OTIS ELEVATOR COMPANY

OSHRC Docket No. 688

Occupational Safety and Health Review Commission

October 8, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge John A. Carlson, dated February 23, 1973, is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision held respondent in violation of 29 U.S.C. 654(a)(2) for failure to comply with the occupational safety and health standard found at 29 C.F.R. 1926.500(c). n1 We reverse.

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n1 Respondent was cited for, and tried on, an alleged failure to comply with 1926.500(b). 29 U.S.C. 658(a) requires that a citation ". . . describe with particularity the nature of the violation, including . . . [the] standard . . . alleged[ly] . . . violated." Under a remedial law such as this, it is not normally a proper function of this Commission to allow a citation for, and subsequent trial on, one standard and then substitute and find respondent liable under a different standard. Only when there is clear evidence that prejudice to respondent was not possible will such substitution be allowed.

In this case respondent stated in the answer that 500(c) was the proper standard for which it should be cited. Its preparation for trial, the presentation and cross-examination during the same, indicated that respondent considered that only 500(c) was the matter being tried in fact, if not in law. No objection for the Judge's substitution thereof pursuant to Rule 15(b) of the Federal Rules of Civil Procedure was raised. Under these narrow circumstances, where prejudice is clearly not possible as a result of substitution, will the invocation of Rule 15(b) be permitted.

[*2]

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Pursuant to the provisions of the Occupational Safety and Health Act of 1970, n2 complainant inspected the worksite herein on February 16, 1972, for the purposes of inspecting the working conditions of G.E. Johnson Construction Co., the general contractor. In the process thereof the inspector noticed that an elevator shaft on the first floor of the building had an unguarded opening, a hazard within the definition of 29 C.F.R. 1926.500(c).

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n2 84 Stat. 1590, 29 U.S.C. 651 et seq., hereinafter the Act.

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Several employees were working on the first floor, none of which, however, were shown to be under the employment of respondent, one of many subcontractors on the worksite.

Thus, the issue to be resolved here is whether respondent can be found in violation of the Act when the evidence fails to establish that respondent's employees were exposed to the hazard. We find that no violation can be so found.

This Commission has [*3] consistently held that just because a condition on the worksite fails to comply with the specifications of a standard, a violation of the Act has not been established. There must be evidence that employees of respondent have been exposed to the hazard as a result of noncompliance. Secretary v. Hawkins Construction Co., Secretary v. City Wide Tuckpointing Service,

Employee exposure must be clear from the record; a presumption or inference thereof is insufficient. That burden is part of complainant's prima facie case. Secretary v. Ellison Electric, 1 OSAHRC 547 (1972); Secretary v. J.E. Roupp & Company and Denver Dry Wall Co., 2200.73(a).

While the record indicates that two of respondent's employees were on the second floor at the time of inspection, absent therefrom is any proof of its workers being on the first floor when this opening was unguarded. n3

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n3 The evidence does indicate that respondent's employees worked on the first floor earlier in the day and that a section of a scaffold was placed across the opening. 500(c) specifies that to be in compliance therewith a standard railing or any other substituting type of guard be able to withstand 200 pounds of top rail pressure. 29 C.F.R. 1926.500(f)(1)(iv) and (vi). Complainant believes it is respondent's burden -- an affirmative defense type of situation -- to show that this portion of a scaffold complied to that requirement. That is incorrect. The burden in this type of situation is part of complainant's prima facie case. See Secretary v. Collyear Associates, Inc., 2 OSAHRC 230 (1973). To hold otherwise would circumvent 29 C.F.R. 2200.73(a) and the policy reasons thereof.

[*4]

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Consequently, complainant has not sustained his burden of proof. The decision is therefore reversed.

CONCURBY: VAN NAMEE

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: I concur in Chairman Moran's disposition for the reason that Complainant has failed to prove exposure of Respondent's employees to the condition alleged as hazardous. Accordingly, he has failed to carry his burden of proof. Armor Elevator Co., Inc., S. & H. Guideapara. 16,958 (Rev. Com'n., 1973).

I specifically do not join in the Chairman's conclusions: (1) that an amendment may be had only when there is "clear evidence" of no prejudice, and (2) that "[e]mployee exposure must be clear from the record; a presumption or inference thereof is insufficient." I have stated a view as to permissible amendments in J.L. Mabry Grading, Inc., S. & H. Guide para. 15,686 (1973), and my view regarding proof of employee exposure is stated in Sun Shipbuilding and Drydock Co.,

DISSENTBY: CLEARY

DISSENT:

[*5]

CLEARY, COMMISSIONER, dissenting: I respectfully dissent from my colleagues' decision. It is clear that this case presents both a failure on the part of respondent to comply with the requirements of a validly promulgated standard and the consequential exposure of respondent's employees to the hazard thereby created.

Respondent, a subcontractor, was installing an elevator at a worksite in Colorado Springs, Colorado. At the time of complainant's inspection, the shell of the building, including the elevator shaft, was completed. The shaft immediately behind the wall opening on the first level was seven feet deep. In an attempt to barricade this first level opening, respondent's employee pulled a section of tubular scaffolding, not belonging to respondent, from another location on the worksite and leanded it across the opening. The scaffolding was not fastened or secured in any manner and it weighed approximately 25 to 30 pounds.

Complainant, in his citation, alleged that respondent failed to provide a "standard railing" across the first level elevator shaft. Such conduct is in non-compliance with the standard at 29 CFR 1926.500(c). n4

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n4 The pertinent part of the standard states:

(c) Guarding the wall openings. (1) Wall openings, from which there is a drop of more than 4 feet, and the bottom of the opening is less than 3 feet above the working surface, shall be guarded as follows: (i) When the height and placement of the wall in relation to the working surface is such that either a standard rail or intermediate rail will effectively reduce the danger of falling, one or both shall be provided; . . .

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The specifications for a "standard rail" are found in 29 CFR 1926.500(f) which, in pertinent part, provides the following:

Standard specifications. (1) A standard railing shall consist of top rail, intermediate rail, toeboard, and posts, and shall have a vertical height of approximately 42 inches from upper surface of top rail to floor, platform, runway, or ramp level. . . Minimum requirements for standard railings under various types of construction are specified in the following paragraphs: (iv) The anchoring of posts and framing of members for railing [*7] of all types shall be such construction that the completed structure shall be capable of withstanding a load of at least 200 pounds applied in any direction at any point on the top rail, with a minimum of deflection.

(vi) Other types, sizes, and arrangements of railing construction are acceptable, provided they meet [the minimum specifications of a standard rail] . . . . [emphasis added].

Upon examining these specifications, it becomes readily apparent that a standard which employs terms such as "anchoring of posts," "construction" of the railing, and "completed structure" contemplates something more than a section of tubular scaffolding leaned across a wall opening. Even subsection 1926.500(f)(vi), which speaks of "other types, sizes, and arrangements of railing," talks in terms of "railing construction" (emphasis added), again indicating something constructed as a barricade and secured to prevent accidental displacement. A spare piece of scaffolding, while possibly convenient, is a makeshift, substandard, and clearly unacceptable substitute.

Section 5(a)(2) of the Act requires each employer to "comply with the occupational safety and health standards [*8] promulgated under this Act." In this case the respondent had a duty to guard a wall opening with a "standard rail." The record establishes that the barrier used by respondent did not comply with the specifications of a "standard rail" as set out in 29 CFR 1926.500(f). In addition, statements by respondent's employee reveal that the scaffolding had been used for the duration of the construction as a barricade which was moved from floor to floor depending upon the position of the elevator. The testimony further indicates that employees of respondent had been periodically exposed to the hazardous condition created by this inadequately barricaded shaft opening.

For the reasons above, I would agree with Judge Carlson's conclusion to affirm the complainant's citation as amended and proposed penalty.

[The Judge's decision referred to herein follows]

CARLSON, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651, et seq., hereafter called the Act) contesting a Citation issued by the Complainant against the Respondent (hereafter referred to sometimes as "Otis") under authority vested in Complainant by Section 9(a) [*9] of the Act. The Citation alleges that as a result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at First National Bank Building construction site, 402 North Tejon Street, Colorado Springs, Colorado, and described as follows: "elevator installation and checkout subcontract," Respondent was determined to have violated section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof.

The citation which was issued on March 9, 1972 alleges that the violation resulted from a failure to comply with a standard duly promulgated by the Secretary and now codified in 29 CFR Part 1926. It is to be noted that prior to December 30, 1971 such standards were codified at 29 CFR Part 1518. The former reference to 29 CFR Part 1518 was used in the citation and complaint, but "deemed to be a citation to part 1926."

The description of the alleged violation contained in the citation states:

(29 CFR 1518.500(b)). Employer did not provide a standard railing across the first-floor clevator shaft opening, said shaft having greater than a four [*10] foot drop from the first floor level, First National Bank Construction Site, 402 North Tejon Street, Colorado Springs, Colorado. Date on which alleged violation must be corrected -- upon receipt of citation.

The cited standard as promulgated by the Secretary provides as follows:

Section 1518.500(b). Guarding of floor openings and floor holes. (1) Floor openings shall be guarded by a standard railing and toe boards or cover, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways.

The above cited subsection is quite extensive and for reasons which will be made to appear later in this decision, will not be set forth at further length here. In addition all further reference to standards in this decision will be to the recodified Safety and Health Regulations for Construction, 29 CFR Part 1926, rather than Part 1518.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act the Respondent was notified by letter dated March 9, 1972, from J. J. Williams, Area Director for the Denver, Colorado Area, Occupational Safety and Health Administration, of a proposal to assess [*11] a penalty for the violation alleged in the amount of $125.00.

After Respondent contested this enforcement action and the Complaint and Answer had been filed by the parties, the case came on for hearing at Denver, Colorado on August 17, 1972. In addition to respective counsel for Complainant and Respondent, Mr. Russell Sims, identifying himself as Business Representative of International Union of Elevator Constructors, Local No. 25, was present and orally entered his appearance on behalf of affected employees. His rights of full participation were explained to him by the Judge, but he elected not to take a seat at the counsel table and did not thereafter take any active part in the proceedings. There were no appearances on behalf of any unrepresented employees.

Respondent, in its answer to the complaint, challenged the applicability of the standard previously cited herein to the fact factual situation alleged in the citation and complaint and expressly suggested that the pertinent standard was in fact 29 CFR 1926.500(c). Specifically in this regard, the answer stated:

Respondent assumes that Petitioner's reference to an alleged violation of 29 CFR 1518.500(b) is intended to [*12] allege a violation of 29 CFR 1926.500(c). If Respondent is mistaken in such assumption, on the basis of which it answers herein, then it moves pursuant to Rule 12(e) of the Federal Rules of Civil Procedure for a more definite statement of the nature of the violation alleged to have occurred, in that the section of the Regulation referred to in the Complaint does not contain such a standard as is relied upon by the Petitioner . . .

REVIEW OF THE EVIDENCE PRESENTED

At the outset of the hearing Complainant and Respondent entered into the following oral stipulations:

(1) That Otis Elevator is a corporation with a place of business at 228 North Tejon Street, Colorado Springs, Colorado.

(2) That Otis Elevator Company employs approximately six employees at the Colorado Springs office.

(3) That Otis Elevator Company is engaged in the installation and maintenance of the elevators.

(4) That Otis Elevator Company comes within the jurisdiction of the Act and regularly receives materials and supplies which originated outside the state of Colorado, and that its employees handle such materials and supplies.

(5) And finally that on February 16, 1972, Otis Elevator Company maintained [*13] a work site at 401 North Tejon Street, Colorado Springs, and at the time of the inspection had two employees at the work site, to wit, Mr. R. W. Baumann, a mechanic, and Mr. Wooton, a mechanic helper (Tr. 6).

Complainant's sole witness at the hearing was Mr. Harry C. Hutton, a Compliance Officer for the Occupational Safety and Health Administration. The witness asserted that he inspected the jobsite in question on February 16, 1972 (Tr. 9). The project involved the construction of a bank building. The prime contractor for the project was G.E. Johnson Construction Company. The particular inspection visit was made because the Compliance Officer had an assignment to inspect various projects in which the G. E. Johnson Company was a contractor (Tr. 15). The witness testified that the shell of the building involved in the inspection was completed, the floors and interior walls were in place, as were most of the windows. During the course of his inspection the witness observed a number of workers throughout the structure; most were on what he described as the first floor (Tr. 16). (Respondent's witnesses later referred to this same floor repeatedly as "the basement." To [*14] avoid confusion all later references herein will be to "the first level" and "the second level.") Witness Hutton arrived at the worksite shortly after 9:00 a.m. on the day of the inspection and after contacting a representative of the prime contractor, G. E. Johnson Company, and a Union representative of employees of that contractor, proceeded to inspect the first level of the building. The witness indicated that he, at a later time, also included foremen from various of the subcontractors on the project as he came to areas in which the subcontractor work was proceeding (Tr. 17). As he completed his first level inspection and was preparing to move on to the second level he noticed what he described as an "unguarded" elevator shaft. The testimony of witness Hutton indicated that the shaft or hoistway was enclosed, but that the doorways or openings through which access would be gained to the elevator car on the first level (and as later inspecting revealed) second level were open and unprotected, unless the elevator car were actually positioned in the shaft at the point of opening. The elevator was "parked" behind the second level opening, effectively blocking it (Tr. 18, 24). [*15] The shaft immediately behind the first level opening was of a depth of 7 feet from the lip of the opening. This distance was measured with a steel tape by the witness (Tr. 10, 19). At the base of the shaft elevator bumpers were located at the sides rising to a height of approximately a foot. Except for the side or cornor areas where the bumpers were in place, the exposed shaft bottom was concrete (Tr. 19, 20). No barricade or barrier of any sort was in place at the first level shaft opening. The opening leading into the elevator shaft was five feet wide and "standard door height" (Tr. 18, 19). There was no toeboard (Tr. 20).

Compliance Officer Hutton testified that at the time of his inspection approximately 12 workers were in the general area of the opening he had described. These were plasterers and electricians (Tr. 29). In response to questions propounded on cross-examination, witness Hutton indicated that he did not have a representative of Otis Elevator with him at the time that the opening in question was noted. Shortly thereafter he saw a Mr. Baumann, whom he understood to be with Otis Elevator, and pointed out the alleged violation (Tr. 17, 28). Mr. Baumann [*16] was the only Otis employee whom he saw during the walk-around portion of the inspection (Tr. 17). Witness Hutton, under further cross-examination, indicated that he had made a direct inquiry of the representative of the prime contractor, G. E. Johnson, concerning the barricade over the opening in question and was informed that earlier in the day the elevator had been positioned behind such first level opening but had been moved prior to the beginning of the inspection (Tr. 21, 22). The witness testified that no type of barricade was seen in the "immediate area" of the first level opening (Tr. 20). He was questioned at length as to whether or not "large parts of scaffolding" were noted to be present in the area. He indicated that there were plasters' scaffolds in the area, some of which were in use by plasters (Tr. 21). The witness conceded that a plasterer's scaffold or a portion of a plasterer's scaffold could conceivably serve as an adequate barricade, but stated that a scaffold is not a "standard guardrail," and emphasized that the scaffolding in the area "belonged to the plasterers" and that a "standard guardrail" was necessary (Tr. 23, 24). Following the inspection a closing [*17] conference was held by the Compliance Officer with representatives of the prime contractor and various subcontractors present. A Mr. Utterbach attended on behalf of Respondent, Otis Elevator (Tr. 26).

With regard to the assessment of a proposed penalty, the Compliance Officer referred directly and repeatedly to a "penalty assessment worksheet -- other violations" (Complainant's exhibit, No. 1). He stated that the violation involving the elevator shaft opening was considered to fall into column "C" as delineated on the worksheet (penalty range $201 -- $500). Witnesses Hutton stated that factors considered in arriving at this level of gravity included what he regarded as Respondent's failure to have any barricade in the immediate area to protect the opening, and his judgment that serious injury or perhaps death could ensue should a worker fall into the unprotected elevator shaft. He indicated that a person "coming in out of the light could easily step into the hole thinking he was stepping onto the elevator and instead fall down seven feet." The possibility of injury and severity of that injury were the factors given heaviest weight. In determining the probability of [*18] an injury, he considered the total number of employees, those of the Respondent and others, who were in the area of violation, stating that four were "very close to this area," including the nearby stairwell, and about twelve altogether "in and about the area." This witness testified that in computation the finally proposed penalty of $125.00, Respondent was allowed a 20% downward adjustment for the element of "good faith"; a 10% adjustment because of the small number of employees on the site, and a 20% downward adjustment owing to Respondent's history which was free of prior violation. These adjustments reduced the original $500.00 sum to $250.00. An additional 50% abatement credit was allowed based upon the assumption that Respondent would promptly abate the violation hence, the ultimately proposed penalty was $125.00 (Tr. 12-14, 28-30).

No citations were issued by Mr. Hutton as a result of his inspection except that issued to Respondent Otis (Tr. 25, 26).

Mr. Ralph E. Stalzle, testifying in behalf of Respondent, is District Construction Superintendent for Otis, and was "supervisor" of the project in question. He possesses a degree in electrical engineering and has been employed [*19] by Respondent for many years, commencing in 1929, with extensive experience in the supervision of installing, maintaining and repairing elevators (Tr. 31, 32). The witness was not present on the date that the inspection was made by Mr. Hutton, but was familiar with the status of the project on the basis of visits made weekly or perhaps thrice monthly, depending on the work activity at a given time (Tr. 38). Respondent has a policy of continuing employee safety training in which insurance carriers assist. This policy predated the Act and has become more vigorous since. It includes on-the-job instruction and seminars (Tr. 32, 33). He asserted that the only barricading necessary under company safety policy at the time of the inspection was the presence of barricades across hoistway openings since walls enclosing the hoistways were complete and that the prime contractor "generally is responsible" for keeping barricades in place (Tr. 34). In this connection Respondent offered, and the Judge received through witness Stalzle (Respondent's exhibit No. 7), the portions of the architect's specifications for the project relating to elevator construction and installation, which [*20] specifications became a part of the construction contract to which Respondent, as elevator subcontractor, was a party. The following pertinent language appeared in the specifications:

D 14.1 PASSENGER ELEVATOR:

SCOPE OF WORK:

These specification are intended to cover the complete installation of the elevator plant in a first-class workmanlike manner and include all work and materials in accordance with drawings and as specified. . .

STORAGE:

The elevator contractor shall be allowed to use the premises for storage of his material, an area of ample size, conveniently located, will be assigned for use by the elevator contractor without cost to him.

PREPARATORY WORK NOT INCLUDED:

Preparatory work in conjunction with the elevator installation will be done by other contractors and will consist of the following:

(a) Providing a legal hoistway properly framed and enclosed and providing a pit of proper depth. Guarding and protecting the hoistway. Providing drains and waterproofing for the pit, if required. Providing a properly lighted and ventilated fire resistive machine room or penthouse, including concrete floors, access doors, ladders and guards as required. Providing [*21] in place as located on the drawings the hoistway structure required to withstand the forces and loads resulting from use of the elevator. Providing grouting as necessary under the hoistway entrance sills. Provide in place a steel ladder in accordance with the A.S.E. Code for access to pit (Emphasis supplied).

TEMPORARY USE:

Should the Owner desire to use the service of an elevator during the period when work on the elevator is in progress and before the elevator is placed in service, the Owner agrees to sign the Elevator Contractor's temporary acceptance form and be bound by the terms and conditions thereof. Also, the Owner agrees to provide, if required, temporary enclosures, guards or other protection of hoistway openings, necessary power signaling devices, lights in the car, elevator operators, and other work required to permit this temporary usage.

Witness Stalzle made it clear that both the contract and industry practice, in his belief, placed the primary responsibility for barricading upon the general contractor (Tr. 34, 39, 40). He indicated that "preparatory work" which essentially involved construction of the hoistway was "partially" done before Otis employees [*22] were active on worksites, but that some phases of Respondent's work proceeded "coincidentally" with preparatory work. Respondent's employees are commonly away from a particular job for "weeks or months" while other work goes on (Tr. 34, 35, 40). He further indicated that at the stage of the project here in question barricades had to be "moveable" because as the work progresses within the shaft or hoistway men and materials must be able to move in and out of the openings (Tr. 33, 34).

Despite the contract which the witness regarded as placing the primary duty for barricading upon the general contractor, Otis employees were instructed to make certain "to the best of their ability" that barricades were in place across openings while they were on the job (Tr. 37). This matter was inquired into further by Complainant's counsel at the close of his cross-examination of Mr. Stalzle follows:

(Q) When your people come on the job, such as the one in Colorado Springs, and they are working on the elevator, putting in the elevator, at the end of the day are they responsible for putting up the barricade?

(A) If they have removed them, yes.

(Q) And if they have not removed them?

(A) It is [*23] not their responsibility. It so states right here.

(Q) As a generalization, do your people leave unguarded openings if they are there?

(A) If they are aware of them -- they usually go to the superintendent on the job in charge of the entire project and notify him the condition exists. This is a common trade practice.

Mr. Ronald Wootton testified for Respondent. He was employed by Otis on the date of inspection and was present at the worksite in the capacity of "helper" to Mr. Baumann, mechanic. On the date of inspection he arrived on the job at 7:40 a.m. At this point in the construction permanent elevator doors had not been installed, but the door bucks and sills were in (Tr. 42-43). When he arrived on the job that morning a portion of a "Safeway scaffolding" was across the first level opening as a barricade. This had been the common or standard practice for guarding hoistway openings during the two to three weeks that he had been on the job (Tr. 45, 50). On the day of inspection work was being performed on the second level by the witness and Mr. Baumann who were actually engaged in the installation of permanent elevator doors (Tr. 45). At some time before lunch [*24] Mr. Baumann left the second level landing of the hoistway with an individual whom the witness could not identify and upon return asked the witness what had become of the first level barricade. Mr. Wootton proceeded to the first level where he found that the scaffold piece was no longer across the opening, whereupon he "walked approximately 20 feet or so and pulled another Safeway scaffolding in front of the open hoistway." (Tr. 45). Further testimony revealed that Mr. Wootton had no knowledge as to who had moved the scaffolding (Tr. 46, 50). It was common to move the elevator car during the installation process from floor to floor but for the most part it remained at one floor level while a particular task was being done. On the day of inspection the car had been moved, including movement between floors, but as Mr. Wootton could best recall, it was not moved to the first level and had remained for the most part at the second level (Tr. 50, 51). Mr. Wootton described the scaffolding barricades used as "flat" rectangular side sections of tubular metal scaffolding framework which, when fully assembled, were intended to be planked and used as raised work surfaces. The assembled [*25] scaffoldings were on wheels to facilitate movement. For barricade purposes, however, assembled scaffolds were not used, only the disassembled side portions (Tr. 53-55). The piece was approximately 5' in height, wider than the door opening and 25 to 30 pounds in weight and was leaned against the door bucks without being fastened or secured in any way (Tr. 56-58). Mr. Wootton was certain that the piece was rectangular in configuration and believed it to have cross members, either diagonal or upright (Tr. 56).

This witness testified, in essence, that in his experience and understanding it was sufficient for safety purposes to lean a barrier across a hoistway opening so as to cause a person to move it in order to gain acess to the shaft through the opening. This permits workers to ". . . pull it back and step around it and lean it back without undoing wires or bolts or anything like that." (Tr. 57, 58). The witness at no time talked to Mr. Hutton, the Compliance Officer. The scaffolding used as a barricade did not belong to Otis. Mr. Wootton stated: "We had been using it for a long time on separate floors and I assumed that it belonged to the general contractor, but that's [*26] only an assumption" (Tr. 54). He prepared a drawing showing the layout of the portion of the first level of the building in the area of the elevator opening (Respondent's Exhibit No. 2). The elevator opening was located near the end of a hallway which led to the elevator and a stairwell. At the time the missing barrier was replaced the witness noticed plasterers working in two nearby rooms, the nearest of which was approximately 6' from the elevator opening. Materials and equipment belonging to Otis were stored at the end of the hallway near the elevator opening (Tr. 48, 49).

DISCUSSION

There is no real conflict as to one point: the elevatory doorway at the first level of the bank building site was unprotected by any sort of guard or barricade at the time of Compliance Officer Hutton's inspection. The doorway was totally unobstructed, and opened directly upon at 7' drop to the base of the shaft. Indeed, the chief differences between the active parties in this case center about the law, not the facts.

As previously noted, the citation charges the Respondent's omission of an alleged duty to guard the opening constituted a violation of 29 CFR 1926.500(b). This theory has been [*27] pursued by Complainant throughout the pleadings stage of this case and reasserted in the proposed findings of fact and conclusions of law submitted subsequent to hearing. The section relied upon deals with "floor openings" and "floor holes." By contrast, Respondent has steadfastly asserted that the standard applicable (if any) to the facts is 29 CFR 1926.500(c) which pertains to "wall openings." Despite these differences the hearing proceeded without articulation of any objection by Respondent, nor any motion, nor other challenge in this regard. Indeed, even in its post-hearing brief Respondent, while insistent that Section 1926.500(c) should apply, avoids with studious care the raising of any direct attack upon Complainant's failure to cite what Otis regards as the appropriate standard. Under both the pleadings and the evidence ultimately adduced thereunder, the Judge is persuaded that Section 1926.500(b) is not applicable. The competing sections are both portions of Subpart M of the standards governing General Construction. Subpart M applies generally to "Floor and Wall Openings and Stairways."

Section 1926.502 contains the following definitions applicable to the [*28] entirety of Subpart M:

(b) Floor opening -- An opening measuring 12 inches or more in its least dimension in any floor, roof, or platform through which persons may fall.

(o) Wall opening -- An opening at least 30 inches high and 18 inches wide, in any wall or partion, through which persons may fall, such as a yard-arm doorway or chute opening.

The evidence received in this case shows clearly that no "floor opening" was involved. The elevator shaft or hoistway was fully enclosed with permanent walls. The floor in the hallway adjacent to the elevator enclosure was interrupted by no openings. Rather, it was the wall surrounding the hoistway which had an opening, a "standard elevator doorway," to which no permanent doors had been mounted.

Having thus concluded, the Judge must further conclude that Complainant's failure to cite the proper standard should not be considered fatal to the maintenance of this proceeding. Rather, the citation and complaint should be amended to conform to the pleadings.

The Act in Section 12(g) provides as herein pertinent that ". . . unless the Commission has adopted a different rule, its proceedings shall be in accordance with the Federal Rules of [*29] Civil Procedure." There is no Commission rule (interim or present) which conflicts, under the circumstances present here, with Section 15(b) of the Federal Rules which provides:

(b) Amendments to conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. . . (emphasis supplied).

The record herein patently discloses that Respondent approached the hearing with a knowledge that the standard referring to "wall openings" was, if any, the standard applicable and the hearing could scarcely have proceeded differently if Section 1926.500(c) had been specified by Complainant instead of 500(b). There was no surprise, and no possible prejudice could result from an appropriate amendment, even at this stage. Consequently, the citation and complaint are deemed amended [*30] to charge violation of 29 CFR 1926.500(c), rather than 29 CFR 1926.500(b). See Decker v. Korth, 291 F. 2d 732, 739 (1955); Christie v. United States, 179 F. Supp. 709, 721 (1959).

Respondent's defenses are essentially twofold: (1) that by contract, the primary responsibility for guarding the hoistway rested upon the general contractor; and (2) that Respondent had in fact protected the hoistway by use of a piece of scaffolding as a barricade which was, on the morning of inspection, removed by parties unknown without Respondent's knowledge.

This Judge is little impressed by the contractual argument. The contract itself is something less than a model of clarity wherein it speaks of the duty of guarding the hoistway. It does confirm that Otis, as a practical matter, had little responsibility for guarding the hoistway enclosure during its construction since that portion of the construction was to be carried out by other contractors. But the language of the contract leaves room for considerable doubt as to whether the intent of the parties thereto was to obligate "other contractors" (there is, contrary to Respondent's often-asserted claim, no specific contractual reference [*31] to a "prime" or "general" contractor) to see to the presence of barricades while Otis's own people were on the jobsite and working; or whether such "other contractors" had a duty to furnish the actual barricades or barricading materials. In short, Otis appears to find more in the contract than its language provides.

Be that as it may, it is clear to this Judge that even if the intent of the contract as among its parties were to relieve Respondent from all duty to protect hoistway openings, such contract would have no such effect where application of the Occupational Safety and Health Act of 1970 is concerned. The Act in Section 5(a) is unmistakable in its intent. It reads:

Sec. 5(a) Each employer --

(1) shall 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;

(2) shall comply with occupational safety and health standards promulgated under this Act.

The duty imposed is placed squarely upon the employer and runs directly to his employees. It cannot, as here, in the event of an alleged violation of a specific standard promulgated [*32] by the Secretary of Labor, be shifted or diluted by an agreement which purports to fix that duty upon another. Stated otherwise, such contract cannot, when a given employer's employees are exposed to a hazard, be interposed as a sufficient defense to an enforcement action properly commenced and maintained under the Act.

It should be noted in passing that provisions similar to those contained in the instant contract may well serve proper and useful purposes in matters which lie beyond the pale of the Occupational Safety and Health Act of 1970. They may be necessary to fix responsibility as to questions of general civil liabilities in tort or contract, or with respect to other areas of governmental regulation beyond the purview of the Act and therefore this decision; but the employer relying on such an agreement to avoid the sanctions of the Occupational Safety and Health Act must do so at his peril.

In the instant case Respondent does not rely solely upon its contract. On the contrary, the facts pleaded and the testimony adduced in support thereof would tend to show that Otis's employees were instructed to barricade openings while on the job.

At this point it is appropriate to [*33] consider directly whether 29 CFR 1926.500(c) is not only the standard most nearly applicable, but is in fact applicable under the circumstances revealed by the evidence. This Judge is convinced that it is. Both witnesses for Otis stressed that only a "moveable" barrier was feasible since during the installation of an elevator system the car will be moved from floor to floor with necessity for entry and egress. Would such a requirement render 29 CFR 1926.500(c) inapplicable? It would not appear so. Section 500(a), General provision, applies to ". . . temporary or emergency conditions where there is danger of employees or materials falling through . . . wall openings. . ." Thus any contention that some lesser of protection than that specified in the Subpart M standards pertinent to wall openings should be satisfactory where elevator installers are working within or about a hoistway where permanent outer doors have not been installed lacks merit. Submpart M specifically envisions "temporary" conditions and embraces a strongly implied recognition that the construction of any structure or facility is an ongoing rather than a static process. Section 1926.500(c) and [*34] those other sections or subsections of Subpart M by which it is further defined or amplified do not contemplate the use of makeshift, nonconforming barriers for an open elevator doorway.

Section 1926.500(c) specifies that where a wall opening exists ". . . from which there is a drop of more than 4' and the bottom of the opening is less than 3' above the working surface. . ." the opening shall be guarded:

(i) When the height and placement of the opening in relation to the working surface is such that either a standard rail or intermediate rail will effectively reduce the danger of falling one or both shall be provided;

(ii) the bottom of a wall opening, which is less than 4 inches above the working surface, regardless of width, shall be protected by a standard toe-board or an enclosing screen either of solid construction or as specified in paragraph (f)(7)(ii) of this section (emphasis supplied).

"Standard railing" is defined in Section 1926.502 (k) and "Standard toe-board" at (m) as follows:

(k) Standard railing -- A vertical barrier erected along exposed edges of a floor opening, wall opening, ramp, platform, or runway to prevent falls of persons.

(m) Toeboard -- [*35] A vertical barrier at floor level erected along exposed edges of a floor opening, wall opening, platform, runway, or ramp to prevent falls of materials.

Section 1926.500(f) as pertinent herein sets forth the specifications for a standard railing at some length as follows:

(f) Standard specifications. (1) A standard railing shall consist of top rail, intermediate rail, toeboard, and posts, and shall have a vertical height of approximately 42 inches from upper surface of top rail to floor, platform, runway, or ramp level. The top rail shall be smooth-surfaced through the length of the railing. The intermediate rail shall be halfway between the top rail and the floor, platform, runway, or ramp. The ends of the rails shall not overhang the terminal posts except where such overhang does not constitute a projection hazard. Minimum requirements for standard railings under various types of construction are specified in the following paragraphs:

(ii) For pipe railings, posts and top and intermediate railings shall be at least 1-1/2 inches nominal diameter with posts spaced not more than 8 feet on centers.

(iv) The anchoring of posts and framing of members for railing of [*36] all types shall be of such construction that the completed structure shall be capable of withstanding a load of at least 200 pounds applied in any direction at any point on the top rail, with a minimum of deflection (emphasis supplied).

(vi) Other types, sizes, and arrangements of railing construction are acceptable, provided they meet the following conditions:

(a) A smooth-surfaced top rail at a height above floor, platform, runway, or ramp level of approximately 42 inches;

(b) A strength to withstand at least the minimum requirement of 200 pounds top rail pressure with a minimum of deflection; (emphasis supplied)

(c) Protection between top rail and floor, platform, runway, ramp, or stair treads, equivalent at least to that afforded by a standard intermediate rail.

Finally, Paragraph (7) of Subsection (f) provides:

(7) Wall opening protection shall meet the following requirements:

(i) Barriers shall be of such construction and mounting that, when in place at the opening, the barrier is capable of withstanding a load of at least 200 pounds applied in any direction (except upward) with a minimum of deflection at any point on the top rail or corresponding member [*37] (emphasis supplied).

(ii) Screens shall be of such construction and mounting that they are capable of withstanding a load of at least 200 pounds applied horizontally at any point on the near side of the screen. They may be of solid construction, of grill work with openings not more than 8 inches long, or of slat work with openings not more than 4 inches wide with length unrestricted.

Concededly, these standards do not read easily. But, when read together and applied to the facts in this case, their ultimate meaning emerges plainly enough. The first level door leading into a passenger elevator hoistway or shaft is a "wall opening" within the meaning of the 29 CFR 1926.502(o). When not blocked by a "parked" elevator car it should be barricaded. Complainant's Compliance Officer concedes that no "toe-board" was necessary because, in essence, the shaft bottom was complete and there was hence no real hazard involving material being dropped from a first level opening on workmen below such opening. This common sense concession is accepted and whether hoistway was, as Respondent contends, a "chute attached to an opening" as defined in 1926.500(c)(3), where a toe-board is [*38] specifically not required, need not be considered. In this same vein it is significant to note that 1926.600(f)(7)(ii) supra, is of no consequence in this case because it has application only to guarding the bottoms of openings as a substitute for toe-boards (see CFR 1926.500(c)(ii)). Only that barrier which would effectively prevent the falling and consequent injury of employees is required under the facts in this case. The standards applicable are actually quite flexible. They permit wide use of wood, pipe, structural steel and "other types, size and arrangements of construction" so long as conformance is had to certain specified minimal requirements. (Only the subsection applicable to pipe railings was set forth above owing to the factual context of this case.) As to wall openings, since the bottom of some may be above floor level, only a "top rail" is required. Since others may not reach a height of 42 inches, only an "intermediate rail" is called for. In the present case since the opening far exceeds the minimum size of 30 inches in height and 18 inches in width, both a top and intermediate rail or their structural equivalents would be minimally required. Most crucially, [*39] any barrier, however constructed, would have to be able to withstand a pressure ". . . of at least 200 pounds applied in any direction (except upward) with a minimum of deflection at any point on the top rail or corresponding member." There is no exception in the standards to this performance measured criterion.

Respondent contends that it had placed a suitable barrier over the opening and that owing to circumstances beyond its knowledge or reasonable control, the barrier was removed shortly before the time that the inspecting Compliance Officer came upon the scene. Such a defense, if proved, would have considerable merit. But it should first be recognized that when the Compliance Officer arrived there was no barrier of any description in place, nor anything in the immediate vicinity which he recognized as suitable for such purpose. This writer has no reason to doubt the credibility of Witness Wootton's testimony that a side section piece of a scaffolding was earlier across the opening and that it was the common practice of Otis employees to use such sections to obstruct hoistway openings by leaning the sections against the door bucks. On the other hand it would [*40] appear that the burden of proof had at this point shifted to Respondent to show that the missing barricade did in fact meet the minimal specifications prescribed by the standards. This the Respondent failed to do. Mr. Wootton's description of the scaffolding section -- despite what is deemed a sincere effort -- was somewhat uncertain. He knew it to be of tubular metal, about 5 feet high and from 25 to 30 pounds in weight. There was no question that it was merely leaned against the doorway. That this falls woefully short of demonstrating that the scaffolding piece could withstand 200 pounds of load "in any direction but upward" is manifest. The applicable standards, as earlier noted, do not specify how a barrier should be secured. In this regard considerable flexibility is permitted. But there is insistence that it be secured in such a way as to withstand at least 200 pounds of pressure from any direction but upward. Barriers in the nature of temporary gates, hinged on one side and latched at the other present themselves as one of many possible solutions. In no event, however, can a flat piece of scaffolding leaned across an opening be seen as conforming or substantially [*41] conforming to the requirements dictated in the standards. Indeed, depending upon the angle of tilt, a barrier thus contrived could fall or slide away with but minimal pressures from any direction.

Tangentially, at least, Respondent raises a further defense which is related to the presence of employees of other contractors on the site. It is suggested that when Otis personnel are busy at their tasks employees of the general or other contractors may remove barricades, thus exposing Otis to undeserved sanctions under the Act. This is one reason, Respondent contends, the primary responsibility for seeing to the placement of barriers must repose in the general contractor. Under the facts of the instant case such argument is particularly weak. The Compliance Officer asserted that the scaffoldings "belonged" to plasterers, a conclusion which may have proceeded from the mere fact that he saw plasterers using them. Mr. Wootton said he "assumed" they belonged to the general contractor. What is clear is that they did not belong to Otis, nor is there evidence of record that the owners or persons vested with right of control ever gave Otis specific permission to use scaffolding [*42] pieces. Under these conditions no extraordinary degree of perspicacity would be required to foresee that whoever needed the disassembled sections for their intended purpose -- to be assembled into working scaffoldings -- would be likely to reappropriate them for that purpose. Also, it is to be noted that no evidence was in fact adduced by Respondent which would establish that any parties other than Otis personnel were operating the elevator car or working in the hoistway during the times material hereto; nor was there any showing that the portion of the construction contract previously cited herein relating to "temporary use" had ever been invoked by the owner. Neither does the evidence tend to reveal that Respondent's employees use of makeshift barriers represented an isolated unauthorized departure from established safety policies. On the contrary the record shows that this was a customary and approved method at this particular jobsite, and Respondent has never truly contended otherwise.

To recapitulate, the Act places on each employer, including a subcontractor, the duty of providing his own employees with a safe and healthful workplace. This is not to say that in circumstances [*43] where, for example, a general contractor shares a common worksite with a subcontractor, the subcontractor may not as a practical matter be relieved of taking active protective measures necessary to comply with the Act or regulations for the simple reasons that the general contractor has indeed done all that was necessary to satisfy the requirements for all concerned. Nevertheless, each employer has by law the primary responsibility to assure the safety and health of his own work force. An employer cannot, as a general proposition, divest himself of this responsibility because of a misplaced reliance on another employer's measures. More particularly, as in the present case where a subcontractor is actively at work on a project and such work involves the removal and replacement of protective barriers, the presence or absence of which directly involves the exposure of its workers to a hazard, that subcontractor cannot evade its statutory duties merely by pleading or proving reliance on others to protect its workers. Mr. Stalzle's testimony as supervisor of the project for Otis to the effect that Otis employees were to replace barriers removed by them but only to notify [*44] the general contractor if others had removed them, bespeaks a rather fundamental misapprehension as to the requirements of the Act. The substantial, credible and persuasive evidence of record discloses that Respondent violated 29 CFR 1926.500(c) and that no legally cognizable affirmative defenses were established.

A further question to be resolved is the appropriateness of the proposed penalty of $125.00. In this regard it should first be observed that the Compliance Officer, in assessing the gravity of the violation, gave weight to a factor which should not have been considered. He plainly stated that the gravity of the violation was in part measured by the exposure to the hazard of some twelve workers who were not employees of the Respondent. While his concern was understandable it would not appear to be a proper matter for inclusion in penalty computation. The Act, as read and construed by this Judge, contains no provisions which either specify or imply that the seriousness of a violation or the dimensions of a monetary sanction should be measured in any degree by the extent to which the violation in question may have menaced the safety or health of persons other than the [*45] employees of the employer actually charged. The undisputed evidence shows that only two Otis employees were exposed to the hazard.

Despite this error, however, the Judge is not inclined to disturb the penalty figure proposed. The Commission is fully empowered, once jurisdiction vests, to determine the appropriateness of the penalty within the statutory guidelines set forth in Section 17(j) of the Act. The statutory factors are the size of the employer's business, the gravity of the violation, the good faith of the employer, and the history of previous violations. In a series of cases commencing with Secretary of Labor v. Nacirema Operating Company, Inc., determinations of appropriateness. In Nacirema it was held that the gravity of the violation will ordinarily be given the most prominent consideration. In Secretary of Labor v. National Realty and Construction, [*46] These are the number of employees exposed; the duration of exposure; the precautions taken against injury; and the degree of probability of occurrence of an injury. In the present case the duration of the exposure appears short in terms of the length of time the opening was totally unguarded, but relatively long in terms of the time it was inadequately guarded by scaffolding sections. Respondent had taken some measures to protect the opening, but the efficacy of such measures must be gauged not only in terms of their failure to meet the level of protection prescribed by the standard, but by the fact that they tended to invite the very sort of situation which the Compliance Officer encountered when he arrived at the elevator opening on the day of inspection to find it totally unprotected. It is to be noted that Otis stored its own materials and equipment used by its employees on an area of the hallway floor immediately adjacent to the opening in question. While the probability of an employee injury should not be considered high, it is apparent that should an elevator worker step into the unprotected hoistway the resulting injury could be of the severest character. Nor can one [*47] ignore the somewhat casual view toward the pertinent standards evidenced by Respondent's project supervisor. The Compliance Officer gave the full credit permitted by his superiors for downward adjustment of the penalty of the basis of Respondent's size, good faith, prior history, and assumption that the violation would be abated. The Judge is convinced that given the total circumstances herein, the proposed assessment of a non-serious penalty was sufficiently conservative to offset the Compliance Officer's error in considering the number of non-Otis employees exposed to the hazard. Overall, the net penalty of $125.00 is deemed appropriate.

FINDINGS OF FACT

1. That Respondent, Otis Elevator Company, a corporation engaged in the installation and maintenance of elevators, had at all times material hereto an office in Colorado Springs, Colorado where approximately six individuals were employed.

2. That Respondent regularly received and its employees regularly handled materials and supplies originating outside the State of Colorado.

3. That on and for some time prior to February 16, 1972 Respondent maintained a work site in Colorado Springs wherein it was engaged in [*48] the installation of a passenger elevator in a bank building then in the process of construction.

4. That on February 16, 1972 the building construction site including the elevator installation area thereof was inspected by a Compliance Officer employed by the United States Department of Labor.

5. That as of February 16, 1972 the elevator hoistway was enclosed with permanent walls in which openings remained to serve as doorways.

6. That such doorways were framed, but without permanent doors and were approximately 5 feet in width and of "standard door height."

7. That the shaft behind the first level doorway dropped a distance to 7 feet to a concrete bottom.

8. Upon the day of such inspection and for at least several workdays prior thereto two of Respondent's employees, a mechanic and his helper, were working in and about the elevator shaft or hoistway and were from time to time present at or near the first level opening thereto.

9. That at the time of the previously mentioned inspection the elevator car which was installed in the hoistway was not positioned behind the first level doorway or opening into the shaft; that the opening was in no way obstructed or barricaded; [*49] and that the seven foot drop immediately behind the opening was hence exposed to the adjoining work surface, a hallway which also served as a storage area for Respondent's materials and supplies used by its employees.

10. That earlier on such day a section of a disassembled tubular metal scaffolding, rectangular in shape, approximately five feet in height, wider than the doorway and weighing 25 to 30 pounds had been leaned across the opening.

11. That neither of Respondent's employees had removed such scaffolding prior to the Compliance Officer's inspection.

12. That it had been the common practice of Respondent's employees to utilize such scaffolding sections for barriers for at least two or three weeks and that the same were leaned against the door bucks but were not secured or fastened in any manner thus permitting the employees to enter or leave the hoistway by pulling or tilting the sections and then leaning them back.

13. That Respondent did not own the scaffolding pieces and that there is no substantial evidence of record as to their ownership or evidence disclosing that Respondent had been given the right to use them.

14. That Respondent employed a project [*50] supervisor who visited the project site on an approximate weekly basis; that Respondent's employees were instructed generally in matters of safety and specifically to replace barriers removed by them, but were under general instructions only to notify the superintendent for the general contractor when barricades were not removed by them.

15. That there is no evidence of record tending to show that Respondent instructed its employees as to what types of barriers were to be used at the state of construction here in question other than that they be "moveable."

16. That approximately 12 workers who were not employees of Respondent were working in the general vicinity of the unguarded elevator opening at the time of inspection and that this circumstance was considered by the Compliance Officer in arriving at the penalty proposed herein.

CONCLUSIONS OF LAW

(1) That Respondent was at all times material hereto an employer engaged in a business affecting interstate commerce within the meaning of the Act, was subject to the provisions thereof and to the jurisdiction of this Commission.

(2) That the facts of record fail to establish any violation of 29 CFR 1926.500(b) as alleged [*51] by Complainant.

(3) That Complainant has sustained the burden of proving a violation of 29 CFR 1926.500(c) in that no barrier was in place over a wall opening required to be guarded by such barrier.

(4) That Respondent failed by way of affirmative defense to establish that the scaffolding placed across the opening to serve as a barrier, but missing at the time of inspection owing to removal by persons other than Otis employees, would, if in place, have substantially satisfied the requirements of 29 CFR 1926.500(c); and that there was a further failure in such defense in that the nature of the makeshift barrier in fact made likely its removal by others.

(5) That the contract which Respondent contends limited its responsibilities to protect the hoistway under the Act had no such legal effect and did not reduce Respondent's essential responsibility while its employees were at work in or about the hoistway.

(6) That whereas the Complainant's Compliance Officer was in error in considering the number of workers other than those of Respondent exposed to the hazard in arriving at the proposed penalty of $125.00, the non-serious violation established was one for which a penalty should [*52] have been assessed; and that the Judge, having given consideration to all factors believed relevant to the assessment of such penalties (as previously discussed herein) concludes that a net penalty of $125.00 is nonetheless appropriate under the provisions of 17(j) of the Act.

(7) That the citation and complaint should be amended in accordance with Rule 15(b), Federal Rules of Civil Procedure, to conform to the evidence by alleging violation of 29 CFR 1926.500(c) in the place of 29 CFR 1926.500(b) since the cause was actually tried on facts consistent with the former theory and no prejudice to Respondent would be occasioned thereby.

ORDER

In accordance with the foregoing, it is hereby ordered:

(1) That Complainant's citation and complaint are hereby amended to charge violation of 29 CFR 1926.500(c) in the place and stead of 29 CFR 1926.500(b).

(2) That the citation, as hereinabove amended, is affirmed.

(3) That the penalty of $125.00 proposed in connection therewith is likewise affirmed.