Docket No. 78-50

MOSITES CONSTRUCTION CO.

OSHRC Docket No. 78-50

Occupational Safety and Health Review Commission

April 27, 1981

[*1]

Before: BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Counsel for Regional Litigation, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

R. Dell Ziegler, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Charles K. Chaplin is before the Commission for review pursuant to 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 Chaplin found that, although Respondent, Mosites Construction Company, committed a serious violation of section 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2), the violation was not willful, as alleged by the Secretary of Labor ("the Secretary"). The Secretary petitioned the Commission to review the judge's decision. Commissioner Cottine granted the Secretary's petition for review. The only issue before the Commission is whether the judge erred in concluding that the Respondent's failure to comply with the standard at 29 C.F.R. § 1926.500(b)(1) n1 was not a willful violation of the Act.

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n1 This standard provides:

§ 1926.500 Guardrails, handrails, and covers.

* * *

(b) Guarding of floor openings and floor holes.

(1) Floor openings shall be guarded by a standard railing and toeboards or cover, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways.

[*2]

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On November 16, 1977, Raymond Giallonardo, an employee of Respondent, suffered fatal injuries after he fell over 70 feet down an elevator shaft in the partially constructed extension to the Ohio Valley General Hospital in McKees Rocks, Pennsylvania. Respondent was the general contractor at this site. Immediately before he fell, Giallonardo was working on level 6 1/2 of the structure.

Level 6 1/2, the elevator machinery floor, is located approximately 5 feet above the sixth floor of the structure. The elevator shaft opening on level 6 1/2 is bordered on one side by an exterior wall of the building. The opposite side of the shaft was described in the record testimony as an interior wall which rose approximately five feet from the sixth floor. This wall is approximately eighteen inches wide. The shaft opening was unguarded above this wall. The remaining two sides of the shaft, bordered by the floor of level 6 1/2, were unguarded.

At one time during the construction process, the elevator shaft on level 6 1/2 had been covered by plywood that had been installed by Ceco Construction Company ("Ceco"), [*3] Respondent's subcontractor. On November 2, 1977, Ceco completed its work on level 6 1/2 and removed the plywood, leaving the elevator shaft open. The shaft remained open for a two-week period from November 2, 1977, until the day following Giallonardo's fall at which time Respondent installed guardrails.

Respondent had installed a hoist cable in the elevator shaft at issue. The cable, which was driven by an "air tugger," was used to move construction materials to the various levels of the structure. Two of Respondent's employees were responsible for operating the controls of the "air tugger," which were located on the first floor of the structure. The employees operating the "air tugger" used hand signals to communicate with Giallonardo on level 6 1/2.

During the morning on the day of Giallonardo's fall, Respondent's general superintendent, Thomas Corbett, worked with the employees on the first floor, testing the "air tugger" to see if it worked properly.

On that same morning Vincent Ornato, an ironworker employed by Respondent, worked with Giallonardo hoisting construction materials to various floors of the structure and lowering debris from level 6 1/2. After lunch, Ornato [*4] was delayed in returning to level 6 1/2. Giallonardo proceeded to that level and attempted to lower the drum without Ornato's assistance. Immediately before his fall, Giallonardo was positioned at the edge of the open elevator shaft. He was in the process of maneuvering a debris-laden 55 gallon drum, which had been attached to the hoist cable, into the shaft opening. When the drum entered the shaft opening, it swung rapidly across the shaft, dragging Giallonardo from his position on the shaft's edge. Giallonardo was pulled into the shaft, lost his grasp on the drum, and fell to his death.

According to Ornato, by performing this task on his own, Giallonardo was required not only to give hand signals to the hoist operators below but also to maneuver the drum into the shaft opening. Ornato, who had installed the hoist cable a day or two prior to Giallonardo's fall and who considered himself more experienced than Giallonardo in rigging such loads, testified that he did not believe that the task attempted by Giallonardo could be performed safely by one worker.

At the hearing, the Secretary elicited testimony from several witnesses concerning the conditions existing on level 6 1/2 [*5] prior to Giallonardo's fall on November 16. Ornato testified that prior to November 16, he used level 6 1/2 as an alternate access route to scaffolding on the outside of the structure. At that time, the elevator shaft opening, through which Giallonardo fell, was unguarded. Although level 6 1/2 was cluttered with debris following Ceco's departure on November 2, 1977, Ornato did not believe that this condition would have prevented the erection of guardrails on the exposed sides of the open elevator shaft. Following Giallonardo's fall, Ornato assisted in the installation of guardrails at various locations on the worksite.

Laborer Gary Hager testified that on the day prior to the day of Giallonardo's fall he had cleared debris on level 6 1/2. The elevator shaft in question was unguarded at that time. Hager was directed to wear a safety belt; however, he elected not to do so because he did not work "right at the edge" but rather "about eight feet" from the unguarded shaft. On the day of the incident, Hager operated the "air tugger" on the first floor level of the elevator shaft. When he reached Giallonardo after the fall, Hager noted that Giallonardo was not wearing a safety belt. [*6]

Arthur Ashcraft, a carpenter employed by Respondent, testified that he was primarily responsible for the installation of guardrails at the worksite. Ashcraft testified that on Monday of each week Respondent conducted safety meetings with management and union representatives of the subcontractors at the worksite. Hazardous conditions, which were brought to Respondent's attention at these meetings, were promptly corrected. Ashcraft further testified that he had often installed guardrails without being instructed to do so when he perceived an unsafe condition. According to Ashcraft, guardrails generally were not installed around floor openings until debris was removed. Ashcraft was not aware of any construction activity on level 6 1/2 during the period between Ceco's November 2, 1977 departure from that level and Giallonardo's fall on November 16. Ashcraft did state, however, that he had not entered level 6 1/2 during this period. On the day following the incident, Ashcraft installed guardrails around the floor openings on level 6 1/2. Ashcraft also testified that Respondent had supplied safety belts to workers at the jobsite. He noted that he had seen Giallonardo wearing a [*7] safety belt on other occasions prior to his fall. According to Ashcraft, Giallonardo also instructed co-workers to wear safety belts.

Robert Cole, an electrician employed by the electrical contractor at the worksite, testified that he and his partner had worked on level 6 1/2 on a daily basis for approximately two weeks prior to Giallonardo's fall. The work performed on level 6 1/2 included the installation of a rack for electrical panels near the elevator shaft. Cole also had entered this level to install temporary lighting and to retrieve stored materials. Cole noted that his daily presence on level 6 1/2 was limited in duration and that normally he avoided this level because of the unguarded elevator shafts. According to Cole, the elevator shaft in question was unguarded for a period of one to two weeks following Ceco's departure from level 6 1/2. Cole also testified that he had informed his foreman, Bill Shenk, of this condition but that guardrails were not erected until after Giallonardo's fall.

John Benson, the architect's representative at the worksite, testified that on November 7, 1977, superintendent Corbett informed him that guardrails would be installed throughout [*8] the project, where neede', as construction progressed. According to Benson, it would have been difficult to install guardrails at the floor openings until the concrete form work had been removed from the floor. Benson further recalled that on the day of the incident, Giallonardo and his co-worker, Ornato, were "landing" steel on level 6 1/2. In Benson's opinion, such a task would have been difficult to accomplish if guardrails had been in place at the elevator shaft's opening.

Finally, in support of his allegation of willfulness, the Secretary introduced several citations into evidence showing that Respondent had been cited for violations of the standard at section 1926.500(b)(1), as well as related guardrail standards, at other worksites. In three instances these citations had been issued to Respondent for violations at worksites where Corbett had been Respondent's general superintendent. The Secretary also introduced the minutes of weekly safety meetings conducted by superintendent Corbett at the Ohio Valley General Hospital site. These meetings were attended representatives of the various subcontractors and unions working at the site. Among those who attended these meetings [*9] was Bill Shenk, foreman for the electrical contractor at the site. The minutes indicate that, although the absence of guardrails was a recurring problem at the worksite, guarding deficiencies were corrected promptly upon being brought to Respondent's attention.

Respondent did not introduce any evidence upon the close of the Secretary's case but rather rested on the evidence introduced by the Secretary and on Respondent's cross-examination of the Secretary's witnesses.

Judge Chaplin found Respondent to have violated the Act but concluded that the Secretary had failed to establish the existence of a willful violation. He found that there was no evidence that Respondent's superintendent either ordered or permitted Giallonardo to work at the edge of the unguarded elevator shaft. He further found that the Respondent had not recklessly disregarded the hazard at issue because there was no evidence showing that superintendent Corbett was aware of this hazard prior to Giallonardo's fall. In the judge's opinion, the fact that Corbett had been the supervisor at other worksites where Respondent had been cited for violations of the same standard established that Corbett was aware of [*10] that standard's requirements, but not that he was aware of the existence of a hazard on level 6 1/2. Finally, the judge concluded that Respondent had not been indifferent to employee safety, citing Respondent's weekly safety meetings and the promptness with which hazards discussed therein had been corrected. Finding that the elements of a serious violation had been tried by the parties, the judge amended the pleadings, affirmed a serious violation of the Act and assessed a penalty of $750.

III

On review, the Secretary argues that the past citations issued to Respondent for violations of the cited standard, particularly those issued at worksites where Corbett had been the superintendent, establish Respondent's knowledge of the standard's requirements. The Secretary submits that Respondent's safety program was ineffective because the elevator shaft on level 6 1/2 remained unguarded for approximately two weeks. The Secretary cites superintendent Corbett's statement that guardrails would be installed throughout the project as evidence that Respondent was aware of the need for guardrails at the site. The Secretary further contends that, despite this awareness, Corbett directed employees [*11] to work at the edge of the elevator shaft on level 6 1/2 in careless disregard for employee safety. The Secretary also points out that, on the day of the incident, Corbett operated the tugger at the first floor level of the shaft and that he had to be aware that the employees on level 6 1/2 were exposed to a fall hazard. Finally the Secretary submits that, in view of the lack of guarding on level 6 1/2, it was incumbent upon Respondent to establish that it employed alternative means of employee protection on level 6 1/2.

On review, Respondent argues that the Secretary has failed to establish the existence of a willful violation and that the judge's decision should be affirmed. Respondent cites Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200 (3d Cir. 1974), for the proposition that "willfulness connotes defiance or such reckless disregard of consequences as to be equivalent to a knowing, conscious, and deliberate flaunting of the Act. . . . [M]ore than merely voluntary action or omission--it involves an element of obstinate refusal to comply." Under this test, Respondent asserts that the Secretary has failed to carry his burden of proof on the issue of willfulness. Respondent [*12] further contends that the Secretary has failed to prove a willful violation where the test applied is one of "conscious, intentional, deliberate or voluntary" action.

Respondent argues that although it knew of the cited standard's requirements, the violation was not willful because it was not aware that a hazard existed on level 6 1/2. Finally, Respondent contends that we should reject the Secretary's argument that it should have known of the hazard since the judge found that Respondent had established an effective safety program at the worksite.

The judge erred in applying a test of reckless disregard to determine whether Respondent's conduct was willful. A violation is willful when it is marked by careless disregard of a standard or of employee safety. A. Schonbek & Co., Inc., 80 OSAHRC , 9 BNA OSHC 1189, 1980 CCH OSHD P25, 081 (No. 76-3980, 1980), aff'd, No. 81-4014 (2d Cir. Apr. 10, 1981); Brown & Root, Inc., 79 OSAHRC 20/A2, 7 BNA OSHC 1215, 1979 CCH OSHD P23,435 (No. 13685, 1979). A showing of malicious intent is unnecessary. Tri-City Construction Co., 80 OSAHRC 62/C5, 8 BNA OSHC 1567, 1980 CCH OSHD P24,557 (No. 77-3668, 1980. n2

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n2 We have consistently rejected the test for willfulness that has been advanced by Respondent. E.g., Tri-City Constr. Co., supra. Moreover, we note that the Third Circuit discussed its Irey decision, upon which Respondent relies, in Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160 (3d Cir. 1980). The court, consistent with rationale of the Court of Appeals for the District of Columbia in Cedar Constr. Co. v. OSHRC, 587 F.2d 1303 (D.C. Cir. 1978), observed that in determining whether a violation is willful the same results will likely be achieved regardless of the standard used, e.g., "intentional disregard," "plain indifference" or "obstinate refusal to comply."

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Nevertheless, we agree with Judge Chaplin's conclusion that Respondent's failure to comply with the standard contained at section 1926.500(b)(1) was not willful. Although Respondent had been cited for violations of the cited standard as well as related guardrail standards at other worksites where Corbett was superintendent and, thus, knew of [*14] the standard's requirements, this fact alone does not compel the conclusion that the violation at issue was willful. Wright and Lopez, Inc., 80 OSAHRC 36/A2, 8 BNA OSHC 1261 at 1265, 1980 CCH OSHD P24,419 at p. 29,777 (No. 76-3743, 1980), petitions for review docketed, Nos. 80-1569 & 80-1704 (D.C. Cir. May 27, 1980 & June 25, 1980).

There is not sufficient evidence to support a finding that Respondent's supervisory personnel actually knew of the noncompliant conditions on level 6 1/2 before assigning employees to work there without protection. There is also insufficient evidence on which to base a finding that Respondent's efforts to discover the conditions on level 6 1/2 were so inadequate as to constitute careless disregard of employee safety. Although the elevator shaft remained unguarded for approximately two weeks between the departure of Ceco and the work performed within two days of Giallonardo's fall, during this period Respondent had not authorized any work by its employees on level 6 1/2. Respondent's carpenter, who was in charge of installing guardrails at the site, knew of no work on level 6 1/2 during this period. A day or two prior to Giallonardo's [*15] fall, Ornato installed the hoist cable in the elevator shaft in question. The shaft opening was unguarded at that time. At the hearing, Ornato was not asked if he wore or was instructed to wear a safety belt when performing this task. On the day before the fall, the employee who cleaned the area near the shaft was instructed to wear a safety belt while performing this task. During the morning of the day that Giallonardo fell, Respondent's superintendent, Corbett, worked with the employees on the first floor testing the hoist. Communication between the first floor and level 6 1/2 was accomplished by hand signals. There is no evidence that the absence of guardrails on level 6 1/2 could be seen from the first floor.

There is also no evidence that Respondent knew that employees were otherwise present on level 6 1/2 prior to Giallonardo's fall. Ornato testified that he had passed through level 6 1/2 to gain access to scaffolding on the structure's exterior. At that time, the elevator shaft opening in question was unguarded. There is no evidence that Respondent knew of Ornato's use of level 6 1/2 or that Ornato informed anyone of this use. The route taken by Ornato through level [*16] 6 1/2 was an alternate to the route used by workers to reach the exterior scaffolding.

The record also shows that Cole, an employee for the electrical contractor at the site, worked on level 6 1/2 on a daily basis for the two week interval when the elevator shaft was unguarded. Cole testified that he informed his foreman, Bill Shenk, of the hazardous condition existing at the shaft. Our review of the minutes of Respondent's safety meetings shows that foreman Shenk attended these meetings. As already indicated, hazards that were brought to Respondent's attention at these meetings were promptly corrected. Yet there is no evidence that Respondent was informed by foreman Shenk of the condition involving the unguarded elevator shaft despite the fact that the problem of guardrails was discussed regularly. In sum, we conclude that the evidence is insufficient to support a finding that Respondent knew of the absence of protection around the elevator shaft on level 6 1/2.

We also find that although Respondent could have known of the unguarded shaft with the exercise of reasonable diligence, its lack of diligence is not characterized properly as willful. For the purpose of determining [*17] the existence of violations under the Act, we have held that an employer has a duty under the Act to anticipate the hazards to which its employees may be exposed and to take the steps necessary to prevent such exposure. E.g., Southwestern Bell Telephone Co., 79 OSAHRC 4/G4, 7 BNA OSHC 1058, 1979 CCH OSHD P23,278 (No. 15841, 1979). Corbett had an adequate opportunity to inspect level 6 1/2 prior to the assignment of Giallonardo and Ornato to work on that level. He did not do so. n3 Nevertheless, a willful characterization does not follow inevitably from evidence that a noncomplying condition existed over a period of time and Respondent did not take adequate steps to discover the condition. Cf. Stone & Webster Engineering Corp., 80 OSAHRC 72/D11, 8 BNA OSHC 1753, 1980 CCH OSHD P24,646 (No. 15314, 1980), petition for review withdrawn, No. 80-1605 (1st Cir. Sept. 25, 1980) (willfulness not shown where conduct in compliance with the Act is discontinued based on Respondent's belief that continued compliance would interfere with work). n4

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n3 Respondent also argued that Giallonardo's death resulted from his decision to lower the barrel without the assistance of his co-worker, that such action was unforseeable, and that his death was therefore unpreventable. Although not styled as such, Respondent's argument raises the affirmative defense of unpreventable employee misconduct. Unpreventable employee misconduct may be raised as a defense if the miscondact itself resulted in a violation of a standard. See, e.g., B-G Maintenance Management Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD P20,744 (No. 4713, 1976). As a general rule, whether an employer is in violation of the Act does not depend on the occurrence of a particular incident. Western Waterproofing Co., Inc., 79 OSAHRC 68/D11, 7 BNA OSHC 1625, 1979 CCH OSHD P23,785 (No. 1087, 1979). With respect to the violation at issue, Giallonardo's decision to single-handedly lower the drum is unrelated to Respondent's failure to erect guardrails, as required by section 1926.500(b)(1). As already established, the elevator shaft in question was unguarded on the day of the accident and for the preceding two weeks. It is the unguarded condition of the elevator shaft, not Giallonardo's fatal fall, which is the gravamen of the violation and upon which our finding of a serious violation is based.

n4 Commissioner Cottine dissented from the majority's opinion in Stone & Webster Eng'r Corp., supra, concluding that willfulness was established in part on the basis of the Respondent's awareness of the fall hazard to which its employees were exposed. He finds Stone & Webster to be distinguishable from the instant case on that basis.

[*18]

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Apart from Corbett's conduct, it is undisputed on this record that Respondent made substantial efforts to correct guardrail deficiencies brought to its attention in the weekly safety meetings. Respondent's carpenter often installed guardrails without being instructed to do so. The carpenter was unaware, however, of any construction activity on level 6 1/2. Additionally, we note that Respondent's workman, who worked on level 6 1/2 on the day before Giallonardo's fall, had been instructed to wear a safety belt. Giallonardo, himself, had been seen wearing a safety belt on other occasions and had instructed other employees to wear safety belts. In light of these facts, we conclude that Respondent's failure to exercise due diligence with respect to the violation here did not amount to careless disregard of employee safety. Thus, the violation cannot be characterized as willful.

The only question presented on review is whether Respondent's violation of the standard contained at section 1926.500(b)(1) was a willful violation of the Act. n5 Having concluded that the violation in question was not willful, [*19] we, therefore, affirm the judge's decision in which he found that Respondent committed a serious violation of the Act. Upon finding a serious violation, the judge assessed a $750 penalty.

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n5 Commission Rule of Procedure 92(c), 29 C.F.R. § 2200.92(c).

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Having considered the penalty adjustment faccors contained in section 17(j), n6 we conclude that a $750 penalty is appropriate. Respondent, a medium-sized company, employed approximately 95 workers on a daily basis. With regard to good faith, we find that Respondent, through information obtained in its weekly safety meetings, as well as through the efforts of its carpenter, Ashcraft, promptly installed guardrails at hazardous locations throughout the site. On the other hand, we consider the gravity of the violation in question to be high despite the fact that a limited number of employees were exposed to the hazard. We further find that Respondent's history of violations of the cited standard as well as related guardrail standards militates against reduction of the [*20] penalty.

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n6 Section 17(j), 29 U.S.C. § 666(i), provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

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Accordingly, we affirm a serious violation of the Act for Respondent's non-compliance with the standard contained at 29 C.F.R. § 1926.500(b)(1). A $750 penalty is assessed.

SO ORDERED.