HUMPHREYS & HARDING, INC.
OSHRC Docket No. 621
Occupational Safety and Health Review Commission
May 9, 1974
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter is before the Commission on former Commissioner Burch's order directing review of a decision made by Judge Ben D. Worcester. The Judge vacated two citations alleging serious violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"), and he affirmed a citation alleging two non-serious violations. A penalty of $65 was assessed for the non-serious violations.
In reaching his conclusions the Judge determined that all conditions alleged as violative of the Act's requirements did exist in fact. His dispositions were predicated solely on the fact that Respondent's employees were not exposed to the hazards alleged as serious violations n1 and were exposed to the hazards alleged as non-serious violations. We have reviewed the record, and for the reasons given hereinafter we affirm.
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n1 Judge Worcester stated that Complainant's proofs did not clearly and convincingly establish exposure. On review, we conclude that Complainant failed to establish exposure of Respondent's employees to the serious hazards by a preponderance of the evidence. See Armor Elevator Company, Inc., S. & H. Guide para. 16,958 (Rev. Com'n., 1973). Also see note 3 infra.
[*2]
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Respondent was construction manager for the erection of a 17 floor high rise building in New York City. It performed no construction work itself. All such work was performed by subcontractors who were secured by Respondent in its capacity as manager. Respondent, however, was by contract responsible for the erection of guardrail protection throughout the building, and it was also responsible for the removal of debris. Carpenters and laborers were employed by Respondent for the purpose of discharging its contractual responsibilities.
During the course of construction Respondent placed guardrails around floor holes, outside perimeters, and the like. The process of placing such protection was continuous because subcontractors and their employees would remove the guardrails or sections thereof during the performance of their work.
During February 1972. Complainant's representative inspected the building. At that time he noticed that (1) the outside perimeters of floors 5 through 14 were unprotected, (2) the entrances for a material hoist were unguarded on the 13th and 14th floor, and (3) [*3] elevator shaft openings on the 3rd and 10th floors were unguarded. He assumed that Respondent's employees were exposed to the conditions and the citations alleging serious violations were therefore issued.
On the facts we are once again confronted with the question whether an employer having prime or managerial responsibility on a construction site should be found in violation of the Act when only employees of subcontractors are exposed to conditions which are violative of Complainant's standards. We have answered the question in the negative. Gilles & Cotting, Inc., S. & H. Guide para. 16,763 (1973); J.E. Roupp & Co., & Denver Dry Wall Co., James E. Roberts Co. & Soule Steel Co., In Gilles we said that liability under this Act is predicated on the existence of an employment relationship between employees affected by a violative condition and the person Complainant would have us hold to be in violation of the Act. We also said that were we to find a general contractor liable when only employees of a subcontractor [*4] are exposed to a hazard then the general contractor would have the same duty to abate as the subcontractor and the concomitant right to direct and control the activities of the subcontractor's employees to achieve abatement. The right to direct and control the activities of employees is a right vested in their employer. Were we to find the duty then we necessarily create an employment relationship where it does not exist in fact. Accordingly, in Gilles we declined the opportunity to create an employment relationship.
This case is different. Respondent here has by private contract n2 assumed the obligation to provide guardrail protection throughout the building. The question then is whether Respondent thereby made itself liable under the Act when only employees of subcontractors are exposed to hazards existing by virtue of the lack of guardrails. We answer in the negative.
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n2 The written contract is not in evidence. Respondent, however, testified to the fact that it had contracted to provide guardrail protection.
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We note first that Respondent has not contracted to become a joint employer of the subcontractor's employees. Insofar as the record shows this Respondent has no right to direct and control the activities of subcontractor's employees. Thus, as in Gilles, the critical element of an employment relationship is missing.
What Respondent has done is to volunteer the services of his employees for the purpose of eliminating fall hazards as they arise during the course of construction. This may be enough to make him liable in damages in the event of an accident. See: Prosser, Law of Torts, 343 et seq. (1971); Seavey, Reliance Upon Gratuitous Promises Or Other Conduct, 64 Harv. L. Rev. 913 (1951). But it is not enough to make him an employer of affected employees under the Act.
As we pointed out in Gilles, Complainant's position if accepted would not be limited to the construction industry; it would apply to all industry (BNA O.S.H.R. at 1389 n 4). His position is no less than this: an employer who creates a hazard violative of a standard is liable under the Act. In the extreme this would mean that a manufacturer of non-complying equipment is in [*6] violation. Or as related to this case it would mean that a manufacturer who contracts to provide complying equipment would be in violation when the equipment is non-complying.
We turn now to a second issue raised by the direction for review. As noted above, Judge Worcester concluded that Respondent's employees were not exposed to or affected by the hazards involved with the citations for serious violations. n3 Submissions were requested on the issue "[w]hether an employee should be deemed an affected employee where the exposure to a hazard is potential rather than immediate."
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n3 On review Complainant would show that the evidence of record is contrary to the Judge's decision. Complainant argues that because the duties of Respondent's employees place them on floors 5 through 12 they were in fact affected by the alleged hazards. The floor area of each floor was 14,000 square feet. Obviously, an employee could be on any of the floors and remote from the perimeter, elevator shafts, and hoist entrances. Complainant also argues that because Respondent's employees placed receptacles for debris at hoist entrances they must have been affected on the the 13th and 14th floors. He points to Respondent's statements regarding the general practice of his laborers. Respondent's evidence was that floors 13 and 14 were under the control of a concrete subcontractor. Moreover, the said subcontractor had control of a materials hoist. Under the circumstances Complainant has not shown actual exposure.
[*7]
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Even were we to attempt a definition of potential exposure for the purpose of determining whether a violation has occurred in some other case, we cannot do so in this case. The evidence is that Respondent had been erecting guardrails since the start of construction, and subcontractors removed rails as the work progressed. Respondent then replaced the rails. Under these circumstances, we cannot conclude that Respondent's employees approached unguarded areas at any time or times other than when they were erecting protection. Indeed, insofar as the shafts are concerned the evidence is that Respondent's employees had no occasion to be in the areas cited. In the circumstances we cannot infer potential exposure at any area cited in the serious citations. Complainant has failed to prove a case.
For the reasons given, the decision below is affirmed, and it is so ORDERED.
DISSENTBY: CLEARY
DISSENT:
CLEARY, COMMISSIONER, dissenting: I respectfully dissent.
Respondent, a general contractor acting in the capacity of manager of construction, was engaged in the construction of a seventeen floor building. Respondent [*8] was issued two citations on February 25, 1972, alleging, among other things, that respondent was in serious violation of the Act for its failure to guard material hoist entrances on the thirteenth and fourteenth floors and failure to provide perimeter protection on the open-sided fifth through twelfth floors. n4 The Secretary also alleged that respondent failed to guard elevator shafts nos. 1 and 3 and a mechanical shaft on the tenth floor and elevator shaft no. 9 on the third floor. n5
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n4 29 CFR 1926.500(d)(1) (Serious Citation No. 1).
n5 29 CFR 1926.500(b)(1) (Serious Citation No. 2).
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Respondent had about 18 persons on its payroll at the worksite. It's own personnel included laborers who were assigned general clean-up duties and carpenters who were assigned to install and maintain railings and other protective devices around shaftways and open perimeters. Respondent conceded that the conditions for which it was cited did actually exist and that they did not meet the standards specified in the citation. [*9] The actual construction work was performed by subcontractors secured by respondent as manager of the project. In all, there were 280 to 350 men working on the project.
In this case, respondent was under a contractual duty to provide protection at the worksite. It understood that it had the contractual duty of constructing and maintaining perimeter and shaftway fall protection throughout the jobsite. Respondent undertook to fulfill this duty by providing carpenters assigned solely to the construction and maintenance of barriers and railings on all floors of the structure.
I would hold that, when a prime or managing contractor agrees by contract or otherwise to provide protection throughout the worksite, the contractor also assumes along with the immediate employer whatever duties may exist under the Act that correspond to the contractual or agreed upon duties to protect the employees of all employers involved.
Such a contractor should be considered an "employer" for purposes of section 5(a) in such a multi-employer situation, particularly when employees of more than one contractor are exposed to risks on a construction site. See, Morey, "The General Duty Clause of the Occupational [*10] Safety and Health Act of 1970," 86 Harv. L. Rev. 988, 998 (1973). There may be many situations where the undertaking of such duties by a prime or managing contractor may be a practical solution to difficulties in correcting hazards. See, for example, Workinger Electric, Inc. and Anning-Johnson Co., Nos. 3387 and 3439 (February 11, 1974) (Administrative Law Judge's decision). An arrangement of this type furthers rather than conflicts with the essential purpose of the Act in providing safe and healthful employment. n6
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n6 Cf. RESTATEMENT OF CONTRACTS, § 160(b).
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Contractual or other agreed upon duties aside, the potential as well as the actual exposure of respondent's employees should be considered in ascertaining its duties under the Act. The evidence showed that the unguarded perimeters and shaftways were easily accessible to respondent's employees. The Act expressly contemplates that potential exposure of an employer's workers will make him responsible for a hazard's abatement. n7 The [*11] test is buttressed by legislative history indicating that Congress sought to assure employee safety by requiring employers to discover and correct hazards before either an accident or an immediate danger occurred. n8 Also, the United States Court of Appeals for the Fourth Circuit recognized this principle in a recent case dealing with the safety of coal miners under the analogous requirements of the Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 814(a). In Eastern Associated Coal Corp. v. Interior Board of Mine Operations Appeals et al., 491 F.2d 277 (4th Cir. 1974), the court upheld the following definition of "imminent danger" as determined by the Secretary of the Interior.
An imminent danger exists when the condition or practice observed could reasonably be expected to cause death or serious physical harm to a miner if normal mining operations were permitted to proceed in the area before the dangerous condition is eliminated. 491 F.2d at 278 (emphasis by court).
In so doing, the Court held that an "imminent danger" existed in a mine even though there were no miners in the affected area at the time of inspection.
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n7 See, the purpose of the Act (§ 2(b)); employees may request inspections if they believe a hazard exists which "threatens physical harm . . ." § 8(f)(1); a serious violation is one which creates the possibility that serious harm "could result" § 17(j). See also § 13(a) allowing for enjoining an "imminent danger."
n8 Committee Print, Legislative History of the Occupational Safety and Health Act of 1970, 92nd Cong. 2d Sess. 142-144, 149-150, 152-154, 161-162, 851-853, 855-856, 865, 991-992, 1186, 1217.
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[The Judge's decision referred to herein follows]
WORECESTER, JUDGE, OSAHRC: This is a proceeding under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq., hereinafter referred to as "The Act". On February 25, 1972, the Secretary issued a citation pursuant to the provisions of Section 9(a) of the Act and, at the same time, served notice of a proposed penalty for two serious violations of $650.00 each and one nonserious violation of $65.00 for a total penalty of $1365.00. [*13] The Respondent filed its notice of contest on March 13, 1972, thus giving this Commission jurisdiction of the issues under the provisions of Section 10(a). The case was heard in New York, on April 17, 1972.
STIPULATIONS
It was stipulated that the Respondent is a corporation having its principal office in the city of New York, New York; that none of its employees were injured as a result of the alleged violations; that all equipment and machinery on the site involved was under its ownership or control; that the company is of an average size for the general type of business in which it is engaged in the community and that its net worth for the year preceding the year in which the alleged violations took place was $280,000.00. There is no history of previous violations. Its average number of employees is 27.
The Respondent declined to stipulate that it was engaged in a business affecting interstate commerce, but subsequently conceded (Tr. 20-27) that Humphreys & Harding as building managers or construction engineers, is supervising projects in Washington, D.C., and in the State of New Jersey (Tr. 20). It is apparent that the Respondent was at all times pertinent to the [*14] issues in this proceeding engaged in a business affecting commerce between the states and that it is subject to the jurisdiction of this Commission under the provisions of Section 3(5).
THE ISSUES
Section 5(a) of the Act requires each employer to furnish his employees a place of employment free of recognized hazards which are likely to cause death or serious physical harm and to comply with safety and health standards promulgated by the Secretary pursuant to the provisions of Section 6(b). The complaint alleges that:
V
On February 14, 1972 respondent corporation violated the below described standards which were duly promulgated pursuant to section 6 of the Act.
(a) Respondent did violate the standards at 29 C.F.R. 1926.500(d)(1) in that every open sided floor or platform six feet or more above adjacent floor or ground level was not guarded by a standard railing or the equivalent a specified in 29 C.F.R. 1926.500(f)(i) on all open sides. The violations included but were not limited to the 13th and 14th floor material hoist entrances were not guarded and the 5th to 12th floors lacked perimeter floor protection. The railings were not provided with a standard toe board [*15] whenever, beneath the open sides, persons can pass, or there was moving machinery, or there was equipment with which falling machinery could create a hazard.
(b) Respondent violated the standards at 29 C.F.R. 1926.500(b)(1) in that floor openings were not guarded by a standard railing and toe board or cover, as specified in 29 C.F.R. 1926.500(f), including but not limited to the tenth floor elevator shaft No. 1, the tenth floor elevator shaft No. 3 and adjacent mechanical shaft and third floor elevator shaft number 9.
VI
The violations alleged in the citations for serious violations numbers 1 and 2 issued to respondent corporation, described in paragraph V above, were serious violations within the meaning of section 17(k) of the Act in that there was a substantial probability that death or serious physical harm could result from the conditions alleged to exist.
VII
On February 14, 1972 respondent corporation violated the below described standards which were duly promulgated pursuant to section 6 of the Act.
(a) Respondent violated the standards at 29 C.F.R. 1926.500(d)(1) in that material hoist runways on the 8th to 16th floors were incompletely guarded in that midrails or toe [*16] boards or equivalent were not used as required by this section and as specified in section 29 C.F.R. 1926.500(f)(i).
(b) Respondent violated the standards at 29 C.F.R. 1926.500(b)(1) in that floor openings were not guarded on all exposed sides by a standard railing and toe boards or covers as specified in 29 C.F.R. 1926.500(g). These violations included but were not limited to: no midrail or toe board on shaft way protection on the 12th floor (number 5), 11th floor (number 5), 9th floor (number 5), 8th floor (number 4), 7th floor (number 4), 6th floor (number 3), 4th floor (number 2), 3rd floor (number 2); the shaftway protection was not sturdy on the 9th floor elevator shafts numbers 6, 7 and 8; 2nd floor incomplete protection on elevator shaft number 4 and no midrail or toeboard on three shafts; 1st floor no protection on elevator shaft number 6 and no guard rails on 3 elevator pits in the basement.
THE EVIDENCE
The Respondent is a company which, as general contractor, furnishes management services required in erection of high rise buildings. The worksite involved in the instant case was a seventeenth floor addition to Columbus Hospital in the City of New York. The [*17] Respondent did not perform any of the construction work either directly or indirectly. All excavating, pouring of footings and underpinning, erection of steel, installation of equipment, fabricating of materials and other tasks involved was done by subcontractors secured by the Respondent as manage, of the project. However, the Respondent as part of its management responsibility, furnished laborers who cleaned up debris left by electricians, plumbers and other employees of the subcontractors. Humphreys and Harding also supplied carpenters who installed railings and other protective devices around shaft ways and at floor perimeters where the brick walls had not yet been completed. There were approximately 18 of the Respondent's laborers and carpenters and a project manager working at the Columbus Hospital site at the time of the inspection. There were from 280 to 350 employees of subcontractors at work on this project at various times.
The evidence for the Secretary came from his Compliance Officer, McCabe. McCabe although obviously honest, conscientious, and truthful was not adequately prepared to testify. He had not visited the site of the alleged violations after [*18] the original inspection in February 1972. He had failed to refresh his recollection as to what he had seen there on that date by reference to his notes prior to the hearing. As a result his testimony was disconnected, vague and occasionally based upon assumptions rather than his recollection of what he saw (Tr. 40, 41).
McCabe described the site of alleged violations as a seventeen story building of approximately 14,000 square feet per floor. At the time of his inspection the bricklayers had progressed as far as the fourth floor with exterior brick work. The concrete contractor was still working on the seventeenth floor. Since the exterior brick had only reached to the fourth floor, there were open-sided concrete floors above that level. The concrete subcontractor was completing the deck on top which meant that the next step would be to pour the concrete on that floor. McCabe said on cross-examination that during a 21 to 28 day period while the concrete on the 3rd floor was curing, no other construction work could be done on the floors above 12 (Tr. 118, 119).
The witness was asked to explain what he observed which lead to the issuance of Citation Number 1 alleging violation [*19] of Section 500(d)(1). He said that there was failure to guard open-sided floors, platforms or runways with the type of railing specified by the standards. Item No. 1 of this Citation pertained to an alleged violation at the 13th and 14th floor material hoist entrances. McCabe explained that on an open-sided floor material hoists are operated with an exterior shaftway at the edge of the floor. He said that the regulations require that a bar be placed across the shaftway so that no employee will fall into the shaft when the hoist is not there. He said that when he inspected the job site there was no protection of this type on the 13th and 14th floors, but there is no proof that any of Respondent's employees worked on these floors without protection.
McCab said that Item 2, Serious Violation Number 1, was based upon his observation that there was no standard railing around open-sided floors from the fifth through the twelfth. The brick work had not been completed so there was nothing but a concrete slab with open sides between the steel beams around the exterior of the building. He saw employees of various subcontractors working on different floors from the fifth through [*20] the sixteenth, but the only employees of Humphreys & Harding he saw were carpenters who were installing shaftway protection on the 12th floor at that time (Tr. 51). However, he said that other Humphreys & Hardings's employees who were picking up trash left by employees of the subcontractors, would have had work to do on most, if not all, of the floors from the 5th to the 14th at various times during the day (Tr. 53). He assumed that these men would have been exposed to unguarded areas, but he did not see any.
McCabe said, that proper perimeter protection under Section 500(d)(1) requires a top rail, a mid rail and a toe board strong enough to hold a force of 200 pounds at the center. He said there was no perimeter protection on any of the floors 5 through 12, except in a few sections where a rope was strung across. Some of the stairwells had a single 2 by 4 up, but none had a mid rail or toe board.
In explaining the basis of his recommendation for a citation for Serious Violation 2 involving Section 1926.500(b)(1) (Tr. 66), McCabe said that this regulation requires that floor openings be either covered or provided with a standard railing. Item 1 of this citation was issued because [*21] there was no protection near the elevator shaft 1 on the 10th floor.
Item 2 of Serious Violation number 2 was issued because some of the shaftway protection around shaftway number 3 on the 10th floor had been removed. No elevator had been installed in either shaftway 9 or 3, so that any employee falling into the shaft could be killed (Tr. 87). McCabe saw employees of subcontractors working on this floor (Tr. 67) and on the third floor where there was also inadequate protection, but he did not observe any of the Respondent's employees on either of these floors. He assumed that their laborers and carpenters would have been exposed to these hazards in the course of their duties because they would have had to have passed through all of these floors in order to get to floors above the 6th or 7th (Tr. 68, 87). The laborers might be working on any floor from the basement up to the 12th floor (Tr. 88).
Item 1 of the citation for non-serious violation was based upon the provisions of Section 500(d)(1) of the construction standards which requires standard railing or the equivalent around open-sided floors, platforms and runways. McCabe said that from the 8th through the 16th [*22] floor the hoist runways had a top rail but no midrail or toe board or the equivalent. A runway was described by McCabe as a platform leading from the floor to the opening of the material hoistway. In order to reach the hoistway it must project from the side of the building. Because there was no toe board, material which could be knocked off might fall upon workmen passing below. Inadequate protection as above described was observed on each floor from the 8th of the 16th.
Item 2 of this citation charged violation of Section 500(b)(1) and pertained to the absence of protection around floor openings. There were shaftways on different floor levels which were not properly protected according to McCabe. On each floor some of the shaftways had only a top rail. He tested the protection which had been put up and said that in his opinion it would not have been strong enough to stand a force of 200 pounds as required by the standard (Tr. 97). He also observed three elevator pits in the basement that had no railing to prevent employees from falling in. The Respondent's project supervisor, Kearney, testified that they thought the protection they had furnished was adequate. [*23] As soon as they were advised that it was not, they immediately took steps to comply (Tr. 139).
The Respondent's representative, Stoll, in a narrative manner, described heavy construction methods generally and on the project involved. Stoll said (beginning at Tr. 163) on high rise construction projects it is customary for the structural steel to be erected first. The pouring of concrete begins four floors behind the too ploor of bolted steel. There are generally two floors ahead of that unbolted. When the concrete is up to the 8th or 9th floor a scaffold is hung on the outside to start the masonry. Bricklayers then start to close in the perimeter walls. At that time the steel work is usually topping out. The steel workers usually work two or three floors at a time, and the concrete man at about four floors at a time. With all of these different contractors working at the same time, intermediate protection is installed. By intermediate protection Stoll said that he meant a temporary device such as rope strung between the steel beams. He said that some of the protection must be removed every day so the different subcontractors can work.
On this particular project he said [*24] that there was an expenditure of approximately $1,400,000 per month and that about seven or eight hundred thousand dollars of that sum was for material. In delivering it to the various subcontractors it was necessary to remove the protection around the hoists. Some of the larger pieces of material must be raised by cranes instead of the hoist. It is unloaded through the open walls. It is necessary to remove the protection to unload it. Stoll said that anyone who understands building methods would known that in the erection of a high-rise building costing between 20 and 100 million dollars, it would be impossible to keep the kind of protection specified by the standards in place and still erect the structure.
Stoll concluded by making a comment about the penalty. He said that their contract provided for, a guaranteed maximum, that they had been turning back to the state government a considerable amount of money, but he had up to a 2 million dollar contingency fund so that if necessary he could have paid the cost of all of the protection required. They had not forgone providing protection to save money, instead it had been done in the way it was done because of the [*25] practical considerations. No one had been killed at the site. The company had never had a fatality since it was organized in 1949 (Tr. 169, 170). Stoll pointed out that when McCabe made his inspection the bricklayer was only up to the third or fourth floor. At the time of the hearing he was on the tenth floor. Two months had gone by and from seven to eight floors then had exterior masonry. The building had been closed. The protection was there. There no longer was any need to remove it. Earlier when the shafts were going up work had to be done in them. Heavy piping and large size duct work had to be put in. Duct work was delivered three times a day. Approximately 120 tons of metal was being delivered each week while duct work was being installed (Tr. 171).
DISCUSSION OF THE LAW AND THE EVIDENCE
There is sufficient proof to sustain Items 1 and 2 of the non-serious violations of 29 C.F.R. 1926.500 alleging failure to have mid rail and toe boards as required by this regulation. The admissions of Stoll (Tr. 173) and the Respondent's project supervisor, Kearney, (Tr. 137, 138, 139) when considered together with McCabe's observation of the absence of mid rails and [*26] toe boards in the same location satisfies the burden of proof. Here it is not necessary to show that Humphreys and Harding's employees were present on these particular floors. It is obvious that when material of the size, weight and quantity described by Stoll for the Respondent was off loaded through runways and placed near shaftways where there was no toe board or mid rail that there was a risk that Respondent's employees working below the unloading level could be injured by falling objects. No eyewitness to such an event is required since it is undisputed that employees of the Respondent were present below these areas on the day of inspection. This is an entirely different situation than in the alleged serious violations.
In the case of floors 13 and above, no employees of the Respondent were observed there, none but concrete contractor employees could have been working there at the time of inspection. While it might be reasonable to suspect that the Respondent had only a rope on the perimeter when its employees were working on floors 12 and below, the way to find out if this was so would have been to make follow-up inspections or to seek witnesses who had observed Respondent's [*27] employees being exposed to such hazards. Instead, the only proof of actual observation offered was (Tr. 52):
Q.: Do you of your own knowledge know if any of the employees that you saw were employees of Humphreys & Harding?
A.: The only employees I was sure of seeing, on going through it one time -- I don't know if it was going through this or another contractor -- they were working on the twelfth floor installing shaftway protection, some of their carpenters.
The witness was not even sure if what he described was on the Respondent's jobsite or not. The only thing he was sure of was that they were engaged in doing the very thing the Respondent was charged with not doing; they were putting up shaftway protection. McCabe did not say whether or not the protection being installed met the standards. Under those circumstances when considered with the Respondent's assertion that the carpenters were employed to replace protection taken down by subcontractors, it must be assumed that, as a matter of law, the Secretary has failed to sustain the burden of proof that serious violation 1 and 2 occurred.
The record shows that the Respondent's executive officer and representative [*28] was belligerant, argumentative, and defiant. He appears to be reluctant to fulfill his obligation to his employees both moral and legal. The trier of the facts herein, on the contrary, after having an opportunity to evaluate his demeanor is of the opinion that Stoll's vehement outbursts were an expression of righteous indignation rather than the raucous diversionary talk of a mischiefmaker who has been caught. This was partly attributable to his election to appear without counsel which caused him to become entangled in frustrating procedural obstacles when he sought to vindicate himself and his company. The record is further burdened by the inadequacy of the evidence presented by the Petitioner.
The burden of proof of the alleged violations rests upon the Secretary. His chief witness who was inspecting other job sites at the same time has not been back to the Columbus Hospital project since. He apparently had not recently reviewed his notes on the inspection if he made any. When confronted with a vigorous, argumentative cross-examination he became confused and unsure of himself. The Respondent has been charged with "serious" violations meaning, as defined in the [*29] statute, likely to cause serious injury or death (Section 17(k)). Before such a grave and derogatory charge is made clear and convincing evidence of the misconduct complained of should be at hand.
If the Respondent did in fact permit its employees to perform work at 5th floor and higher levels without more protection at open floors and in shaftways than a rope or a single 2 by 4 plank, it is plain that serious injury or death might result. Despite the protestations of the Respondent about the standards being too strictly interpreted, if the evidence should show that its employees were exposed to the working conditions described by McCabe, affirmance of the citation and proposed penalty for serious violations would be required, but the evidence is insufficient to substantiate the charges.
McCabe only saw Respondent's employees working on the 12th floor and there they were installing shaftway protection (Tr. 52). There is no evidence that any of Respondent's employees were working on any other floor under conditions which would endanger them. Even if it is assumed that the protection furnished on other floors did not meet the standards there is no direct evidence that Humphreys [*30] and Harding's employees in the course of their duties, came near hazardous areas. If the Secretary had made one or more additional inspections; if he had caused photographs be made; if McCabe had questioned persons present on the jobsite who had observed the Respondent's employees; or if McCabe had questioned the employees themselves; witnesses and demonstrative evidence showing the violations suspected may have become available. The Secretary has relied solely on such flimsy basis as an assumption by his compliance officer that because the Respondent's laborers could have passed through floors five through twelve that they did in fact do so and that they also were exposed to danger. This is pure conjecture. The ultimate fact to prove a charge of misconduct cannot be assumed. A combination of facts derived from relevant evidence of probative value properly received in evidence is the only basis upon which a charge of violation of the Act can be upheld. There is an absence of such evidence in this record. The Secretary has failed to substantiate the allegations of serious violation of 29 C.F.R. 1910.500(a)(1) and (b)(1) by competent proof.
FINDINGS OF FACT
1. The [*31] Respondent is now and was at all times relevant to the issues in the instant case a New York Corporation maintaining an office at 420 Lexington Avenue, New York, New York.
2. The Respondent's new worth for the year 1971 was $280,000,00.
3. The Respondent was, at all times relevant to the issues herein, a construction manager with overall supervisory control of employees engaged in work at a building under construction located at 227 E. 19th Street, New York, New York, in February 1972.
4. The Respondent is and was at all times relevant to the issues herein acting as a building engineer and supervising contractor over subcontractors and its own employees on projects in the city of New York, New York, in the State of New Jersey and in the District of Columbia.
5. On February 25, 1972, the Secretary caused to be issued there citations alleging violation of section 5(a)(2) of the Act; ot wit:
(a) A citation for a serious violation of section 29 C.F.R. 1926.500(d)(1)
(b) a citation for a serious violation of 29 C.F.R. 1926.500(b)(1).
(c) a citation for a violation of 29 C.F.R. 1926.500(d)(1).
6. The Respondent had approximately 18 employees at an East 19th Street, [*32] New York, New York, worksite in February 1972 at the time of the alleged violations.
7. The evidence failed to show that the Respondent's employees were working on the 13th and 14th floors of the subject worksite on February 14, 1972 as alleged in Item 1, Serious Violation 1
8. The evidence fails to show that any employees of the Respondent were working on any of the floors from 5 through 11. There were such employees on the 12th floor as alleged in Item 2, Serious violation 1, but they were engaged in erecting a protective railing around a shaftway (Tr. 52, 120).
9. There is no evidence that any of the Respondent's employees were working near shaftway number 1 as alleged in Item number 1, Serious Violation 2, on the 10th floor on February 14, 1972. The only workmen seen by McCabe on that floor were subcontractors' employees (Tr. 67).
10. There is no evidence that any of the Respondent's employees were working on the 10th floor in the vicinity of shaftway number 3 on February 14, 1972, or any place on this floor (Tr. 87, 88). McCabe speculated in response to a leading question that carpenters and laborers could have passed through these floors (Tr. 88), but he did not say [*33] whether passing through would place them near shaftway number 3.
11. There is no evidence to sustain the allegation that the Respondent's employees were subjected to the hazards alleged in Item 3, Serious Violation 2.
12. The allegation of failure to install proper protection as required by the standards as alleged in Item 2, Non-Serious Violation 1, is conceded (Tr. 150). The admission of the Respondent together with the testimony of McCabe that he saw shaftways without mid rail and toe boards on floors above the floors through which the carpenters working on the 12th floor had to pass shows a hazard to employees did exist.
CONCLUSION OF LAW
1. The Respondent is, and was at all times relevant to the issues herein, engaged in a business affecting commerce within the meaning of Section 3(3) of the Occupational Safety and Health Act of 1970.
2. The Respondent is, and was at all times material herein, an employer under the provisions of Section 3(5) of the Act and, as such, subject to its provisions under Sections 4(a) and 5(a) of the Act and the standards promulgated under the authority of Section 6.
3. The Secretary has failed to sustain the burden of proof (Sec. [*34] 29 C.F.R. 2200.33; 5 U.S.C. 556(d)) in the following Citations for Serious Violation:
a. Item 1, Citation 1 charging violation of 29 C.F.R. 1926.500(d)(1) on the 13th and 14th floors of the building site.
b. Item 2, Citation 1 charging violation of 29 C.F.R. 1926.500(d)(1) on floors 5 through 12 of the building site.
c. Item 1, Citation 2 charging violation of 29 C.F.R. 1926.500(b)(1) on the 10th floor of the building site (shaft number 1).
d. Item 2, Citation 2 charging violation of 29 C.F.R. 1926.500(b)(1) on 10th floor of the building site (shaft number 3).
e. Item 3 Citation 2 charging violation of 29 C.F.R. 1926.500(b)(1) on the 3rd floor of the building site.
4. The Secretary has sustained the burden of proof that the Respondent violated the provisions of 29 C.F.R. 1926.500(d)(1) and (b)(1) as alleged in Items 1 and 2 of the Citation as alleged in paragraph VII of the Complaint.
5. A proposed penalty of $65.00 for Citation for a non-serious violation is reasonable and proper under the provisions of Section 17(j) of the Act. Hodgson v. Nacirema Operating Company, OSHRC Docket Number 4.
ORDER
Upon consideration of the record it is hereby ordered [*35] that:
1. The Secretary's Citation for Serious Violation Numbers 1 and 2 and the proposed penalty of $1300.00 should be and hereby is vacated.
2. The Secretary's Citation for non-serious violation of 29 C.F.R. 1926.500 and the proposed penalty thereon of $65.00 is affirmed in all respects.