UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 673

JULIUS NASSO CONCRETE CORP.,

 

                                              Respondent.

 

 

July 29, 1974

Van Namee, Commissioner:

            This matter is before the Commission on my order directing review of a decision made by Judge David G. Oringer.  The judge concluded that Respondent was in serious violation of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et. seq.) for having failed to guard the open sides of floors, contrary to the requirements of 29 C.F.R. 1926.500(d)(1).[1] He assessed a penalty of $500.  However, he vacated a portion of the citation on the basis that the 17th floor being the highest level of a building under construction was a roof and therefore was outside the scope of the standard.

            We have reviewed the record and affirm except to the extent that the judge vacated the portion of the citation relating to the 17th floor.  As to that portion, we reverse and remand. 

            Subsequent to his decision herein we concluded that 29 C.F.R. 1926.500(d)(1)[2] apples to all flat roofs.  S.D. Mullins Co. and Diamond Roofing  OSHRC Docket Nos. 364 and 459, BNA 1 OSHC 1364, CCH Employ. S. & H. Guide para. 16,803 (Rev. Com’n., 1973).  Accordingly, it was error to vacate that portion of the citation which related to the 17th floor. 

            Unfortunately, we are unable to conclude this case.  Judge Oringer did not reach the factual issues since he resolved the case as a matter of law.  The evidence regarding the 17th floor is in direct conflict.  Complainant’s witnesses testified that plywood decking had been carried to 75 per cent of the floor’s outside perimeter.  If his testimony is to be believed, then Respondent’s employees were exposed to the unguarded perimeter.  On the other hand, Respondent’s witnesses testified that the decking was only in the center are of the floor and none extended to the perimeter.  It therefore appears that the issue must be resolved on a credibility finding, and that is a matter for the trial judge to decide. 

            Accordingly, the judge’s order is affirmed except to the extent that it vacates the citation for violation of 29 C.F.R. 1926.500(d)(1).  To such an extent this matter is remanded for such further proceedings as are necessary and consistent with this decision.

MORAN, Chairman, dissenting:

            This case arises out of allegations that employees of respondent were exposed to safety hazards while they were engaged in the construction of a building on February 15, 1972.  By my calculations that’s almost two and one-hale years ago! Presumably the building is now complete and the employees are no longer at work there.  To remand at this point is, in my opinion, worthless.  The record in this case has been sitting around a long time.  Errors or deficiencies on job-safety decisions ought to be identified and attended to in a timely fashion.  The very nature of the problems which this law was enacted to solve seems to me to require that this Commission act on disputed issues as expeditiously as possible.  To remand at this point will surely mean that it will be more than three years after the inspection before this tribunal can resolve the rather simple questions which arose as a result thereof.

            In my opinion, we have a complete record before us and can quickly resolve the issues in dispute without this belated remand.

            The Judge bases his decision simply on the fact that certain open-sided floors of the building were absent the perimeter protection specified in the safety regulations.  We have held consistently that it is not enough to establish that the Act gas been violated.  There must be evidence that employees of the Respondent have been exposed to a hazard as a result of noncompliance with the regulations Secretary v. Hawkins Construction Company, OSAHRC Docket No. 949 [1 OSHC 1761] (May 20, 1974); Seretary v. Gilles and Cotting, OSAHRC Docket No. 504 [1 OSHC 1388] (October 9,1973); Secretary v. City Wide Tuckpointing Service, OSAHRC Docket No. 247[1 OSHC 1232] (May 24, 1973).

            Evidence that respondent had employees working on a 14,00 square foot surface with open sides and was 13 or more stories about the ground does not show that those employees were exposed to the hazard of falling over the side of the building.  Nor does the mere existence of several unguarded openings in the said surface prove that employees were exposed to the danger of falling through those openings.

            There must be proof of employee exposure to hazard.  It must be clear and convincing.  And the burden of proving is upon the complainant.  Secretary v. Ellison Electric, 1 OSAHRC 547, 553 [1 OSHC 3034] (1972).

            It’s clear to me from an examination of the record that this case that complainant has not sustained its burden of proof as indicated above. I therefor would dismiss the citation at this point without the need for further action on remand.

 

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 673

JULIUS NASSO CONCRETE CORP.,

 

                                              Respondent.

 

 

July 23, 1973

Oringer, Judge:  This is a proceeding under section 10(c0 of the Occupational Safety and Health Act of 1970, 29 U.S.C. et seq. (hereinafter referred to as “the Act”) to review Citations issued by the Secretary of Labor (hereinafter referred to as “Complainant”) pursuant to section 9(a), and a proposed assessment of penalties thereon issued pursuant to section 10(a) of the Act.

            The Citations issued on February 29, 1972, and Compliant filed on March 31, 1972, alleges that Julius Nasso Concrete Corp., the employer (hereinafter referred to as “Respondent”), on or about February 15, 1972, at a workplace under its ownership, operation and control, violated two occupational safety and health standards promulgated pursuant to section 6 of the Act, which were deemed “Serious” by Complainant and which read as follows:

 

Citation No. 1

29 C.F.R. 1926.500(d)(1)-(d) Guarding of open-sided floors, platforms and runways.  (1) Every open-sided flor 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)(i) 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 tow-board 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.

 

Citation No. 2

29 C.F.R. 1926.500(b)(1)-(b) Guarding of floor openings and floor holes.  (10 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 violations as alleged by the Complainant are described as follows:

Citation No. 1

29 CFR Sec. 1926.500(d)(1) as adopted by 29 CFR sec. 1910.

Failure to guard open-sided floors, with a standard railing-(see (f)(i) of the sec.) or equivalent- 13th-17th floors.

 

Citation No. 2

29 CFR Sec. 1925.500(b)(1) ad adopted by 29 CFR Sec. 1910.

Failure to guard floor openings (4 open shafts on the 13th floor) with a standard railing-see sec (f)(i) of this sec.)and toe boards to cover.

 

            Notification of Proposed Penalties were issued by the Complainant, on even date,, to wit, February 29, 1972, proposing to assess a penalty of $700 for each of the alleged serious violations described above, aggregating total penalties of $1400.  Respondent filed notice of intention to contest Citations and proposed penalties with Complainant on March 22,1972.

            This cause was referred to the Occupational Safety and Health Review Commission for hearing pursuant to section 10(c) of the Act on June 23, 1972, the undersigned was appointed, and the within case was assigned to him for hearing pursuant to section 12(e) of the Act.

            Pursuant to notice, the hearing was held on July 13 and July 19, 1972 in New York, New York.

            Having heard the testimony and observed the demeanor of the witnesses, and having considered the same, together with the Citations, Notification of Proposed Penalties, Notice of Contest, pleadings, representations, stipulations and admissions of the parties, it is concluded that substantial evidence, on the record considered as a whole, supports the following

FINDINGS OF FACT

            1.  The Respondent, Julius Nasso Concrete Corporation, is a New York Corporation engaged in performing concrete work, with its principal office located at 142 East 39th Street, New York, New York.  The Respondent was engaged in a business that was affecting commerce at the time of the violation (T. 3 & 4).

            2.  At the time of the inspections of the premises of the Respondent’s worksite, the Respondent employed approximately one hundred and two (102) employees at the job site (t. 31).

            3.  The Respondent’s net worth for the year in which the violation took place as $4,000,000 (T. 4).

            4.  The prior Citation for a serious violation of 29 CFR 1926.500(b)(1), referred to by the Complainant, during the trial of this action, may not be considered in assessing the penalty or in weighing the evidence, in any manner, inasmuch as the Notification of Proposed Penalty was never served upon the Respondent, and therefore did not give the Respondent an opportunity to file a Notice of Contest.  All it amounted to was an incomplete allegation which was never completed nor prosecuted (t. 149, 150, 151, 152, 153).

            5.  As a result of inspections conducted at the Respondent’s worksite on February 14 and 15, 1972, the Respondent was issued two (2) Citations for serious violations and in addition thereto received Notification of Proposed Penalties of $700 for each violation, aggregating  $1,400 in total penalties (Citations and Notification of Proposed Penalty) (Complaint and Answer).

            6.  On February 15, 1972, the 17th floor of the job site in question herein was not guarded by a standard railing insofar as the open-sided floor was concerned, however that constituted the roof of the building.  The Respondent had approximately twenty (20) carpenters and laborers working on that floor (T. 17 & 18).

            7.  On February 15, 1972, the 16th floor of the Respondent’s job site had an open-sided floor not guarded by standard railings or any other means.  Seven (7) employees of the Respondent were working thereon (T. 18 & 19).

            8.  On February 15, 1972, the 16ht floor of the Respondent’s job site was an open-sided floor not guarded by standard railings.  The Respondent had two (2) or three (3) workers on that floor (T. 20, 21, 58, 59).

            9.  On February 15, 1972, the 14th floor of the Respondent’s jobsite herein in question did not have its open sides guarded by a standard railing.  There were approximately fifteen (15) employees of the Respondent working on this flor on February 15, 1972.

            10.  On February 15, 1972, the Respondent had approximately two (2) employees on the 13th floor exposed to unguarded open shaftways and the open-sided floor that was not guarded by standard railings (T.  22 & 23).

            11.  On the 15th floor, the respondent had canvas around the edge of the floor for about 75% of the area on February 15, 1972 (T. 110, 113).

            12.  On February 15, 1972, the Respondent had a little better than half the floor protected by canvas in order to maintain the heat on the floor (T. 79, 114, 115).

            13.  There is a substantial probability that death or serious physical harm could result from a lack of perimeter protection and in particular from the lack of standard railing at the perimeter of an open-sided floor, particularly at the height of the 13th floor and above, as well as from open and unguarded shaftways or floor holes at a height of 13 floors (T. 25).

            14.  On the 15th day of February, 1972, there were two (2) employees of the Respondent working on the 13th floor of the worksite, which floor had four (4) open shaftways which were floor openings that had no cover, nor were they protected by a standard railing with a toe board (T. 23 & 24).

            15.  The Respondent could have, with reasonable diligence, know of the existence of the lack of standard railings at the perimeters of their open-sided floors and of the floor openings that lacked covers or standard railings and toe boards (T. 27, 28, 29).

            16.  The penalties proposed to be assessed to the Respondent by the Complainant were inappropriate in the instant case.

DISCUSSION

            The testimony clearly reveals that insofar as the 16th floor is concerned, the Respondent violated the standard found at 29 CFR 1926.500(d)(1), in that it had no perimeter protection on that floor.  Insofar as the flor that was 75% to 80% surrounded by canvas, while it did not measure up to the standard, at least 75% of the floor had a lesser chance of exposure that had there been nothing at all,  Unquestionably the canvases put around the floor were not for safety purposes but for keeping the heat in, nevertheless, were of some value and better than a total exposure, however, approximately 25% of this floor was exposed with no perimeter defense at all, an taking the Respondent’s testimony., approximately 50% of the 14th floor.  Insofar as the 17th floor was concerned, this in fact, was the roof of the building.  In the case of Secretary of Labor v. Hawkins Construction Company, OSAHRC Docket Nos. 503 and 598, Judge Weinman held that the omission of the term “roof” in the standard herein in question, disclosed a specific intent of the framers of a standard to exclude roofs from the scope of such standard.  I agree.  It is an ancient axiom of the law that ambiguities in a document are held against the writer thereof.  The decision of Judge Weinman became a final order of the Commission on March 1, 1973.  There are other conflicting decisions on this point, however, this Judge agrees with the holding in the above referred to and accordingly, insofar as the 17th floor is concerned, the Secretary failed to sustain the burden of proof of violation inasmuch as this was a roof and was not included in such a standard. 

            Insofar as the 13th floor is concerned, the Judge is of the opinion that the most credible testimony concerning employees on that floor was that of the Compliance Officer.  The Respondent vehemently argues that the OSHA Form 1A is a self-serving declaration.  If that is so, any report kept in the ordinary course of business would be similarly self-serving.  This document was not introduced to prove the verity of the allegations of the violation, but to show what the Compliance Officer found on the date in question.  In my opinion while the Compliance Officer was not as properly prepared as a witness should be in a case containing the seriousness of this one, nevertheless, I found his testimony to be credible, insofar as the number of employees located on the 13th floor on the 15th of February 1972.

            Insofar as the penalties are concerned, I find that those penalties proposed to be assessed against this Respondent are inappropriate.  Insofar as failure to guard the perimeters are concerned, there is an inference that the Secretary considered prior Citations that never became effective because of his error, in arriving at a penalty of $700.  In addition thereto, having found that the 17th floor was not a violation, and that the canvas lowered the exposure on most of the one floor and part of another, an appropriate penalty would be $500.  Insofar as the penalty for the unguarded shaftways or floor openings are concerned, similarly it is my opinion that a penalty of $500 is appropriate, given all the circumstances found herein.  The Judge finds, however, that even if the only violation of 29 CFR 1926.500(d)(1) found proven, ws that of the 16th floor, which appears clear and unequivocal in this record, then, and in such case, the penalty herewith assessed at $500 would be moderate and appropriate in the premises.  Based on the foregoing considerations, the Judge makes the following

CONCLUSIONS OF LAW

            1.  At all times herein mentioned, the Respondent was engaged a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.

            2.  The Respondent was, on the date of the inspection at its worksite herein concerned, and at all other times mentioned herein, an employer subject to the safety and health regulations promulgated by the Secretary of Labor. 

            3.  The Respondent did not violate that standard found at 29 CFR 1926.500(d)(1) insofar as the 17th floor of the worksite is concerned, as this floor constitutes the roof and does not come within the purview of the aforementioned standard.

            4.  On the day of the inspection herein concerned, the Respondent violated 29 CFR 1925.500(d)(1), insofar as floors thirteen to sixteen are concerned, however, the exposure on the 14th and 15th floors was limited, as a result of the canvas utilized.

            5.  On the day of the inspection the Respondent violated 29 CFR 1926.500(b)(1), in that certain of its employees were exposed to open shaftways that constituted floor holes, on the 13th floor. 

            6.  The violations of 29 CFR 1926.500(d)(1) and 29 CFR 1926.500(b)(1), are “serious” violations within the purview of the Act.

            7.  The penalties proposed in the instant case were inappropriate and are modified to $500 for each violation, totaling in the aggregate, penalties of $1,000.

            In view of the foregoing; having due deliberation to the gravity of the violations, the size of Respondent’s business, the presence or absence of good faith of the Respondent, and its history; and good cause appearing therefore, it is

ORDERED that

            1.  The citation alleging violation of 29 CFR 1926.500(d)(1) is affirmed insofar as the 16th, 15th, 14th and 13th floors are concerned.

            2.  The Citation for that standard found at 29 CFR 1926.500(b)(1) is concerned is hereby affirmed.

            3.  The Citation for serious violation insofar as that standard found at 29 CFR 1926.500(b)(1) is concerned is hereby affirmed.

            4.  The penalties proposed for serious violation of the standards above referenced to are herewith modified as follows:

            (a) The penalty, assessed for the violation of those parts of Citation No. 1 that were affirmed, is hereby assessed at $500.

            (b) The penalty assessed in violation of Citation No. 2, is herewith assessed at $500.

            The total penalties, assessed in the aggregate, amount to $1,000.

            So Ordered.

 


[1] The judge also found Respondent in serious violation of 29 C.F.R. 1926.500(b)(1) for having failed to guard open shaftways.  He assessed $500.  Review was not directed on this issue, and the judge’s findings were based on the credibility fo the witnesses. Accordingly, we affirm.

 

[2] The standard provides in pertinent part as follows:

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…open on all sides….