UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 3701
FRANKLIN R. LACY, (AQUA VIEW APARTMENTS)
Respondent.

OSHRC DOCKET NO. 3701

January 30, 1981

DECISION

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

BY THE COMMISSION:

This case has been remanded to the Commission by the United States Court of Appeals for the Ninth Circuit. Usery v. Franklin R. Lacy, 628 F.2d 1226 (9th Cir. 1980).

Respondent, Franklin R. Lacy (‘Lacy’), was issued a citation alleging that he had violated the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678, (‘the Act’) by failing to comply with eight construction safety and health standards while he was constructing a building in Kirkland, Washington. Lacy filed a timely notice of contest and a hearing on the merits of the alleged violations was conducted before Administrative Law Judge Garl Watkins. The judge dismissed the citation holding that the Secretary of Labor (‘the Secretary’) had failed to meet his burden of proving that Lacy was ‘engaged in a business affecting commerce’ within the meaning of section 3(5)[1] of the Act. On review, a divided Commission affirmed the judge’s decision. 76 OSAHRC 44/E10, 4 BNA OSHC 1115, 1975–76 CCH OSHD ¶20,617 (No. 3701, 1976). The Court of Appeals reversed the Commission’s decision and remanded the case for further proceedings.

Inasmuch as both the judge’s decision and the prior Commission decision found a threshold issue to be dispositive, the merits of the alleged violations were not reached. The parties, however, had an opportunity to make a complete record on the merits at the hearing before the judge. The Commission has the ultimate authority to make findings of fact, Accu-Namics, Inc. v. OSHRC, 515 F.2d 828, 834 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976), and where, as here, the record is sufficiently detailed and credibility is not an issue, see Asplundh Tree Expert Co., 78 OSAHRC 77/E12, 6 BNA OSHC 1951, 1978 CCH OSHD ¶23,033 (No. 16162, 1978), the Commission can make the necessary findings of fact.

I

Lacy, the owner of Aqua View Apartments, was in the process of constructing a 13 unit ‘L’ shaped apartment building consisting of three ‘living levels’ above one ‘parking level.’ As a result of an inspection conducted by an OSHA compliance officer, Lacy was issued one citation which alleged eight other than serious violations. Lacy denied all of the violations.

Item 1 of the citation alleged that Lacy failed to comply with the standard at 29 C.F.R. § 1926.25(a)[2] in that a passageway on the second level of the building under construction had not been cleared of scrap lumber and other debris. The compliance officer testified that the passageway contained piles of lumber as well as ‘nails and other debris.’ Lacy testified that an extension cord in the passageway was owned and used by a swimming pool contractor working on the site. He did not, however, deny the existence of the condition as otherwise described by the compliance officer. Accordingly, we find that the cited passageway had not been cleared of lumber and other debris during the course of construction and conclude, therefore, that Lacy failed to comply with 29 C.F.R. § 1926.25(a).

Item 2 of the citation alleged that Lacy failed to comply with the standard at 29 C.F.R. § 1926.51(c)(3)[3] in that toilet facilities for employees were not provided at the jobsite. It is undisputed that the only toilet facilities available for use by Lacy’s employees were those in Lacy’s own apartment or in vacant apartments located in nearby occupied existing apartment buildings.

Under the cited standard, toilet facilities must be provided at the ‘jobsite.’ Existing and occupied apartment buildings are not part of a construction ‘jobsite’ even where, as here, they are in proximity to the area under construction. Accordingly, we find that the jobsite lacked toilet facilities and conclude that Lacy failed to comply with the cited standard. Because toilet facilities which were not on the ‘jobsite’ were readily accessible to employees, the hazard presented by this violation does not warrant the issuance of an abatement order. See Southwestern Electric Power Co., 80 OSAHRC ——, 8 BNA OSHC 1974, 1980 CCH OSHD ¶ 24,732 (Nos. 77–3890 and 77–3391, 1980). Under these circumstances, we conclude that the violation of section 1926.51(c)(3) was de minimis.

Item 3 of the citation alleged that Lacy failed to comply with the standard at 29 C.F.R. § 1926.100(a)[4] in that Lacy’s employees were not required to wear protective helmets while working in areas where other Lacy employees were working on floors above. The essential facts are undisputed. The compliance officer testified that Lacy’s employees were working without hard hats in an area over which other work was progressing and that one employee had told the compliance officer that hard hats had not been provided. Although about eight employees were working at the site, Lacy owned only one hard hat which was available ‘on loan’ to employees. Lacy’s testimony that he ‘didn’t think’ there were unprotected employees working below other employees is insufficient to refute the officer’s testimony as to his observations. We find that employees working in an area below other on-going construction were not provided with protective helmets as required by 29 C.F.R. § 1926.100(a). Accordingly, we conclude that Lacy violated the cited standard.

Item 4 of the citation alleged noncompliance with the standard at 29 C.F.R. § 1926.150(c)(1)[5] in that Lacy did not provide fire protection at the construction site. The compliance officer testified that he observed no fire extinguishers on the building under construction. He testified further that in response to his inquiry regarding fire protection, Lacy directed his attention to two ‘garden’ hoses; one connected to an outside faucet 50′ to 70′ away, and another which ‘may have been’ connected to a faucet in the basement of the building under construction. The compliance officer described the outside hose as not coiled in any way and simply laying on the ground along with the debris in the area. He depicted the ‘basement’ hose as being ‘stuffed’ into a 4″ diameter sewer pipe. The compliance officer also testified that he did not look for fire extinguishers on the existing occupied apartment building nearby. Lacy stated that he had six 50-foot lengths and two 25-foot lengths of hose in the vicinity, that three of the 50-foot hoses were connected together, equipped with a nozzle, and connected to an operative faucet approximately 50’ from the area under construction. Lacy also testified as to the presence of a number of fire extinguishers (three rated 2A and two rated BC) in the nearby occupied building.

Read as a whole, the cited standard is intended to assure that fire extinguishing equipment at construction sites be adequate in both capacity and location. Under subsection 15(c)(1)(i) at least one 2A rated extinguisher must be present for ‘each, 3,000 square feet of protected building area or major fraction thereof.’ Subsection 150(c)(1)(iv) requires a minimum of one 2A rated extinguisher on each floor. Subsections 150(c)(1)(ii) and (iii) permit the substitution of either a 55-gallon open drum or a garden-type hose line for each required fire extinguisher. See Cornell & Co., 77 OSAHRC 164/F5, G3 n.11, 5 BNA OSHC 1736, 1739, n.11, 1977–78 CCH OSHD ¶22,095, p. 26,609, n.11 (No. 8721, 1977).

The requirement to provide at least one fire extinguisher ‘on each floor’ contained in subsection 150(c)(1)(iv) clearly refers to locations within the building under construction. Fire extinguishers placed in other buildings, even those nearby, cannot fulfill the requirements of the standard. Similarly, because subsection 150(c)(1)(iii) of the standard allows the substitution of garden-type hoses meeting certain specifications for 2A rated fire extinguishers on a one for one basis, the building under construction in this case required, as a minimum, one hose on each of the four levels. The evidence demonstrates that there were two connected hoses in the general area and no hoses at all on the upper levels.

Moreover, the evidence does not demonstrate that the hoses in the general area met the specifications of subsection 150(c)(1)(iii). It is undisputed that the hoses were neither ‘mounted on conventional racks or reels’ nor were they shown to be capable of discharging at least 5 gallons per minute with a minimum hose stream range of 30 feet horizontally. We find that neither a 2A rated fire extinguisher nor an acceptable garden-type hose substitute was provided for each floor under construction. We thus conclude that Lacy failed to comply with the requirements of 29 C.F.R. § 1926.150(c)(1).

Item 5 of the citation alleged that Lacy failed to comply with the standard at 29 C.F.R. § 1926.450(a)(9)[6] in that ladders used for access to the third level and to the roof of the stairwell did not extend at least 36″ above the landings. The compliance officer testified as to the location and use of two ladders, neither of which extended 36″ above their respective landings. The two cited ladders were the only means of access from the second to the third level and from the third level to the roof of a stairwell. Lacy did not deny the existence of the conditions but did argue that the top of the ladder from the second to the third level was within one foot of a doorway enabling an employee using that ladder to ‘grab hold’ of the door frame and have safe access to the third level. The existence of the alleged noncomplying condition at the roof of the stairwell was not denied. Moreover, the evidence does not demonstrate that it was not practical to extend the top of the second to third floor ladder at least 36″ above the third floor ladder at least 36″ above the third floor landing. We thus conclude that Lacy failed to comply with 29 C.F.R. § 1926.450(a)(9) as alleged.

Item 6 of the citation alleged that Lacy failed to comply with the standard at 29 C.F.R. § 1926.500(b)(7)[7] in that two floor openings on each of two balcony levels were unguarded. The compliance officer described one particular floor opening on the second floor west balcony as 25″ to 30″ by 6′. He also stated that the other floor openings he observed were all greater than 12″in the least dimension. Two floor openings on the east side of the building were used as ladder openings. Those on the west side of the building consisted of sections of balconies that had not yet been completely floored. Lacy did not deny the existence of the violative conditions.

At the hearing, the judge questioned the compliance officer as to the methods an employer could use to guard or cover floor openings in a deck or balcony while it is under construction. The judge indicated that it would be completely infeasible or inefficient to properly guard such floor openings while the rest of the deck is being installed. In his post-hearing brief the Secretary argues that the judge improperly attempted to raise the affirmative defense of impossibility of performance, and even if the affirmative defense had been properly raised, Lacy did not carry his burden of proving it.

The record before us demonstrates that two unguarded floor openings were present on the east side of the building where the decking had been completed. No question as to the impossibility of performance has been raised as to the two floor openings which were used for ladder openings. Moreover, as to the west side openings, although the Commission recognizes the affirmative defense of impossibility of performance, in order to established the defense an employer must show that (1) compliance with the standard would preclude performance of required work and (2) alternative means of employee protection are unavailable. M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD ¶23,330 (No. 15094, 1979). On this record Lacy has proven neither element of the affirmative defense. Accordingly, we find that four unguarded floor openings existed at the time of inspection and conclude that Lacy failed to comply with 29 C.F.R. § 1926.500(b)(7) as alleged.

Items 7 and 8 of the citation alleged that Lacy failed to comply with the standards at 29 C.F.R. § 1926.500(d)(1) and § 1926.500(d)(2), respectively.[8] Item 7 alleged that the opensided balconies on the west side of the building were unguarded while item 8 alleged that opensided runways on the east side were unguarded.

At each apartment level on the east and west sides of the building a ‘balcony’ or ‘balcony runway’ was being constructed. The east side ‘runways’ were 5′ in width and provided access to the interior of the building. On the west side the ‘balconies’ were 6′ in width and did not provide access to the interior. In sum, a total of approximately 400 linear feet of balcony was either completed or under construction. The compliance officer testified that no guardrails were in place. He stated that he considered the lack of guardrails to be two separate noncomplying conditions by distinguishing the ‘runways’ on the east side from the ‘balconies’ on the west side. While Lacy argued that the presence of guardrails would ‘definitely obstruct if not prevent, the efficient installation of . . . decking,’ he also conceded that portions of the balconies remained unguarded for as long as 16 days after completion of the decking.

The difference between a platform covered by section 1926.500(d)(1) and a runway covered by section 1926.500(d)(2) is based upon whether the area in question is a ‘working space’ or a ‘passageway.’[9] In this case the dimensions, method of construction, and use during construction of the ‘balconies’ and ‘runways’ were virtually identical. Similarly, the hazard of falling from either an unguarded ‘balcony’ or ‘runway’ was the same. The unguarded perimeters on both the east and west sides of the building are thus within the ambit of section 1926.500(d)(1). Based upon the unrefuted evidence we find that the alleged condition existed at the time of inspection and we conclude that Lacy failed to comply with the standard at 29 C.F.R. § 1926.500(d)(1).

Lacy, acting as his own general contractor, personally supervised all of the construction work. The record demonstrates that he was almost always at the construction site while work was in progress. Indeed, Lacy’s residence was within sight of the construction work. Under these circumstances we find that Lacy knew or, with the exercise of reasonable diligence, should have known of the existence of the noncomplying conditions.

The compliance officer observed approximately eight employees working and moving about the construction site. He specifically testified that at various times he saw one or more employees on the roof, the east side of the second floor, the second and third floor balconies, climbing a ladder, and on the ground below other employees working above. He also testified that employees used a door at the end of the passageway cited in item 1 of the citation. In addition, Mr. Lacy testified that on the day of the inspection employees were supposed to be working on the decking on all the floors. Mr. Lacy also stated to the compliance officer that employees passed items through the floor holes. Based upon this evidence we find that one or more employees were exposed to the hazard posed by each violative condition. See Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 BNA OSHD ¶23,135 (No. 16057, 1978).[10]

II

Under section 17(j) of the Act, 29 U.S.C. § 666(i), in determining appropriate civil penalties for violations of the Act, the Commission must consider ‘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.’ Lacy was essentially an owner and operator of rental apartments. He was not engaged regularly in the business of construction, and there is no evidence that he intended or planned to engage in further construction activities. Moreover, as a construction enterprise his business was extremely small. He had no history of prior violations. Based upon these factors, we conclude that the assessment of no penalty is appropriate.

Accordingly, items 1, 3, 4, 5, 6 and 7 of the citation alleging a failure by Lacy to comply with the standards at 29 C.F.R. §§ 1926.25(a), 1926.100(a), 1926.150(c)(1), 1926.450(a)(9), 1926.500(b)(7), and 1926.500(d)(1) are affirmed. Item 8, of the citation alleging a failure to comply with the standard at 29 C.F.R. § 1926.500(d)(2), being redundant, is vacated. Item 2 of the citation alleging a failure to comply with the standard at 29 C.F.R. § 1926.51(c)(3) is found to be de minimis. No penalty is assessed.

SO ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.,

EXECUTIVE SECRETARY

DATED: JAN 30, 1981

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[1] 29 U.S.C. § 652(5).

[2] The standard states:

§ 1926.25 Housekeeping.

(a) During the course of construction . . . 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.

[3] The standard states:

§ 1926.51 Sanitation.

(c) Toilets at construction jobsites.

(3) Jobsites, not provided with a sanitary sewer, shall be provided with one of the following toilet facilities . . .

[4] The standard reads as follows:

§ 1926.100 Head protection.

(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.

[5] 29 C.F.R. § 1926.150(c)(1) provides, in part:

(c) Portable firefighting equipment—(1) Fire extinguishers and small hose lines. (i) A fire extinguisher, rated not less than 2A, shall be provided for each 3,000 square feet of the protected building area, or major fraction thereof. Travel distance from any point of the protected area to the nearest fire extinguisher shall not exceed 100 feet.

(ii) One 55-gallon open drum of water with two fire pails may be substituted for a fire extinguisher having a 2A rating.

(iii) A ½-inch diameter garden-type hose line, not to exceed 100 feet in length and equipped with a nozzle, may be substituted for a 2A-rated fire extinguisher, providing it is capable of discharging a minimum of 5 gallons per minute with a minimum hose stream range of 30 feet horizontally. The garden-type hose lines shall be mounted on conventional racks or reels. The number and location of hose racks or reels shall be such that at least one hose stream can be applied to all points in the area.

(iv) One or more fire extinguishers, rated not less than 2A, shall be provided on each floor. In multistory buildings, at least one fire extinguisher shall be located adjacent to stairway.

[6] The standard reads as follows:

§ 1926.450 Ladders.

(a) General Requirements.

(9) The side rails shall extend not less than 36 inches above the landing. When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point of access, shall be installed.

[7] The standard states:

§ 1926.500 Guardrails, handrails, and covers.

(b) Guarding of floor openings and floor holes.

(7) Temporary floor openings shall have standard railings.

[8] The standards state:

§ 1926.500 Guardrails, handrails, and covers.

(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 . . ..

(2) Runways shall be guarded by a standard railing, or the equivalent . . ..

[9] § 1926.502(e) defines ‘platform’ as:

A working space for persons, elevated above the surrounding floor or ground, such as a balcony or platform for the operation of machinery and equipment.

§ 1926.502(f) defines ‘runway’ as:

A passageway for persons, elevated above the surrounding floor or ground level, such as a footwalk along shafting or a walkway between buildings.

[10] Commissioner Barnako adheres to his test for employee exposure as expressed in Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975–76 CCH OSHD ¶20,448 (No. 504, 1976), vac’d and reman’d in part, 504 F.2d 1255 (4th Cir. 1974). He finds that Lacy’s employees were exposed to the hazards created by the violative conditions during the course of their assigned duties, movement to and from work stations, or personal comfort activities. Therefore Commissioner Barnako concludes that the Secretary has proven employee exposure to the cited conditions.