothers and Eken, the general contractor, in the construction of an apartment complex in New York City. On August 7, an employee of another subcontractor fell to his death from the eighth floor of the project's "A" building. As a result of this fatality, the Secretary conducted an inspection of the complex on August 8 and 15.

The August 8 inspection revealed that the perimeters on all 16 floors of building "A" were unguarded. During the August 15 inspection the compliance officer observed that a cable previously installed on the seventh floor of the Northwest Tower Courtyard side of building "C" had been removed. The citation charges respondent for failing to erect guardrails [*3] at each of the above locations.

The compliance officer did not observe any of respondent's employees at the cited areas. However, respondent's foreman testified that its employees had occasion to work within five feet of the unguarded perimeters while installing bucks in the doorways leading to apartment balconies.

Judge Worcester vacated the citation because the compliance officer failed to observe respondent's employees exposed to the hazard of unguarded edges at the time of the inspections. This was error. In order to prove employee exposure to a safety hazard it is not necessary for the Secretary to show that employees were actually exposed to the hazard during the inspection. It is enough to show that, at some time during the course of their job activities, employees were or will be in the zone of danger created by the hazard. Gilles & Cotting, Inc., 1975-1976 CCH OSHD 20,448, 3 BNA OSHC 2002 (No. 504, 1976), on remand from 504 F.2d 1255 (4th Cir. 1974). This burden has been met. Through the testimony of respondent's foreman it has been established that respondent's employees were exposed to the fall hazard resulting from unguarded floor perimeters.

Respondent [*4] argues that the citation should be vacated because it lacked contractual responsibility for the erection of guardrails at the site. In Anning-Johnson Co., Nos. 3694 & 4409 (May 12, 1976) and Grossman Steel & Alum. Co., No. 12775 (May 12, 1976) we held that a subcontractor on a common construction site has a duty under section 5(a)(2) of the Act to protect his own employees who are exposed to a hazard resulting from a breach of a standard, even though the subcontractor has neither created nor has control of the hazard, by taking steps short of full compliance with a standard. For example, the employer could notify the general contractor of the hazard, and take interim measures to protect employees from the hazard. This is so unless the subcontractor can show affirmatively that it has done all that is realistic under the circumstances to protect its employees from the hazard or that it could not have had notice of the hazard.

What is realistic for protecting the exposed employees depends upon a balance of the hazard involved with considerations of efficiency, economy, and equity. Cf. Anning-Johnson Co. v. O.S.H.R.C. and Brennan, 516 F.2d 1081 (7th Cir. 1975).

The [*5] evidence supports respondent's assertion that it lacked contractual responsibility to erect guardrails at the worksite. But respondent, as a carpentry subcontractor, had the technical capability to install standard guardrails or their equivalent. n2 Moreover, on occasion the project's general contractor issued respondent extra work orders to install perimeter guarding at various locations at the site.

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n2 For a discussion of the meaning of the term "equivalent" as used in 1926.500(d)(1) see Warnel Corp., 1975-1976 CCH OSHD para. 20,576, 4 BNA OSHC 1034 (No. 4537, 1976).

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Despite its capabilities and the manifest hazard respondent has failed to indicate any steps which it took to protect its employees from the hazard. Thus, on this record respondent has breached its duty under section 5(a)(2), and the citation is affirmed. However, inasmuch as the above-discussed affirmative defense was not available to respondent at the time of the hearing we shall afford respondent an opportunity to do so.

With respect to [*6] the assessment of an appropriate penalty, we find that the hazard of falling from unguarded floors is "serious" within the meaning of section 17(k) of the Act. The gravity of the violation in the circumstances of this case is moderate. Although respondent had no contractual responsibility to erect guardrails, its capability of doing so and its awareness of the hazard placed upon respondent a duty to take some action to protect its employees. In balance, we assess a penalty of $300.

Respondent is afforded ten (10) days in which to move for an opportunity to assert the affirmative defense discussed above and to present additional evidence in support thereof.

So ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Therefore, his decision, which is attached hereto as Appendix A, should be affirmed in all respects. Furthermore, for the reasons which I expressed in my dissenting [*7]

Judge Worcester's decision is in conformance with the rationale expressed in Anning-Johnson Company v. OSAHRC n3 where the Seventh Circuit stated:

"We fail to see how requiring several different employers to place a proper guardrail . . . along the edge of open-sided floors . . . fulfills the purposes of the Act any more effectively than requiring only one employer to do so The Secretary's position is premised on the theory that the more people responsible for correcting any violation, the more likely it will get done. This is, of course, not necessarily true. Placing responsibility in more than one place is at least as likely to cause confusion and disruption in normal working relationships on a construction site. Such a policy might in effect prove to be counter-productive." n4

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n3 516 F.2d 1081 (7th Cir. 1975).

n4 516 F.2d at 1089.

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The underlying rationale of the Seventh Circuit's decision in Anning-Johnson is that the employer primarily at fault is the one who should be held liable. My colleagues ignore this rationale by their holding herein. While they acknowlege that the respondent, a subcontractor, had no contractural responsibility to erect guardrails at the worksite, they are not deterred from assessing liability on one who in no way caused the violation. As the Ninth Circuit stated in Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company: n5

"Fundamental fairness would require that one charged with and penalized for violation be shown to have caused . . . that violation. Under our legal system, to date at least, no man is held accountable, or subject to fine, for the totally independent act of another." n6

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n5 511 F.2d 1139 (9th Cir. 1975).

n6 511 F.2d at 1145.

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Clearly, by their holding in this case, my colleagues have dealt a blow to the doctrine [*9] of fundamental fairness espoused by the Ninth Circuit. This, however, is not the first time that such a blow has been delivered by Messrs. Barnako and Cleary.

Appendix A

DECISION AND ORDER

Francis V. LaRuffa and Theodore T. Gotch, for the Secretary

Arnold E. Rubinstein, for the Respondent

Ben D. Worcester, Judge, OSHRC

This proceeding arises pursuant to a notice of contest filed by the Respondent, Circle Industries Corporation, under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq.) hereinafter called the Act. On August 21, 1973, a citation was issued alleging that the Respondent had violated Section 5(a)(2) of the Act and 29 CFR 1926.500(d). A notice of contest was filed on August 29, 1973, and after issues were joined the matter came on to be heard in New York, New York on January 29, 1974.

The undisputed facts are that in July and August, 1973, the Respondent [*10] employed approximately 15 carpenters as one of the subcontractors on a four unit 31 story group of apartment buildings under construction at 2100 First Avenue in the City of New York. On August 7th 1973, an employee of the concrete subcontactor on the project fell to his death from the eight floor of one of these buildings designated as "A" Building. This incident came to the attention of the Department of Labor. The local office of the Occupational Safety and Health Administration sent one of the Secretary's compliance officers to the building site to make an investigation on the following day, August 8th 1973.

Building "A" was described by the compliance officer as a horseshoe shaped structure. On the courtyard side (the inner part of a horseshoe) there was a five foot wide projecting walkway which was centilevered outside of the building to provide access to the various apartments. It was from this cantilevered platform that the concrete contractor's employee had fallen the previous day. The compliance officer noticed that there was no barrier of any kind at the edge of the platform on August 8th. On August 15th, while inspecting "C" Building, he noticed that a cable previously [*11] installed at the perimeter of the 7th floor had been taken down. There was no work being performed in this area at the time. The compliance officer recommended that a citation be issued charging the Respondent with a violation of 29 CFR 1926.500(d) for failure to erect a standard railing on all sixteen floors on the courtyard side of "A" Building on August 8th 1973 and on the 7th floor of the Northwest Tower Courtyard side of "C" Building on August 15th 1973.

The inspector did not observe any of the Respondent's employees working near the perimeter of "A" Building at any time (Tr. 29, 30; Tr. 52, 53) on August 8th 1973; nor did he observe any of the Respondent's employees working in the area in "C" Building where the cable was down on August 15th 1973. (Tr. 53-55). He did not bother to make a notation as the result of an inquiry he may have made as to why the cable was down or how long it had been down even though the Respondent's foreman was with him (Tr. 55, 70).

The Secretary's evidence pertained chiefly to the redundant subject of contractual responsibility for perimeter guarding. This subject is immaterial to the issue raised by the pleadings. If there were evidence showing [*12] that the Respondent's employees had been exposed to the danger of falling over the side of any of the 2100 First Avenue Buildings, a violation of the standard might exist even if the failure to erect perimeter protection was another building contractor's responsibility. There is not even a scintilla of evidence that the Respondent's employees were exposed to any hazard 2100 First Avenue, New York, New York of the 8th of August, 1973. Where there is no risk of injury to the employee there is no violation of Section 5(a)(2) of the Act.

ORDER

It is accordingly hereby Ordered that the Citation and proposed penalty be vacated and that this proceeding be dismissed.

BEN D. WORCESTER, Judge, OSHRAC

Dated: March 25, 1974