W.G. CORNELL CO. OF WASHINGTON, INC.

OSHRC Docket No. 76-163

Occupational Safety and Health Review Commission

April 27, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance of an unreviewed Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be [*2] affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Judge Chalk properly concluded that the cited standard, 29 C.F.R. 1926.700(a) does not apply to respondent's activities as a mechanical contractor. He erred, however, by amending the charge sua sponte to allege noncompliance with the standards codified at 29 C.F.R. 1926.451(a)(4) and (13). Because of the unique nature of citations under the Act, amendments made after the filing of a notice of contest - or as in this case after a trial on the merits - are inherently prejudicial and therefore, should be prohibited except in the most extraordinary of circumstances. Secretary v. Warnel Corporation, OSAHRC Docket No. 4537, March 31, 1976 (dissenting opinion). However, assuming arguendo that amendment in this case was proper, the charges as amended should be vacated nevertheless because the evidence establishes that respondent neither created nor caused the alleged violative conditions or was otherwise responsible for them. Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975); Secretary v. Hayden Electric Services, Inc., OSAHRC Docket Nos. 4034 & 4147, July 28, 1976 (dissenting opinion); Secretary v. [*3] Anning-Johnson Company, OSAHRC Docket Nos. 3694 & 4409, May 12, 1976 (concurring and dissenting opinion).

Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges. Since my colleagues do not address any of the matters covered in Judge Chalk's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

APPENDIX A

DECISION AND ORDER

Kenneth A. Hellman and William E. Blasier, For Complainant

Frank Salatto, (Pro se), For Respondent

Chalk, Judge

Two Citations and a proposed penalty notification were issued against Respondent on December 4, 1975, after an inspection of its worksite located at 5020 Overlook Avenue, Southwest, Washington, District of Columbia, on November 13, 1975. Initially, Respondent contested both the four-item Citation for alleged nonserious violations (Citation number 1), as well as Citation number 2 for an alleged serious violation in two parts. However, [*4] Respondent admitted three of the four alleged nonserious violations in its Answer to the Complaint, and thereafter stated at the beginning of the hearing that it no longer desired to pursue its contest of the fourth item. Accordingly, the hearing proper was concerned solely with Citation number 2, for which Complainant proposed a penalty of $800.00.

Charging a violation of 29 USC 654(a)(2) by not complying with 29 CFR 1926.700(a), n1 Citation number 2, as amended, described Respondent's alleged serious safety deficiencies as follows:

"All equipment and materials used in concrete construction and masonry work did not meet the applicable requirements for design, construction, inspection, testing, maintenance and operations as prescribed in ANSI A10.9-1970, Safety Requirements for Concrete Construction and Masonry Work in that:

(a) Section 5.2.13 Walkways and scaffolding were not equipped with guardrails along the access and point of placement located over ten feet in the Gallery pour #4.

(b) An access ladder or equivalent safe access was not provided in the Gallery pour #4 in accordance with Section 3.12 of the ANSI Requirements for Scaffolding A10.8-1969. An employee was climbing [*5] the cross braces of scaffolding."

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n1 That standard provides:

"(a) General

All equipment and materials used in concrete construction and masonry work shall meet the applicable requirements for design, construction, inspection, testing, maintenance and operations as prescribed in ANSI A10.9-1970, Safety Requirements for Concrete Construction and Masonry Work."

ANSI A10.9-1970, Section 5.2.13 provides:

"5.2.13 Walkways and Scaffolding. Walkways and scaffolding, equipped with guardrails, shall be provided along the access and point of placement in walls, piers, columns, etc, located over the feet above the floor, ground, or water level. Such scaffolding and guardrails shall be designed and constructed in accordance with American National Standard Safety Requirements for Scaffolding, A10.8-1969."

ANSI A10.8-1969, Section 3.12 provides:

"3.12 An access ladder or equivalent safe access shall be provided."

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I

There was no issue concerning jurisdiction, as Respondent, a Maryland based corporation, was performing work [*6] in this instance in the District of Columbia. It also worked on jobsites in the Commonwealth of Virginia.

The subject of the two-part charge alleging the absence of appropriate guardrails and an access ladder was a metal tubular scaffold about forty feet high that rested on a concrete floor. This scaffold had been erected and used by the general contractor but was also used by Respondent's employees in the course of their duties. A photograph (Ex. C-1) taken by the inspecting officer of a portion of this scaffold shows one of Respondent's employees, at a height described by the inspecting officer as about twenty-five or twenty-six feet above the concrete floor, standing on metal cross-braces of the scaffold. The photograph also shows the absence of guardrails on the platforms of the scaffold, three in number, located near its top. While the photograph does not cover the entire scaffold, no access ladder appears in the photograph.

Both the inspecting officer and the employee in the photograph, complainant's witnesses at the hearing, were in agreement concerning the complete absence of the two safety features involved in the charges. They also agreed that the three platforms [*7] shown in the photograph were on different levels of the scaffold, above the point where the employee was standing. The inspecting officer opined that had an employee fallen from the point where the employee had been standing, or from the unguarded platforms above, he would probably have suffered serious injury or death. These hazards were eliminated before the inspecting officer departed the area.

The employee in the photograph explained that he was descending the scaffold at the time the photograph ws taken, that he and other of Respondent's employees had previously mounted and dismounted the scaffold in this manner, as no other means was provided, that this practice by employees, including himself, was not limited to this scaffold or worksite, and that his foreman aware of the practice. He (the employee) had worked on all three levels of this particular scaffold prior to the inspection and had not used a safety belt because he was informed by an employee in charge of supplies that all the belts at the worksite were in use at the time.

Respondent's only witness was its superintendent in charge of the worksite. While he remembered the scaffold in question, his recollection was [*8] not too clear as to many of its features. For example, he did not recall that the three platforms were located on different levels. He seemed to remember, on the other hand, that there was a wooden ladder in two sections at one end of the scaffold, one section extending from the ground to a platform and another section extending to a higher platform from the level of the first platform. When asked if this ladder could have been placed there after the inspection, he replied that he did not know. He further stated that he had expected his employees to use the scaffold, that he did not check it prior to its use, and that he did not consider how the employees were going to mount and dismount it. When asked if he observed any guardrails on the platforms of the scaffold depicted in the photograph, he replied in the negative, adding that the scaffold did not belong to Respondent. Finally, he believed that the "entire responsibility for safety [did] not rest on him," as superintendent on the job; rather, an employee was responsible "for his own safety with regard to climbing or anything else, hoisting pipe or anything." (Tr 70)

In rebuttal, the inspecting officer recalled a wooden [*9] ladder, similar to that mentioned by the superintendent, that was located within the framework of a different scaffold for the purpose of reaching the roof level. While employees could have used this ladder to ascend to the roof, other ladders would have been required to descend from the roof to the three platforms in issue. This witness observed no other ladders.

II

In proposing the $800.00 penalty for this charge, the inspecting officer adjusted the penalty to allow a ten percent reduction each for good faith and prior history of violations. He made no adjustment for size, because he was informed that Respondent had about one hundred employees. Also, he did not make a higher adjustment for good faith because Respondent's safety program was average and "deficient in some respects." (Tr 22)

Respondent adduced evidence that it conducted complusory safety meetings several times a week, although the use of scaffolds was not specifically discussed. The company policy was to stop an employee who was found working under dangerous conditions and to funish any safety equipment needed.

III

Before considering the merits of this use, it is necessary to consider a legal issue raised [*10] by an error in the charge. The Citation alleges that Respondent violated the Act (29 USC 654(a)(2)) by failing to comply with 29 CFR 1926.700(a), a standard under subpart "Q" of the construction standards. This subpart is entitled "CONCRETE, CONCRETE FORMS, AND SHORING." The standard (29 CFR 1926.700(a)) incorporates ANSI A10.9-1970. The incorporated ANSI standard, too, like subpart "Q", deals with "Safety Requirements for Concrete Construction and Masonry Work." The two standards thus clearly have limited application to an employer engaged in concrete construction and masonry work (see generally John T. Dunlop, Secretary of Labor v. Uriel G. Ashworth, Masonry Contractor, Inc., et al,    F2d   , Doc. No. 75-1311 (4th Cir., Mar. 3, 1976)).

Respondent's letterhead indicates that it is a mechanical contractor providing services limited to plumbing, heating, ventilating, sheet metal, air conditioning, process piping, power plants, and sprinkler systems. Apart from this letterhead, the evidence presented at the hearing established that Respondent was a subcontractor at the worksite performing "mechanical" work whose employees were classified as "steamfitters." (Tr 11)

As there was [*11] thus no proof that Respondent was engaged in concrete construction or masonry work at the worksite in question, and indeed, there was evidence to the contrary, Respondent cannot, as a matter of law, be found to have violated the standards relied upon throughout these proceedings (id., see also Secretary v. Keibler Industries, Inc., 3 OSAHRC 1157 (1973)). The ultimate question, then, is whether this error so pervades the case as to require its reversal without regard to its merits. I find that it does not, as 29 CFR 1926.451(a)(4) and (13) impose essentially the identical requirements as those charged here, standards that are of general application in the construction industry.

The legal sufficiency of any charge under the Act rests primarily upon the specific allegations in contains. Thus, where the allegations of the charge adequately inform the employer of what he was required to, but did not do, the charge is sufficient, as long as some standard applicable to the particular employer proscribes the hazard, notwithstanding a misnomer of the standard involved. Indeed, this same rule even applies in criminal proceedings, an area of jurisprudence far more sensitive than civil and [*12] administrative proceedings (United States v. Hutchenson et al, 312 U.S. 219, 61 S.Ct. 463 (1941); Williams v. United States, 168 U.S. 382, 18 S.Ct. 92 (1897); United States v. Clark, 416 F2d 63 9th Cir., (1969); See Rule 7(c), Fed. R. Crim. P.). The Commission, too, has found the application of this principle appropriate (Secretary v. Konkolville Lumber Co., Inc., Docket No. 2437, December 15, 1975).

Accordingly, as an amendment of the pleadings incorporating the proper standards could not possibly prejudice either party, I shall sua sponte direct such an amendment (cf Secretary v. Roof Engineering Corp., Docket No. 6972, September 17, 1974, directed for review by the Commission on October 17, 1974).

IV

The evidence presented by Complainant in this case not only establishes the two-part charge to my satisfaction but establishes it so persuasively as to require little discussion. In fact, there was really no attempt by Respondent to refute the guardrail charge.

As for this charge, the photograph introduced by Complainant not only shows the three unguarded platforms, but clearly establishes that they were located at a height considerably more than ten feet above the ground [*13] level. Exposure to this condition is established by the testimony of the employee in the photograph that he had been on all three platforms that day in the course of his duties, a fact inferentially admitted by Respondent's superintendent, and that he was not furnished any alternate means of protection from a fall.

The evidence as to the ladder charge follows a similar pattern, for the photograph, although not depicting the entire scaffold, does not show any ladder. And both the employee in the photograph, as well as the inspecting officer, said that there was none. In the face of this evidence, the vague assertions of the superintendent that he thought he had seen a ladder that would have given employees access to the platforms simply lacks persuasion.

The evidence, too, establishes the seriousness of both aspects of the charge, for it rules out any conclusion other than serious injury or death should an employee fall from the bracings when the employee was standing when photographed or from the platforms located at a higher level.

Finally, I am satisfied that the evidence establishes that Respondent had knowledge of these hazards attending its employees' use of the scaffold, [*14] as Respondent's foreman actually observed the employees' exposure to these conditions and its superintendent had such knowledge of the particular work conditions as to be charge with constructive if not actual knowledge (29 USC 666(k); Secretary v. Structural Steel Erectors Inc., d/b/a Pecosteel-Arizona, 15 OSAHRC 141 (1975); cf Secretary v. North American Rockwell Corp., 16 OSAHRC 444 (1975)).

Respondent's apparent defense that an employee shared a measure of responsibility with his employer for his own safety requires some comment. While the Act directs employees to comply with safety and health standards (29 USC 654(b)), I do not perceive that the Congress thereby intended to equate such duty to, or to superimpose it over, that of an employer to furnish a safe and healthful workplace to his employees. Of course, once an employer meets his obligations, then his employees must obey the statute's command to them. Respondent's defense, accordingly, is unacceptable.

Finally, since the hearing of this case, the Commission has promulgated new rules regarding multi-employer worksites, such as here encountered, where an employee is exposed to a hazard not created by or under the control [*15] of his employer (Secretary v. Grossman Steel and Aluminum Corp., Docket No. 12775, May 12, 1976; Secretary v. Anning-Johnson, Docket Nos. 3694 & 4409, May 12, 1976). These rules require the employer, to avoid being charged, to show that he made reasonable efforts to (1) persuade the contractor responsible for creating the hazard to eliminate it, (2) instruct his employees to avoid it, or (3) take other precautions to eliminate employee-exposure. In both cases, the Commission granted each Respondent a period of time to move for remand to adduce evidence on such affirmative defense.

In the posture of this case, on the other hand, it is clear to me that the very nature of Respondent's defense to the charges at the hearing negates any possibility that such a defense can be asserted. Such opportunity for remand, therefore, need not and will not be afforded in this instance.

The charge, subject to the amendment earlier discussed, will be affirmed.

V

The Act requires me to assess an appropriate penalty within the perimeters of certain guidelines, specifically the size of Respondent's business, its prior history of violations and good faith, and the gravity of the violation (29 USC [*16] 666(j)). Evidence was adduced on all these matters, although I was not specifically informed as to the exact nature of Respondent's prior charges or whether they were contested.

From the evidence, I view the gravity of the charge to be high. On the other hand, Respondent displayed good faith by correcting the violations forming the basis of the charge before the inspecting officer departed the scene.

Upon review of the entire record, I have concluded that a penalty of $500.00 is appropriate.

VI

I reach the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. That at the time and place in question, Respondent's employees were performing their duties on a motal, tubular scaffold that extended to a height of more than ten feet above a concrate base.

2. That said employees, in the course of their duties, worked on or traversed three unguarded platforms located on three different levels of the scaffold, all more than ten feet above the concrete base.

3. That said employees were not provided with a ladder or equivalent safe means to enable them to mount and dismount the scaffold; thus, they utilized the metal braces of the scaffold for this purpose.

4. [*17] That Respondent's foreman knew of these conditions and of the employees' exposure to them and that its superintendent also knew or should have known thereof.

5. That had one of the employees fallen from the cross-braces of the scaffold or from the work-platforms, there was a substantial probability that he would have sustained serious injury or death.

CONCLUSIONS OF LAW

1. That this Commission has jurisdiction over the cause of action.

2. That as Respondent abandoned its contest of Citation number 1 for four nonserious violations and its attendant proposed penalty, the same should be affirmed forthwith.

3. That Respondent was not subject to the provisions of 29 CFR 1926.700(a), but was subject to the provisions of 29 CFR 1926.451(a)(4) and (13).

4. That an amendment of the Citation to allege noncompliance with 29 CFR 1926.451(a)(4) and (13) will not prejudice Respondent.

5. That Respondent violated 29 USC 654(a)(2) by not complying with 29 CFR 1926.451(a)(4) and (13).

6. That the two-part violation set forth in "5" above was serious.

Citation number 1 for nonserious violations is affirmed. Citation number 2 for serious violation, modified to allege a two-part [*18] violation of 29 USC 654(a)(2) by failing to comply with 29 CFR 1926.451(a)(4) and (13) respectively at the time and place alleged by not providing guardrails on all open sides and ends of platforms located on the scaffold more than ten feet above the concrete base and an access ladder or equivalent safe access thereto, is affirmed. A penalty of $50.00 is assessed for item number 3 of Citation number 1 for nonserious violations and penalty of $500.00 is assessed for Citation number 2 for serious violation, as herein modified.

So ORDERED.

JOSEPH L. CHALK, Judge, OSHRC

Dated: August 17, 1976