FORT WORTH ENTERPRISES, INC.

OSHRC Docket No. 769

Occupational Safety and Health Review Commission

July 25, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On January 29, 1973, Judge John J. Larkin issued his decision and order in this case vacating a citation for serious violation and item 1 of a citation for non-serious violation.

On February 9, 1973, review of the decision and order was directed in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act").

The Commission has reviewed the entire record in this case. We adopt the Judge's decision to the extent that it is consistent with the following.

Respondent was engaged in the construction of an office building at Fort Worth, Texas for its own future use. All work on the building was done by subcontractors, and respondent's only employee at the worksite was a project manager who supervised the subcontractors' work.

The building under construction was two floors high and covered an area of one hundred feet by two hundred feet. On the roof above the second floor was a "penthouse" which had an area of twenty feet by thirty feet and was six and one-half feet in height above the second floor roof. The roof [*2] of the penthouse had two openings, each three feet square, where glass skylight domes were to be installed.

On a Saturday morning, February 5, 1972, the roofing subcontractor had completed the roof installation except for installation of the glass domes in the penthouse. Shortly before 11 A.M. on that morning, respondent's project manager fell through one of the openings to his death. There were no witnesses to the accident.

Respondent's worksite was inspected on February 7 and 8, 1972. Based upon this inspection one citation for serious violation and one citation for non-serious violation containing seven items together with a notification that a penalty of $875 was proposed were issued on March 24, 1972. Respondent timely contested the citation for serious violation which alleged a violation of 29 CFR 1926.500(f)(6) n1 and item one of the non-serious violation which alleged a violation of 29 CFR 1904.8 n2 and the penalties proposed therefor. After a hearing on the merits, Judge Larkin vacated both citations.

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n1 29 CFR 1926.500(f)(6) states: "Skylight openings that create a falling hazard shall be guarded with a standard railing or covered in accordance with subparagraph (5)(ii) of this paragraph."

n2 29 CFR 1904.8 states: "Within 48 hours after the occurrence of an employment accident which is fatal to one or more employees or which results in hospitalization of five or more employees, the employer of any employees so injured or killed shall report the accident either orally or in writing to the nearest office of the Area Director of the Occupational Safety and Health Administration, U.S. Department of Labor. The reporting may be by telephone or telegraph. The report shall relate the circumstances of the accident, the number of fatalities, and the extent of any injuries. The Area Director may require such additional reports, in writing or otherwise, as he deems necessary, concerning the accident.

[*3]

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Judge Larkin concluded that the citations were invalid under section 9(a) of the Act because they were issued 45 days after inspection. n3 We disagree.

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n3 We do not adopt the Judge's conclusions regarding section 17(k) of the Act. Both citations were issued simultaneously and we find that Judge Larkin vacated both of them because they were not issued with "reasonable promptness" under section 9(a) of the Act.

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The issue of "reasonable promptness" under section 9(a) of the Act was not raised before or during the hearing by the parties. Accordingly, the issue should not have been examined by the Judge. Chicago Bridge & Iron Co., No. 744 (January 24, 1974); F. H. Von. Damm, No. 665 (May 23, 1974). We must, therefore, decide this case on the merits.

THE SERIOUS CITATION

The Secretary alleged that respondent committed a serious violation of the Act because of a failure to comply with the standard published at 29 CFR [*4] 1926.500(f)(6) n4 (failure to guard or cover the skylight opening). We find that the preponderance of the evidence, however, does not establish a violation of the standard.

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n4 See note 1, supra.

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The compliance officer for the State of Texas inspected the worksite on February 7 and 8, 1972. He observed several pieces or roofing insulation on the roof adjacent to the "penthouse." He stated the insulation was between two and two and one-half inches thick and that it might have supported the deceased employee's weight. He further testified that one employee at the worksite told him the project manager had been checking the roof at the time of his fall, and that other employees indicated that he had been placing tarpaper and insulation over the hole.

The compliance officer for the Secretary of Labor arrived at the worksite on February 7, 1972. He did not inspect the premises on that date because none of the subcontractors were present. He conducted his inspection on February 8, 1972, at which [*5] time the skylight openings had been covered by glass domes. The compliance officer testified that two of respondent's employees at the jobsite told him that the project manager probably had been covering up the skylight opening at the time of his fall. He also testified that he was told by an employee of the roofing subcontractor that the project manager had stated it might rain that night and that he was going to cover the skylight openings.

Respondent's only witness was its general superintendent. He arrived at the worksite on February 7, 1972, before the Secretary of Labor's compliance officer. He observed a sawhorse adjacent to the penthouse, and several pieces of fibrous insulation board on the penthouse including one which was partially covering the skylight opening the project manager fell through. This witness assumed that the project manager had been covering the openings at the time of his fall.

The Secretary of Labor asserts that based upon these facts, respondent did not comply with the cited standard. We disagree. The preponderance of the evidence n5 does not support a finding that respondent was not in compliance with this standard.

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n5 See Armor Elevator Co., Inc., Nos. 425 & 426 (November 20, 1973).

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No witness who might have observed the worksite on the day of the accident, February 5, 1972, testified at the hearing. The roofing subcontractor, who had completed the roofing work immediately before the accident, was not called as a witness, nor were his employees called as witnesses. n6 The only persons who testified at the hearing inspected the premises two and three days after the accident.

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n6 The Secretary's attorney stated the employees who were present at the time of the accident could not be located to testify at the hearing.

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There is no evidence as to whether this opening was in fact covered or uncovered before or at the time the project manager fell to his death. Respondent's witness surmised that the project manager had been covering the opening in order to comply with the standard. [*7] Through hearsay, the Secretary's witness stated the project manager might have been covering the opening to keep out the rain.

The Commission cannot decide cases based on speculation and conjecture. The Secretary has failed to meet his burden of proof in establishing by a preponderance of the evidence that non-complying conditions existed.

THE NON-SERIOUS ITEM

The Secretary also alleged that respondent failed to report the fatality to the Area Director within 48 hours in violation of 29 CFR 1904.8. n7 We affirm this citation but vacate the proposed $200 penalty.

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n7 See note 2, supra.

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The accident occurred shortly before 11 A.M. on February 5, 1972. The Area Director received notice of the accident within 48 hours after its occurrence through news media reports, but during that period of time respondent did not notify the Area Director's office. The Secretary's compliance officer arrived at the worksite at 1 P.M. on February 7, 1972, 50 hours after the accident. Under these circumstances [*8] we hold that respondent's failure to notify the Area Director was a violation of the reporting requirement.

Although respondent failed to report the accident, the Secretary had actual notice of its occurrence within the required 48 hour period. We find it inappropriate, therefore, to assess a penalty. Cf. F.F. Green Constr. Co., Inc., No. 1015 (November 26, 1973).

Accordingly, it is ORDERED that the citation for serious violation and the penalty proposed therefor are vacated. Item one of the citation for non-serious violation is affirmed and no penalty is assessed therefor.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: I am convinced that Judge Larkin properly disposed of this case and I would affirm his decision. [The Judge's decision referred to herein follows]

LARKIN, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC, 651 et seq. (referred to as the Act) to review a "Citation for Serious Violation" and "Notification of Proposed Penalty" in the amount of $500 and a "Citation" and "Notification of Proposed Penalty" in the amount of $200 issued by the Secretary of Labor (referred to as the Secretary) pursuant [*9] to Section 9(a) and 10(a) of the Act. The other items set forth in the citations were not contested in the pleadings. The proceeding grows out of issuance of citations on March 24, 1972, as a result of an inspection on February 8, 1972, citing a failure to conform with certain published standards.

More specifically, the citations provide:

An inspection of a workplace under your ownership, operation or control located at 2630 West Freeway, Fort Worth, Texas 76107 (inspected on February 8, 1972 at 10:00 a.m.) and described as follows -- Construction site for Park Gardens Office Building -- has been conducted.

Description of alleged violations:

29 CFR 1926.500(f)(6). Skylight opening was not guarded by a standard railing or protected by a cover so installed as to prevent accidental displacement. Abatement date: Immediate.

29 CFR 1904.8. Employer failed to report fatality to area office of Occupational Safety and Health Administration as required. Abatement date: Immediate.

More specifically, the alleged standards provide:

29 CFR 1926.500(f)(6). Skylight openings that create a falling hazard shall be guarded with a standard railing, or covered in accordance with [*10] subparagraph (5)(ii) of this paragraph.

29 CFR 1926.500(f)(5)(ii). The floor opening cover shall be capable of supporting the maximum intended load and so installed as to prevent accidental displacement.

29 CFR 1904.8. Reporting of fatality or multiple hospitalization accidents. Within 48 hours after the occurrence of an employment accident which is fatal to one or more employees or which results in hospitalization of five or more employees, the employer of any employees so injured or killed shall report the accident either orally or in writing to the nearest office of the Area Director of the Occupational Safety and Health Administration, U.S. Department of Labor. The reporting may be by telephone or telegraph. The report shall relate the circumstances of the accident, the number of fatalities, and the extent of any injuries. The Area Director may require such additional reports, in writing or otherwise, as he deems necessary, concerning the accident.

On April 20, 1972, the Secretary filed a Complaint in response to Respondent's Notice of Contest filed on April 10, 1972, and on May 1, 1972, Respondent filed its answer.

The trial was held on December 14, 1972, [*11] in Dallas, Texas.

FINDINGS OF FACT

1. Respondent is a corporation located in Dallas, Texas, where it was engaged in the construction of a concrete and steel office building at 2630 West Freeway, Fort Worth, Texas, for its own future operation (Tr. 52, 55-56; Answer and Complaint, Par. 2). It is a business affecting interstate commerce under the provisions of the Act (Complaint and Answer, Pars. II & III).

2. Respondent acted as general contractor on the project as the construction was contracted to and performed by subcontractors (Tr. 56-57). Respondent's only employee at the project was a project manager who was responsible for supervising the work of subcontractors and for seeing to completion of the project (Tr. 50, 56-58). Earlier Respondent had used a framing carpenter who was not employed on the project at the time in issue (Tr. 58). The project manager reported to Respondent's general superintendent, located in Dallas, who handled negotiations, letting of contracts and supervision of the project manager (Tr. 56-57, 61).

3. The cost of the building with tenant improvements was $1,130,000 and it was 85 per cent complete at the time in issue (Tr. 58).

4. The two-story [*12] building was approximately 100 feet by 200 feet in dimension and contained a six and one-half foot high penthouse approximately 20 feet by 30 feet in dimension above the second floor roof (Tr. 10, 14, 21, 54). The roof of the penthouse contained two three by three openings above a sunken garden area to be completed on the first floor of the building (Tr. 21, 23). The sunken floor area was concrete and about 35 to 40 feet below the penthouse roof (Tr. 23, 53; Ex. 3).

5. On Saturday morning, February 5, 1972, the roofing subcontractor had completed the roof installation with the exception of installing the two plexiglass domes over the skylights (Tr. 51-55). The roofing subcontractor employees and descended to a lower level and no ladder remained for access to the penthouse roof area (Tr. 61-63). With the exception of a sawhorse adjacent to the penthouse on the second floor roof level, the penthouse roof was generally inaccessible due to its height of six and one-half feet (Tr. 61-62).

6. Shortly before 11:00 a.m. on the morning of February 5, 1972, Respondent's project manager, age 49 years, fell to his death through one of the skylight openings (Ex. 1). As far as [*13] was known, no one observed the fall (Tr. 29).

7. The Respondent took no overt action to notify the Secretary or his representative within 48 hours of the fatality (Tr. 38).

8. Respondent's general superintendent emphasized to the project manager the necessity of making sure the job was safe and there were no monetary restrictions placed upon the project to get in completed safely. (Tr. 50-51).

9. The inspection was completed on February 8, 1972, and the Citation issued on March 24, 1972 (Tr. 22, Complaint and Answer, Par. VII and XVIII).

OPINION

Respondent was cited for a serious violation for failure to provide a standard railing or skylight cover as required by the provisions of 29 CFR 1926.500(f)(6) and for a violation not of a serious nature for failure to notify the Secretary of the fatality as required by 29 CFR 1904.8.

Respondent differs substantially from the typical construction contractor in that its work was being done with exception of minor carpentry work through subcontractors. As pertinent, its only on-the-site employee was a project who was responsible for inspecting the work of the subcontractors and assuring completion of the job. The project [*14] manager fell to his death through an uncovered skylight opening. At the time of the fatality, the roof area containing the skylight had been completed by the subcontractor with the exception of the subcontractor installing domes over the two skylights. The area involved a six-and-one-half foot high penthouse roof approximately 20 by 30 feet in dimension and access ladders had been removed. As no one saw the accident, speculation was that the project manager had climbed to the roof of the inaccessible area by using the sawhorse as a stepping device and apparently for the purpose of temporarily covering the skylights with some insulation materials. The project was located in Fort Worth. Texas, and the project manager reported to Respondent's general superintendent located in Dallas, Texas. Respondent's general superintendent was ultimately responsible for the project.

As pertinent, Section 17(k) of the Act provides that ". . . a serious violation shall be deemed to exist . . . unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation." Respondent could not have had actual knowledge of the violation of [*15] the standard as the deceased was its only employee on the project. This leaves for determination the question of whether Respondent with the exercise of reasonable diligence should have known of noncompliance with the standard. To conclude that Respondent should have known would require a conclusion that the project or project manager should have been more closely supervised. The decedent was 49 years of age and had sufficient experience to be in charge of the project. To have required another supervisor on the project would have meant a supervisory ratio of an experienced employee of one-to-one. To have required such close supervision would have, in effect, rendered the project manager unnecessary. As pointed out in Hanovia Lamp Division (Canrad Precision Industries, Inc.), Without either actual or constructive notice, Respondent should [*16] not be charged with either a serious or nonserious violation (Cf. Mountain States Telephone and Telegraph Company,

Respondent was cited for failure to notify the Secretary within 48 hours of the fatality. Its defenses are that the 48-hour requirement meant 48 workhours and that notice was unnecessary due to the notoriety of the fatality on the local news media.

Respondent's general superintendent concedes that he had the Secretary's standard on recordkeeping requirements. He further concedes that review of this document on Monday following the fatality revealed that a fatality must be reported within 48 hours. Review of this document reveals numerous references to workday as distinguished from a calendar day. The regulation for reporting a fatality within 48 hours and the recordkeeping requirements for recording and reporting occupational injuries are all contained in the recordkeeping portion of the Secretary's regulations. In view of the definite distinctions made in both the booklet in Respondent's possession and in the published regulations, it must be concluded that the Secretary intended 48 hours rather than 48 workhours, and the [*17] document in Respondent's possession was adequate to put it on actual notice of the requirement to report the fatality.

Respondent contends that the recordkeeping document was not specific as to where or to whom the fatality should be reported. Giving it all benefit of doubt, it had until at least 10:50 a.m. Monday following the fatality to clarify any questions with the Secretary's local office. Its defenses cannot be seriously considered and the only conclusions to be drawn are that the regulation means 48 hours rather than 48 workhours and the Respondent failed to conform with the requirements of reporting the fatality to the representative as required by the standard. The justification for prompt reporting was well stated by the Secretary's counsel. Delay jeopardizes the ability of the Secretary to gather facts as to the fatality and to perform his responsibility to carry out his duties as required in the act. Under the circumstances the $200 penalty would be appropriate had the Citation been valid.

Although the case has been considered on its merits for the benefit of the Commission, it is concluded that the Citation must be vacated as it is invalid. Pleasant [*18] Valley Packing Company This Citation was issued 45 days following the inspection.

CONCLUSION OF LAW AND DECISION

The Citation was issued 45 days after the inspection and is invalid as it fails to conform to the requirements of Section 9(a) of the Act.

WHEREFORE, IT IS ORDERED:

The Citations issued on March 24, 1972, are vacated and no penalties shall be assessed against the Respondent.