WESTERN WATERPROOFING COMPANY, INC.
OSHRC Docket No. 9739
Occupational Safety and Health Review Commission
May 27, 1977
[*1]
Before BARNAKO, Chairman and CLEARY, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Bobbye D. Spears, Reg. Sol., USDOL
Thomas M. Moore, for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Commissioner:
Administrative Law Judge John J. Larkin's decision in this matter is before the Commission pursuant to 29 U.S.C. § 666(i). Chairman Barnako directed review on the issues raised in the petition for discretionary review filed by complainant Secretary of Labor. While the Chairman's order directing review invited submissions on the issues raised by complainant's petition, it specifically declined to limit submissions to the questions raised in the petition.
In his petition complainant sought reversal of that portion of Judge Larkin's decision in which the citation for serious violation alleging a failure to comply with the standard at 29 CFR § 1926.500(d)(1) was vacated. In addition to addressing complainant's exception in its brief on review, respondent Western Waterproofing Company, Inc. maintained that the Judge erred in denying its motion to suppress evidence gained from the inspection in light of complainant's alleged failure to comply with 29 U.S.C. § 657(a) and [*2] (e). n1
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n1 We will address the additional issue raised in respondent's brief because of the express statement in the direction for review that submissions were not limited to the issues raised by complainant's petition.
In cases directed for review under new Rule 91a [41 Fed. Reg. 53016 (1976)], the Commission will limit its review of Judge's decisions to those issues specified in either the direction for review or in the petition for discretionary review if it has been granted.
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The Alleged Irregularities in the Inspection
On the date of inspection respondent was performing work as a subcontractor on a building under construction in Jacksonville, Florida. Two of respondent's employees were patching concrete columns in preparation for painting on the sixth floor level of the structure. A general contractor and three other subcontractors were also present at the construction site.
Upon his arrival at the site, complainant's compliance officer contacted the general contractor's superintendent and informed him [*3] that he intended to conduct an inspection. The compliance officer was informed that four subcontractors were working at the site and was told to contact a foreman of the general contractor in the building. Upon making this contact, however, the foreman told the compliance officer that he was too busy to devote any time to an inspection. Faced with this lack of cooperation from the general contractor, the compliance officer decided to commence his inspection. It was his intention to contact representatives of the subcontractors upon reaching their respective work areas.
Upon reaching the sixth floor level in the course of his inspection, the compliance officer observed an employee at the edge of the floor hoisting up some patching compound from the ground below. There were no guardrails in place and the employee was not using any form of fall protection. The compliance officer approached this employee, and asked him to identify his employer and to direct him to this foreman. At this time the compliance officer first learned that the employee observed at the perimeter was employed by respondent. Shortly after this initial contact, respondent's other employee on the site, John [*4] Booth, appeared and identified himself as respondent's on-site foreman. The compliance officer then presented his credentials to Mr. Booth and advised him that he intended to conduct an inspection of respondent's jobsite.
Respondent was subsequently cited for a single serious violation and timely filed a notice of contest. At the outset of the hearing respondent moved before Judge Larkin to suppress evidence gained from the inspection. Specifically, it asserted that the compliance officer's observation of the employee working without protection at the perimeter must be suppressed because the observation occurred before the presentation of credentials. Respondent argued that the compliance officer's conduct contravened the Fourth Amendment and 29 U.S.C. § 657(a) and (e). n2 In addition, regarding the presentation of credentials itself, respondent asserted that Mr. Booth was not an "agent in charge" within the meaning of 29 U.S.C. § 657(a).
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n2 Subsections (a) and (e) of 29 U.S.C. § 657 provide as follows:
(a) In order to carry out the purposes of this Act, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized -- (1) to enter without delay and at reasonable times any factory, plant, establishment, construction site or other area, workplace or environment where work is performed by an employee of an employer; and
(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.
* * *
(e) Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection. Where there is no authorized employee representative, the Secretary or his authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace.
[*5]
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Judge Larkin denied respondent's motion. He considered the motion controlled by the Commission's decision in Accu-Namics, Inc., 1 BNA OSHC 1751, 1973-74 CCH OSHD para. 17,936 (No. 477, 1974), aff'd, 515 F.2d 828 (5th Cir. 1975), cert. denied, 96 S.Ct. 1492 (1976). n3 Specifically, he stated that:
As the conduct by the investigator in the Accu-Namics case greatly exceeded the liberties taken in the instant case the Accu-Namics case must be considered controlling and respondent's argument must be rejected and its motion is denied.
In its brief respondent argues that the Judge erred because "the factual situation in Accu-Namics is clearly distinguishable from the one at bar."
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n3 At the time of Judge Larkin's decision in the instant case, the Fifth Circuit had not yet rendered its decision affirming the Commission's decision in Accu-Namics.
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A majority of this Commission has altered its position on motions [*6] such as those presented in the instant case and in Accu-Namics, Inc., supra. In Western Waterproofing Co., Inc., 4 BNA OSHC 1301, 1976-77 CCH OSHD para. 20,805 (No. 1087, 1976), petition for review dismissed, No. 76-1703 (8th Cir., April 8, 1977), we considered standards for examining alleged failure to comply with the Act's provisions regarding the presentation of credentials (29 U.S.C. § 657(a)) and the so-called "walkaround" (29 U.S.C. § 657(e)). We held that the requirements of 29 U.S.C. § 657(a) should be read so as to coincide with the Fourth Amendment. Thus, we held that we would not provide a remedy for noncompliance with 29 U.S.C. § 657(a) unless the failure to comply also violated an employer's Fourth Amendment rights. Regarding 29 U.S.C. § 657(e), it was my positon that a remedy for alleged noncompliance with the "walkaround" provision would not be appropriate unless the employer showed that the compliance officer did not comply substantially with the provision and that the irregularities in the inspection procedures substantially prejudiced the employer's ability to defend on the merits. n4
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n4 My colleague would provide a remedy solely upon a showing of a failure to comply substantially with the "walkaround" provision. Western Waterproofing Co., Inc., supra; C.F. & I. Steel Corp., 4 BNA OSHC 1649, 1976-77 CCH OSHD para. 21,027 (No. 5619, 1976), petition for review docketed, No. 76-1952, 10th Cir., October 20, 1976. I would not. In my opinion a suppression rule or any other remedy for noncompliance with the "walkaround" provision should only be considered if there is a showing of substantial prejudice. See Accu-Namics, Inc. v. O.S.H.R.C. & Dunlop, 515 F.2d 828, 833 (5th Cir. 1975), cert. denied, 96 S.Ct. 1492 (1976). Like the Fifth Circuit, I would regard noncompliance with the "walkaround" provisions as a failure to comply with a procedural rule. As such, a finding of prejudice would have to precede the imposition of any remedy for noncompliance with the walkaround provision. Accu-Namics, Inc. v. O.S.H.R.C. & Dunlop, supra at 833, n.7 and accompanying text; Hartwell Excavating Co., 537 F.2d 1071 (9th Cir. 1976).
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We hold that the compliance officer's presence on the sixth floor level before the presentation of credentials to respondent's representative n5 did not infringe respondent's Fourth Amendment rights. Consequently, we reject respondent's claim that the compliance officer's observations before presenting credentials must be excluded from evidence.
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n5 As noted previously, respondent argues that Mr. Booth, its senior employee at the site, was not an "agent in charge" within the meaning of 29 U.S.C. § 657(a). Judge Larkin rejected this line of argument. We agree with the Judge's reasoning. Regardless of his titular designation, Mr. Booth in his role as senior employee at the site was clothed with sufficient responsibility to be considered respondent's "agent in charge."
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In Western Waterproofing, Inc., supra, we held that uncited employers sharing control over premises may consent to a compliance officer's entry, and that any evidence obtained under such circumstances may be used [*9] against a nonconsenting employer who shares control over the premises. Under the facts of this case, we find that the compliance officer's entry into the building and his ascent to the sixth floor level were consented to by representatives of the general contractor. The compliance officer identified himself to the general contractor's superintendent and foreman, and informed them of his intention to inspect the jobsite. We interpret the actions of the general contractor's supervisory personnel towards the compliance officer as consent to enter the building in order to seek out the subcontractors. Thus, the compliance officer's presence on the sixth floor level did not offend respondent's Forth Amendment rights.
Respondent's prayer for suppression of evidence premised upon alleged noncompliance with 29 U.S.C. § 657(e) is also rejected. It is clear that when the compliance officer arrived at the sixth floor level he was seeking out a representative of respondent. Contrary to respondent's assertions, the compliance officer did contact a representative of respondent subcontractor at the "earliest practical opportunity." n6 When faced with a lack of cooperation from the general [*10] contractors it was reasonable for the compliance officer to travel about the jobsited a order to contact representatives of subcontractors such as respondent. Any observations of working conditions made while searching for an employer representative should not be suppressed, especially when the working conditions involved are subject to change before an opportunity to participate could be afforded respondent. The compliance officer complied substantially with the requirements of 29 U.S.C. § 657(e).
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n6 Respondent draws the phrase "earliest practical opportunity" from a portion of the Commission decision in Accu-Namics, Inc., supra, dealing with alleged noncompliance with 29 U.S.C. § 657(a). I conclude, however, that such a factor is also relevant in examining alleged failures to comply with the requirement that representatives of the cited employer be furnished an opportunity to accompany the compliance officer during his inspection.
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In addition, respondent has failed to demonstrate any prejudice flowing [*11] from the fact that its representative was not present when its employee was observed working at the perimeter without any form of fall protection. It is respondent's position that no form of fall protection was required for its employees on the sixth floor. Respondent does not claim that the actions of its employee were an inexplicable deviation from a requirement that some form of fall protection be provided. Thus, it is untenable that the compliance officer's observation of a regular work practice could substantially prejudice respondent's ability to defend on the merits.
Accordingly, respondent's motion to suppress any evidence seized by the compliance officer before the time he afforded respondent an opportunity to participate in the inspection is denied.
The Alleged Violation
As noted, one of respondent's employees was observed working at the edge of the sixth floor level without any form of fall protection. Complainant maintained that respondent had a duty to protect its employees with a standard railing under the terms of 29 CFR § 1926.500(d)(1). This standard, in pertinent part, provides as follows:
§ 1926.500 Guardrails, handrails, and covers.
* * *
(d) [*12] Guarding of open-sided floors, platforms, and runways.
(1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1)(i) of this section, on all open sides, except where there is an entrance to a ramp, stairway, or fixed ladder.
Respondent defended by arguing that its employees were not exposed to a hazard of falling while patching concrete columns. In addition, respondent argued that even if a falling hazard existed it should not be required to erect guardrails to protect its employees. Two general bases were set forth to support this contention. First, it was argued that it was impossible to erect guardrails in the area around which respondent's employees worked and it was unreasonable to require respondent to erect guardrails when the use of safety belts would accomplish the same purpose as guardrails. Second, respondent argued that it was contractually prohibited by the prime contractor from installing guardrails at the site.
Judge Larkin rejected respondent's argument that its employees were not exposed to a hazard of falling. We agree with the Judge's [*13] reasoning regarding the existence and respondent's knowledge of a hazard and, therefore, adopt it. Despite the fact that the Judge found exposure to a hazard, he vacated the citation alleging noncompliance with § 1926.500(d)(1). He concluded that respondent should not have been cited for a failure to erect guardrails. He stated that:
A review of the evidence of record substantiates that respondent should have been cited because its two employees were not wearing safety belts with life lines attached.
Several reasons were advanced to support this conclusion. The Judge stated that the columns could not be patched with guardrails in place. In addition, he noted that, inasmuch as safety belts would have more adequately protected the employees and were less costly than guardrails, compliance by means of guardrails placed an undue cost burden on respondent.
In an addendum to his decision, Judge Larkin set forth a separate ground for vacating the citation alleging noncompliance with § 1926.500(d)(1). He regarded the decision by the U.S. Court of Appeals for the Seventh Circuit in Anning-Johnson Co. v. O.S.H.R.C. & Brennan, 516 F.2d 1081 (7th Cir. 1975) as controlling. Specifically, [*14] he held that respondent could not be found in violation of the Act for failure to erect guardrails when, as a subcontractor, it neither created the hazard nor had the contractual responsibility to abate the hazard by erecting guardrails.
We have reviewed the evidence in light of the parties' submissions and recent Commission precedent, and for the reasons that follow reverse Judge Larkin's disposition.
The Commission decisions in Anning-Johnson Co., 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (Nos. 3694 & 4409, 1976) and Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1976) control the disposition of this case. n7 In Anning-Johnson and Grossman Steel, we held that an employer at a multiple-employer construction site has available certain defenses against a citation alleging a failure to comply literally with the terms of a cited standard. Specifically, under Anning-Johnson, after demonstrating that it did not create nor contrl the hazard such that it could realistically rectify the condition in the manner contemplated by the cited standard, an employer can defend by showing that its employees were protected by means [*15] of realistic measures implemented as an alternative to literal compliance with the standard. n8
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n7 As noted, in addition to asserting its absence of control over the erection of guardrails, respondent argued that guardrails were too costly and when in place would render it impossible for its employees to perform their job. We will not address the merits of these arguments or express an opinion on the Judge's discussion of them. Both arguments focus upon a duty of respondent to erect guardrails. Inasmuch as we are accepting respondent's alternative argument that it did not possess sufficient control to erect guardrails, we need not address any other arguments that might negate a duty to abate by means of erecting guardrails.
n8 An employer can also defend by showing that it could not with the exercise of reasonable diligence have had notice that a condition was hazardous. The Judge's findings of employee exposure to a fall of six stories are supported by the record and the fact that such a condition is hazardous is obvious.
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Upon the facts of this case, we hold that respondent did not possess sufficient control over the sixth floor level so that it could realistically comply with an abatement other requiring the installation of guardrails. In reaching this conclusion we have considered the fact that respondent did not possess the physical capability to abate literally and was constrained both contractually and monetarily from erecting guardrails. Anning-Johnson Co., supra at n.13. We, therefore, would not require respondent to abate the hazard by erecting guardrails.
In order to defend successfully against the citation, however, respondent must also show that it took some measure to protect its employees as a realistic alternative to literal compliance with the cited standard. Evidence of record in this case leaves little doubt that the use of safety belts was a realistic and effective alternative to guardrails. Respondent had safety belts on the worksite and its employees used them after they were advised to do so by the compliance officer. Indeed, Judge Larkin stated in his decision that:
The respondent had provided the employees with safety belts and lanyards. The only [*17] additional requirement to have assured ". . . safe and healthful working conditions . . ." would have been to assure that the equipment be worn.
Thus, this record reveals that respondent had a realistic alternative to guardrails at its command; namely, safety belts, but failed to require their use. Under these circumstances, it does not appear that respondent could affirmatively defend against the citation.
Nevertheless, respondent was not apprised of the availability of the affirmative defenses announced in Anning-Johnson Co., supra and Grossman Steel & Aluminum Corp., supra inasmuch as these opinions were issued well after the instant case was directed for review before the full Commission. Consequently, in the interest of fairness we will afford respondent an opportunity to present additional evidence on the defenses outlined in Anning-Johnson and Grossman Steel.
The citation in this case alleged a serious violation of § 1926.500(d)(1). Inasmuch as the Judge vacated the citation he made no findings as to whether the exposure of respondent's employees to the unguarded perimeter constituted a "serious" violation within the meaning of 29 U.S.C. § [*18] 666(j). n9 We exercise our discretion to make these findings. See Accu-Namics, Inc., supra. Our review of the record indicates that respondent's noncompliance was in fact a "serious" violation.
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n9 This section reads as follows:
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.
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A divided Commission has held that in order to prove the existence of a "serious" violation complainant must show that there was a substantial probability that death or serious physical harm could result from a noncomplying condition and that the employer knew, or with the exercise of reasonable diligence could [*19] have known, of the presence of the condition. D.R. Johnson Lumber Co., 3 BNA OSHC 1124, 1974-75 CCH OSHD para. 19,695 (No. 3179, 1975). We find both elements of a "serious" violation here.
As noted by the Judge, respondent's employees were clearly exposed to the hazard of falling while patching columns and hoisting materials at the perimeter of the sixth floor level. There is no question that an employee would suffer death or serious physical harm in the event of a fall from the sixth floor level. In addition, we conclude that respondent, through its on-site supervisory personnel, knew its employees were working at the indicated heights without appropriate protection. Respondent's on-site representative, Mr. Booth (See note 5 supra), was fully aware of both the nature of the duties performed by respondent's employees on the sixth floor level and the fact that the work was being performed without any form of fall protection. Under these circumstances, we conclude that a serious violation was shown.
Complainant proposed a $500 penalty for this serious violation. The facts show that such a penalty is excessive. Although the consequences of a fall would be grave, [*20] we find the gravity of the violation to be moderate. Respondent's employees were working without protection at the perimeter for a very brief period of time. Moreover, respondent immediately abated the hazard by requiring its employees to wear properly secured safety belts before continuing their duties. In addition to reducing the duration of exposure, such actions by respondent indicate a good faith approach to its compliance responsibilities under the Act. These facts coupled with an absence of a history of previous violations lead us to conclude that a $100 penalty is appropriate under the circumstances of this case.
Accordingly, the Judge's decision is reversed, the citation alleging a serious violation of § 1926.500(d)(1) is affirmed, and a $100 penalty is assessed unless within the (10) days from the issuance of the order respondent moves to remand this matter so that it may adduce additional evidence regarding the affirmative defenses outlined above.
So ORDERED.
CONCURBY: BARNAKO
CONCUR:
BARNAKO, Chairman, concurring:
I concur in my colleague's disposition. I do not, however, join in his discussion of the 29 U.S.C. 657(e) "walkaround" issue. In my opinion, the steps taken by the compliance [*21] officer to afford the employers at the site the opportunity to participate in the inspection were reasonable under the circumstances. Accordingly, there was substantial compliance with 29 U.S.C. 657(e). Chicage Bridge & Iron Co. v. OSHRC, 535 F.2d 371 (7th Cir. 1976); Western Waterproofing Co., 76 OSAHRC 64/A2, 4 OSHC 1301, 1306, 1976-77 OSHD para. 20,805 (1976), pet. for review filed, No. 76-1703 (8th Cir., Aug. 18, 1976). For that reason only, I agree that Respondent's motion to suppress should be denied. Western Waterproofing Co., supra.
As to the merits, the Secretary made a prima facie case that Respondent violated 29 C.F.R. 1926.500(d)(1). Although Respondent showed that guardrails could not have been used, a realistic alternative means of protection appears to have been available. Thus, Respondent violated the standard unless it presents additional evidence establishing any of the defenses available to subcontractors on a construction site. See Data Electric Co., No. 13122,5 OSHC 1077, 1977-78 OSHD para. 21,593 [*22] (R.C. March 7, 1977) (concurring opinion).