OSHRC Docket No. 77-617

Occupational Safety and Health Review Commission

September 2, 1981


Before: CLEARY and COTTINE, Commissioners. *

* Chairman Rowland took no part in the decision of this case. Although a new Commissioner possesses the legal authority to participate in pending cases, participation is discretionary and is not required for the agency to take official action. Perini Corp., 78 OSAHRC 43/C5, 6 BNA OSHC 1609, 1611, 1978 CCH OSHD P22,772 at p. 27,494 (No. 13029, 1978) (Commissioner Cottine's separate opinion). See 12(f) of the Act, 29 U.S.C. 661(e). Commissioners Cleary and Cottine reached agreement on the disposition of this case prior to the assumption of office by Chairman Rowland. Participation by Chairman Rowland would therefore have no effect on the outcome of the case and would delay the issuance of the decision. Accordingly, in the interest of efficient decision-making, Chairman Rowland elects not to participate in this case.


Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Andrew J. Rodrigues, Labor Attorney, Bethlehem Steel Corporation, for the employer

Mr. Arthur Sambuchi, Local Union No. 2603, United Steelworkers of America, for the employees




A decision of Administrative Law Judge David J. Knight 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"). In his decision, Judge Knight found that Respondent, Bethlehem Steel Corporation ("Bethlehem"), violated section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2), by failing to comply with the standard at 29 C.F.R. 1910.22(c) n1 The judge also concluded that the violation was de minimis in nature rather than serious as alleged by the Secretary of Labor ("Secretary"). The Secretary petitioned for review of the judge's determination that the violation was de minimis, and Commissioner Cottine granted the Secretary's petition. n2 For the reasons discussed below, we conclude that the Secretary established a serious violation of the Act based on noncompliance with section 1910.22(c).

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n1 This standard provides: 1910.22 General Requirements

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(c) Covers and guardrails. Covers and/or guardrails shall be provided to protect personnel from the hazards of open pits, tanks, vats, ditches, etc.

n2 Commissioner Cottine directed review on all issues raised in the Secretary's petition, including:

Whether the Administrative Law Judge erred in affirming the citation of an alleged serious violation of 1910.22(c) as a de minimis violation.

Whether the Administrative Law Judge erred in relying on variances granted to other employers by the Secretary of Labor in determining whether there was a violation of 1910.22(c).


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Bethlehem was cited for a failure to guard the perimeter of a large concrete pit, called a "butt hole," in accordance with the requirements of section 1910.22(c). Specifically, the citation alleged:

Cover(s) and/or guardrails(s) were not provided to protect personnel from the hazards of open pits:

Example: The concrete parapet wall around the stationary shear, butt-hole was not of sufficient height to provide protection equivalent to a guard rail or cover; thereby exposing employees to the potential hazard of falling into the 15 foot deep pit.

The butt hole at issue is a rectangular, open, concrete pit that is located at Bethlehem's facility in Lackawanna, New York. Into the butt hole are dropped the cropped off ends of billets, n3 which are called butt ends. Prior to being cropped, the billets move along a conveyor originating from Bethlehem's mill. The billets pass through a shear where the butt ends are cropped off. The butt ends then slide down a chute into the butt hole. Later, the butt ends are removed with a magnet.

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n3 Billets are flat, rectangular pieces of steel.

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The inspection in this case took place ten days after a fatality. Gordon McMillan, a laborer for Bethlehem, had fallen into the butt hole and had died from the injuries he sustained.

During the inspection, compliance officer Joseph Smith took measurements and prepared a sketch of the butt hole and surrounding area. The butt hole measured 17 feet long, 13 feet wide, and 15 feet deep. Surrounding the butt hole was a concrete parapet wall that was 25 inches thick. The height of the parapet wall was not uniform because the ground surrounding the butt hole was sloped. The left wall of the parapet varied in height from 23 inches above the ground at the rear corner to 36 inches near the front corner. The height of the front parapet wall was 27 inches above the ground near the right corner and 28 inches near the left corner. n4

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n4 There was snow on the ground at the time of the fatality as well as at the time of the inspection. Some of the snow present at the time of the inspection fell after the fatality. Before taking measurements, the compliance officer removed snow at the locations measured so that the depth of the snow would not affect the measurements. There was no evidence introduced concerning the heights of the right wall and back wall of the parapet.


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On the day of the incident, McMillan was working under Norbert Antonik, the turn foreman. Antonik, McMillan, and two other employees gathered in a structure known as the 21-inch mill pulpit. The pulpit was located approximately 200 feet from the butt hole. Antonik told McMillan that Antonik was going to check the butt hole chute to determine whether it had become iced as a result of water pouring over the shear blades during the weekend. Antonik also told McMillan that if the trap door on the butt hole chute was iced, he would get another laborer and the three of them would clear the ice from the butt hole chute. McMillan was instructed to remain in the pulpit and to "take it easy" until Antonik returned.

Antonik left to check the chute and to give other employees instructions. Soon therafter, he heard over the public address system that a man had fallen into the butt hole. Antonik testified that, immediately upon discovering that the employee who fell was McMillan, he exclaimed, "Oh, my God, why didn't he stay in the 21-inch mill pulpit like he was told to do."

Nobody saw McMillan fall. Shortly [*6] before the incident, however, a wireman employed by Bethlehem observed McMillan standing on the ground near the side of the butt hole. McMillan had a long-handled shovel and was scraping snow off the top of the butt hole wall. Moments later, the wireman observed McMillan standing by a different side of the butt hole within one or two feet of the butt hole chute. The wireman then was distracted by the blinking red light on a crane and hence did not see McMillan fall. n5

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n5 Joseph Egan, Bethlehem's safety engineer who investigated the fatality, stated that McMillan apparently was standing on top of the butt hole wall when he fell. Egan reached this conclusion because, in the area near the butt hole chute where McMillan was last observed by the wireman, there was no place where a person could stand on the ground.

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Antonik testified that he had not given McMillan any instructions about removal of snow from the butt hole walls. Antonik also stated that it was "not necessary whatsoever" to remove snow from the butt [*7] hole walls in order to remove the ice from the butt chute and that employees were never assigned to remove snow from the butt hole walls.

After the fatality, wooden guardrails were erected around the butt hole to keep people out during the investigation of the incident. A cover later was installed over the hole for use as a work platform. However, at the time of the incident there was no perimeter protection other than the parapet wall.

Compliance Officer Smith testified that the hazard posed by the butt hole was "that an employee could fall over the wall into the pit." Smith stated that, in order to provide sufficient protection, the top rail of a guardrail should be at least 36 inches high. The purpose of the 36-inch requirement is that the guardrail should hit an employee at about the waist, which is the center of gravity of an average individual.

Bethlehem's safety engineer Joseph Egan, on the other hand, testified that neither he nor other management officials considered the butt hole to be a hazard. Egan stated, "There is no question in my mind that you just don't walk into it, trip over it and fall. You have a 25-inch width that you can gain your balance with very easily." [*8] Egan agreed with the compliance officer that an average man who is six feet tall would have a center of gravity at his waist, approximately 36 inches high. But while it is possible for an employee to trip over the butt hole wall and to fall forward, Egan testified that the thickness of the wall would allow the employee to catch himself and hence not fall into the butt hole.

Antonik testified that employees from Bethlehem's electrical department walked by the butt hole when carrying "test pieces" from the motor room to the inspection department. Antonik also stated that mechanical employees might have to go into the area behind the butt hole to perform repairs, but he had not seen them do so. Frank Calverese, a motor inspector, stated that he had gone by the butt hole many times, although he did not pass it every working day. The compliance officer testified that management officials passed by the butt hole every day.

Bethlehem placed into evidence two variance orders that had been granted to other employers: Rohn Manufacturing, 39 Fed. Reg. 13,217 (1974) (permanent variance granted by John Stender, Assistant Secretary of Labor) ("Rohn"); and Frontier Hot-Dip Galvanizing, [*9] Inc., 42 Fed. Reg. 10,077 (1977) (interim variance order granted by B. M. Concklin, Acting Assistant Secretary of Labor) ("Frontier"). n6

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n6 Variances may be issued by the Secretary pursuant to section 6(d) of the Act, 29 U.S.C. 655(d), which provides:

Any affected employer may apply to the Secretary for a rule or order for a variance from a standard promulgated under this section. Affected employees shall be given notice of each such application and an opportunity to participate in a hearing. The Secretary shall issue such rule or order if he determines on the record, after opportunity for an inspection where appropriate and a hearing, that the proponent of the variance has demonstrated by a preponderance of the evidence that the conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer will provide employment and places of employment to his employees which are as safe and healthful as those which would prevail if he complied with the standard. The rule or order so issued shall prescribe the conditions the employer must maintain, and the practices, means, methods, operations, and processes which he must adopt and utilize to the extent they differ from the standard in question. Such a rule or order may be modified or revoked upon application by an employer, employees, or by the Secretary on his own motion, in the manner prescribed for its issuance under this subsection at any time after six months from its issuance.

Regulations providing for issuance of interim variance orders are published at 29 C.F.R. 1905.11(c).


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In Rohn, the employer sought a variance from 29 C.F.R. 1910.23(c)(3), which requires that walkways above and adjacent to hazardous operations, including pickling and galvanizing tanks, be guarded with a standard railing and toeboard. n7 The pickling tanks at issue were built below floor level, with sides rising 40 inches above the floor. The tanks had ledges 24 inches thick. Galvanizing tanks also were built below floor level, with sides 26 inches above the floor and ledges 31 inches thick. A standard guardrail would have seriously interfered with moving items into and out of the tank and with skimming the zinc.

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n7 The term "standard guardrail," for purposes of 1910.23(c)(3), is defined in 1910.23(e) as having a height of 42 inches.

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The Assistant Secretary's decision in Rohn concluded that the combination of side height and ledge thickness provided protection to employees equivalent to that provided by a standard guardrail [*11] and toeboard. He consequently granted a variance that authorized Rohn Manufacturing to continue its operations without meeting the requirements of 29 C.F.R. 1910.23(c)(3).

In Frontier, the employer sought a variance from 29 C.F.R. 1910.22(c) and from 29 C.F.R. 1910.23(c)(3). The employer in Frontier operated a galvanizing tank with sides 30 inches high and 24 inches thick at the top. It contended that the erection of a standard guardrail would seriously interfere with moving items into and out of the tank and with skimming the zinc.

The Acting Assistant Secretary concluded that grant of an interim variance order was appropriate, and consequently he authorized the employer to continue its operations without meeting the requirements of sections 1910.22(c) and 1910.23(c)(3). However, the interim order was granted on the condition that no employees would walk, step, or sit on the ledge surrounding the tank and that the employer would train its employees concerning hazards associated with the galvanizing tanks. n8

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n8 A permanent variance later was granted in Frontier. 42 Fed. Reg. 55,291 (1977) (variance granted by Eula Bingham, Assistant Secretary of Labor).


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Judge Knight found that Bethlehem failed to comply with section 1910.22(c) because only a small section of the parapet wall was at least 36 inches high. Although the cited standard does not specify what height a guardrail must be, the judge concluded that Respondent's representatives should have known that guardrails are not less than 36 inches or more than 42 inches high.

The judge, however, characterized the violation as de minimis because he concluded that it had no relationship to an employee's safety. He found that "[e]ven at the wall's lowest point, 23 inches, because of the 25-inch width of the ledge at the top of the wall over its entire surface, it would be practically impossible for a person to accidently fall into the hole." The judge's conclusion was bassed on Joseph Egan's testimony that the butt hole did not present a hazard, the judge's "intuitive reaction" that an employee falling onto the parapet could easily stop his forward momentum, and "inferences drawn from the variances granted by the complainant in materially similar circumstances." Further, the judge concluded [*13] that Bethlehem could have done nothing to prevent Mr. McMillan's death and that the circumstances of this incident have no reflection on the quality of the wall as a preventive device.


The Secretary requests that the Commission reverse the judge's characterization of the violation as de minimis and hold that the violation is serious. The Secretary contends that even though the parapet was 36 inches high at one point, continuous and uniform protection was needed around the entire perimeter of the butt hole. Particularly where the wall was only 23 inches high, 13 inches less than the 36-inch height required for a standard guardrail, the parapet afforded little protection against falling and certainly not the protection afforded by a standard guardrail. n9

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n9 The Secretary refers to 12 general industry standards requiring guardrails not less than 36 inches or more than 42 inches high. See, e.g., 29 C.F.R. 1910.28(b)(15); 29 C.F.R. 1910.28(c)(14); 29 C.F.R. 1910.66(c)(9).

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The Secretary argues [*14] that the 25-inch width of the butt hole wall did not increase the wall's adequacy in preventing falls. If anything, such a ledge could entice employees such as McMillan to step on top of the wall, where they would be even more likely to fall. Further, "common sense" dictates that a falling employee might not always be able to stop his forward momentum because of the ledge. The ability of a person to catch himself in time would clearly be decreased if the top of the parapet was icy or snow-covered. At best the parapet provides more protection than no wall at all. At worst, it was a clear tripping hazard and a deceptively dangerous means of access to the butt hole. The Secretary concludes that the violation should be classified as serious, since death or serious physical harm is likely to occur if an employee were to fall into the 15-foot deep concrete pit.

Finally, the Secretary contends that the judge erred by relying in his de minimis ruling upon the variance orders introduced as evidence by Bethlehem. Since variances are granted on only a case-by-case basis after strict scrutiny of all relevant facts, they should not be construed as tantamount to a modification of [*15] a standard. The Secretary views the consideration of variance orders in judicial proceedings to be a gross misapplication of those orders and an usurpation of the Secretary's authority. Further, the Secretary contends that the variance orders relied upon by the judge can be distinguished from the present case with respect to the work processes involved, the hazards to employees, the locations of the work processes, the dimensions of the walls, and the extent of other safety precautions.

Bethlehem argues in support of the judge's finding of a de minimis violation. Pointing to Egan's testimony, Bethlehem contends that the thickness of the parapet provides protection equivalent to a 36-inch high guardrail. It considers the Secretary's arguments that a "falling employee . . . might not always be able to stop his forward momentum" and that the "wall was a clear tripping hazard and a deceptively hazardous means of access to the butt hole" to be specious and not supported by the record. At the very least, Bethlehem contends, the hazard posed by the butt hole is remote, negligible, and trifling, and hence the violation should be considered de minimis.

Bethlehem argues [*16] that the judge properly relied, along with other evidence, upon the variance orders in Rohn and Frontier. In particular, Bethlehem points to language in Rohn stating that ledges 24 inches and 31 inches thick should allow an employee to right himself if he should lose him balance and fall. Bethlehem argues that, because of the factual similarities between Rohn and this case, the Secretary should be precluded from asserting here that the concrete parapet wall does not provide protection equivalent to a 36-inch high guardrail. It also agrees with the judge that McMillan's accident was unpreventable and had nothing to do with the protection afforded by the wall.


Non-compliance with a standard is properly classified as de minimis when the hazard involved bears such a negligible relationship to employee safety as to render inappropriate the imposition of a penalty or the entry of an abatement order. Pratt & Whitney Aircraft, 81 OSAHRC    , 9 BNA OSHC 1653, 1981 CCH OSHD P25,359 (No. 13401, 1981), pet. for review docketed, No. 81-4104 (2d Cir. June 22, 1981)., Continental Oil Co., 79 OSAHRC 42/c3, 7 BNA OSHC 1432, 1979 CCH OSHC P23,626 (No. 13750, [*17] 1979). However, we find that the hazard presented by the butt hole at Bethlehem's facility is not negligible, and hence the de minimis classification is inappropriate.

At the rear of the butt hole, near where McMillan apparently fell, the parapet wall was approximately 13 inches lower than a standard 36-inch high guardrail. At the front of the butt hole, near where Bethlehem's electrical department employees walked, the height of the parapet wall was 27 inches, or 9 inches less than a 36-inch guardrail. Because the height of the parapet was considerably less than that of a standard guardrail, we are not persuaded that the 25-inch thickness of the wall adequately compensates for its insufficient height. Further, the presence of snow on the ground around the butt hole increased the likelihood that an employee would slip and fall. Therefore, we conclude that the hazard of a possible fall over the butt hole wall or from the top of the parapet into the butt hole was substantial.

In reaching this conclusion, we reject the judge's finding, based partly on his own "intuition," that an employee falling onto the parapet could earily stop his forward momentum. When the ledge [*18] of the parapet is covered with snow or ice -- a condition present during the incident and during the inspection -- the slipperiness of the ledge could make it difficult for a falling employee to regain his balance. As the Commission stated in Dick Corp., 77 OSAHRC 196/B3, 6 BNA OSHC 1025, 1977-78 CCH OSHD P22,342 (No. 14456, 1977), standards of this type are designed to prevent employees from being put in the position of danger where the avoidance of injury is predominately dependent upon their skill or good fortune.

We accord little weight to the variance orders in Rohn and Frontier in determining the degree of hazard presented by the butt hole. n10 First, as the Secretary points out, variances apply only to the specific employer and situation for which they are granted and are not binding in other cases. Second, because the circumstances in Rohn and Frontier are significantly different from those of this case, those cases have little probative value in assessing the hazard posed by Bethlehem's butt hole.

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n10 We reject the position of the Secretary that the judge should not have considered the variance orders in Rohn and Frontier. Since there are similarities between the circumstances in Rohn and Frontier and the circumstances here, those orders are factually relevant and the judge properly admitted them. That certain evidence ultimately may be accorded little or no weight should not cause the judge to exclude the evidence from the record. See Hurlock Roofing Co., 79 OSAHRC 93/A2, 7 BNA OSHC 1867, 1979 CCH OSHC P24,006 (No. 14907, 1979).


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Foremost among the factual differences between this case and Rohn and Frontier is the existence here of snow on the surfaces around the butt hole. Also slgnificant are the dimensions of the perimeter protection. In Rohn, the pickling tanks' sides were 40 inches above the floor, which exceeds the height required by section 1910. 22 (c). While the galvanizing tanks in Rohn were only 26 inches high, the ledges of these tanks were 31 inches thick, 6 inches thicker than the parapet wall in this case. In Frontier, the wall of the galvanizing tank was 30 inches high, three to seven inches higher than the parapet here at its lowest points. The 24-inch thickness of the wall in Frontier was about the same as the 25-inch thickness of the parapet here. Therefore, we find that the parapet here provides less protection against falling hazards than the sides of the tanks in Rohn and Frontier. Finally, this case involves significantly different work operations than Rohn and Frontier. n11

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n11 In the variance proceedings in both Rohn and Frontier, the employers contended that the presence of guardrails around galvanizing tanks would interfere with moving items into and out of the tank and with skimming the zinc. On the other hand, in this case guardrails were installed shortly after the incident, and there is no contention that the presence of guardrails interfered with Bethlehem's work processes.


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We also find that the violation was serious within the meaning of section 17(k) of the Act, 29 U.S.C. 666(j). n12 To prove a serious violation, it need not be likely that an incident occur. It is only necessary to prove that if such an incident occurs, the probable result will be either serious injury or death. See, e.g., Andy Anderson, 78 OSAHRC 34/A2, 6 BNA OSHC 1595 (No. 76-4082, 1978). The evidence here establishes that a fall into the 15-foot-deep butt hole is likely to cause death or serious harm. n13

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n12 Section 17(k) provides:

(k) For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

n13 We also reject Bethlehem's argument that a violation should not be found because McMillan's accident was the result of unpreventable employee misconduct. Bethlehem contends that, by approaching the butt hole and scraping snow off it, McMillan disobeyed Antonik's instructions to remain in the 21-inch pulpit. In order to establish the affirmative defense of unpreventable employee misconduct, an employer must show that the action of its employee was a departure from a uniformly and effectively communicated and enforced workrule. H.B. Zachry Co., 80 OSAHRC 9/D8, 7 BNA OSHC 2202, 1980 CCH OSHD P24,196 (No. 76-1393, 1980) aff'd, 638 F.2d 812 (5th Cir. 1981). Bethlehem did not have a workrule restricting employees from access to the butt hole area. Moreover, even a workrule restricting employee access to a hazard is not sufficient when a cited standard requires the use of specific protective devices. See Ted Wilkerson, Inc., 1981 OSAHRC    , 9 BNA OSHC 2012, 1981 CCH OSHD P15,551 (No. 13390, 1981). In any event, our finding of a violation is not predicated solely on McMillan's exposure to the butt hole area. As noted above, electrical department employees and management officials often walked by the butt hole.


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The parties stipulated that, if a serious violation is found, the $630 penalty proposed by the Secretary would not be unreasonable. We have determined that assessment of the stipulated penalty of $630 is in accordance with the purposes of the Act. See Willamette Iron and Steel Co., 80 OSAHRC 121/F1, 9 BNA OSHC 1128, 1981 CCH OSHD P25,019 (No. 15317, 1980), pet. for review docketed, No. 81-7072 (9th Cir. Feb. 4, 1981). Consequently, a penalty of that amount is assessed.


Accordingly, we set aside the judge's characterization of the violation as de minimis and affirm the citation charging that Bethlehem committed a serious violation of 29 C.F.R. 1910.22(c). A penalty of $630 is assessed.