UNDERHILL CONSTRUCTION CORP., Individually, and DIC CONCRETE CORP., Individually and trading as DIC-UNDERHILL, A JOINT VENTURE

OSHRC Docket No. 9561

Occupational Safety and Health Review Commission

April 11, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

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

William J. Pastore, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On July 22, 1975, Administrative Law Judge Joseph Chodes issued a decision affirming three citations for violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., [hereinafter "the Act"]. One of the three citations alleged a failure to comply with 29 CFR 1926.500(d)(1) on three floors of a building under construction, and characterized the resulting violations as both willful and repeated. On August 7, 1975, before Judge Chodes' decision was filed with the Commission, respondent Dic-Underhill asked Judge Chodes to reconsider his decision. A supporting brief accompanied the motion. On August 11, 1975, however, Judge Chodes' decision was filed with the Commission pursuant to Commission Rule 90 (29 CFR 2200.90). n1

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n1 On August 11, the Secretary filed a letter stating his opposition to Dic-Underhill's request. He argued that jurisdiction over the case could only be exercised by the Commission members, and therefore the Judge could not reconsider his decision. In Robert W. Setterlin & Sons Co., BNA 4 OSHC 1214, 1216, CCH 1975-76 OSHD para. 20,682 (No. 7377, 1976), a divided Commission held that during the 20-day period provided in Commission Rule 90, the case remains under the jurisdiction of the Administrative Law Judge, and dicta in the decision indicates that the Judge may modify his decision.

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On August 18, 1975, Commissioner Moran ordered, on his own motion, review of the Judge's decision. His invitation for briefing was limited to the following issues dealing with the citation alleging a failure to comply with 29 CFR 1926.500(d)(1):

(1) Was there sufficient evidence to establish that respondent committed a willful violation as alleged?

(2) Is the decision of the Judge consistent with the rule of Anning-Johnson et al. v. OSAHRC, [516 F.2d 1081 (7th Cir. 1975)]?

Dic-Underhill has neither respondent to these issues, nor otherwise submitted any further argument. The brief of the Secretary of Labor on review discusses only the issues dealing with the citation for an allegedly "willful" violation. We shall however, treat respondent's brief accompanying his motion for reconsideration as his brief on review because it is part of the record and has not been reviewed.

Respondent, a joint venture, was engaged in the construction of the reinforced concrete superstructure of a high-rise apartment complex in New York City. The citation at issue alleged that respondent had failed to comply [*3] with 29 CFR 1926.500(d)(1) on three floors of the building. The standard requires standard guardrails or their equivalent on all open-sided floors six feet or more above adjacent floor or ground levels.

At the time of the inspection, some Dic-Underhill employees were working on a horse scaffold which was, at its closest point, about 20 inches from the edge of the open-sided fifteenth floor. Respondent does not deny that both the scaffold and the perimeter of the entire fifteenth floor lacked guardrails. Instead it contends that it was under no duty to provide guardrails on the edge of the open-sided floor, because it argues 29 CFR 1926.451(o)(7) is the more specifically applicable standard and because that standard does not require guardrails on scaffolds two feet high. n2

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n2 Dic-Underhill states that the scaffold standard requires guardrails at heights over six feet. On December 2, 1972, however, the standard was amended to require guardrails at heights over ten feet. 37 Fed. Reg. 25713. The respondent's error does not affect the basis thrust of its argument.

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As its wording plainly indicates, and our decisions have held, section 1926.500(d)(1) requires standard railings or their equivalent on all open sides of floors or platforms six feet or more above adjacent floor or ground levels, (Warnel Corp., BNA 4 OSHC 1034, CCH 1975-76 OSHD para. 20,576 (No. 4537, 1976)) that are accessible to employees (see e.g., A. Munder & Son, Inc. and Robert Catino, Inc., BNA 4 OSHC 1593, 1596, CCH 1976-77 OSHD para. 21,000 (Nos. 1858 & 1860, 1976)). Section 1926.451(o)(7) on the other hand, speaks not to open-sided floors, but to horse scaffolds available for use by employees. It requires, on horse scaffolds, guardrails on those open sides and ends with a potential fall distance of more than 10 feet. Julius Nasso Concrete Corporation, No. 7542 (April 11, 1977). n3 These principles of applicability do not change when a horse scaffold is next to an open-sided floor, although the presence of the scaffold is not irrelevant for all purposes.

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n3 This is not to say that a horse scaffold may be built in such a way that the dimension between the scaffold platform and the surface upon which its legs rest (referred to here as the scaffold's "height") exceeds ten feet. See 29 CFR 1926.451(o)(1). In Julius Nasso, we explained that the ten-foot limit in section 1926.451(o)(1) is different from the ten-foot requirement in section 1926.451(o)(7). The former subparagraph deals with the inherent stability of the scaffold itself, and its ten-foot language imposes a construction requirement limiting the height of horse scaffolds. The latter subparagraph on the other hand, deals with the potential fall distance from an otherwise soundly constructed horse scaffold. While these distances will be identical in many cases, in some cases such as this one and Julius Nasso, the potential fall distance may well exceed the scaffold's height.

[*5]

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Thus, when a horse scaffold is used with one of its edges next to an open-sided floor and the potential fall distance (measured from that edge to the adjacent ground or floor below the open-sided floor on which the scaffold rests) exceeds ten feet, guardrails are required on that edge of the scaffold. If however, a horse scaffold is so located that the adjacent part of the edge of an open-sided floor is not accessible to employees, then guardrails are not required at that part of the floor's edge. Guardrails are nevertheless required on the horse scaffold if the potential fall distance exceeds ten feet, as it usually will in such cases, and they are required on the parts of the open-sided floor accessible to employees.

In the instant case then, section 1926.500(d)(1) required guardrails on the parts of the fifteenth floor that were accessible to employees. There were no perimeter guardrails anywhere on the fifteenth floor, and it was reasonably foreseeable that employees in the course of their work activities, such as coming and going from the scaffold, would have passed close to the unguarded edges [*6] of the floor. Underhill Construction Corp., BNA 4 OSHC 1489, CCH 1976-77 OSHD para. 20,918 (No. 3042, 1976). The standard cited by Dic-Underhill, section 1926.451(o)(7) is not applicable to this open-sided floor and in any event, as we have indicated above, it required guardrails on the side of the scaffold close to the edge of the floor. The citation therefore properly and correctly alleged that the lack of guardrails on the fifteenth floor's perimeter breached section 1926.500(d)(1). n4

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n4 Respondent lays much emphasis on the presence of a manila rope that had been strung from column to column at a height of five to six feet. We do not. The compliance officer testified that this rope afforded insufficient protection for employees. More importantly, we conclude that this manila rope amounted to neither an "equivalent" structural barrier within the meaning of section 1926.500(d)(1) nor to "lumber. . . [or] material providing equivalent protection" within the meaning of section 1926.451(o)(7). See generally Warnel Corporation, BNA 4 OSHC 1034, CCH 1975-76 OSHD para. 20,576 (No. 4537, 1976).

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On the seventeenth floor, there were neither standard railings nor equivalent structural protection in place. Respondent does not dispute the Judge's finding that in the course of their duties two of respondent's employees, one using a push broom about one foot from the edge of the floor and the other grinding a ceiling about ten feet from the edge, were exposed to this violative condition. Instead, respondent argues that the citation should be vacated because the employees seen exposed at the time of inspection "had been instructed not to work in any area wherein they would be exposed to the hazard of falling, unless [a] guardrail was in place or unless they wore a safety belt . . . ." The contention misses the mark. Respondent's work rule was not directed to enforce the guardrail requirement. See Utilities Line Constr. Co., BNA 4 OSHC 1681, 1684, CCH 1976-77 OSHD para. 21,098 (No.) 4105, 1976); Wisconsin Electric Power Co., BNA 4 OSHC 1783, 1786, CCH 1976-77 OSHD para. 21,234 (No. 5209, 1976). Dic-Underhill's theory might have force if respondent's employees had, unknown to respondent, [*8] n5 violated a uniformly and effectively enforced work rule requiring the erection of guardrails, or if respondent had been cited by failing to comply with section 1926.28(a)'s requirement for personal fall protection such as safety belts. n6 Neither of these cases, however, is before us.

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n5 It strikes us, however, that the lack of guardrails on an entire open-sided floor is a readily discernible hazard.

n6 B-G Maintenance Management, Inc., BNA 4 OSHC 1282, CCH 1976-77 OSHD para. 20,744 (No. 4713, 1976); Warnel Corp., BNA 4 OSHC 1034, CCH 1975-76 OSHD para. 20,576 (No. 4537, 1976).

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On the nineteenth floor, no guardrails were in place along the perimeter. Eleven of Dic-Underhill's twelve employees on that floor were engaged in stripping forms, breaking concrete with an electric hammer, cleaning up, and similar work. A twelfth employee was seen leaning over the edge while signalling to a crane operator or other employee on the ground. Respondent's only defense is that the presence of guardrails would have [*9] made some of its crane operations impossible. Respondent asserts that because of the crane's location on the ground, and the 19-story height of the load, it was necessary for the crane to lift material from the edge of the nineteenth floor rather than from inside and the presence of guardrails would have prevented the downloading operation. This was the opinion of Mr. Gleich, the secretary to the joint venture and to Underhill, a licensed engineer. We are unconvinced. When the compliance officer pointed out the lack of guardrails, respondent's foreman immediately directed his men to stop work. In accordance with his instructions guardrails were then installed. This does not square with Dic-Underhill's impossibility claim. Compare Slyter Chair, Inc., BNA 4 OSHC 1110, CCH 1975-76 OSHD para. 20,589 (No. 1263, 1976). Moreover, as respondent recognizes in its brief on review, guardrails should have been in place during those periods when, and in those places, that the crane was not downloading. Here, there were no guardrails anywhere on the nineteenth floor. n7 In addition, we see no reason why the employee doing the signalling could not have stood behind a guardrail while [*10] he was signalling. n8 In any event respondent offers no convincing reasons why during those times when guirdrails could not have been used, the signalling employee could not have been protected by alternative measures such as safety belts. See Kelley Construction Services, Inc., BNA 4 OSHC 1491, CCH 1976-77 OSHD para. 20,925 (No. 7102, 1976). Respondent argues that because this employee could have tied off a lanyard only to the penthouse structure, which was located far from the edge, the lanyard would have created a tripping hazard for other employees. We note, however, that any tripping hazard would be less severe than the hazard of falling nineteen stories. See e.g., Carpenter Rigging & Contracting Corp., 15 OSAHRC 400, 407, BNA 2 OSHC 1544, 1548, CCH 1974-75 OSHD para. 19,252 (No. 1399, 1975).

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n7 The record shows that the 19th floor was ultimately to be the roof of the building. Respondent has not argued, however, that section 1926.500(d)(1) is not applicable to that level. We do not consider it here.

At the hearing, the parties focused upon some evidence that safety belts were an appropriate form of fall protection on the 19th level. Therefore, if Dic-Underhill had timely argued that section 1926.500(d)(1) should not be applied to that level, the Secretary would have had a fair opportunity to move to amend the citation to allege that the failure to use safety belts violated section 1926.28(a). See Warnel Corp., BNA 4 OSHC 1034, CCH 1975-76 OSHD para. 20,576 (No. 4537, 1976). Furthermore, if we were to hold that section 1926.500(d)(1) was not applicable on the 19th level, it would not result in vacation of the citation because the Act was violation with respect to the 15th and 17th levels.

n8 The Administrative Law Judge evidently was not persuaded by a preponderance of the evidence that the endangered employee could not have signalled from behind a guardrail, for he found only that such a result was "possible."

[*11]

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With respect to the second issue directed for review, we note that in Anning-Johnson Company, BNA 4 OSHC 1193, CCH 1975-76 OSHD para. 20,690 (Nos. 3694 & 4409, 1976) and Grossman Steel and Aluminum Corp., BNA 4 OSHC 1185, CCH 1975-76 OSHD para. 20,691 (No. 12775, 1976) the Commission respectfully declined to follow in all respects the decision of the Seventh Circuit in Anning-Johnson Company v. O.S.H.R.C., 516 F.2d 1081 (7th Cir. 1975), but in light of that decision, recognized the existence of certain affirmative defenses applicable to construction contractors on multiple-employer construction sites. The record, however, shows that Dic-Underhill does not fall within the ambit of our decisions. Respondent had the means to comply with the standard, and indeed erected guardrails soon after the inspection. Moreover, Dic-Underhill used no alternative measures to protect its employees from these rather obvious hazards.

We accordingly adopt Judge Chodes' findings that respondent violated section 5(a)(2) of the Act by failing to comply with 29 CFR 1926.500(d)(1), and that the violation was [*12] "willful" within the meaning of section 17(a) of the Act. Respondent, through its supervisory personnel, knew of the requirements of the standard, knew that guardrails had not been installed, and did nothing to comply with the standard. See e.g., Intercounty Construction Company v. O.S.H.R.C., 522 F.2d 777 (4th Cir. 1975). We also agree with the Judge's weighing of the various factors that are properly considered in penalty assessment; i.e., respondent's actions were not malicious; it had contractually arranged with another employer to erect the guardrails; its good faith efforts to comply with OSHA standards; and the usual elements of gravity, prior history, and size. Keyes Associates, BNA 4 OSHC 1796, CCH 1976-77 OSHD para. 21,180 (No. 13410, 1976) (good faith dependence on contractual arrangements); C.N. Flagg & Co., 11 OSAHRC 632, BNA 2 OSHC 1195, CCH 1974-75 OSHD para. 18,686 (No. 1734, 1974) (good faith, lack of malice), aff'd without opinion, No. 74-2362 (2d Cir., January 12, 1976). We agree therefore with his assessment of a $5,000 penalty. n9

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n9 On the facts of this case, it is unnecessary to consider the Secretary's additional contention that Dic-Underhill has also "repeatedly" violated the Act within the meaning of section 17(a) because even if the contention had merit we would not be persuaded to reject Judge Chodes' assessment and increase the penalty to more than $5,000.

[*13]

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Accordingly, the Judge's decision is AFFIRMED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

I disagree with my colleagues' affirmance of the charges alleging that respondent failed to comply with the occupational safety and health standards codified at 29 C.F.R. 1926.150(e)(2) n10 and 1926.500(d)(1). Those charges should be vacated on the basis of the holding in Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975), that employers are not liable under the Act for conditions which they did not create or cause or for which they did not otherwise have responsibility. n11

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n10 That standard provides that:

"The [fire] alarm code and reporting instructions shall be conspicuously posted at phones and employee entrances."

n11 Although my colleagues have confined their discussion to the 1926.500(d)(1) charge, the direction for review was not so limited. That order, which is quoted in the majority opinion, invited submissions on whether the Judge's decision below is consistent with the rule of the Seventh Circuit in Anning-Johnson Company v. OSAHRC, supra. There is nothing therein which limits that issue to the alleged perimeter guarding violations. In fact, the complainant has construed the direction for review to encompass the 1926.150 (e)(2) charge in its review brief in which he concedes that "the decision in Anning-Johnson, supra, is applicable to this item of the citation."

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In the instant case, the evidence establishes that responsibility for posting fire alarm codes and reporting instructions and erecting perimeter guarding was that of the general contractor. Nonetheless, my colleagues have imposed liability upon respondent because it "had the means to comply." This notion was specifically rejected by the Seventh Circuit in Anning-Johnson when it concluded:

"We fail to see how requiring several different employers to place a proper guardrail . . . along the edge of open-sided floors . . . fulfills the purposes of the Act any more effectively than requiring only one employer to do so . . . . Placing responsibility in more than one place is at least as likely to cause confusion and disruption in normal working relationships on a construction site. Such a policy might in effect prove to be counterproductive." 516 F.2d at 1089.

The sound rationale of the Seventh Circuit is in essence predicated upon a unique awareness of the realities of divisional responsibility at a multi-employer worksite. My colleagues err in their continuing disregard for the wisdom of that [*15] holding. n12

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n12 My views on this matter are set forth in more detail in my separate opinions in Secretary v. Hayden Electric Services, Inc., OSAHRC Docket No. 4034 & 4147, July 28, 1976; Secretary v. Truland-Elliot, OSAHRC Docket No. 11259, July 21, 1976; Secretary v. Anning-Johnson Company, OSAHRC Docket Nos. 3694 & 4409, May 12, 1976; and Secretary v. Grossman Steel Aluminum Corporation, OSAHRC Docket No. 12775, May 12, 1976.

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Finally, I am constrained to point out that my colleagues err in not vacating the portion of the perimeter guarding charge pertaining to the roof in accordance with the precedent established in Secretary v. Central City Roofing Co., OSAHRC Docket No. 8173, June 4, 1976. See Secretary v. Central Contracting Corp., OSAHRC Docket No. 13831, January 6, 1977 (dissenting opinion), and the cases cited therein.

Since this decision does not address all of the matters covered in Judge Chodes' decision, his decision is attached hereto as Appendix A so that the law in [*16] this case may be known.

APPENDIX A

DECISION AND ORDER

Louis D. DeBernardo, for the Secretary of Labor

William J. Pastore, 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. 651, et seq., hereafter called the Act), in which the respondents are contesting two citations issued by the complainant under the authority vested in complainant by section 9(a) of the Act (29 U.S.C. 658(a)). The citations allege that following an inspection of a place of employment located at the construction site, 200 West 78th Street, New York, New York, the respondents are alleged to have violated 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 (29 U.S.C. 655).

The citations, which were issued on July 30, 1974, allege that the violations resulted from a failure to comply with certain standards promulgated by the Secretary by publication in the Federal Register and codified in 29 Code of Federal Regulations, Chapter XVII, Part 1926. [*17] The standards prescribed by Part 1926 were adopted as standards under the Occupational Safety and Health Act at 29 C.F.R. 1910.12.

Pursuant to the enforcement procedure set forth in section 10(a) of the Act (29 U.S.C. 659(a)), the respondents were notified by letter dated July 30, 1974, from the Area Director of the New York, New York area, Occupational Safety and Health Administration, U.S. Department of Labor, of proposed penalties for the alleged violations in the total amount of $11,380.

After respondents contested this enforcement action, and a complaint and answer had been filed by the parties, the case was tried at New York, New York, on January 27, 1975 and May 27, 1975.

ADMISSIONS

Pursuant to the complainant's Request for Admissions, the respondents, for the purposes of this proceeding only, admit the following: n1

1. Respondents regularly used during the year 1974, cement imported from Norway in excess of one million dollars worth, nails imported from Japan, trucks manufactured in Detroit, Michigan, and gasoline produced outside the State of New York.

2. On July 15, 1974, employees of respondents were engaged in construction activities on the 15th, 17th, [*18] and 19th floors of a construction jobsite at 200 West 78th Street, New York, New York.

3. On July 15, 1974, Mr. Hank Polsinelli was the general foreman and Mr. Sam Acrie was a foreman for respondents at a construction jobsite located at 200 West 78th Street.

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n1 Transcript page 7 and Exhibit C-1.

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CITATION AMENDED

At the hearing the complainant's motion to amend the citation for repeated or willful violation to allege a violation of 29 C.F.R. 1926.500(d)(1) instead of 29 C.F.R. 1926.150(d)(1) was granted.

RULING ON MOTION TO DISMISS

At the hearing decision was reserved on the respondents' motion to dismiss item (a) of the citation for repeated and/or willful violation of 29 C.F.R. 1926.500(d)(1) on the grounds that the alleged violation occurred while the employees were working on a scaffold for which there are specific standards set forth at 29 C.F.R. 1926.451. The motion is denied for the reason that the violation charged is failure to protect open-sided floors as required by section 1926.500(d)(1). [*19] The fact that employees were working on a 2-foot-high scaffold is immaterial insofar as the hazard (falling off the edge of the 15th floor) contemplated by the cited standard is concerned.

SUMMARY OF EVIDENCE

1. ALLEGED VIOLATIONS

The jobsite involved herein was inspected by Edward Scott, a compliance officer of the Occupational Safety and Health Administration, Department of Labor, on July 15 and 16, 1974. The jobsite was a 19-story high-rise apartment complex stretching along Amsterdam Avenue from West 78th Street to West 79th Street. The concrete work was being finished on the top floors and brickwork had started on the grade level (T-20, 21). The respondents were subcontractors doing the superstructure contour work (T-194).

A. Repeated and/or willful violation of 29 C.F.R. 1926.500(d)(1) relating to open-sided floors.

On the 15th floor Mr. Scott observed a crew of about 8 employees of the respondents' working on a rectangular scaffold set on carpenter's horses two feet above the floor level and measuring about 30 feet by 15 feet. The men were applying a quick-drying sealer on the 8-foot-high ceiling from the scaffold which was placed about 20 inches away [*20] from the edge of the floor on the Amsterdam Avenue side. The only perimeter guarding was a manila rope strung from column to column along the Amsterdam Avenue side at a height of about 5 to 6 feet, with downward deflections of a half foot to a foot and a half. The rope extended for a length of about 30 feet near where the scaffold was located. The men were not using any personal safety equipment such as safety belts, nor were there any safety nets under the 15th floor. Two of the employees were working within 3 to 5 feet of the edge of the scaffold, which was 10 to 20 inches away from the edge of the open-sided floor (T-22-24, 29-33).

On the 17th floor there was one of respondents' employees using a push broom about one foot from the edge of the floor and another employee with a giraffe or ceiling grinder finishing off rough concrete, working about 10 feet inward from the corner of 79th Street and Amsterdam Avenue. The floor was open-sided, there was no perimeter guarding and the employees were not wearing personal protective equipment, such as safety belts (T-33-36).

On the 19th floor, which was the roof level, there were 12 of respondents' employees of various trades engaged [*21] in such tasks as stripping forms, concrete breaking with an electric hammer and cleaning up. The floor was open-sided (T-37-42). One employee was observed leaning over the edge of the floor signaling to a crane while other employees were in the interior of the floor at least 10 feet away from the edge. None of the employees were wearing safety belts or lanyards (T-44).

The open floors were visible to Hank Polsinelli, respondents' general foreman, and Sam Acrie, foreman, who were on the site at the time of inspection (T-50).

B. Serious violation of 29 C.F.R. 1926.152(b)(1) relating to storage of gasoline drums.

On the street level floor, about 10 to 15 feet in from the Amsterdam Avenue side and about 20 feet north of the West 78th Street side of the building there were three 55-gallon uncapped drums. The drums had the smell of gasoline and there was the smell of gasoline in the area. n2 The drums belonged to the respondents and Mr. Polsinelli, the general foreman, was aware of their presence (T-53-55). One of the drums was almost full, the other two drums were empty or had a little gasoline in them (T-55, 132). The drums were not in an approved storage room (T-56). There [*22] were elevator constructors, plumbers, steam fitters and bricklayers in the area but no employees of the respondents. However, the respondents' employees had to use the stairway leading from the street level to reach the upper floors (T-57, 58). There were no fire protective devices in the building (T-58). The gasoline presented a fire hazard as there were people in the area who were smoking, there were gasoline papers in the area, and there was electrical equipment and temporary wiring throughout the building. If a spark was set off there could be a rapid spread of fire (T-60, 61).

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n2 It is common knowledge that gasoline can be identified by smell and that it is flammable. Secretary of Labor v. Davis-McKee, Inc., 9 OSAHRC 59.

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C. Nonserious violations

1. 29 C.F.R. 1926.150(e)(2) relating to posting of fire alarm instructions.

Mr. Scott inspected the north stairway from floor to floor and found that fire alarm codes and fire reporting instructions were not posted at any of the entrances to the building [*23] or at wall phones on each floor which were being used as part of an intercom system. This was known to the respondents' general foreman who explained that he expected that the general contractor on the job would take care of this requirement (T-61, 62, 106). The hazard involved was that in case of fire means of notifying employees in the building would not be readily available (T-63).

2. 29 C.F.R. 1926.152(a)(1) relating to damaged gasoline container.

On the first floor, near where gasoline drums were stored there was a damaged 5-gallon can belonging to the respondents with about an inch of gasoline in it. The can was dented and was broken off where probably there had been a neck at one time, so that the can was open at the top and any gasoline in the can could spill out if the can was tilted or fell over (T-64, 65). The hazard was that vapors released in the atmosphere could result in an explosion and should a spillage occur there was a possibility of a fire (T-65, 66).

3. 29 C.F.R. 1926.25(a) relating to housekeeping.

On the roof level there was debris cluttering the floor, including scrap lumber with nails facing up, reinforcing rods and braces, bottles and beer cans. [*24] This presented a tripping hazard and could result in a puncture wound from metal objects. Eleven of respondents' employees who were working on the floor were exposed to this hazard (T-69, 70).

II. PENALTIES n3

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n3 Section 17(j) of the Act (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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Michael DiArchangel, OSHA director for the New York City region, determined the amount of the proposed penalties against the respondents. Respondents received no allowance for good faith because respondents were not trying to correct conditions, they received no allowance for the size of their businesses since they had more than 100 employees, and no allowance was made for history of previous violations because respondents [*25] had previously been cited for a number of OSHA violations (T-164-166, Exhibits C-4, 5, 7 and 8).

Mr. DiArchangel concluded that $10,000 was an appropriate penalty for the alleged repeated and/or willful violation of the standard requiring guarding of open-sided floors because he wanted to bring home the seriousness of the consequences flowing from violation of the standard. On a previous occasion an employee had been killed when he fell off the eleventh floor of a building which was unguarded (T-166, 168, Exhibit C-8).

For the serious violation of the standard relating to storage of gasoline drums, Mr. Scott recommended a penalty of $1,000, with no allowance for any of the mitigating factors of size, good faith or history referred to above (T-80). For the nonserious violations relating to posting of fire alarm instructions, damaged gasoline container and housekeeping, Mr. Scott recommended penalties of $290, $290 and $180, respectively. A 50% allowance for the expected abatement of these violations reduced the proposed penalties to $145, $145 and $90, respectively (T-81-86).

Joseph Gleich, secretary of respondent Underhill Construction Corporation and also secretary of the joint [*26] venture, testified that he is a professional engineer and that he had extensive experience in the construction of reinforced concrete high-rise buildings (T-192). For many years prior to the enactment of the Occupational Safety and Health Act of 1970 the practice in the industry was to do the concrete work without providing perimeter protection and this was generally satisfactory as the men working became experienced and were used to working without perimeter guarding (T-210-211).

In erecting buildings with reinforced concrete construction it is necessary for materials which had been stripped and stacked to be passed up on the outside of the building to the next highest floor and it would be difficult to perform this work in the presence of peripheral guarding (T-210). Also, when workers are nailing down plywood perimeter guarding cannot be put up (T-217).

To meet the situation created by the OSHA requirement for peripheral guarding of open-sided floors the respondents considered safety nets which were not approved (T-211, 212). The respondents have developed a system of installing safety hooks in poured concrete columns on the inside of the building to which are attached lanyards. [*27] The men working can hook their safety belts onto the lanyard and be able to work 7 feet on either side (T-223, 224). Employees are instructed to install perimeter guarding whenever possible and not to work in open areas without safety belts (T-212-214).

III. DISCUSSION

A. Repeated and/or willful violation

The evidence clearly establishes a violation of the standard set forth at 29 C.F.R. 1926.500(d)(1), which requires guarding of open-sided floors 6 feet or more above the adjacent floor or ground level. One employee on the 19th floor level was at the edge signaling to a crane (presumably to guide delivery of material) and it is possible that he could not perform his work in the presence of peripheral guarding. However, other employees on that floor and employees on the 15th and 17th floor were exposed to the hazard of falling off the edges of the floors.

There can be no question that the violation of the standard involved is a repeated one as, according to Exhibit C-8, respondents have been cited on nine separate occasions for the violation of the identical standard involved herein. Was the violation willful?

Commission Chairman Moran, in Secretary of Labor v. [*28] Intercounty Construction Corporation, 5 OSAHRC 782 (1973) defined "willful" violation as "an act or omission which occurs consciously, intentionally, deliberately or voluntarily as distinguished from accidentally." The facts herein support a conclusion that the respondents, through their general foreman and foreman, permitted their employees to work on an open-sided floor consciously and intentionally, and therefore the violation was "willful." However, there are mitigating circumstances which tend to show that the violation was not a flagrant or malicious disregard of the standard. The responsibility for erecting the perimeter guarding was upon the "builder" and not on the respondents (T-235). Moreover, the respondents have endeavored to comply with OSHA regulations. Their efforts included meetings with OSHA officials, enrolling its supervisors in a safety program, employing an outside safety consultant, instructing its superintendents to have safety meetings with the men and issuing printed brochures in several languages instructing the employees in the care and maintenance of safety equipment. On occasion violators of safety practices have been sent home (T-226, 227). [*29] The respondents are engaged in a large and complex operation. In 1974 they were involved with 105 projects in metropolitan New York utilizing approximately 5 million man-hours (T-193), with concomitant problems in communicating and implementing safety instructions to supervisors and workers. While the knowledge by respondents' supervisors on the job of the existence of the violation is imputable to the respondents, the individual supervisors were not at the respondents' policy making level. It is noted that Mr. Gleich, respondents' secretary, testified that employees were instructed to install perimeter guarding whenever possible.

The complainant has proposed a penalty of $10,000, the maximum allowable by the Act. It is recognized that the violation is serious, and that about 20 of respondents' employees were exposed to the hazard of falling great distances. The respondents are not free from blame for the violation charged against them, but there are mitigating factors, discussed above, which warrant a reduction in the proposed penalty. Applying the criteria of section 17(j) of the Act to the facts in the instant case it is considered that a penalty of $5,000 is appropriate. [*30]

B. The Serious violation

This involves a violation of 29 C.F.R. 1926.152(b)(1) which requires indoor storage of over 25 gallons of flammable and combustible liquids in an approved storage cabinet. The violation was established by the evidence and even though none of respondents' employees were in the immediate vicinity of the gasoline, all employees in the building could be exposed to injury in the event of a fire. The penalty of $1,000 appears high in light of the evidence showing that none of the respondents' employees were in the vicinity of the gasoline and the absence of evidence showing a high probability that a fire could occur. Under the criteria set forth in section 17(j) of the Act, it is considered that a penalty of $200 is appropriate.

C. The Nonserious violations

1. The evidence adduced sufficiently establishes that the respondents violated the standard set forth at 29 C.F.R. 1926.150(e)(2) requiring the posting of fire alarm codes and fire reporting instructions. Failure to comply with the standard was hazardous to employees working in the building. However, the obligation to comply with this standard was primarily the responsibility of the general contractor [*31] and while this does not absolve the respondents from responsibility for exposing their employees to the hazard contemplated by the standard, it is a factor in mitigation of the penalty. Considering the criteria set forth in section 17(j) of the Act, the penalty of $145 proposed by the complainant is reduced to $50.

The finding of a violation of this standard would appear to contravene the holding in the recent case of Anning-Johnson Company and Workinger Electric, Inc. v. U.S. Occupational Safety and Health Review Commission and the Secretary of Labor,    F.2d   , (7th Cir. 1975) wherein an employer was held not responsible for conditions deemed to be a non-serious violation of a standard, when the conditions giving rise to the violation were neither created nor caused by the employer and for which the employer was not otherwise responsible. The ruling is contrary to the position heretofore taken by the Commission. The undersigned will adhere to Commission precedents in the absence of acquiescence by the Commission which is charged with the adjudication of a national program.

2. With respect to the standard set forth at 29 C.F.R 1926.152(a)(1), relating to use of an [*32] unapproved can for storage of gasoline, the evidence indicates that the standard was violated, but there is no evidence that any employees were in the vicinity of the can with the gasoline. Nevertheless, a violation is established because of the hazard to employees in the building in the event of a fire. The penalty of $145 proposed by the complainant is considered appropriate under the statutory criteria.

3. Violation of the housekeeping standard, 29 C.F.R. 1926.25(a) is established and the proposed penalty of $90 is considered appropriate because eleven employees were exposed to a tripping hazard, with injury possible due to the presence of nails facing up and debris.

FINDINGS OF FACT

On the basis of the Citation, Notice of Proposed Penalty, Notice of Contest, pleadings, stipulations, the testimony adduced at the hearing and the representations of the parties, it is concluded that on the record as a whole a preponderance of the evidence supports the following findings of fact:

1. Paragraphs 1 through 3 of the Admissions are incorporated herein as findings of fact.

2. On or about July 15, 1974, at the place of employment referred to above under Statement of the Case, [*33] the 15th, 17th and 19th floors of a 19-story high-rise apartment complex (all more than 6 feet above the adjacent ground level) were consciously and intentionally not guarded by a standard railing or equivalent. Eight employees on the 15th floor, two employees on the 17th floor, and 11 employees on the 19th floor were exposed to the hazard of falling over the edge of the floors to the ground level.

3. Respondents had previously been cited on nine occasions for violation of the standard set forth at 29 C.F.R. 1926.500(d)(1) which requires guarding of open-sided floors that are 6 or more feet above the ground level and the citations have become final orders of the Commission.

4. On or about July 15, 1974, on the street level of the apartment complex referred to above, there were more than 25 gallons of flammable liquid which were not stored in an approved storage cabinet. As a consequence at least 8 employees on the 15th floor, two employees on the 17th floor and 12 employees on the 19th floor were exposed to death or serious physical harm due to a fire hazard.

5. On or about July 15, 1974, at the apartment complex referred to above, fire alarm codes and fire reporting instructions [*34] were not posted at the entrances to the building or at wall phones on each floor. As a consequence employees of the respondents in the building were exposed to a fire hazard due to the lack of readily available fire control instructions.

6. On or about July 15, 1974, on the first floor of the apartment complex referred to above, there was flammable liquid in a container that was not an approved metal safety can. As a consequence employees of the respondents in the building were exposed to injury due to the possibility that vapors released in the atmosphere could result in an explosion or in case of spillage the possibility of a fire occurring.

7. On or about July 15, 1974, on the roof level of the apartment complex referred to above, debris, including nails faced up, rods, braces, bottles and beer cans, cluttered the floor thereby exposing 11 of the respondents' employees to injury due to a tripping hazard.

8. Giving due consideration to the size of the respondents' business, the gravity of the violation, the good faith of the respondents and the history of previous violations, the appropriate penalty for repeated and willful violation referred to in paragraphs 2 and 3 above, [*35] is $5,000; for the serious violation referred to in paragraph 4 above is $200; for the nonserious violations referred to in paragraphs 5, 6 and 7, is $50, $145 and $90, respectively.

CONCLUSIONS OF LAW

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

2. The respondents are, and at all times material hereto were, 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 respondents violated the standard set forth at 29 C.F.R 1926.500(d)(1), the violation was willful and repeated and a penalty of $5,000 is assessed.

4. The respondents violated 29 C.F.R. 1926.152(b)(1), the violation was serious and a penalty of $200 is assessed.

5. The respondents violated 29 C.F.R. 1926.150(e)(2), 1926.152(a)(1) and 1926.25(a) and are assessed penalties of $50, $145 and $90, respectively.

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, [*36] it is ORDERED that:

1. The citation for repeated and/or willful violation of 29 C.F.R. 1926.500(d)(1) is affirmed, the penalty proposed by the complainant is modified, and a penalty of $5,000 is assessed.

2. The citation for serious violation of 29 C.F.R. 1926.152(b)(1) is affirmed, the penalty proposed is modified, and a penalty of $200 is assessed.

3. The citation for nonserious violations of 29 C.F.R. 1926.150(e)(2), 1926.152(a)(1) and 1926.25(a) is affirmed, the penalty proposed is modified, and penalties of $50, $145 and $90, respectively, are assessed.

JOSEPH CHODES, Judge, OSAHRC