Document

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET NO. 7792

FRANK BRISCOE CO.,

Respondent.

DECISION

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BARNAKO, Chairman:

The issues before us on review of a decision of Administrative Law Judge James A.

Cronin are (1) whether he erred in vacating Complainant's citation alleging that Respondent

violated the Occupational Safety and Health Act of 1970 by failing to comply with the

construction safety standard at 29 C.F.R. § 1926.28(a) and (2) whether he erred in affirming

certain other citations alleging violations for failure to comply with other construction safety

standards.

For the reasons given below we conclude that the judge did not err in vacating the

citation charging noncompliance with 29 C.F.R. § 1926.28(a). We also find his affirmance of the

other charges and the penalties he assessed therefor to be proper for the reasons he states with

29 U.S.C. § 651 et seq., hereinafter “the Act.”

Respondent presented no evidence of its own to rebut the testimony by Complainant's in-

spector and Complainant's photographic exhibits. We agree, with the exceptions discussed

herein, that Complainant's evidence is sufficient to establish a prima facie case of noncompliance

with the standards at issue. Similarly, the inspector testified without rebuttal that he observed

workers in proximity to or actually exposed to the hazards involved and that these individuals

were identified as Respondent's employees by its general superintendent during the inspection

walkaround and in some instances were also identified by shop stewards or by the employee's

own admission. We agree with the judge that in the circumstances this testimony is sufficient to

show that Respondent's employees were exposed.

the exception of the citations alleging that Respondent failed to comply with the standards at 29

C.F.R. §§ 1926.450(a)(1) and 1926.451(m)(1). For the reasons given below we vacate these

charges. Accordingly, we adopt Judge Cronin's decision to the extent it is consistent with the

following.

Alleged Violation of 29 C.F.R. § 1926.28(a)

The facts are that Respondent was the general contractor for the construction of a

building at the College of Medicine and Dentistry in Newark, New Jersey. A bricklayer

employed by Respondent was observed standing directly on the edge of the “C” level of this

building approximately 15 feet high while finishing poured concrete with a trowel. The

employee had no protective equipment, and guardrails were not and could not have been

installed at this location.

Complainant on these facts charged a violation of §1926.28(a), alleging that the

employee was not utilizing ‘any type of safeguards' to prevent a fall. Judge Cronin vacated,

reasoning that in accordance with the court's opinion in National Realty and Construction

Company v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973), Complainant must show what type of

personal protective equipment could have been used to protect the employee from the hazard of a

fall. We agree.

National Realty involved a citation issued under section 5(a)(1) of the Act (29 U.S.C. §

654(a)(1)), the so-called ‘general duty clause,’ which requires that ‘each employer . . . shall

furnish to each of his employees employment and a place of employment which are free from

recognized hazards that are causing or are likely to cause death or serious physical harm to his

In addition to the general question of employee identification discussed in note 2 supra,

Respondent raises specific exceptions of an evidentiary nature to the judge's affirmance of a

citation alleging a serious violation for Respondent's failure to comply with 29 C.F.R. §

1926.451(a)(2). We have considered Complainant's unrebutted evidence and concluded that it is

sufficient to establish prima facie that a scaffold plank in use by Respondent's employee at the

building perimeter was not properly supported and securely anchored as required by this

standard. For the reasons given by the judge we further agree that the violation is serious in

nature as alleged.

This standard provides that ‘[t]he employer is responsible for requiring the wearing of

appropriate personal protective equipment in all operations where there is an exposure to

hazardous conditions or where this part indicates the need for using such equipment to reduce the

hazards to the employees.’

employees.’ The court, concerned with the problem of fair notice inherent in such a general

statutory obligation, concluded that Congress intended to impose an ‘achievable’ duty by which

employers would be required to eliminate only those hazards which experts familiar with the

industry involved would consider preventable. Accordingly, the court held that Complainant

must both allege the specific measures the cited employer should have taken to avoid citation

and prove the feasibility and utility of those measures. 489 F.2d at 1265–68.See Getty Oil

Company v. OSHRC, No. 75–1828 (5th Cir., April 23, 1976).

We conclude that this reasoning is equally applicable to an alleged violation of 29 C.F.R.

§ 1926.28(a). This standard also imposes a generalized duty to protect employees against hazards

by use of the personal protective equipment ‘appropriate’ therefor. It is therefore a performance

rather than specification standard because it is not limited to particular hazards or to protection

by particular methods. Warnel Corporation, No. 4537, BNA 4 OSHC 1034, 1036, CCH OSHD

para. 20,576 at 24,599 (OSHRC, Mar. 31, 1976).See Diebold, Inc., BNA 3 OSHC 1897, 1900,

CCH OSHD para. 20,333 at 24,250 (OSHRC, Jan. 22, 1976). Indeed, we have previously said

that the standard could be considered vague unless its scope is defined and limited by extrinsic

means such as other regulations and industry customs and practices. Hoffman Construction

Company, 15 OSAHRC 327, BNA 2 OSHC 1523, CCH OSHD para. 19,275 (1975), petition for

review docketed, No. 75–1741 (9th Cir., Mar. 27, 1975).Cf. Cape and Vineyard Division of New

Bedford Gas v. OSHRC, 512 F.2d 1148, 1155 (1st Cir. 1975); Ryder Truck Lines, Inc. v.

Brennan, 497 F.2d 230, 233 (5th Cir. 1974); Grand Union Company, 20 OSAHRC 663, 664,

BNA 3 OSHC 1596–97, CCH OSHD para. 20,107 at 23,927–28 (1975), petition for review

docketed, No. 75–4283 (2d Cir., Dec. 24, 1975).

In this regard, we note that in prior cases we have held that § 1926.28(a) requires

employees exposed to the hazard of a fall to wear safety belts and to use them in an effective

manner by attaching them to an anchorage or structure by means of a lanyard or lifeline. But in

all these cases Complainant consistently alleged that the employees should have been protected

in this manner or the feasibility and utility of tied-off safety belts was tried by the express or

This section applies only where no specific standards exist governing the working conditions at

issue. Brisk Waterproofing Co., 3 OSAHRC 1132, BNA 1 OSHC 1263, CCH OSHD para.

16,345 (1973).

implied consent of the parties. That is, Complainant has consistently pleaded and proven

specifically how exposure to the hazard could have been prevented.

In this case, however, Complainant alleged only that the employee was not protected against a

fall. Thus, he cited the standard as a performance standard but without specifying how the

employer could have complied. At the hearing no evidence was adduced to show whether and

how the employee could have tied off to the building. Indeed, the use of safety belts or any other

type of protective device was not even mentioned by the inspector with the exception of

guardrails which were shown not to be feasible, and Respondent presented no evidence. In the

circumstances we conclude that Judge Cronin properly vacated the charge for failure of

Complainant to meet his burden of proof.

Alleged Violation of 29 C.F.R. § 1926.450(a)(1)

A 20-foot long portable ladder provided access to Respondent's work area on the ‘C’

level and was observed in use by Respondent's employees. At a height of about 15 feet

horizontal reinforcing bars (rebar) protruded through the rungs of the ladder. In the inspector's

opinion, this rebar was hazardous because it would obstruct an employee climbing the ladder.

However, he further stated that the ladder was serviceable and that it complied with all of the

standard's requirements for a portable ladder. Counsel for Complainant agreed that the charge

was predicated solely on the fact of the protruding rebar. Moreover, he conceded that a violation

could not be found based on the inspector's testimony. Judge Cronin affirmed the citation, and

Warnel Corp., supra; Island Steel & Welding, Ltd., 17 OSAHRC 143, BNA 3 OSHC 1101,

CCH OSHD para. 19,545 (1975); Eichleay Corp., 15 OSAHRC 635, BNA 2 OSHC 1635, CCH

OSHD para. 19,324 (1975); Carpenter Rigging & Contracting Corp., 15 OSAHRC 400, BNA 2

OSHC 1544, CCH OSHD para. 19,252 (1975); Hoffman, supra.

Section 1926.450(a)(1) requires that ‘[e]xcept where either permanent or temporary stairways

or suitable ramps or runways are provided, ladders described in this subpart shall be used to give

safe access to all elevations.’(emphasis supplied). The remaining subparagraphs of §

1926.450(a), subparagraphs (2) through (11), as well as paragraph (b), prescribe various other

requirements for portable ladders, including among other things the condition of the rungs, the

strength of the ladders, the angle at which they are placed, their width and length, and

circumstances under which they may not be used. The latter, among other things, prohibit

placing ladders where they may be displaced by the work being conducted and prohibit using

portable metal ladders for electrical work or where they may contact electrical conductors.

we reverse.

By its plain terms subparagraph (a)(1) imposes only a requirement for use of a ladder

which complies with the design and other provisions of the standards. In this regard we note that

certain provisions expressly prohibit use f ladders in some situations where such use would be

hazardous, but no provision prohibits the conduct on which Complainant's charge is based.

Alleged Violation of 29 C.F.R. § 1926.451(m)(1)

During the inspection an employee of Respondent was observed walking and working on

a scaffold platform consisting of two 2- by 10-inch planks placed on beams which extended out

from the edge of the building on the ‘J’ or roof level approximately 70 feet above the adjacent

floor level. While this scaffold was equipped with guardrails, they were anchored only to the

beams and were not rigid. When the inspector tested a guardrail by pushing it, it flexed

approximately six inches. In his opinion the guardrails needed to be secured by brackets or struts.

The scaffold also was not equipped with either midrails or toeboards.

On these facts Complainant issued a citation alleging that the guardrail supports of a

carpenters' bracket scaffold were not properly fitted and securely joined to brackets. His

subsequent complaint alleged that a carpenter's bracket scaffold was not properly fitted or

secured. This condition was alleged to be contrary to 29 C.F.R. § 1926.451(m)(1). After receipt

of the complaint Respondent, appearing pro se through its engineer, contacted Complainant's

counsel and requested a conference for the purpose of discussing a settlement. At this meeting

Respondent's representative advised counsel that the wrong standard had been cited because

there was no carpenters' bracket scaffold on the worksite.

Approximately two months later Complainant issued another citation by which he

purported to amend the original citation to charge a violation of 29 C.F.R. § 1926.451(g)(5)

rather than § 1926.451(m)(1) on an allegation that the guardrail supports of an outrigger scaffold

Paragraph (m) provides as follows: ‘Carpenters bracket scaffolds.(1) the brackets shall consist

of a triangular wood frame no less than 2 x 3 inches in cross section, or of metal of equivalent

strength. Each member shall be properly fitted and securely joined.’

Paragraph (g) in pertinent part requires as follows: ‘Outrigger scaffolds . . .. (5) Guardrails

made of lumber, not less than 2 x 4 inches (or other material providing equivalent protection),

approximately 42 inches high, with a midrail of 1 x 6 inch lumber (or other material providing

equivalent protection), and toeboards, shall be installed at all open sides and ends on all scaffolds

more than 10 feet above the ground or floor. . . .’

were not properly fitted and securely joined to the beams and that the scaffold lacked a midrail

and toeboards. This so-called ‘amended citation’ was received by Respondent late on Friday

afternoon just prior to the hearing which was scheduled for the following Monday morning.

At the outset of the hearing Complainant formally moved to amend the complaint to

allege a violation of the standard pertaining to outrigger scaffolds. Respondent objected but

Judge Cronin granted the motion based on an admission by Respondent's representative that he

had prepared a defense to the ‘amended citation’ on the day before the hearing, that is, on

Sunday. The parties thereafter agreed to strike that part of this citation alleging that the guardrail

supports were not properly fitted and secured when complainant's counsel conceded that this

particular allegation was not within the scope of § 1926.451(g)(5). The judge affirmed the

citation as thus amended.

Considering all the circumstances, we conclude that the judge erred in granting

Complainant's motion to amend. Complainant had notice as early as two months prior to the

hearing of a possible deficiency in the citation. He could easily have investigated the matter and

determined well in advance of the hearing under which standard to proceed, or he could have

asked for a postponement of the hearing pending further investigation. Nevertheless, the record

shows that he made no effort to notify Respondent of his intentions until just prior to the hearing

and even then he did not file a motion but issued an ‘amended citation’ as if the issue were

already foreclosed. Nor does Complainant offer any explanation for his delay.

Moreover, the allegations of the original citation were limited to the manner in which the

existing guardrails had been installed. At the hearing this allegation was stricken and a new

allegation pertaining to the lack of midrails and toeboards was substituted. That is, Complainant

completely abandoned the original charge; he changed the factual basis for the charge as well as

his legal theory (the standard on which the charge was based) and thereby injected new issues

into the case. In the circumstances we do not consider it fair to require Respondent to defend

29 C.F.R. § 1926.452(b)(5) defines a ‘carpenters' bracket scaffold’ as ‘[a] scaffold consisting

of wood or metal brackets supporting a platform.’ An ‘outrigger scaffold’ is defined at §

1926,452(b)(23) as ‘[a] scaffold supported by outriggers or thrustouts projecting beyond the wall

or face of the building or structure, the inboard ends of which are secured inside of such building

or structure.’ There is no dispute that the scaffold observed by the inspector was in fact an

outrigger scaffold.

against an amendment of this kind particularly since the physical condition of the scaffold was

observed during the inspection and therefore could have been properly alleged in the first

instance. Cf. Vincent Rizzo, d/b/a Vincent Rizzo Construction Company or Masoncraft, Inc.,

No. 4224, BNA 3 OSHC 1841, 1843, CCH OSHD para. 20,236 at 24,113 (OSHRC, Dec. 22,

1975); Murro Chemical Company, 12 OSAHRC 364, BNA 2 OSHC 1268, CCH OSHD para.

18,818 (1974) (concurring opinion).See generally Marguette Cement Manufacturing Company,

No. 4725, BNA 3 OSHC 1928, CCH OSHD para. 20,353 (OSHRC, Jan. 27, 1976), petition for

review docketed, No. 76–4083 (2d Cir., Mar. 24, 1976). Accordingly, we will reverse Judge

Cronin's ruling and deny Complainant's motion to amend.

Accordingly, the citations alleging violations of 29 C.F.R. §§ 1926.28(a) and

1926.450(a)(1) are vacated. Complainant's motion to amend the citation alleging a violation of

29 C.F.R. § 1926.451(m)(1) is denied and the citation is vacated. The Judge's decision is

modified to be consistent herewith and as modified is affirmed.

So ORDERED.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATE: OCT 4, 1976

We are not persuaded to a different conclusion by Respondent's admission that its

representative had prepared a defense just prior to the hearing. In the circumstances Respondent

may reasonably have thought that the citation had already been amended. In any event,

Respondent did not consent but objected to Complainant's motion at the hearing.

CLEARY, Commissioner, DISSENTING:

The majority errs in its disposition of the items at issue in this case. I would affirm the

citations alleging noncompliance with the standards at 29 CFR §§ 1926.450(a)(1) and

1926.451(g)(5) [hereinafter §§ 1926.450(a)(1) and 1926.451(g)(5)], and would remand to the

Administrative Law Judge for further proceedings regarding the citation alleging noncompliance

with the standard at 29 CFR § 1926.28(a) [hereinafter § 1926.28(a)].

Citation for Serious Violation of § 1926.28(a)

Before setting forth the reasons for my disagreement with the Judge's actions regarding

this item and the majority's affirmance of his disposition, it is important to relate the

ramifications of their actions in light of the Act's goal of accident prevention.

It is undisputed that a bricklayer employed by respondent was observed working at the

edge of a floor that was 15 feet above the ground. There were no guardrails in place, and the

employee wore no personal protective equipment. Thus, an employee of respondent was in a

precarious position without the aid of any type of fall protection. Nevertheless, both the majority

and the Judge would vacate the citation and not enter an abatement order. Their disposition

suggests the type of ‘game theory’ in administrative adjudication that was criticized by the

Second Circuit in Brennan v. O.S.H.R.C. and John J. Gordon Co., 492 F.2d 1027 (2d Cir. 1974).

Both the Judge and the majority regard as fatal the Secretary's failure to specify the type

of personal protective equipment that could have been used by the employer to protect its

employees from the hazard of a fall. It is obvious that in citing respondent under § 1926.28(a) the

‘appropriate personal protective equipment’ contemplated was a safety belt and lifeline system.

In my experience in many cases of this kind I cannot recall any other form of personal protective

equipment that was considered appropriate to abate the hazard of falling off an unguarded

perimeter. See, e.g., Warnel Corp., 4 BNA OSHC 1034, 1975–76 CCH OSHD para. 20,576 (No.

4357, March 31, 1976). All other forms of fall protection have not been considered personal

protective equipment. See, e.g., 29 CFR § 1926.105(a) [safety nets] and 29 CFR § 1926.500

[guardrails and the equivalent]. In any event, even if respondent could not be charged with

knowing the obvious, it could have sought a more definite statement of the type of protection

As the discussion that follows will indicate, I would affirm the Judge insofar as he permitted

the Secretary to amend the citation for serious violation alleging noncompliance with 29 CFR §

1926.451(m)(1) to allege noncompliance with 29 CFR § 1926.451(g)(5).

required under § 1926.28(a) by means of an informal conference with the Secretary's regional

administrator pursuant to the procedures provided in 29 CFR § 1903.19. Unlike the majority,

however, I would not prejudice the safety of affected employees, the class that the Act is

intended to protect, for the Secretary's oversight in failing to specify the obvious. Rather, in

fairness to the respondent and its employees, I would reopen the hearing for the limited purpose

of adducing evidence on the type of personal protective equipment that would be appropriate to

abate the hazardous condition.

Thus, in my opinion, upon discovering this defect in the Secretary's case, the Judge

should have reopened the hearing for the purpose of clarifying the issue. Such action would

clearly be permissible. In addition, it would comport with the Commission's obligations to reject

the gamesmanship approach to administrative adjudication and to protect actively and

affirmatively the public interest. See Brennan v. O.S.H.R.C. and John J. Gordon Co., supra at

1032.

Citation for Violation of § 1926.450(a)(1)

In reversing the Judge's affirmance of the citation alleging noncompliance with §

1926.450(a)(1), the majority has announced an unduly narrow interpretation of the standard.

Moreover, this restrictive interpretation results in the vacating of a citation that addresses an

obvious hazard.

Respondent's employees were observed ascending a 20-foot ladder to gain access to ‘C’

level. Reenforcing bars (rebar) protruded through the rungs of the ladder, thus requiring an

employee on the ladder to lift his feet high to avoid them. As noted by the Judge:

This obstruction could possibly result in someone falling from the ladder

15 feet onto debris containing boards with protruding nails (transcript

reference omitted).

Thus, the employees were not furnished with safe access to ‘C’ level.

The majority reads § 1926.450(a)(1) as imposing ‘. . . only a requirement for use of a

ladder which complies with the design and other provisions of the standards.’ It is concluded that

no provision of the standard prohibits the cited hazard. I disagree.

At such further proceedings the Secretary would be permitted to specify the obvious method of

abatement. More importantly, respondent would be furnished an opportunity to assert any

defenses to the form of abatement suggested by the Secretary.

Reference to the cited standard indicates a general requirement for the use of ladders so

that ‘safe access to all elevations' may be obtained. The standard reads as follows:

§ 1926.450Ladders.

(a) General requirements. (1) Except where either permanent or temporary

stairways or suitable ramps or runways are provided, ladders described

in this subpart shall be used to give safe access to all elevations

(emphasis added).

Unlike the majority, I would not interpret the above standards as a mere introductory statement

without any substantive requirement absent reference to other provisions of the subpart. Instead,

I would interpret the general requirement of ‘safe access' as including the cited condition. In my

view, a ladder with rebar protruding through the rungs does not provide ‘safe access to all

elevations.’ I would therefore affirm the Judge's interpretation of the standard and affirmance of

the citation.

Citation for Serious Violation of § 1926.451(g)(5)

In this final item, as with the two items discussed above, the majority vacates a citation

addressed at a proven hazard. The Judge's action in granting an amendment at the

commencement of the hearing is reversed because the majority does not consider it ‘fair’ for the

Judge to have required respondent to defend against the citation as amended. I submit that in

reaching its conclusion regarding the fairness of the amendment the majority has unjustifiably

ignored the Judge's due consideration and resolution of the issue.

The Secretary sought amendment of the citation and complaint to allege noncompliance

with § 1926.451(g)(5) instead of § 1926.451(m)(1). Both the amended and original citation dealt

with conditions existing on the same scaffold. Respondent was put on notice of the possibility of

amendment before the hearing, albeit only two days before the hearing was scheduled. At the

commencement of the hearing the Secretary sought formal amendment. Judge Cronin questioned

extensively the Secretary's attorney and respondent's representative before ruling on the motion.

After considering the basis for the amendment and any possible prejudice that might result from

the amendment, the Judge granted the Secretary's motion.

Pursuant to section 10(c) of the Act, hearings before the Commission are to be conducted

in accordance with the Administrative Procedure Act [APA], 5 U.S.C. § 551 et seq. Section

5(b)(3) of the APA mandates that parties be timely put on notice of facts and issues in

controversy. Respondent was placed on notice of the possibility of an amendment before the

hearing. Moreover, respondent admitted that despite the lateness of the amendment it had an

opportunity to prepare a defense to the amended allegation, and would therefore not be

prejudiced by the amendment. Based on the above, Judge Cronin permitted the amendment.

Judge Cronin's ruling should not be disturbed.

In reaching its conclusion regarding the fairness of the amendment, the majority placed

emphasis on the content of the original citation and subsequent pleadings. I submit that such

emphasis upon the original pleadings is misplaced. Indeed, as noted by the court in National

Realty & Constr. Co. v. O.S.H.R.C., 489 F.2d 1257, 1264 (D.C. Cir. 1973):

So long as fair notice is afforded, an issue litigated at an administrative hearing

may be decided by the hearing agency even though the formal pleadings did not

squarely raise the issue. This follows from the familiar rule that administrative

pleadings are very liberally construed and very easily amended (footnotes

omitted).

Finally, I would affirm the amended citation for the reasons assigned by the Judge.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant, DECISION AND ORDER

v. OSHRC DOCKET NO. 7792

FRANK BRISCOE CO., EXECUTIVE SECRETARY

JUDGE’S DECISION REC’D Nov 22 1974

FINAL ORDER ON Dec 27 1974

Respondent.

Appearances:

FOR THE SECRETARY OF LABOR:

Jack R. Fisher, Esq.

Trial Attorney

U. S. Department of Labor

FOR THE RESPONDENT:

Mr. Louis J. Williams

Acting Chief Engineer

Frank Briscoe Company, Inc.

141 South Hamilton Street

East Orange, New Jersey 07018

James A. Cronin Jr., Judge, OSAHRC:

This is a proceeding under Section 10 of the Occupational Safety and Health Act of 1970

(29 U.S.C. 651, et seq., hereafter called the Act) contesting four serious citations, one non-

serious citation, and Notification of Proposed Penalty, issued by the complainant against the

respondent on April 12, 1974.

The non-serious citation charges 9 violations of the Act, namely: 1. 29 C.F.R. §

1926.451(a)(6), 2. § 1926.701(a)(3), 3. § 1926.25(a), 4. § 1926.500(b)(8), 5. § 1926.500(b)(1), 6.

§ 1926.100(a), 7. § 1926.500(b)(6), 8. § 1926.500(e)(1)(iii), . § 1926.450(a)(1). Respondent, in

Paragraph h of the complaint amends the typographical error in item 8 of the citation and

charges a violation of § 1926.500(e)(1)(iv).

his Notice of Contest dated May 1, 1974, contests all items, and the proposed penalties based

thereon, except items 4 and 7. At the outset of the hearing, the complainant moved to dismiss

item 1, and this motion was granted (T. 25).

Both Citation No. 1—serious, and paragraph k of the complaint, originally alleged a

violation of § 1926.451(m)(1). Leave to amend this paragraph of the complaint, however, was

granted to the complainant at the hearing resulting in deletion of the alleged violation of 29

C.F.R. § 1926.451(m)(1) and substituting therefor an alleged violation of 29 C.F.R. §

1926.451(g)(5) (T. 9–24). Paragraph 5(b) of the complaint, alleging a violation of 29 C.F.R. §

1926.451(a)(4), was also struck because the citation of April 12, 1974 did not reference this

particular standard (T. 4–5).

Respondent, in its answer, denies all contested alleged violations ‘[d]ue to extenuating

circumstances”. The proposed penalties, also in dispute, are: $100 for item 2, $225 for item 3,

$225 for item 5, $90 for item 6, $90 for item 8, $90 for item 9, and $900 for each of the four

contested serious citations.

The alleged violation of § 1926.701(a)(3) (item 2) was described in the non-serious citation

as follows:

‘Science Building, ‘J’ Level-8th Floor landing, approximately 20 employees at

this location. Forms and shoring with protruding nails littered walking and

working surfaces which could cause possible foot nail punctures and leg injuries.'

The standard as promulgated by the Secretary provides:

‘(3) Stripped forms and shoring shall be removed and stockpiled promptly after

stripping, in all areas in which persons are required to work or pass. Protruding

nails, wire ties, and other form accessories not necessary to subsequent work shall

be pulled, cut, or other means taken to eliminate the hazard.

The alleged violation of § 1926.25(a) (item 3) was described in the non-serious citation as

follows:

Science Building-‘E’ Level center section; ‘C’ Level south section; ‘C’ Level

north west section; ‘B’ Level stairway shaft-lecture hall, ‘A’ Level west section,

Yard area south-cylinder storage area. At the above locations, concrete rubble,

rebars, boards with protruding nails and debris littered walking and working

surfaces. Means were not taken to eliminate the hazards, which constituted

tripping hazards and possible physical harm of employees getting punctures from

protruding nails from boards.

The standard as promulgated by the Secretary provides:

(a) During the course of construction, alteration, or repairs, form and scrap lumber

with protruding nails, and all other debris, shall be kept cleared from work areas,

passageways, and stairs, in and around buildings or other structures.

The alleged violation of § 1926.500(b)(1) (item 5) was described in the non-serious citation as

follows:

Science Building ‘G’ Level Mechanical shaft column ‘T’, 72' x 8', shaftway was

open to ‘D’ Level approximately 35 feet below at which location personnel were

moving beneath; toe boards were not provided on the exposed sides of shaft,

sections of guardrailings on the north, east and west corners of the shaft were

removed and not replaced. Employees at this location were cleaning and clearing

debris from floor surfaces. ‘E’ Level mechanical shaft for future elevator

approximately 18' x 8' floor opening did not have toe boards provided on the

exposed sides of the shaft. Rebars, concrete rubble, boards and debris littered

passageway adjacent the edge of the shaft. Beneath subcontractors employees on

‘O’ Level were exposed to bodily harm from falling objects.

Science Building elevator shafts ‘E’ Level approximately 16' x 8$‘; Shafts were

open to ‘D’ Level did not have toe boards provided on the exposed sides of the

shafts; concrete rubble and boards were in passageway adjacent the openings.

Employees were using passageways for access and egress to the work areas

beneath subcontractors employees working directly below were exposed to bodily

injury.

Science Building ‘B’ Level-stairway shaft-lecture hall approximately 13' x 15',

floor opening did not have standard guardrailings on the north and south sections,

the east and west sections. Guardrailing supports were not provided on the open

exposed sides of the floor opening where the adjacent floor level was

approximately 13 feet below at which location subcontractor employees were

working.

The standard as promulgated by the Secretary provides:

(b) Guarding of floor openings and floor holes. (1) Floor openings shall be

guarded by a standard railing and toe boards 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.

The alleged violation of § 1926.100(a) (item 6) was described in the non-serious citation as

follows:

Science Building ‘D’ Level-employee working on the south east stairway shaft

was not wearing any head protection. The employee was subjected to falling

debris from the employees pouring concrete into the shaft way directly overhead

Typographical error—amended to ‘D’ (T. 259).

on Level ‘E’.

The standard as promulgated by the Secretary provides:

(a) Employees working in areas where there is a possible danger of head injury

from impact, or from falling or flying objects, or from electrical shock and burns,

shall be protected by protective helmets.

The alleged violation of § 1926.500(e)(1)(iv) (item 8) was described in the non-serious

citation as follows:

‘Science Building ‘B’ Level-south east stairway more than 44' wide open on both

sides with 12 risers lacked a rail on the north side which was open to ‘A’ Level

stairway landing more than approximately 8 feet below.'

The standard as promulgated by the Secretary provides:

(e) Stairway railings and guards. (1) Every flight of stairs having four or more

risers shall be equipped with standard stair railings or standard handrails as

specified below, the width of the stair to be measured clear of all obstructions

except handrails:

(iv) On stairways more than 44 inches wide but less than 88 inches wide, one

handrail on each enclosed side and one stair railing on each open side;

The alleged violation of § 1926.450(a)(1) (item 9) was described in the non-serious citation as

follows:

‘Science Building-20’ portable straight ladder which provided access to Level ‘C’

from lecture hall, did not provide a safe means of access to the work area. Two rebars

approximately 18"‘ in length protruded from landing through ladder rungs. Condition

could possibly result in employee falling from the ladder to floor landing

approximately 15 feet below.’

The standard as promulgated by the Secretary provides.

‘(a) General requirements. (1) Except where either permanent or temporary

stairways or suitable ramps or runways are provided, ladders described in this

subpart shall be used to give safe access to all elevations.’

A violation of § 1926.451(g)(5) (Citation No. 1—serious), as amended, is alleged as follows:

‘College of Medicine and Dentistry, South Side of J level, 9th floor of the Science

Building at Bruce Street, outrigger Scaffold (Tr 22) more than 70 feet above

adjacent floor. Toe boards not installed on the open sided end of the platform to

prevent tools and materials from falling into work area where personnel were

moving below (Tr 23) lack of midrails (Tr 23).

The standard as promulgated by the Secretary provides:

(5) Guardrails made of lumber, not less than 2 x 4 inches (or other material

providing equivalent protection), approximately 42 inches high, with a midrail of

1 x 6 inch lumber (or other material providing equivalent protection), and

toeboards, shall be installed at all open sides and ends on all scaffolds more than

10 feet above the ground or floor. Toeboards shall be a minimum of 4 inches in

height. Wire mesh shall be installed in accordance with paragraph (a)(6) of this

section.

The alleged violation of § 1926.451(a)(2) (Citation No. 2—serious) was described as follows:

College of Medicine and Dentistry, South Side of ‘I’ Level-8th Floor of the

Science Building, a carpenter column clamps to a form was standing on a 2" “ x

9"‘ plank approximately 91 inches in length. One end rested on a column clamp

and was secured with a single nail. The other end of the plank was split and

unsecured. It rested on an empty 55-gallon drum which was approximately 2 feet

from the edge of the opensided floor where the adjacent floor level was

approximately 60 feet below the work area. Unstable objects such as barrels,

boxes, loose bricks, etc., shall not be used to support scaffold planks.

The standard as promulgated by the Secretary provides:

(2) The footing or anchorage for scaffolds shall be sound, rigid, and capable of

carrying the maximum intended load without settling or displacement. Unstable

objects such as barrels, boxes, loose brick, or concrete blocks, shall not be used to

support scaffolds or planks.

The alleged violation of § 1926.28(a) (Citation No. 3—serious) was described as follows:

College of Medicine and Dentistry Science Building, ‘B’ Level-South Side,

Center of Building. Employee, a bricklayer, troweling concrete standing on the

edge of the floor landing which was more than approximately 15 feet above the

adjacent ground. Employee was not utilizing any type safeguards to prevent him

from falling.

The standard as promulgated by the Secretary provides:

(a) The employer is responsible for requiring the wearing of appropriate personal

protective equipment in all operations where there is an exposure to hazardous

conditions or where this part indicates the need for using such equipment to

reduce the hazards to the employees.

The alleged violation of § 1926.500(d)(1) (Citation No. 4—serious) was described as follows:

Open sided floors in Science Building, College of Medicine and Dentistry, ‘I’

Level, 8th Floor; ‘G’ Level, 7th Floor; ‘E’ Level, 5th Floor: ‘D’ Level, 4th Floor;

‘B’ Level, 2nd Floor were not provided with any perimeter protection whatsoever

to safeguard workmen performing their duties throughout the above indicated

areas.

The standard as promulgated by the Secretary provides:

(d) 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) of

this section, on all open sides, except where there is entrance to a ramp, stairway,

or fixed ladder. The railing shall be provided with a standard toeboard wherever,

beneath the open sides, persons can pass, or there is moving machinery, or there is

equipment with which falling materials could create a hazard.

The hearing took place on September 9 and 10, 1974 at New York, New York with both

parties subsequently filing briefs.

Jurisdiction and Issues

Respondent, a construction company, does not contest Commission jurisdiction and

stipulates that it was engaged in a business affecting commerce at the time of the alleged

violations (T. 29).

The issues to be resolved and determined are:

1. Whether the record evidence establishes that respondent violated the standards as

alleged?

2. If the violations were committed, what penalties are appropriate?

Findings of Fact

Upon the entire record, the following facts are found:

1. During April, 1974 and prior thereto, respondent was the general contractor for the

erection of a building at the College of Medicine and Dentistry, Newark, New Jersey (T. 29).

Respondent's employment at this worksite on the dates of inspection, April 3, 4, & 5, 1974, was

estimated by Thomas P. Marrinan, a compliance officer of the Department of Labor, at 260

employees. The respondent presently has an average daily employment of 1,732 persons (T.

129).

2. At the time of inspection, shoring forms containing protruding nails were ‘strewn’ on

the floor landing on I level. Approximately 10 to 12 respondent employees were performing

work on J level and had to walk on, and over, this landing area to reach the access ladder to J

level. No stripping operation was in progress at the time these conditions were observed (T. 35–

36, 147, 149).

3. On E level, a passageway utilized by respondent employees and located adjacent to a

shaftway was ‘littered’ with debris, rebars, glass and loose board lengths (T. 38, 42, 153, 155; S–

2). These conditions constituted a tripping and stumbling hazard to respondent employees using

the passageway (T. 156).

Both respondent and subcontractor personnel were working on D level, the floor below;

and workers on D level were observed constantly moving directly below the shaftway. These

workers were exposed to the danger of falling debris from E level, but were not specifically

identified as respondent employees (T. 42, 155).

4. Near a ladderway on E level, a respondent employee was observed walking over a pile

of debris consisting of boards with protruding nails, rebars, cuttings, concrete and rope (T. 52–

53, 166–168; S–8).

5. On A level, west section, respondent's masons were erecting a concrete wall. Coiled

hose, insulation material, board ‘cuttings' and concrete rubble, constituting tripping and

stumbling hazards, were located in the passageway used by these employees to get to their

scaffold (T. 45, 46, 46A; S–4).

In order to get to this scaffold, the masons also were required to step on and over, an

uncovered pit located in the passageway which was filled with insulation material, concrete

rubble and debris (T. 43–44, 46; S–5).

6. On C level, west section, a respondent employee, erecting a scaffold, was required to

walk through debris consisting of boards with protruding nails, wire bands and papers. Debris

littered the entire walking and working surface (T. 52, 164–169, S–7).

7. During the time of inspection, respondent employees were continually using a

passageway on C level in which forms with protruding nails were located (T. 55–56, 169; S–9a,

S–9b).

8. At the northwest section of C level, a respondent laborer was observed walking over

boards with protruding nails, stripping, and concrete rubble (T. 58–59; S–11a, S–11b).

9. Respondent employees were observed passing through an area on B level where

concrete rubble and a board with protruding nails were located (T. 57, 172; S–10).

10. During the inspection of the building under construction which took place on April 3

and 4, 1974, only 3 employees on G level were coserved(sic,be,d070896) performing ‘house

cleaning’ work (T. 175).

11. On G level one of the three employees engaged in a cleaning up operation was

observed walking adjacent to, and within 2 feet of, a shaftway open 30 feet to D level. This

shaftway had 2 sections of guard railings missing. The guard rails remaining in place were not

securely anchored and lacked toeboards (T. 63–64, 175; S–13).

12. On E level, a shaftway had no midrail guards or toeboards and respondent employees

were observed passing directly adjacent to the shaftway (T. 66).

13. A shaftway on B level was not guarded by a standard railing; it was completely open

on the north and south ends, and one guardrail section on the westside also was missing.

Remaining railings were not anchored and respondent employees continually used the

passageway adjacent to shaftway which was open approximately 12 feet (T. 69–70; S–10).

14. On D level, a respondent employee was not wearing a protective helmet and was

exposed to the hazard of falling tools and material from E level (T. 71–73, 177–178, 182; S–15).

During the entire inspection, the compliance officer observed only one employee exposed to a

hazard because of a failure to wear a hard hat. Other respondent employees exposed to similar

hazards wore hard hats (T. 184–186).

15. The southeast stairway from C to B level had 12 risers and was not equipped with a

stair railing on the south side. Respondent employees frequently were observed using these stairs

(T. 74–75; S–16a, S–16b). A section of masonry wall was to be installed along the south side of

these stairs, but no masonry work was in progress at the time of the inspection (T. 188–189).

16. A respondent employee was observed using the 20-foot portable ladder for access to

C level. Horizontal rebars protruded through the ladder rungs at the 15-foot level and required

anyone climbing the ladder to lift his feet high to avoid them. This obstruction could possibly

result in someone falling from the ladder 15 feet onto debris containing boards with protruding

pails (T. 75–78). The ladder met all of the standard requirements for a portable ladder (T. 76,

78).

17. A respondent carpenter and co-worker were setting form work on the parapet curbing

at J level from an outrigger scaffold. There were no midrails or toeboards on this scaffold and a

container half-filled with steel bolts was positioned on the scaffold adjacent to where the

carpenter was walking and working (T. 81–82, 84, 208; S–18a, S–18b). A workman was

observed moving below the platform in the yard area, but he was not identified as a respondent

employee (T. 86, 209).

18. An empty 55-gallon drum was positioned within 2 feet of the edge of an open-sided

floor on I level, 60 to 70 feet above ground level. One end of a 9-inch wide, 91 inch long, split

plank rested on this drum and extended over the edge of the floor while the opposite end of the

plank was secured into the form work of a column with a single nail. A respondent employee

was working from this plank securing column clamps (T. 87, 211; S–19a, S–19b, S–19c). This

employee was observed mounting and leaving the plank at the point where the drum was

positoned approximately two feet from the edge of the unguarded floor (T. 211, 215). A

possibility existed that this employee could have fallen over the side of the building (T. 215).

19. On C level a respondent bricklayer was observed cement troweling a parapet wall

while standing at the very edge of the floor's unguarded outer perimeter, 15 feet above ground

level. He was not utilizing ‘any type of safety guard’ and had ‘no personal protective equipment’

(T. 90, 93–94, 218–219, S–20b). No guard rails could have been installed at this location (T.

223). The employee stated to the compliance officer that it was easier for him to do this job from

the observed location. In the compliance officer's opinion, the employee could have performed

his work ‘by standing in another location’ (T. 218).

20. There was no standard guardrail perimeter protection whatsoever on I level and

respondent's employee who was installing column clamps was observed within two feet of the

edge of the open-sided floor (T. 96–97). Eight or nine of respondent ironworkers also were

working in close proximity to the unguarded perimeter of I level and one was observed leaning

over the edge giving hand signals to the mobile crane 60 to 70 feet below (T. 97; S–21a, S–21b,

S–21c, S–21d).

21. On G level, one respondent laborer was cleaning up, putting debris into a wheelbarrel

at the edge of an unguarded open-sided floor (T. 101).

22. On the north side of C level a laborer was exposed to an unguarded open-sided floor

(T. 102; S–11a, S–11b).

23. In the skylight area of C level, near the workbench being used by two of respondent

employees erecting a scaffold, there was no perimeter guarding. In jumping from the scaffold,

one of these employees almost fell over the unguarded side, 15 feet above the level below (T.

Citation and Complaint alleges incident was observed on B level. Without objection ‘B level’

was amended to ‘C level’ to conform to the evidence (T. 90–93).

Citation and Complaint mistakenly alleged B level instead of C level. Amendment to conform

to the proof allowed, and ‘C level’ was substituted for ‘B level’ (T. 104).

104).

24. There were no standard guardrails along the opensided floor adjacent to the

passageway utilized by respondent employees on C level. This passageway was approximately 2

feet from the floor edge (T. 106; S–9a, S–9b).

25. On E level, south side, there was no perimeter protection in the area where materials

were being hoisted onto the level by respondent employees. At times these employees were

approximately one foot from the unguarded edge (T. 107).

Discussion

A. As to Violations

While the above findings of fact modify some of the alleged violative conditions of the

non-serious citation, we find that the Secretary has sustained his burden of establishing by a

preponderance of the evidence prima facie violations of the standards referenced in items 2, 3, 5,

8 and 9. Respondent, however, is not found in violation of § 1926.100(a) (item 6) because we

believe it reasonable to conclude on the basis of the compliance officer's observations that the

failure of one employee to wear a protective helmet was an isolated incident, unknown to his

respondent employer and contrary to instructions.

Respondent presented no evidence, choosing instead to rely for its defense on cross-

examination of the complainant's sole witness and final written argument. As we understand

respondent's argument which is outlined in its brief, the Secretary's proof is deficient because

photographs were not introduced into the record depicting all of the alleged violative conditions

and employee exposure to them, and because it fails to sufficiently identify respondent

employees. We do not agree. While photographic evidence possesses an immediacy and reality

which endow it with particularly persuasive effect, its use and introduction is not mandatory. In

this case the Secretary relied mainly on the testimony of Officer Marrinan to prove respondent

employee exposure to hazards and essentially, it went uncontradicted. Simply because evidence

of respondent employee exposure to hazards consisted primarily of general, rather than specific,

employee identification does not reduce its efficacy to a point that requires it to be disregarded.

The respondent was required by the provisions of § 1926.451(g)(5) to provide standard

toeboard protection wherever its own employees were exposed to the hazard of falling materials

or tools. Under the conditions described by the compliance officer, we believe it reasonable to

conclude that the work in progress and the presence of the half-filled container of steel bolts

would have constituted a hazard to any of respondent's employees passing or working beneath

the open sides of the scaffold. Before respondent can be held in violation of the toeboard

provision, however, there must be evidence from which it reasonably can be inferred that

respondent employees were exposed to these hazards. Secretary v. Humphreys & Harding,

OSAHRC No. 621, (May 9, 1974).

The compliance officer observed a workman in the yard area beneath the scaffold, but

was unable to identify him as a respondent employee. On this record, therefore, complainant has

failed to sustain his alleged violation of the toeboard requirement.

The record, however, clearly establishes a violation of this particular standard's

requirement that midrails be provided. Respondent's representative contended at the hearing that

the scaffold was in the process of being constructed (T. 7), but introduced no evidence to verify

his position. Even assuming that this contention was true, respondent would still have been in

serious violation of this standard. Forming work on the parapet was being performed by two

respondent employees thereby exposing them to a possible fall of some 70 feet due to the lack of

midrails on the scaffold.

Respondent's argument in defense of citation No. 2—serious is completely without merit.

The compliance officer's testimony that an employee was observed on this makeshift plank

within two feet of the open-sided floor, some 60 to 70 feet above ground, went unrefuted and

requires a finding that the violation of § 1926.451(a)(2) presented a substantial probability that

death or serious physical harm could have resulted.

Citation No. 3—serious will be vacated because of the complainant's failure to sustain his

burden of proof. The presence of an operation where there is exposure to hazardous conditions is

not, by itself, sufficient evidence of a violation of this standard; and it is not enough to prove that

a respondent employee ‘was not utilizing any type safeguards to prevent him from falling’.

The complainant must additionally prove what appropriate personal protective equipment

could have been worn which would have reduced the hazard to which the employee was

exposed. See National Realty & Construction Co. v. Secretary of Labor, 489 F.2d 1257

(C.A.D.C. 1973). This record is barren of any evidence describing and demonstrating the type of

personal protective equipment that should have been worn by respondent's employee under the

existing hazardous conditions.

The compliance officer's testimony, as well as the photographic evidence, support

findings of fact clearly establishing respondent's serious violation of § 1926.500(d)(1) (Citation

No. 4—serious).

B. As to Penalties

All evidence relating to the four factors prescribed by section 17(j) of the Act (29 U.S.C.

666. (i)), the size of respondent's business, gravity of the violations, the good faith of respondent,

and its history of violations under the Act, have been considered.

Although the compliance officer thought that the respondent employer appeared ‘sincere’

(T. 134), he considered that his inspection reflected an ineffective safety program. In the absence

of evidence to the contrary, we must agree. Respondent is a relatively large construction firm

with an evident awareness of the construction standards. It has been subject to at least one prior

inspection of the construction site in question as well as inspections at various other construction

sites in the State of New Jersey; yet, 3 years after the Act became effective this particular

inspection uncovered numerous instances of violation involving general and widely known

construction standards such as the housekeeping (§ 1926.701(a)(3) and § 1926.25(a)), and

guardrailing and scaffolding standards (§ 1926.500(b)(1), § 1926.500(d)(1); §

1926.500(e)(1)(iv), § 1926.451(a)(2), § 1926.451(g)(5)). On this record, the proposed penalties

of the Secretary for items 2, 3, 5, 8 and 9 are considered appropriate.

Due to the obvious differences in the gravity of the violations forming the basis of

Citation No. 1, 2 and 4—serious, a modification of the Secretary's proposed penalties is required.

Citation No. 1—serious, involved the exposure of only one employee to the hazard

created by the violation, while Citation No. 2—serious, concerned the exposure of two

employees. The hazard exposure in connection with Citation No. 4—serious, on the other hand,

was much more extensive, affecting at least 20 employees (T. 121). we, therefore, believe that a

$500.00 penalty each, for Citation Nos. 1 & 2, and a $900.00 penalty for Citation No. 4, are

appropriate.

Conclusions of Law

1. The respondent is an employer engaged in a business affecting commerce within the

meaning of 29 U.S.C. § 652. (5).

2. On April 3 and 4, 1974 respondent was in violation of 29 C.F.R. § 1926.701(a)(3), §

1926.25(a), § 1926.500(b)(1), § 1926.500(e)(1)(iv) and § 1926.450(a)(1), but these violations

were not ‘serious' within the meaning of 29 U.S.C. § 666. (j).

3. On April 3 and 4, 1974 respondent was in violation of 29 C.F.R. § 1926.451(g)(5), §

1926.451(a)(2), and § 1926.500(d)(1), and these violations were ‘serious' within the meaning of

29 U.S.C. § 666. (j).

4. On April 3 and 4, 1974 respondent was not in violation of § 1926.100(a) and §

1926.28(a).

5. A penalty of $100.00 for respondent's violation of § 1926.701(a)(3) is appropriate.

6. A penalty of $225.00 for respondent's violation of § 1926.25(a) is appropriate.

7. A penalty of $225.00 for respondent's violation of § 1926.500(b)(1) is appropriate.

8. A penalty of $90.00 for respondent's violation of § 1926.500(e)(1)(iv) is appropriate.

9. A penalty of $90.00 for respondent's violation of § 1926.450(a)(1) is appropriate.

10. Penalties of $500.00 each for respondent's violations of § 1926.451(g)(5) and §

1926.451(a)(2) are appropriate.

11. A penalty of $900.00 for respondent's violation of § 1926.500(d)(1) is appropriate.

ORDER

Based on the foregoing findings, conclusions of law and the entire record, it is ORDERED:

1. As modified by this decision, the non-serious citation's violations of 29 C.F.R. §

1926.701(a)(3), § 1926.25(a), § 1926.500(b)(1), § 1926.500(e)(1)(iv) and § 1926.450(a)(1) are

hereby AFFIRMED.

2. The alleged violation of § 1926.100(a), and the proposed penalty based thereon, are

hereby VACATED.

3. The following penalties are hereby ASSESSED: $100.00 for respondent's violation of

§ 1926.701(a)(3); $225.00 for respondent's violation of § 1926.25(a); $225.00 for respondent's

violation of § 1926.500(b)(1); $90.00 for respondent's violation of § 1926.500(e)(1)(iv), and

$90.00 for respondent's violation of § 1926.450(a)(1).

4. As modified by this decision, Citation No. 1—serious, as amended, alleging a violation

of § 1926.451(g)(5) is hereby AFFIRMED and a penalty of $500.00 ASSESSED.

5. As modified by this decision, Citation No. 2—serious, alleging a violation of §

1926.451(a)(2) is hereby AFFIRMED and a penalty of $500.00 ASSESSED.

6. As modified by this decision, Citation No. 4—serious, alleging a violation of §

1926.500(d)(1) is hereby AFFIRMED and a penalty of $900.00 ASSESSED.

7. Citation No. 3—serious, alleging a violation of § 1926.28(a), and the proposed penalty

based thereon are hereby VACATED.

James A. Cronin, Jr.

Judge, OSAHRC

Dated: November 27, 1974