UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 5221
PIMA CONSTRUCTION COMPANY
Respondent.

August 17, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BARNAKO, Chairman:

The issues presented in this case are whether Administrative Law Judge Robert N. Burchmore erred in (1) affirming a serious citation alleging violation of 29 C.F.R. 1926.500(d)(1), (2) affirming a serious citation alleging violation of 29 C.F.R. 1926.752(j), and (3) affirming a serious citation alleging violation of 29 C.F.R. 1926.501(b). Having examined the record in its entirety, we find that the administrative law judge properly decided that the citations be affirmed, and we adopt the decision of the judge as the decision of the Commission except as modified below.

Serious citation for violation of 29 C.F.R. 1926.500(d)(1):[1]

Respondent was engaged as a subcontractor for the steel erection of a nine-story building in Tucson, Arizona. The steel superstructure of the building was being erected in vertical segments, or bays. That is, Respondent erected the steel of one segment of the building from the first through the ninth floor, and then proceeded to erect another nine-story bay immediately adjacent to the previously completed bay. During the inspection on September 18, 1973, the east perimeter of the second floor of one bay was not guarded with guardrails or any other type of perimeter protection. The perimeter was to remain open for as many as four days until Respondent constructed the next adjacent bay up to the second floor level. The second floor of the completed bay was in the process of being poured: some small portions of the formwork had not yet been built, but formwork and reinforcing bars covered most of the floor of the bay, and concrete had been poured on all but a 14-foot strip of floor along the east side. Respondent’s employees passed through the eastern portion of the second floor to reach the stairways located at the corners of the bay.

Complainant cited Respondent for violation of 1926.500(d)(1), alleging that Respondent failed to guard an open-sided floor or platform with a standard railing or the equivalent as required by the standard. Respondent contended in defense that it is unreasonable to apply 1926.500(d)(1) so as to require Respondent to install a standard railing on the edge of a floor which is temporary in that it is being constructed, and which will be extended beyond the present edge in the near future. Judge Burchmore found a violation of 1926.500(d)(1) because he concluded that the formwork covered with reinforcing bars or concrete was a floor within the meaning of the cited standard.

We have examined the evidentiary record in light of Respondent’s arguments that 1926.500(d)(1) does not apply to the facts, and we conclude that the cited standard is inapplicable. 1926.500(d)(1) is in subpart M pertaining to guardrails for floors in general. It requires that a construction employer install a standard railing or the equivalent on ‘[e]very open-sided floor or platform 6 feet or more above [the] adjacent floor or ground level . . .’ Nevertheless, in the subpart which specifically applies to steel erection, Subpart R, the standard appearing at 1926.750(b)(1)(iii) sets forth specific requirements for guarding the open periphery of temporary floors:

(iii) Floor periphery—safety railing. A safety railing of ½-inch wire rope or equal shall be installed, approximately 42 inches high, around the periphery of all Temporary-planked or metal-decked floors of tier buildings and other multifloored structures during structural steel assembly. (emphasis added).

The second floor herein existed ‘during structural steel assembly,’ and consisted of temporary plywood decking. It therefore was the ‘temporary-planked’ floor to which 1926.750(b)(1)(iii) refers. A part of the second floor had been poured, making that part permanent. The question is, then whether Respondent was required by 1926.500(d)(1) to install guardrails on any part of the periphery of the second floor because a substantial part of it was a permanent floor We answered the question in the negative in The Ashton Company, Inc., No. 5111, BNA 3 OSHC 1968, CCH OSHD para. 20,351 (R.C., January 26, 1976). Therein we vacated a citation alleging a violation of 1926.500(d)(1) since 1926.750(b)(1)(iii) applied where the floor was only partially poured with concrete and since the employer had installed a wire rope around the periphery of the temporary floor before the inspection. Unlike The Ashton Company, Respondent herein had not installed a wire rope along the east side of the existing temporary floor.

Since 1926.500(d)(1) does not apply, but since Respondent did not comply with the applicable standard, two issues remain: (1) whether the noncompliance with the applicable, but not cited, standard was tried by the consent of the parties pursuant to Rule 15(b) of the Federal Rules of Civil Procedure[2] and, if so, (2) whether the citation and complaint may be amended to allege a violation of the applicable standard in spite of the fact that Complainant never moved for such relief and neither party specifically raised the applicable standard. Regarding trial by consent, to show that Respondent violated 1926.500(d)(1), Complainant established without dispute both that Respondent had failed to install a standard railing along the east side and that, as a consequence, it was entirely open. The violation was therefore tried as a failure to guard the open east side. The applicable standard, 1926.750(b)(1)(iii), requires a different form of guarding, a wire rope instead of a standard railing. Nonetheless, a violation of the applicable standard is established by the proof that Respondent failed to install any form of guarding on the east side. Therefore, although the cited standard and the applicable standard require different forms of abatement, the Complainant’s burden in establishing a violation of either standard is essentially the same in this case. The record shows, moreover, that Respondent did install a wire rope along the exterior perimeters of the second floor, which conduct is the precise form of abatement required by the applicable standard. Respondent did not contend that it guarded all open sides with wire rope in order to comply with either the cited standard or an applicable standard. Instead, Respondent argued that it was unnecessary to guard an open side which was located on the interior of a floor. Accordingly, if the applicable standard had been cited originally, Respondent could not have presented any defenses different from defenses it did present to the cited standard. From this we conclude that the parties tried the issue of Respondent’s noncompliance with the applicable standard, and that there can be no prejudice by allowing amendment of the citation and complaint to allege a violation of 1926.750(b)(1)(iii). See Kaiser Aluminum & Chemical Corp., No. 3685 BNA 3 OSHC 1162, CCH OSHD para. 20,675 (R.C., May 3, 1976), and cases cited therein.

We turn now to the question of whether amendment may be allowed where Complainant has not moved to amend and where neither party raised the applicable standard. We held in Kaiser Aluminum that Rule 15(b), by its plain terms, does permit amendment of the pleadings to conform to the evidence even though no party has moved to amend. Accordingly, we will amend the pleadings to allege a violation of 1926.750(b)(1)(iii). Nonetheless, to insure that the parties have fair notice and opportunity to respond where, as here, the Commission finds it appropriate to decide the case on a theory which the parties did not specifically advance, we will, as we did in Kaiser Aluminum, stay the effective date of our order to allow the parties a reasonable time in which to show good cause why the pleadings should not be so amended.

Respondent urges on review that no perimeter guarding violation can be found in this case because Complainant failed to establish that Respondent’s employees were exposed to a hazard from the open side. We disagree. It was undisputed that, regularly and in the normal course of carrying out their duties on upper floors, Respondent’s employees did pass through the eastern portion of the second floor on their way to the stairways at the east corners. It was further uncontroverted that Respondent’s employees were able to walk and did generally walk over reinforcing rods laid on temporary formwork. Therefore, Respondent’s employees were not prevented from walking along the open edge by the fact that the area along the edge consisted of rods placed on the formwork. In addition, the record reveals that the east stairways were located on narrow wings which protruded eastward beyond the open side. To walk directly to the stairs after passing through the eastern portion of the second floor, Respondent’s employees turned the unguarded corner where the open side met the wing, or passed close to the corner. We have heretofore held that proof that Respondent could reasonably have predicted that its employees would be in a zone of danger is sufficient to establish exposure. Gilles & Cotting, Inc., No. 504, BNA 3 OSHC 2002, CCH OSHD para. 20,448 (R.C., February 20, 1976). We conclude that access was established by the proof that Respondent’s employees could approach the open side and did walk in the immediate vicinity to use stairways as a matter of course in carrying out their work activities.

Serious Citation for violation of 29 C.F.R. 1926.752(j):[3]

Complainant alleged that Respondent violated 1926.752(j) in that Respondent failed to plank over completely or otherwise guard four unused floor openings in the northeast corner of the second floor. Judge Burchmore affirmed the citation on finding that the floor holes in question were uncovered and unguarded while they were not being used for any purpose that required that they be left open, and on finding that Respondent’s employees were exposed. Respondent contends on review that Complainant failed to prove that employees were exposed.

The record reveals that there were floor openings at, and around, the landings of the stairway at the northeast corner of the second floor. Respondent’s employees testified that they regularly used the stairway. Respondent presented no testimony showing the contrary. From this, it is apparent that Respondent’s employees not only had access to the area of the hazard, but that they did walk by or over the floor holes. Accordingly, we agree with Judge Burchmore that Respondent’s employees were exposed to the hazard in the course of their work on the site.

Employer responsibility:

Respondent contends that the two previously discussed citations and a third citation which alleges a serious violation of 29 C.F.R. 1926.501(b),[4] in that Respondent failed to install standard railings on stairways at the four corners and in the center of the building, must be vacated since Respondent was not responsible for correcting the conditions. In this regard, Respondent avers that other contractors were responsible because they either employed employees with the particular skills necessary to correct the hazards, had actually assumed the duty to correct such hazards, employed most or all of the employees actually working in the area, or employed employees who were more endangered than Respondent’s because their employees were not trained to work around hazards occurring during steel erection.

The record reveals in this regard that Respondent was one of several contractors on the site. As the contractor in charge of steel erection, Respondent employed steel erectors, welders, and stud installers, whereas the general contractor employed carpenters and concrete finishers. As a part of its duties, Respondent did install a wire rope along the exterior edges of the second floor, but not along the east edge since it was an interior side. Respondent installed all of the stairways, also as a part of its duties. The record is silent as to the identity of the contractor, whether Respondent or another contractor, who had assumed the duty to install standard railings after Respondent installed the stairways. Respondent installed a wire rope on the sides of the west stairway prior to the inspection, but did not similarly guard the other stairways. As to the open floor holes, the record shows that another contractor corrected the condition after Respondent received the citation for violation. Other contractors, including the one who corrected the condition, directed Respondent in lifting and positioning reinforcing rods on top of the floor holes on the various floors. Nonetheless, Respondent had assumed the duty to lift reinforcing rods to the floors above ground, and it is undisputed that the holes were open when Respondent lifted the rods onto them, thereby effectively preventing anyone from covering or guarding them.

We have held that a citation will be vacated where Respondent did not create the hazardous condition, did not control the abatement of it or have the expertise to abate it, and in addition, did take reasonable steps to prevent its own employees from being exposed. Grossman Steel & Aluminum Corp., No. 12775 BNA 4 OSHC 1185, CCH OSHD para. 20,691 (R.C., May 12, 1976); Anning-Johnson Company, Nos. 3694 & 4409 BNA 4 OSHC 1193, CCH OSHD para. 20,690 (R.C., May 12, 1976). In these decisions, we stated that, among other things, an employer should attempt to have the general contractor or other responsible contractor correct the condition, or instruct his employees to avoid the area where the hazard exists, or, in some instances, provide an alternative means of protection against the hazard. We held additionally that the burden is on Respondent to show the above matters in defense since, in general, an employer is responsible for the exposure of his own employees to a hazard.

Applying these considerations to the question of Respondent’s responsibility for the installation of a wire rope on the east side of the second floor, it is clear that Respondent failed to establish this defense. Since Respondent did guard the other open sides of the second floor with wire rope, there is no question that Respondent had the expertise to identify and correct the hazard presented by the remaining open side in the manner required by the applicable standard. Moreover, since Respondent’s duty was steel erection in that area, Respondent must be charged with having created the hazard. It failed to completely carry out its duty by guarding all sides with wire rope. Accordingly, we find that Respondent was responsible for the violation and, provided that the pleadings are amended to allege a violation of 1926.750(b)(1)(iii) as provided herein, we will affirm the citation as amended.

Regarding the citation alleging failure to guard or cover open floor holes in the northeast corner of the second floor, Respondent has established that another contractor assumed responsibility for the condition, and that other contractors had assumed the responsibility for positioning rods on open floor holes. Nonetheless, Respondent’s duties in the area containing the open floor holes show that Respondent’s specialty, steel erection, gave it the expertise to recognize the hazard and gave it extensive control over the area. This is so because Respondent actually had assumed the duty to lift rods onto temporary floors during steel erection and because steel erection regularly involves work in and around temporary flooring in which there can be floor holes. We held in Otis Elevator Co., No. 8468 BNA 3 OSHC 1219, CCH OSHD para. 20,693 (R.C., May 14, 1976), that the general rule is that each employer is responsible for the safety of his own employees and therefore he cannot ignore hazards of which he has special knowledge because of his expertise. Therein, we affirmed a citation for failure to install standard railings at the openings of elevator shafts because Respondent’s specialty was the installation of elevators and Respondent thereby had joint control over the area of the elevator shafts. In the case now before us, the extent of Respondent’s control of the area containing open floor holes is essentially the same as that of Otis Elevator Co. over the area of the elevator shafts. Accordingly, we find that Respondent herein was responsible for the violation. Moreover, even if Respondent had not had control of the area containing the floor holes, Respondent must be held liable for the violation on the basis of the considerations set forth in Grossman and Anning-Johnson. Respondent had the ability to recognize the hazard but did not take reasonable steps to protect employees. There is no proof that Respondent requested the responsible contractor or the general contractor to have the condition corrected or assured that its employees avoided the area, or provided an alternative protection against the hazard presented by the floor holes.

As to the matter of installing perimeter guarding on certain stairways ways pursuant to 1926.501(b), since Respondent installed the stairways, it is established that Respondent controlled the area in which the hazardous condition was located and that the condition was one of which Respondent could be expected to be particularly aware because of its expertise. This being so, Respondent had the expertise to assure that the condition was corrected. As to actually installing standard railings, Respondent failed to prove that it had not assumed this duty, since the evidentiary record is silent on this point. Moreover, assuming that Respondent did not have the duty to install standard railings, the fact that Respondent guarded one stairway with wire rope establishes that Respondent had the expertise to recognize and to provide protection against the hazard. This fact equally establishes that Respondent must be held responsible under our rule stated in Grossman and Anning-Johnson. Even if we did not find Respondent responsible because of its control of the area, Respondent is responsible because it failed to provide alternative protection such as a wire rope. Additionally, there is no showing that Respondent requested the responsible contractor to correct the condition. Respondent did not take sufficient steps to require that its employees avoid the hazard since Respondent directed its employees to use only the west stairway, but the employees regularly used other unguarded stairways.

We turn now to the assessment of appropriate penalties. Respondent is medium in size as indicated by the fact that it employs from 15–100 employees and has an annual gross income of $950,000. The record reveals no history of previous violations. Good faith is evidenced by precautions against fall hazards taken by Respondent in areas other than those cited. The gravity of the violation of 1926.750(b)(1)(iii) was low since few employees were exposed and the chance of a fall occurring was slight. Similarly, the gravity of the violation of 1926.752(j) was low in that the record shows only that a few employees were exposed and that the reinforcement rods over the floor holes minimized the chance of a fall occurring. The gravity of the violation of 1926.501(b) is low to moderate since employees used the stairs to reach the upper floors of the building and all but one lacked any perimeter protection. Accordingly, we conclude that penalties of $100, $100, and $300 should be assessed, as were recommended by Judge Burchmore.

Accordingly, the citations alleging violations of 1926.752(j) and 1926.501(b) are affirmed, and the corresponding penalties are assessed. The citation originally alleging a violation of 1926.500(d)(1) is amended to allege a violation of 1926.750(b)(1)(iii), the citation is affirmed as amended, and the corresponding penalty is assessed, unless within twenty (20) days from receipt of this decision either party shows good cause why the pleadings should not be so amended. The judge’s report is adopted to the extent that it is consistent herewith. It is so ORDERED.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATE: AUG 17, 1976

CLEARY, Commissioner, CONCURRING:

Although I agree with the disposition of the items at issue in this case, I dissociate myself from that portion of my colleague’s opinion which concludes that the gravity of the § 1926.750(b)(1)(iii) violation is low because few employees were exposed to the unguarded perimeter. I disagree with this conclusion insofar as it derives support from that of Judge Burchmore regarding an appropriate penalty.

Judge Burchmore limited his consideration of employee exposure to the hazard to respondent’s employees. He specifically excluded other employees from consideration although it was clear that employees of the general contractor were exposed to the unguarded perimeter.

As my colleague observes, respondent is charged with creating the hazard. Although it ‘had the expertise to identify and correct the hazard presented by the remaining open side in the manner required by the applicable standard,’ respondent neglected to rectify the condition. With this measure of control over the hazardous condition respondent is responsible for the hazards posed to other employees on the site as well as to its own employees. Consequently, it was error to ignore the exposure of the general contractor’s employees in assessing an appropriate penalty.

In Anning-Johnson Co., 4 BNA OSHC 1193, 1975–76 CCH OSHD para. 20,690 (Nos. 3694 & 4409, May 12, 1976) and Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185, 1975–76 CCH OSHD para. 20,691 (No. 12775, May 12, 1976), a divided Commission held that it would follow the opinion of the U. S. Court of Appeals for the Second Circuit in Brennan v. O.S.H.R.C. & Underhill Constr. Corp., 513 F.2d 1032 (2d Cir. 1975). Specifically, we stated that an employer who creates or has control over a hazard will be held responsible for the dangers posed to either his employees or to employees of another employer engaged in a common undertaking. Inasmuch as this respondent created and had control over the unguarded perimeter, it was responsible for hazards posed to employees of other employers present at the common jobsite. Under such circumstances it follows that, in assessing an appropriate penalty for respondent’s failure to guard the perimeter, the exposure of the general contractor’s employees as well as that of respondent’s employees should be considered.

However, I concur in assessing a $100 penalty for the § 1926.750(b)(1)(iii) item. Respondent evinced good faith by taking precautions against fall hazards in other locations. As to the unguarded east perimeter, respondent had an honest but mistaken belief that guarding was unnecessary. This fact, when considered in conjunction with the facts that respondent is of moderate size and has no history of previous violations, leads me to conclude that a $100 penalty is appropriate although the gravity of the violation is higher than my colleague and the Judge suggest.

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I agree with the majority’s disposition of this case only insofar as they affirm a citation for noncompliance with the occupational safety standard codified at 29 C.F.R. § 1926.501(b).

The citation originally charging respondent with a violation of 29 C.F.R. § 1926.500(d)(1) should be vacated because complainant has failed to establish by a preponderance of the evidence that any or respondent’s employees were actually exposed to the alleged hazard. In Secretary v. Gilles & Cotting, Inc., OSAHRC Docket No. 504, February 20, 1976,[5] I expressed in some length my reasons for disagreeing with the adoption of a rule that an employer could be held liable under the Act on a mere showing that the employer’s employees might have access to a zone of danger created by a safety violation. For the reasons stated in that opinion, it is my view that complainant must prove actual exposure of a cited employer’s employees to establish a violation of the Act.

In this case, although the evidence establishes that respondent’s employees did in fact traverse the eastern portion of the second floor, there is no evidence to indicate how close they came to the unguarded edge. The rather cavalier conclusion of my colleagues that the employees passed ‘close’ to the edge is mere speculation not substantiated by the record and which is contrary to Judge Burchmore’s finding that ‘the evidence does not show that [respondent’s employees] passed near the edge of the open side.’ Since the Commission cannot decide cases based on mere speculation and conjecture,[6] 6the citation should be vacated.

Additionally, I disagree with my colleagues’ sua sponte amendment of this charge from § 1926.500(d)(1) to § 1926.750(b)(1)(iii). In Secretary v. Warnel Corporation, OSAHRC Docket No. 4537, March 31, 1976 (dissenting opinion), I pointed out that a citation is a unique creature of statute to which specific statutory requirements of particularity have been attached in 29 U.S.C. § 658(a).[7] Contrary to the assertion of Messrs. Barnako and Cleary, it is not a civil pleading to which Rule 15 of the Federal Rules of Civil Procedure applies. The reason for the particularity requirement of a citation is that it is from the citation that an employer must decide, within fifteen working days from the issuance thereof, whether or not to contest a charge. If the employer fails to so contest, the citation and proposed penalty become a final order of the Commission. 29 U.S.C. § 659(a). Accordingly, it is blatantly unjust to require an employer to decide whether or not to spend the time and money necessary to contest a charge when he cannot even be certain that the charge for which he was originally cited will be the one he will ultimately have to defend against. It follows, a fortiori, that the unjustness of such a procedure is compounded further when the citation is amended sua sponte after the hearing, as is the case here.

Messrs. Barnako and Cleary, exhibiting a slight recognition of the inherent unfairness of their decision, have decided to affirm the charge as amended ‘unless within twenty (20) days from receipt of the decision either party shows good cause why the pleadings should not be amended.’ This meager attempt to rectify an already bad decision only makes it worse. The respondent was cited for these alleged violations nearly three years ago and has already spent a great deal of time and money trying to receive a fair and final adjudication of the charges. Nevertheless, because complainant cited respondent under the wrong standard, my colleagues would have respondent spend still more time and money in order to obtain the fair and final adjudication to which it is entitled.

Although I agree that the citation charging respondent with a violation of 29 C.F.R. § 1926.501(b) should be affirmed, I do so because respondent created the violative condition and its employees were exposed thereto. I completely disassociate myself from all discussion pertaining to the decisions in Secretary v. Grossman Steel & Aluminum Corporation, OSAHRC Docket No. 12775, May 12, 1976, Secretary v. Anning-Johnson Company, OSAHRC Docket Nos. 3694 & 4409, May 12, 1976, and Secretary v. Otis Elevator Company, OSAHRC Docket No. 8468, May 14, 1976. As I pointed out in my separate opinions, those decisions by Messrs. Barnako and Cleary are veritable monuments to the art of bureaucratic obfuscation and add nothing but confusion and overlapping liability to the supposedly orderly and judicious enforcement of the Act. Furthermore, the instant case is a graphic illustration of my prediction in the Grossman Steel decision that:

‘There is no assurance that in the future my colleagues will not improvise other requirements and apply them retroactively to cases at hand . . .’

In the instant case, the lead opinion correctly states that ‘another contractor assumed responsibility for the condition’ alleged in the § 1926.752(j) charge. As Judge Burchmore properly found, respondent’s employees had been ‘instructed to use the stairs on the west side of the building at some distance from the holes.’ In the Grossman Steel decision, my colleagues indicated that they would absolve an employer from liability if he were not responsible for an alleged hazardous condition and had ‘instruct[ed] its employees to avoid the area where the hazard exists.’ Apparently, Messrs. Cleary and Barnako have now decided to disregard that rule in order to hold this employer liable.

I would vacate the citation for noncompliance with 29 C.F.R. § 1926.752(j) because complainant has failed to establish that respondent was responsible for the violation alleged therein. See Secretary v. Hayden Electric Services, Inc., OSAHRC Docket No. 4034, July 28, 1976 (dissenting opinion).

In view of the repeated references in this decision to Judge Burchmore’s findings, his decision is attached hereto as Appendix A in order that his views may be fully known.

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 5221
PIMA CONSTRUCTION COMPANY
Respondent.

FINAL ORDER DATE: July 3, 1974

DECISION AND ORDER

Theresa Kalinski and John M. Orben for the Secretary of Labor.

William H. Boettcher and G. Mark Cord for the respondent.

BURCHMORE, Judge:

By citations issued September 27, 1973, the Secretary of Labor charges that respondent on September 18, 1973, committed five serious violations and four non-serious violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq (The Act), in that respondent failed to comply with specified sections of the Safety and Health Regulations for Construction, 29 C.F.R. 1926. A penalty of $700 was proposed for each of the alleged serious violations, and penalties of $40 and $175 were proposed for items one and three of the non-serious citation, respectively; the total of the proposed penalties is $3715.

Timely notice of contest was filed and the proceeding was assigned to the undersigned judge for hearing and decision. Hearing was held at Tucson, Ariz., on April 3, 1974. Opportunity was afforded for the filing of briefs on or before May 6, 1974, and a timely brief was received from respondent. However, the brief on behalf of the Secretary was not mailed until May 7th, although no request was made nor cause shown for an extension of time. The rules of the Commission require that requests for extension of time be made in advance of the due date, 29 C.F.R. 2200.5, and I conclude that, under the circumstances, the Secretary’s brief is untimely and should not be received. It is therefor rejected, and the case will be decided upon the record without prejudice.

The parties stipulated that, on September 18, 1973, the inspection date, respondent had employees working on the construction of the Pima County Courthouse building in Tucson, Ariz., that respondent’s employees regularly handle and work on goods, supplies and materials which originated and were manufactured outside the state of Arizona, and that respondent maintains labor agreements with various national labor organizations. Respondent is clearly an employer engaged in a business affecting commerce within the meaning of the Act.

At the conclusion of the Secretary’s presentation of evidence, respondent moved to dismiss the citations on the grounds that the Secretary had failed to prove a case. This motion was taken under advisement because a disposition of it could not be made without analysis and evaluation of the evidence. Accordingly, respondent proceeded to present its defense and both sides rested before the hearing ended. Upon full consideration of the motion it is hereby denied.

On brief respondent requests reconsideration of the granting of a motion by complainant to amend the complaint by changing the designation of the cited regulation from subparagraph (g) to subparagraph (j) of 29 C.F.R. 1926.752. While the change is unquestionably a material one, the citing of subparagraph (g) was plainly a mere typographical error inasmuch as the correct subparagraph (j) was cited in the citation. Moreover, the allegations of fact in the complaint correctly pertain to (j) and it cannot be doubted that respondent had notice from the citation and the complaint as to what was intended to be charged. The issue was fully tried and respondent did not request more time to prepare or present additional evidence, although opportunity to do so was given. The ruling is therefor reaffirmed.

Coming now to the merits of the various citations, the evidence shows that on the inspection date respondent was engaged in work at the construction site as steel erection subcontractor. Respondent had foremen on the job, with crews of steel erectors, welders and stud installers. There was no history of any previous violations by this employer, and its size is indicated by the fact that it employs between 15 and 100 employees and does an annual volume of business in the amount of $950,000.

Serious Citation No. 1

The first citation alleges violation of the regulation contained in 29 C.F.R. 1926.500(d)(1), which requires that every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing. The complainant introduced photographs (Exh. 1, 2, 3) showing that at the second floor level of the building under construction there was no railing at all along the east side; the photographs also show employees of respondent passing through the area on their way to work stations elsewhere on the structure. The question presented is whether the condition portrayed constitutes a real violation of the substance of the regulation, properly construed.

The evidence shows two significant circumstances pertaining to the involved second floor level. First, the structure at that level consisted of a wood form for a permanent concrete floor; concrete had actually been poured over part of the area, while another part was overlaid with rebar and awaited the pouring of concrete; there were also small areas where the form itself was incomplete. Second, even when the pictured forms were finished and even after the pouring of concrete on the entire area, the second floor of the building would not then be complete because only a portion of the building had been erected; additional bays remained to be erected to the east of the portion here involved. This would necessarily entail further adjacent steel erection and the extending of the floor forms thereon. Actually, if a railing were erected on the east side of the structure shown in the pictures, the subsequent progress of construction would require its removal to proceed, failing which the railing might constitute a hazardous barrier to the necessary passage of men and materials.

Respondent contends that under the circumstances fairness requires a holding that the regulation was inapplicable. It argues that the existence of an open sided floor or platform form cannot reasonably be avoided in the process of completing this type of construction. Otherwise, it queries: Where and at what point in time must the railing be erected? Respondent also points to the fact that most of the people working in the considered area were carpenters, employees of the general contractor, whereas respondent’s employees only passed through the area and actually performed steel erection work in connection with which no railing was physically possible.

In my opinion the regulation was clearly applicable even though it cannot be disputed that a railing along the unfinished, east side of the structure would eventually have to be removed as the work progressed. ‘Platform’ is defined in section 502(e) 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.’ It is plain from this that the phrase ‘Floor or platform’ embraces the kind of surface involved in the forms here under consideration. And the clear intent of the regulation is to require a railing as soon as the forms are so far completed as to constitute a working space for persons, which was the case here. Even though, as the record shows, such railing could remain in place for only a few days, or until the adjacent steel erection was in place, the regulation required that it be installed and maintained until such time as the further progress of the work required its removal. The purpose of the Act, and of the regulations, is to provide a safe working place and to prevent accidents; that purpose is definitely promoted by requiring the employer to erect a railing along the east side of the considered structure for the period of time during which it actually constituted an open sided floor or platform.

While it is clear that the regulation was violated in this case, it is also clear from the evidence that the exposure of the employees of this respondent was slight. There is testimony that they passed through the second floor level, but the evidence does not show that they passed near the edge of the open side. So far as they were concerned, it appears that the violation was more technical than substantial. Accordingly, I conclude that the gravity of the violation was slight and I find that, considering all of the statutory criteria for the assessment of penalties, a penalty of $100 is appropriate in this case.

Serious Citation No. 2

Exhibits 4, 5 and 6 are photographs portraying open holes in the concrete forms at the second floor level, and complainant charged respondent with violation of section 752(j), which provides, under the heading ‘Steel Erection’:

(j) All unused openings in floors, temporary or permanent, shall be completely planked over or guarded in accordance with subpart M of this part.

The evidence shows that the considered openings had actually been used to bring up rebar through them, but they were not being so used at the time of the inspection and they were neither covered nor protected by the railing which subpart M allows. It must therefor be concluded that a violation occurred as charged and the citation should be affirmed. Here again, however, the evidence also shows that most of the employees in the area were employees of the general contractor, for whom this respondent has no responsibility under this Act. There was very little exposure of respondent’s employees. They did not work in the area and they were instructed to use the stairs on the west side of the building at some distance from the holes. In view of the limited exposure, it is my opinion that the gravity of this violation was slight. Considering that fact, together with the size, history and good faith of the employer, I find that a penalty of $100 is appropriate.

Serious Citation No. 3

The complainant charges violation of section 501(b) which requires railings on stairways. Photographic Exhibits No. 7–10, inclusive, clearly depict several steel stairs with no guardrails or railings. The evidence shows that they were actually used by respondent’s employees. Here the exposure is substantial as there was no elevator on the structure and the employees were required to use the stairs to get to their work stations.

Respondent on brief suggests that the proof does not show that the stairways were complete and in place, that the proof is ambiguous as to whether respondent’s employees were using the stairways on all four corners of the building, and that the center stairway reached only to the second floor level. This argument is overcome by the evidence of the photographs, which show the stairs in place, with no railings and with no guardrail to deter anyone from using them, and by the testimony of the inspecting officer that respondent’s employees used the stairs. It matters not whether the employees used all of the stairs; their exposure to the hazard results from using one stair; manifestly it would be impossible for a man to use more than one stair at a time. The citation should be affirmed, but in my opinion a penalty of $700 is not warranted for a first offense of this kind. Considering the statutory criteria I find that a penalty of $300 is appropriate.

Serious Citation No. 4

Section 750(a)(2) provides as to steel erection that:

(2) At no time shall there be more than four floors or 48 feet of unfinished bolting or welding above the foundation or uppermost permanently secured floor.

In complainant’s Exhibit 11, there is shown a column splice about five feet above ground level that is not welded, and the inspecting officer testified that there were none levels of steel above it. Exhibit 12 shows a welder working on a column splice and shows five levels of steel above his position. Another photograph, Exhibit 13, shows a temporary attachment of columns five feet above the third floor level. Finally, Exhibits 14 and 15 portray unwelded column and beam attachments at level three. On the basis of this evidence, the complainant charges serious violation of the cited regulation.

Respondent contends that the procedure which it followed was necessary to align the columns and true up the structure prior to finished welding. However, respondent’s iron worker general foreman testified that ‘The welding procedure called for us to go two floors above the column splices and weld a moment connection, then drop down—.’ All of the evidence confirms that description of the situation, namely that at least two floors of steel above the finished welds were required; nowhere did respondent show any necessity for exceeding the limit of four floors provided by the regulation. The inescapable conclusion from the record is that respondent fell behind in its finished welding as the steel was erected, and that the regulatory limits of unfinished attachment were exceeded. While it is true that the columns were bolted as the structure went up, the bolting did not constitute a finished attachment and the regulation calls for a permanent secured floor with not more than four floors of unfinished bolting or welding above. In this case, the Secretary amended the original citation to extend the abatement date in order to afford time for respondent to bring the welding up to requirement. Abatement was completed without waiting for this proceeding to be concluded.

This citation goes to the heart of respondent’s work as a steel erector and occurred in the area of its primary responsibility to its employees. The violation is a serious one in that serious injury could probably result in the event of a structural failure caused by the condition complained of. I conclude that the citation should be affirmed and that the proposed penalty of $700 is appropriate.

Serious Citation No. 5

The complaint alleges a violation of 29 C.F.R. 1926.750(b)(2), which provides as follows:

(2) Where erection is being done by means of a crane operating on the ground, a tight and substantial floor shall be maintained within two stories or 25 feet, whichever is less, below and directly under that portion of each tier of beams on which bolting, riveting, welding, or painting is being done.

In this case the evidence shows that the erection was done by means of a crane operating on the ground. The Secretary introduced two photographs (Exh. 16 and 17) which showed employees of respondent working at level four and there being no tight floor within 25 feet thereunder. However, the evidence also shows that the men were not engaged in bolting or riveting or welding or painting; actually they were moving material and handling lines before and after a welding procedure.

Respondent contends that the regulation was not violated since the specified work was not being done. A literal reading of the regulation supports that position. Moreover, if the Secretary had intended to provide in the regulation for tight floors beneath work of any and all kinds, it would have been quite simple to have said so; we have no explanation for the specific description of those operations beneath which a floor is required. In the absence of any clear basis for interpreting the regulation otherwise, there is no alternative to taking the words used in their ordinary, every day meaning. Accordingly, since no bolting, riveting, welding or painting was being done, I conclude that the regulation did not apply. The citation must therefor be vacated.

Non-serious Citation No. 6

Item 1. It is provided in section 451(a)(18) that no welding shall be performed on any staging suspended by means of fiber or synthetic rope. Secretary’s Exhibit 18 shows one of respondent’s employees welding on a staging which the parties stipulated to have been suspended by fiber rope. Respondent concedes on brief that a violation occurred and the citation should therefor be affirmed. I find that the proposed penalty of $40 is appropriate.

Item 2. The violation alleged is of 29 C.F.R. 550 which requires that ‘An accessible fire extinguisher of 5BC rating, or higher, shall be available at all operator stations or cabs of equipment.’ The inspecting officer testified that there was no extinguisher in the cab of the crane being operated by respondent. Respondent’s foreman testified that there was an extinguisher within 50 feet of the crane and respondent contends that this was ‘accessible’ within the meaning of the regulation. However, the regulation is more specific and requires that the extinguisher be accessible ‘at all operator stations or cabs’; in my opinion that means the extinguisher must be right at the station or cab, not 50 feet away. The citation should therefor be affirmed. In view of the low gravity of the matter, I find that the proposed zero penalty is appropriate.

Item 3. The inspecting officer found a loose cotter pin that was ready to fall out of the pin supporting the load carrying hook of the respondent’s crane. The Secretary therefor charged that the cotter pin was ‘improperly applied’ in violation of 29 C.F.R. 1926.550(b). Respondent does not deny the unsafe condition of the pin, but argues that the evidence has nothing to do with the manner in which the pin was ‘applied’; rather that the pin was properly applied but subsequently became loose as the result of some unknown event such as the pin striking another object and knocking it loose. Since the Secretary did not cite a regulation requiring the safe maintenance of the pin or equipment, and because there was no evidence that the pin was originally applied in an improper manner, the item must be vacated.

Item 4. The inspecting officer requested to see the records of daily and monthly inspection of the crane being used by respondent, but no records were available at the worksite, contrary to section 550(b)(2). Within an hour respondent had a daily report of inspection made out in writing, and available, but the monthly reports were kept at its Phoenix office and were not made available at the worksite until some later date. The regulation was not, therefor, complied with and the citation must be affirmed. However, the Secretary proposed zero penalty for the violation and in view of the very low gravity of the offense, I find the assessment of no penalty to be appropriate.

It is ORDERED that all citations, as amended, except for citation No. 5 and item 3 of citation No. 6, be and the same are hereby affirmed, that citation No. 5 and item 3 of citation No. 6 be and the same are hereby vacated, that penalties be and the same are hereby assessed in the amounts of $100 each for citations No. 1 and 2, $300 for citation No. 3, $700 for citation No. 4 and $40 for item 1 of citation No. 6; it is further ORDERED that this proceeding be and the same is hereby discontinued.

Robert N. Burchmore

Judge OSAHRC

June 3, 1974

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[1] The standard states:

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.

[2] Pursuant to 29 C.F.R. 2200.2(b), this rule applies in the absence of a specific Commission rule. In pertinent part, Rule 15(b) provides as follows:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. . . .

[3] The standard states:

All unused openings in floors, temporary or permanent, shall be completely planked over or guarded in accordance with Subpart M of this part.

[4] The standard states:

Stairway railings and guardrails shall meet the requirements of § 1926.500(e) and (f).

[5] See also my dissenting opinion in Secretary v. Harold Christiansen and Harold W. Christiansen, d/b/a Palmer Christiansen Company, OSAHRC Docket No. 3108, March 18, 1976.

[6] Secretary v. Fort Worth Enterprises, Inc., 10 OSAHRC 280 (1974).

[7] That section provides in pertinent part that:

Each citation . . . shall describe with particularity the nature of the violation, including a reference to the provision of the . . . standard . . . alleged in have been violated. (Emphasis added.)