UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 15350 |
|
REXCO
INDUSTRIES, INC., |
|
|
Respondent. |
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April 14, 1980
DECISION
BEFORE CLEARY, Chairman; BARNAKO and COTTINE,
Commissioners.
BY THE COMMISSION:
A decision of Administrative Law Judge Paul L. Brady is
before the Commission for review under section 12(j)[1] of the Occupational Safety
and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). In his decision
Judge Brady vacated a citation issued by the Secretary of Labor (‘the
Secretary’). This citation alleged that Respondent, Rexco Industries, Inc.,
violated the construction standard published at 29 C.F.R. § 1926.500(d)(1)[2] by failing to guard an
open-sided platform adjacent to the fourth floor of a hospital under
construction in Yauco, Puerto Rico. For the reasons that follow, we affirm the
decision of the judge.
Respondent served as the general contractor for the
building of a hospital. In the course of construction, a scaffold system was
erected.[3] The scaffold system, which
amounted to an auxiliary structure attached to the building, consisted of three
parallel rows of interlocking metal shoring extending from the ground to the
sixth floor level. The first row of shoring was placed flush against the
building. There was a 10-foot gap both between the first and second rows of
shoring and between the second and third rows. Two levels of the scaffold
system, at the fourth and sixth floors, were planked.[4]
Compliance Officer Rabames Santisteban of the
Occupational Safety and Health Administration testified that during his
inspection of Respondent’s worksite the fourth floor surface of the scaffold
system was missing part of its lengthwise planking, making the surface
L-shaped. At the base of the ‘L’, the planking, which extended from the edge of
the building to beyond the second row of shoring, was 18 feet wide. The
planking that was placed against the edge of the building was only 8 feet wide.
There was, therefore, an 8-foot gap between the edge of the planking and the
next row of metal supports. Santisteban testified that the fourth floor surface
of the scaffold system was unguarded and that the shorings of the scaffold did not
provide protection because they were too far from the edge of the planking to
prevent an employee from falling. The compliance officer stated that entry to
the fourth floor surface was through a 4-foot-wide wall opening. He also stated
that the opening was not blocked by a barrier, railing, or any other
obstruction.
During his inspection, Santisteban observed an employee,
Rafael Sepulveda, go onto the fourth floor planked surface to a point near its
edge in order to obtain a piece of wood. Aside from this incident, Santisteban
did not observe any work being performed on the fourth floor surface.
As a witness for the Secretary, Sepulveda admitted that
he was Respondent’s employee. He testified further that at the time of the
inspection he was assisting a carpenter on the fifth floor and that he was
instructed to obtain a piece of wood to close a hole in a wall on the fifth
floor. He was not instructed where to get the wood. Although he knew that a
warehouse containing wood was located 75 to 100 feet from the building, he had
never gone there for supplies and he did not know what procedure to follow to
get wood from the warehouse. Sepulveda indicated that there were no employees
working on the fourth floor planked surface and that he had received no instructions
concerning the surface. He stated that he never went on the fourth floor
planking either before or after this particular incident.
Sepulveda confirmed the compliance officer’s testimony
that the planked surface was unguarded. He stated that there were no barriers
preventing access to the surface, which was about one foot below the wall
opening. He admitted that he walked six to eight feet into the planking in
order to get the piece of wood. There were several pieces of wood on the
planked surface; this wood was not part of the surface but was lying on top of
it.
Roberto Raffucci, Respondent’s safety engineer, testified
that walking on the planked surface was difficult because one would have to
curve around the metal supports and jump over other obstacles. Both Raffucci
and Juan Albelo, Respondent’s vice-president of safety and claims, stated that
the employees were instructed to obtain wood from the warehouse. Albelo, who
did not accompany the compliance officer during the inspection but who examined
the planked surface on the following day, testified that the surface presented
no risk because the area was not a working platform; the worker had no reason
to go on the planked surface; and obstacles blocked entry to the surface.[5]
Judge Brady, finding that Respondent’s employees were not
assigned duties on the cited planked surface, vacated the citation on the basis
that the fourth floor ‘platform’ was not a ‘working space for persons’ within
the meaning of that term as used in the standard at 29 C.F.R. § 1926.502(e).[6] Hence, he concluded that
Respondent did not violate the terms of section 1926.500(d)(1) since that
standard does not apply to the fourth floor planked surface cited by the
Secretary. The judge further found that there was no evidence of employer
knowledge of the employee’s presence on the fourth floor planking. He concluded
that an employer is not liable for a totally independent act of an employee,
for to do so would make the employer strictly liable.
On review, the Secretary takes exception to that portion
of the judge’s decision and order wherein the judge vacated the citation for a
serious violation of 29 C.F.R. § 1926.500(d)(1) and the proposed penalty.
Although the Secretary filed no brief on review, the Secretary maintains in his
petition for discretionary review that the judge erred in concluding that the
‘platform’ was not a ‘working space for persons’ within the meaning of 29
C.F.R. § 1926.502(e).[7] Respondent filed no brief
on review.
We agree with Judge Brady that the evidence is insufficient
to establish that the cited planked surface was a ‘working space for persons’
within the meaning of 29 C.F.R. § 1926.502(e). In General Electric
Company v. OSHRC, 583 F.2d 61 (2d Cir. 1978), the Second Circuit construed
the term ‘platform’ as defined in the standard at 29 C.F.R. § 1910.21(a)(4).[8] Section 1910.21(a)(4)
provides the general industry standard definition of the term ‘platform’ for
the application of the general industry requirements for standard railings. The
wording of section 1910.21(a)(4) is identical to section 1926.502(e). As such,
section 1910.21(a)(4) is the general industry equivalent of the construction
industry standard at section 1926.502(e). In General Electric, the
Second Circuit concluded as follows:
We do not read
this definition [of ‘platform’] to apply to every flat surface . . . upon which
employees may some day stand while performing some task related to their
employment and the operations of their employer. An elevated flat surface does
not automatically become a ‘working surface’ and a ‘platform’ merely because
employees occasionally set foot on it while working.
583 F.2d at 64.
We find the reasoning of the Second Circuit particularly
applicable to the facts in this case. There is no evidence on the record here
that any employees were assigned to do work on the fourth floor planked
surface. There is no evidence that Respondent’s employees were working on the
fourth floor. The single employee who went onto the surface was assisting a
carpenter who was working on another floor. There is no evidence that
Respondent knew or could have anticipated that this employee might go onto the
fourth floor planking to get wood. The employee knew that there was a warehouse
on the jobsite where the wood could be obtained. Further, aside from this one
instance, there is no evidence that any of Respondent’s employees ever went
onto the fourth floor planked surface. The evidence, therefore, is insufficient
to establish that the fourth floor planked surface in this case was a ‘working
space for persons’ within the meaning of section 1926.502(e). Hence, the
standard at 29 C.F.R. § 1926.500(d)(1) is inapplicable to the cited
conditions. We therefore conclude that Respondent did not violate the Act by
failing to comply with the standard at section 1926.500(d)(1).
Accordingly, it is
ORDERED that the judge’s vacating of the citation is affirmed.
FOR THE COMMISSION:
RAY H. DARLING, JR.
EXECUTIVE SECRETARY
DATED: APR 14, 1980
COTTINE, Commissioner,
dissenting:
The majority’s disposition of this case is based on a
discussion that confuses the definition of ‘platform’ set forth at § 1910.21
with employer knowledge of a violation and employee access to a hazard. Their
analysis also fails to distinguish or even discuss relevant Commission
precedent on these issues.
The Respondent was the general contractor for the
construction of a hospital. My colleagues correctly emphasize that the scaffold
system in issue was so large that it ‘amounted to an auxiliary structure
attached to the building . . ..’ There was access to the fourth floor planked
surface of the scaffold through a 4-foot-wide wall opening and this planked
surface was totally unguarded.
The Commission has consistently held that an employer has
a duty under the Act to anticipate the hazards to which its employees may be
exposed and to take the steps necessary to prevent such exposure. Southwestern
Bell Telephone Co., 79 OSAHRC 4/G4, 7 BNA OSHC 1058, 1979 CCH OSHD ¶ 23,278
(No. 15841, 1979); Automatic Sprinkler Corp. of America, ___ OSAHRC ___,
7 BNA OSHC 1957, 1979 CCH OSHD ¶ 24,077 (No. 76–5271), 1979). See Acchione
& Canuso, Inc., ___ OSAHRC ___, 7 BNA OSHC 2128, 1980 CCH OSHD ¶ 24,174
(No. 16180, 1980).
In view of the obviousness of the hazard posed by this
large, unguarded structure and the Respondent’s responsibility as the general
contractor for the safety of all employees throughout the worksite, it is
reasonable to expect the Respondent to have taken steps to prevent or abate the
cited hazard. Marshall v. Knutson Constr. Co., 566 F.2d 596 (8th Cir.
1977). It is also noteworthy that had the Respondent fulfilled its duty to
inspect the worksite in order to anticipate hazards, prevention of the cited
hazard could easily have been accomplished by either blocking the wall opening
or clearly informing employees to avoid the planked structure.
Although the Secretary need not prove actual employee
exposure to a hazard, Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC
2048, 1978 CCH OSHD ¶ 23, 135 (No. 16057, 1978),[***] the record clearly
establishes the actual exposure of one employee to the cited hazard. My
colleagues avoid discussion of this issue by referring to the fact that at the
time of the inspection employees were not assigned to the fourth floor,
disregarding the facts that an employee was actually observed on the planking
and that the Respondent admitted that it had no workrule forbidding this
employee conduct.
Finally, my colleagues conclude that the planking did not
constitute a ‘working space for persons.’ They find the reasoning of the U.S.
Court of Appeals for the Second Circuit in General Electric Co. v. OSHRC,
583 F.2d 61 (2d Cir. 1978), ‘particularly applicable to the facts in this
case.’ The majority fails to clarify for the parties, the Commission’s judges,
and the public whether a Commission majority now adheres to the holding of that
court which reversed a unanimous Commission decision. General Electric
Company, Inc., 77 OSAHRC 88/A2, 5 BNA OSHC 1448, 1977–78 CCH OSHD ¶ 21,853
(No. 11344, 1977). (Moran and Cleary; Barnako concurring). The Commission was
established to achieve uniformity in occupational safety and health
adjudications. Accordingly, the Commission adheres to the principle that an
administrative agency charged with the duty of formulating uniform national
policy is not bound to acquiesce in the views of U.S. courts of appeals that
conflict with those of the agency. S & H Riggers & Erectors, Inc.,
79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD ¶23,480 (No. 15855, 1979), appeal
filed, No. 79–2358 (5th Cir. June 7, 1979). Thus, I would follow Commission
cases generally holding that a platform on which employees are actually
performing work constitutes a working space for persons. California
Rotogravure Co., 75 OSAHRC 31/A2, 2 BNA OSHC 1515, 1974–75 CCH OSHD ¶ 19,
240 (No. 668, 1975), petition denied, No. 75–1743 (9th Cir. Jan. 25,
1977); Weyerhaeuser Co., 77 OSAHRC 9/A2, 4 BNA OSHC 1972, 1976–77 CCH
OSHD ¶ 21, 465 (Nos. 1231 & 1758, 1977), remanded on other grounds,
No. 77–1611, (9th Cir. Jan.3, 1980); General Electric Co., Inc., 75
OSAHRC 50/A2, 3 BNA OSHC 1031, 1974–75 CCH OSHD ¶ 19, 567 (No. 2739, 1975), rev’d
on other grounds, 540 F.2d 67 (2d Cir. 1976); General Electric Co., Inc.,
supra, 5 BNA OSHC at 1450 n.3, 1452, 1977–78 CCH OSHD at p. 26,320 n.3, 26,322.
I would affirm the violation because the structure was
properly cited under § 1926.500(d)(1), the employer could have detected
and prevented the hazard, and an employee was exposed to the danger of falling
from the platform to the ground four floors below.
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 15350 |
|
REXCO
INDUSTRIES, INC., |
|
|
Respondent. |
|
July 14, 1976
DECISION
AND ORDER
APPEARANCES:
Luis A. Micheli
and Edwin Tyler, Esquires, Office of the Solicitor, Santurce, Puerto Rico, on
behalf of complainant.
Anital Irizarry
and Earle Blizzard, Esquires, San Juan, Puerto, on behalf of respondent.
STATEMENT
OF THE CASE
BRADY, Judge:
This proceeding is brought pursuant to section 10(c) of
the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq., 84
Stat. 1590 (hereinafter referred to as the Act) to contest a citation issued by
the Secretary of Labor (hereinafter referred to as the Secretary) pursuant to
section 9(a) of the Act. The citation, which was issued September 19, 1975,
alleges that as a result of an inspection of respondent’s workplace located at
Ext. 25 de Julio Street, Yauco, Puerto Rico, respondent violated section
5(a)(2) of the Act by failing to comply with an occupational safety and health
standard promulgated by the Secretary pursuant to section 6 thereof. A notice
of proposed penalty was issued with the citation.
The hearing was held March 4, 1976, at Hato Rey, Puerto
Rico, and no additional parties sought to intervene.
The facts are not in dispute that on August 18, 1975, the
respondent was engaged in construction work as a general contractor in the
construction of a hospital building at the aforementioned construction site. In
the course of construction, a scaffold system supporting two platforms was
erected on the east side, north wing. One platform was on the fourth floor
level which served as support for another platform located on the sixth floor
level. The platform on the sixth floor level was completely planked, while the
platform on the fourth level contained sections which were not covered and were
not a work area.
The citation alleges that respondent violated the
standard at 29 C.F.R. § 1926.500(d)(1). The
regulation states in pertinent part as follows:
(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. . .
It is alleged in the complaint that respondent violated the
standard as follows:
On or about August
18, 1975, respondent violated the Safety Standard set forth at 29 C.F.R.
1926.500(d)(1) in that it failed to guard by a standard railing, or the
equivalent, as specified in 29 C.F.R. 1926.500(f), an open-sided platform,
which was 6 feet or more above adjacent floor or ground level, located at the
fourth floor, north wing of its construction project, thereby exposing its
employees to a falling hazard.
Mr. Rabames Santisteban, compliance officer, testified
that he conducted the inspection of August 18, 1975. He revealed that in the
course of the inspection he observed respondent’s employee standing on the
open-sided platform on the fourth level as depicted in complainant’s Exhibit
C–2. He stated that Mr. Rafael Sepulveda walked to the edge of the platform on
the fourth level to obtain a piece of wood and return (Tr. 27, 28). The
platform, which did not have guardrails, extended approximately eight feet from
the structure (Tr. 17, 21, 22, 71). He contended that the employee on the
unguarded open-sided platform was exposed to a hazardous condition (Tr. 78).
Mr. Rafael Sepulveda testified that he was the employee
depicted in Exhibit C–2. He indicated that at the time of the inspection he was
employed as a carpenter helper at the worksite. He stated that he was in the
process of helping a carpenter close wall openings on the fifth floor. At the
time of the inspection, he was on the fourth level to obtain a piece of panel
(Tr. 86, 89). He was asked to obtain a panel by the carpenter, although he was
not directed to a specific location (Tr. 90). He indicated that he knew there
was a warehouse which contained the wood for the purpose of closing the
openings. However, he did not go there, as he saw the paneling on the fourth
level platform (Tr. 92, 93).
He stated that he was not instructed to obtain wood
paneling from the warehouse, nor was he instructed to obtain wood from the
platform. He was simply told to obtain the particular wood (Tr. 98).
There was no barrier between the building and the
platform. However, the platform was about one foot lower than the doorway (Tr.
94, 95).
Mr. Roberto Raffucci, safety engineer for respondent at
the time of the inspection, testified that the fourth floor level was an
auxiliary structure to support the sixth floor where concrete was being poured.
He stated that the sixth floor level measured approximately eighteen by
twenty-four feet, and the platform at the fourth floor was approximately twenty
by forty feet, which contained four by eight panels, and the shorings were
supporting the structure (Tr. 110).
In determining whether the respondent violated the
standard as alleged, it must be pointed out that under section 1926.502(e)
which contains definitions applicable to this subpart, ‘platform’ is defined
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.’
The evidence of record clearly shows that the platform on
the fourth level consisted of a scaffold system erected to support the platform
on the sixth level, and the platform area was not a ‘working space for
persons.’ The evidence also reveals that the employee went to the fourth floor
level to obtain a panel, although he was not specifically directed to do so,
nor was he there for the purpose of working. The employee’s testimony also
indicated that he knew there was a warehouse containing the type of wood he was
asked to obtain.
The record in this case contains no evidence that the
employer had knowledge of the employee’s presence on the fourth floor level.
Further, the evidence does not indicate that the respondent should in any way
be required to provide guardrails on the platform which was used for support
purposes.
In order to find an employer in violation of the standard
as alleged, it is necessary that complainant show such employer has caused or
at least knowingly acquiesced in such violation. The employer cannot be held in
violation of the standard for the totally independent act of the employee under
the circumstances of this case.
To hold an employer in violation of the standard as
alleged, it would in effect make the employer strictly and absolutely liable
for all employee actions which are of an unsafe nature.
FINDINGS
OF FACT
1. Rexco Industries, Inc., is a corporation doing
business at Hato Rey, Puerto Rico, where at all times hereinafter mentioned, it
was engaged in general construction work.
2. On August 18, 1975, respondent was engaged in the
construction of a hospital building in Yauco, Puerto Rico.
3. On August 18, 1975, an authorized representative of
the Secretary conducted an inspection of respondent’s aforementioned worksite.
As a result of such inspection, a citation was issued September 19, 1975, with notice
of proposed penalty.
4. The scaffolding system on the east side of the
construction project was used to support platforms on the fourth and sixth
levels.
5. The open-sided platform on the fourth level was not a
work space, and respondent’s employees were not assigned duties thereon.
6. Respondent was not required to provide standard
guardrails on the fourth floor platform.
CONCLUSIONS
OF LAW
1. Rexco Industries, Inc., at all times pertinent hereto,
was an employer engaged in a business affecting commerce within the meaning of
section 3(5) of the Occupational Safety and Health Act of 1970, and the
Commission has jurisdiction of the parties and subject matter herein pursuant
to section 10(c) of the Act.
2. Respondent is, and at all times pertinent hereto,
required to comply with safety and health regulations promulgated by the
Secretary pursuant to section 6(a) of the Act.
3. On August 18, 1975, respondent was not in violation of
the regulation at 29 C.F.R. § 1926.500(d)(1) as alleged in the citation.
ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and the entire record, it is ORDERED:
The citation alleging violation of the standard at 29
C.F.R. § 1926.500(d)(1) is hereby vacated.
Dated this 14th day of
July, 1976.
PAUL L. BRADY
Judge
[1] 29 U.S.C. § 661(i). The direction for review issued by former Commissioner Moran did not specify any issues to be considered by the Commission. However, in his petition for review, the Secretary took issue with the judge’s decision. It is that issue, discussed infra, that we consider on review.
[2]
The standard
states in pertinent part:
(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)(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 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.
[3] The record does not indicate when the scaffold was erected or how long the scaffold system would remain in place. However, Respondent’s vice-president testified that the shorings for the scaffold existed at the worksite for a period of about four months.
[4] The sixth floor level was planked completely to form a surface measuring approximately 20 feet by 40 feet. Conditions on the sixth floor level were not cited by the Secretary. Only issues involving the absence of guardrails on the fourth floor level are before us.
[5] The testimony by Raffucci and Albelo conflicted with that of the compliance officer and of Sepulveda as to whether the opening into the planked surface from the building was obstructed by barriers. Although he did not make a specific credibility finding, Judge Brady in his statement of the case stated that there was ‘no barrier between the building and the platform.’ We need not resolve the dispute concerning whether entrance to the planked surface was obstructed by barriers since such a determination is not necessary to our disposition of this case.
[6]
The word
‘platform’ in the standard at 29 C.F.R. § 1926.500(d)(1) is defined at section
1926.502(e). This section reads:
‘Platform’—A working space for persons, elevated above ground, such as a balcony or platform for the operation of machinery and equipment.
[7] In addition, the Secretary argues that the Judge erred in: (1) finding that Respondent’s employee was not on the ‘platform’ for the purpose of working; (2) finding that respondent should not be required to erect guardrails on the ‘platform’ because it was used for scaffold support purposes; (3) concluding that the Secretary must prove that the employer caused or knowingly acquiesced in the violation; (4) finding that the employee’s actions were ‘totally independent’ of the employer; and (5) concluding that affirmance of the citation would constitute the imposition of strict liability on respondent for the unsafe actions of its employees. We need not decide these contentions in light of our disposition of the case.
[8]
The standard
at 29 C.F.R. § 1910.21(a)(4) reads:
§ 1910.21
Definitions
(4) Platform. 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.
[***] Under Otis, the Secretary must simply demonstrate that the hazard posed by the violation is accessible to employees.