SUBURBAN CONCRETE CORPORATION

OSHRC Docket No. 76-295

Occupational Safety and Health Review Commission

April 21, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall Harris, Reg. Sol., USDOL

I. David Lerman, for the employer

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 [*2] Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I agree with the vacation of the 29 C.F.R. 1926.700(a) charge for the reasons set forth in Judge Chodes' decision which is attached hereto as Appendix A. However, the nonserious citation should also be vacated in its entirety because, with respect to both of the charges therein, complainant failed to establish that respondent's employees were actually exposed to the cited conditions. Secretary v. Gilles & Cotting, Inc., OSAHRC Docket No. 504, February 20, 1976 (dissenting opinion). Moreover, vacation of the charges is warranted 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. Grossman Steel & Aluminum Corp., OSAHRC Docket No. 12775, May 12, 1976 (dissenting opinion); Secretary v. Anning-Johnson Company, OSAHRC Docket Nos. 3694 & 4409, May 12, 1976 (concurring and dissenting [*3] 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.

APPENDIX A

DECISION AND ORDER

Regina Kossek, for the Secretary of Labor

I. David Lehrman and Lawrence Miller, for the Respondent

Chodes, Judge:

STATEMENT OF THE CASE

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 659) in which the respondent is contesting citations issued by the complainant under the authority vested by section 9(a) of the Act (29 U.S.C. 658(a)).

The record shows that on the basis of an inspection made on November 25-26, 1975, of a place of employment located at 1325 Wilson Boulevard, Arlington, Virginia, the respondent was issued two citations alleging violation of section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)) by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof [*4] (29 U.S.C. 655).

One of the citations, issued on December 10, 1975 and amended on December 30, 1975, was for serious violation of the standard set forth at 29 C.F.R. 1926.700(a) n1 in that an employee of the respondent was not required to wear safety belts and lines as required by paragraph 5.5.1 of ANSI (American National Standards Institute) A10.9-1970, Safety Requirements for Concrete Construction and Masonry Work. n2 Respondent moved to dismiss this citation because the standard allegedly violated does not require the use of any safety equipment. The motion was granted in an order dated March 23, 1976, on the grounds that a violation of paragraph 5.5.1 of ANSI A10.9-1970 was not within the scope of the standard allegedly violated which refers to the "design, construction, inspection, testing, maintenance and operations" of equipment used in concrete construction, whereas paragraph 5.5.1 of ANSI A10.9-1970 requires that specific safety equipment be provided. The order dismissing this citation was predicated on the authority of Secretary of Labor v. Uriel G. Ashworth, 15 OSAHRC 174 (1975) and Secretary of Labor v. Tolar Construction Company, 13 OSAHRC 514 [*5] (1974).

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n1 The standard provides:

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.

n2 This paragraph provides:

Scaffolding, boatswain's chairs, or safety belts and lines shall be provided for finishing and curing crews working on walls, piers columns, and other vertical or hazardous sloping surfaces.

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The case came on for hearing in Washington, D.C. on May 4, 1976. At the hearing, the complainant moved for reconsideration of the order vacating the citation for serious violation and for leave to allege a violation of 29 C.F.R. 1926.28(a) in the alternative. The motion was opposed by the respondent. It appeared that the attorney for the respondent was first notified of the complainant's motion by telephone the afternoon prior to the hearing and a copy of the motion was handed to [*6] the attorney upon his arrival at the hearing. The motion for reconsideration and to allege, in the alternative, a violation of 29 C.F.R. 1926.28(a) was denied as coming too late to afford respondent the opportunity to defend against the citation for serious violation which had been vacated six weeks prior to the hearing.

In its Post-Hearing Memorandum, complainant renewed its Motion for Reconsideration and to Amend. The motion is denied.

Stipulations (T-4, 5)

The following stipulations were entered into at the hearing:

1. Respondent is engaged in a business affecting commerce.

2. Of the ten subcontractors in the Washington Metropolitan area engaged in the type of work performed by respondent, the respondent is the smallest.

3. The net worth of the respondent during the fiscal year immediately preceding the alleged violations was $2,000.

4. The penalties proposed by the respondent for the nonserious violations are appropriate.

With the dismissal of the citation for serious violation, there remained for decision the citation for nonserious violations issued on December 10, 1975. The citation alleged violations of 29 C.F.R. 1926.500(b)(8) n3 and 1926.500(d)(1). [*7] n4

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n3 The standard provides:

Floor holes, into which persons can accidentally walk, shall be guarded by either a standard railing with standard toeboard on all exposed sides, or a floor hole cover of standard strength and construction that is secured against accidental displacement. While the cover is not in place, the floor hole shall be protected by a standard railing.

n4 The standard provides:

Every opensided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

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The alleged violation of 29 C.F.R. 1926.500(b)(8) charged that a floor hole on the second floor of the worksite was not covered. [*8] The evidence showed that John Jackson, a compliance officer with the Occupational Safety and Health Administration, observed a hole measuring 13 inches by 12 inches by 6 inches was not covered, albeit there was a cover present in the area. The hole was six inches deep so that while a person could not fall through the hole, a person could step into the hole and sustain physical injury. One of respondent's employees was observed chipping at another hole within about 5 or 6 feet of the uncovered hole (T-20-24).

Respondent allegedly violated 29 C.F.R. 1926.500(d)(1) in that the second floor of the jobsite was opensided and not guarded by standard railing or equivalent. Mr. Jackson observed on the second floor, which was 20 to 25 feet above the ground, that the sides of the floor were protected by two loosely-tied cables. This was not considered to be in accordance with the requirements of the standard n5 because the cables were so loose as to form a wide V-shape and were of no use as a railing. The employee of the respondent was observed working from 6 to 8 feet from the railing and could, conceivably, go anywhere on the floor to get materials. When the slack cables were called [*9] to the attention of respondent's representative, they were tightened up so that the cables could support the weight of a person and meet the requirements of the standard (T-27-30, 39).

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n5 29 C.F.R. 1926.500(f)(1), in pertinent part, describes the specifications for a standard railing as follows:

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 throughout 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 rail shall not overhang the terminal posts except where such overhang does not constitute a projection hazard.

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Edward H. Willis, Jr., general manager of the respondent, testified that on the dates of inspection (November 25-26, 1975) respondent had completed its work on the second floor and had turned the floor [*10] over to Charter Builders, the general contractor. When the floor was turned over to the general contractor, respondent removed wooden safety rails and replaced them with cables. During the inspection the respondent's employee was on the second floor working to correct a hole in the floor, but the general contractor was in control of the floor (T-46-49, 52).

The uncontradicted evidence shows that there was an uncovered floor hole on the second floor of the worksite and that an employee of the respondent was working within 5 or 6 feet of the hole. Similarly, the evidence supports a finding that open sides of the second floor were not guarded by a standard railing or the equivalent, but rather by loose-hanging cables and the respondent's employee was working within 6 to 8 feet of the railing.

The facts herein pose the question whether respondent's employee was exposed to the danger contemplated by the standards involved. The question is answered affirmatively on the basis of the Commission decision in Secretary of Labor v. Gilles & Cotting, Inc., Docket No. 504, decided February 20, 1976, wherein the rule that access based on a reasonable predictability will support [*11] a violation and proof of actual exposure is not required. Respondent's employee was working within 5 to 8 feet of the danger zones and could go anywhere on the floor to get materials. Certainly he had "access" within the rule established by the Gilles and Cotting case.

Respondent's employee was working on the second floor (to correct a previous work error) some months after respondent had completed its work on that floor. The violations for which respondent was cited were not created or controlled by the respondent, but rather by the general contractor. This presents the question of respondent's liability for the violations by reason of its employee's exposure to a hazard which it did not create or control. Respondent's superintendent on the job was familiar with the work being done on the second floor (T-46) and therefore knew, or with reasonable diligence could have known, of the violations and did nothing toward abatement even though this could have been easily accomplished. The hole in the floor could have been covered with a cover located in the work area. The cables could have been tightened before work was commenced rather than after the inspection as was actually done. [*12] Because respondent did not take measures to protect its employee, a finding that respondent violated the standards is warranted under the authority of Secretary of Labor v. Anning-Johnson Company, Dockets 3694 and 4409, decided May 12, 1976.

Respondent makes much of the fact that the northern side of the second floor was 40 feet from the area where its employee was working. The designation of the open side of the floor as the northern side was made by the compliance officer on the basis of what he was told by the respondent's representative (T-25). There was no question at the time of inspection with respect to the location of the uncovered hole or the cables guarding the open sides of the floor. The testimony was that respondent's employee was within 5 to 8 feet of the violative conditions.

Respondent argues that because the hole was not large enough for a person to fall through there was no violation in light of the general provision of the standard set forth at 29 C.F.R. 1926.500(a) which refers to the danger of employees or materials falling through floor openings. However, the specific standard the respondent allegedly violated refers to floor holes into [*13] which a person can accidentally walk. The uncovered hole in the instant case measured 13 by 12 by 6 inches, large enough for a person to walk into, and if this happened there was a possibility of injury.

CONCLUSIONS OF LAW

The citations, notice of proposed penalty, notice of contest, pleadings, stipulations, the testimony and exhibits adduced to the hearing, and the representations of the parties, support the following conclusions of law:

1. The respondent at all times material hereto was engaged in business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.

2. The respondent at all times material hereto was subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder, and the Commission has jurisdiction of the parties and of the subject matter herein.

3. The citation issued on December 10, 1975 and amended on December 30, 1975, for serious violation of 29 C.F.R. 1926.700(a) does not encompass a violation of paragraph 5.5.1 of ANSI A10.9-1970, Safety Requirements for Concrete Construction and Masonry Work.

4. Respondent violated the occupational safety and health [*14] standards set forth at 29 C.F.R. 1926.500(b)(8) and is assessed no penalty and respondent violated 1926.500(d)(1) and is assessed a penalty of $45.

ORDER

Upon the basis of the foregoing conclusions of law, and upon the entire record it is

ORDERED that the citation issued on December 10, 1975 and amended On December 30, 1975, for serious violation of 29 C.F.R. 1926.700(a) is vacated; and it is further

ORDERED that the citation issued on December 10, 1975, for violation of 29 C.F.R. 1926.500(b)(8) is affirmed and no penalty is assessed; and it is further

ORDERED that the citation issued on December 10, 1975, for violation of 29 C.F.R. 1926.500(d)(1) is affirmed and a penalty of $45 is assessed.

Dated: August 16, 1976

Hyattsville, Maryland

JOSEPH CHODES, Judge, OSHRC