SPECIAL METALS CORPORATION

OSHRC Docket No. 76-4940

Occupational Safety and Health Review Commission

December 16, 1980

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Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

F. V. LaRuffa, Reg. Sol., USDOL

Kenneth R. Cass, Allegheny Ludlum Industries, Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Foster Furcolo is before the Commission for review under section 12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   Judge Furcolo affirmed a citation issued by the Secretary of Labor ("the Secretary") to Respondent, Special Metals Corporation, alleging noncompliance with the standard at 29 C.F.R. §   1910.23(c)(2) n1 for failure to guard a metal grating 30 feet above a concrete floor. n2 Chairman Cleary directed review of all issues raised by Respondent's petition, including:

(1) Whether the Administrative Law Judge erred in finding that the grating 30 feet above the floor was a platform.

(2) Whether the Administrative Law Judge erred in finding that respondent's employees had access to the hazard created by the unguarded platform even though no employee had been on the platform for at least 1 year before the citation was issued.

For the [*2]   reasons that follow, we reverse the judge's order and vacate the citation.

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n1 The standard provides in pertinent part as follows:

§   1910.23 Guarding floor and wall openings and holes.

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(c) Protection of open-sided floors, platforms and runways.

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(2) Every runway shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides 4 feet or more above floor or ground level. Wherever tools, machine parts, or materials are likely to be used on the runway, a toeboard shall also be provided on each exposed side.

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"Runway" is defined at section 1910.21(a)(5) as follows:

A passageway for persons, elevated above the surrounding floor or ground level, such as a footwalk along shafting or a walkway between buildings.

n2 In his decision the judge concluded that the metal grating was not technically a "runway" but alternatively found that the Secretary had established a violation of section 1910.23(c)(1), a similar standard requiring guarding of opensided platforms. The judge conformed the citation and pleadings to the evidence and amended the citation to include the platform standard, noting that the parties addressed the issues basic to either standard.

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I.

Respondent manufactures metal alloys at its New Hartford, New York plant.   On October 21 and 22, 1976, Compliance Officer William Herter of the Occupational Safety and Health Administration ("OSHA") inspected the plant.   In the bar mill building, Herter noticed a ladder leading to a 14 by 5 foot metal grating 30 feet above the concrete floor of the shipping area and 5 1/2 feet from the ceiling.   The ladder provided the only route to the grating. One side of the grating abutted a wall of the bar mill.

Compliance Officer Herter testified at hearing that the "platform" in question had "no standard railing or toeboard" on the three open sides.   Herter said that no signs warned employees not to climb the ladder to the "platform" and the ladder was not chained off. During the inspection, Herter explained, employees were loading a truck in the shipping area below the platform. Although he acknowledged that he did not see any employees on the grating, Herter pointed out that the "platform" was "readily visible" and "open to anyone" and that a supervisor was in the area.

On cross-examination, the compliance [*4]   officer explained that "no one seemed to know" when the grating was last "visited." He acknowledged that the structure could not be used as a pathway from one facility to another.   He also said that he did not climb the ladder to closely examine the grating because he was unwilling to expose himself to "a hazard that I consider serious." According to Herter, if employees were required to use the grating, they could tie off to cross-beams or the steel structure of the building above the grating.

Citing General Electric Co. v. OSHRC, 540 F.2d 67 (2d Cir. 1976), Respondent moved to vacate the citation at the close of the Secretary's case on the ground that the Secretary failed to establish that any employee used the grating during the six months preceding issuance of the citation.   Under section 9(c) of the Act, 29 U.S.C. §   658(c), "No citation may be issued under this section after the expiration of six months following the occurrence of any violation." The Secretary's counsel responded that the Secretary need only show employer control and employee access to the allegedly violative condition citing Brennan v. OSHRC [Underhill Construction Corp.], 513 F.2d 1032 (2d Cir. 1975).   [*5]   Judge Furcolo denied Respondent's motion to vacate, stating that "[t]here is evidence of record thus far in the case with reference to two employees being in the area and I would find that there would be access."

Respondent's chief witness, John Haggerty, manager of manufacturing services at the New Hartford facility, testified that four main insolation valves were located directly above the metal grating in question.   The valves controlled four utility pipes running from the main plant to the bar mill: natural gas, domestic water, and supply and return for recirculating water.   He explained that an employee would only use the grating if a utility had to be shut down to allow for a major new installation or if a main utility line malfunctioned.   Haggerty added that employees would not climb to the metal grating in the course of their normal duties because the pipes and valves located there were not part of a maintenance program and the grating is not a normal access to any other job.   To his knowledge, Haggerty testified, the valves had not been activated in the year preceding the citation because there had not been any new installations and the bar mill had not lost any utilities [*6]   in that period.   He pointed out that, in the normal routine, secondary isolation valves controlling individual operations in the bar mill were used rather than the main valves above the grating. On cross-examination, Haggerty acknowledged that employees may be required to use the grating unexpectedly if a major utility malfunction did occur.

In a closing argument at hearing, the Secretary's counsel asserted that whether the unguarded metal grating 30 feet above the ground was considered a "runway" or a "platform," photographic and documentary evidence established a per se violation of the terms of the standard.   He reiterated his position that employer control and access were demonstrated under Brennan v. OSHRC [Underhill Construction Corp.], supra, particularly because "if there's a malfunction in any of those major utility lines . . . an employee is going to go up there."

II.

In affirming the citation Judge Furcolo found that (1) a ladder provided the only access to the 30 foot high metal grating, (2) two employees worked in the area in question, (3) in the normal course of work employees would not use the grating, (4) the grating was not a passageway, and (5)   [*7]   there was no occasion for any employee to use the grating in the year preceding the citation.   The judge concluded that under the access test announced by the Commission in Gilles & Cotting, Inc., 76 OSARHC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD P20,448 (No. 504, 1976) ("Gilles & Cotting"), "this hazardous condition was easily accessible to any employee of the Respondent who wanted to go up the ladder to it." Given the slight possibility that employees would climb to the grating, however, the judge assessed no penalty.

On review, Respondent specifically challenges the judge's conclusion that employees had access to the cited condition under the Gilles & Cotting test.   It asserts that the Secretary offered no evidence that employees had ever used the grating or the ladder that provided the only access to the grating. Further, the grating was not used during the normal work routine or as part of a maintenance program.   In addition, unlike the employer in Gilles & Cotting, Respondent notes that it does not admit employee access. n3

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n3 Respondent also renews its argument that under section 9(c) of the Act, 29 U.S.C. §   658(c), and General Electric Co., supra, the judge erred in finding a violation because the Secretary failed to show that employees used the grating within six months of the issuance of the citation.   However, the Secretary has not alleged that any employees did use the grating. The gravamen of the violation, according to the Secretary, is that the fall hazard created by the unguarded grating was accessible to employees.   Thus, Respondent's reliance on section 9(c) is misplaced or at the very least properly subrogated to its lack of access contention.   Proof of the non-use of the grating is no bar to the citation if the Secretary can prevail on the theory that the hazard was accessible to employees on the date of the inspection, clearly within the six-month period.

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III

To prove a violation of section 5(a)(2) of the Act, 29 U.S.C. §   654(a)(2), n4 the Secretary must demonstrate by a preponderance of the evidence an employer's noncompliance with an applicable standard and employee access to the hazard posed by the violation.   Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 CCH OSHD P23,135 (No. 16057, 1978); Gilles & Cotting, Inc., supra. We find that the Secretary failed to carry his burden of proving employee access to the unguarded grating.

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n4 Section 5(a)(2) provides that each employer "shall comply with occupational safety and health standards promulgated under this Act."

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The Commission's access test is predicated on the recognition that employees may not be restricted to specific paths or movements about their workplace.   Given the random nature of employee movement, it is inappropriate to rely on employees to avoid a hazardous condition as the primary means of protecting [*9]   employees from that condition.   For example, in Otis Elevator Co., supra, the Commission found that the hazard of falling down an unguarded stairwell was accessible to employees, even though the stairwell was not along the direct route to the employees' work station.   We noted that it was reasonable to assume that an employee might move to an area not immediately proximate to his place of work, and we specifically refused to speculate about what might motivate an employee to approach an unguarded area.   6 BNA OSHC at 2050, 1978 CCH OSHD at 27,952.

This case, however, presents a markedly different situation.   The only evidence of access presented by the Secretary is that employees worked in the shipping area 30 feet below the cited grating. The Secretary presented no evidence that employees had ever used the grating and, further, no evidence that they had ever used the ladder that provided the only route to the structure.   Indeed, the judge found that employees had no occasion to use the grating during the year preceding the issuance of the citation.   Moreover, Respondent submitted unrebutted evidence that the metal grating was not used in the normal work routine and it was [*10]   not used as part of a maintenance program.   Unlike Otis, the Secretary here has failed to establish any nexus between the cited hazard and the movements of Respondent's employees.   In our view climbing the 30 foot ladder to the unguarded platform is beyond normal employee random movement contemplated by the access test.   We conclude that the unguarded grating was too remote to pose a threat to the safety of Respondent's employees. n5 In view of this conclusion, it is unnecessary to consider the remaining issues raised on review. n6

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n5 Commissioner Barnako adheres to his test for employee exposure as expressed in Cilles & Cotting. He finds that the evidence establishes that it is not reasonably predictable that Respondent's employees have been or will be on the grating during the course of their assigned duties, movement to and from work stations, or personal comfort activities.   Therefore, Commissioner Barnako concludes that the Secretary has failed to prove employee exposure to the cited condition.

n6 On review, Respondent challenge the judge's alternative finding that the Secretary established a violation of section 1910.23(c)(1) because the metal grating was a platform. In Rexco Industries, Inc., 80 OSAHRC 8 BNA OSHC 1227, 1980 CCH OSHD P24,376 (No. 15550, 1980), the Commission resolved the question of when a particular work surface is subject to the guarding requirements for platforms.

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Accordingly, we set aside the judge's decision and vacate the citation.   SO ORDERED