UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY
OF LABOR, |
|
Complainant, |
|
v. |
OSHRC
DOCKET NO. 76-0088 |
STAHR
AND GREGORY ROOFING CO., INC., |
|
Respondent. |
|
January 4, 1979
DECISION
Before CLEARY, Chairman; BARNAKO and COTTINE,
Commissioners.
BY THE COMMISSION:
A
decision of Administrative Law Judge Harold A. Kennedy is before the Commission
pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq. [‘the Act’]. In his decision, Judge Kennedy affirmed two
nonserious violations of the Act for failure to comply with the standards at 29
C.F.R. § 1926.450(a)(9)[1] and 29 C.F.R. § 1926.500(b)(1).[2] No penalty was assessed
for the former violation. A penalty of $30 was assessed for the latter. The
Judge also affirmed a serious violation for failure to comply with the standard
at 29 C.F.R. § 1926.500(d)(1)[3] with respect to the
perimeter of the second floor.[4] A penalty of $50 was
assessed for the serious violation.
Neither
party filed a petition for discretionary review of the Judge’s decision. On
December 22, 1976, former Commissioner Moran directed that the case be reviewed
by the Commission ‘for error.’ The Secretary of Labor did not file a brief on
review. Respondent asked the Commission to consider on review the same
arguments that it urged before the Judge.
Stahr
and Gregory was the roofing contractor on a two-story service and office
building at a power plant under construction in Cason, Texas. Most of the facts
are not in dispute. Respondent’s nine or ten employees on the jobsite climbed
up to the roof three times a day on each of the three or four days they were at
the inspected worksite. They reached the roof by ascending two ladders. The
first was a wooden ladder extending from the ground level to the second floor
on the outside of the building. After stepping off the ladder at the edge of
the second floor, which was about 4 feet above ground, the employees walked
toward the interior of the structure past an unguarded floor opening to the
second ladder.
The
employees stepped off the first ladder to their left. The edge of the second
floor was completely unguarded for some distance in that direction. Immediately
to the right of the first ladder was a vertical steel beam. The floor opening
extended toward the center of the building directly behind the vertical beam. A
second vertical beam was located at the far end of the opening, directly behind
the first vertical beam when the two beams are viewed from the outside edge of
the second floor. Thus, the floor opening was about 2 feet to the employees’
right as they stepped off the ladder onto the second floor. When following the
normal route to or from the roof, the employees were closest to both hazards
when stepping on or off the first ladder.
Between
the two vertical beams on the second floor referred to above, an unknown person
had strung a sagging rope at a height of about 35 inches along the side of the
floor opening closest to the path respondent’s employees used. The ladder of
another subcontractor had been placed in a vertical position near the innermost
end of the floor opening. It is unknown how long the ladder either had been or
would be so positioned. The compliance officer agreed with respondent’s
witnesses that the rope and ladder would serve as a warning to workers of the
floor opening. Respondent’s foreman, Melvin King, testified that respondent did
not warn its employees about the hole, but that everyone knew it was there.
The
second ladder was a permanently-affixed metal ladder that ran from the second
floor to the roof through a 3 foot by 3 foot ‘scuttle hole’ in the roof. The
side rails of the second ladder extended only 3 or 4 inches above the roof
level. No grab rails were provided. The flat roof was approximately 24 feet
above ground.
The
general contractor was responsible for erecting guardrails on the jobsite and
provided both of the ladders used by respondent’s employees. Respondent knew
about the cited conditions, but did not request the general contractor to
correct any of them. Although respondent normally warns its employees about the
edges of buildings and unguarded floor openings, no such warnings were given on
this jobsite.
Judge
Kennedy found that respondent’s employees had been exposed to all three
noncompliant conditions.[5] We agree with the Judge
that the facts support the Judge’s finding that respondent’s employees had
access to the hazards presented by the lack of sufficient siderail extension on
the upper ladder, the open second floor perimeter, and the unguarded floor
opening. The test to be applied here is whether respondent’s employees were
shown to have had access to the hazards presented by the violative conditions. Gilles
& Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975–76 CCH OSHD
para. 20,448 (No. 504, 1976).
The
test is met with respect to each of the hazardous conditions cited here.
Respondent had nine or ten employees at the worksite for a period of three or
four days. The employees climbed to the roof three times daily. There was no
perimeter protection in the area where respondent’s employees got on and off
the lower ladder at the edge of the second floor. The employees passed within 2
to 8 feet of the floor opening while proceeding between the upper and lower
ladders. When coming down from the roof, it would be necessary for some of any
group of employees to wait at an area close to both hazards while individuals
started down the lower ladder. Moreover, the hazards presented by the unguarded
perimeter near the ladder and the inadequately protected floor opening were
located such that for the employees to avoid one hazard, they would likely
approach closer to the other. The upper ladder was the only means used by the
employees to go between the second floor and their place of work on the roof.
Although the exposure of each of respondent’s employees to individual cited
hazards may have been relatively brief when viewed singly, clearly access to the
hazards has been established. In any event, brevity of exposure does not negate
the finding of a violation. American Bechtel, Inc., 77 OSAHRC 214/A2, 6
BNA OSHC 1246, 1977–78 CCH OSHD para. 22,466 (No. 11340, 1977). Rather,
duration of exposure is a factor to be considered in determining the gravity of
the violation for the purpose of penalty assessment. Id.
The
Judge then addressed the issue of respondent’s liability in terms of the
defense afforded construction subcontractors by the Commission decisions in Grossman
Steel and Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975–76 CCH
OSHD para. 20,691 (No. 12775, 1976) and Anning-Johnson Co., 76 OSAHRC
54/A2, 4 BNA OSHC 1193, 1975–76 CCH OSHD para. 20,690 (No. 4409, 1976), which
were issued by the Commission two days before the hearing in this case. The
Judge found that Stahr and Gregory had knowledge of the hazardous conditions in
question but did not create or control them. The Judge also found, in agreement
with respondent’s contentions, that it did not have the means to install
guardrails because of union jurisdictional rules and lack of training and
equipment, and that respondent was unable to construct and install handrails or
grabrails on the metal ladder because it was a permanent, structural feature of
the building. In addition, the Judge found that safety belts and lifelines were
unrealistic as a means of protection while employees were getting on or off the
ladder at the edge of the second floor.
Judge
Kennedy noted that the general contractor was contractually responsible for
guardrails. The Judge also observed, however, that Stahr and Gregory made no
attempt to have the general contractor correct any of the cited conditions. In
addition, the Judge found that respondent did not instruct its employees to
avoid the cited hazards. Accordingly, he affirmed the three citations.
We
agree that the Judge properly concluded that respondent has failed to establish
the defense made available to construction subcontractors by the Commission
decisions in Anning-Johnson, supra and Grossman Steel, supra. We
recognize that respondent neither created the violative conditions nor was
capable of abating them in the manner contemplated by the cited standards.
Nevertheless, it was incumbent upon respondent to take those alternative
measures that were available to protect its employees. J. H. MacKay Electric
Company and U. S. Engineering Company, —— OSAHRC ——, 6 BNA OSHC 1947, 1978
CCH OSHD para. 23,026 (Nos. 16110 & 16111, 1978). In this case the record
shows that respondent made no attempt to implement alternative methods of
employee protection. Respondent argues that complaining to the general
contractor would have been of little value. This contention is unpersuasive.
Each of the cited conditions presented a fall hazard of about 14 feet.
Consequently, merely complaining to the general contractor would have been
presumptively inadequate, in any event, because of the seriousness of the
hazards confronting respondent’s employees and because of respondent’s failure
to demonstrate that other means of employee protection were unavailable. J.
H. MacKay, supra, n. 6. Therefore, respondent’s asserted defense must fail.
See, e.g., Ray Boyd Plaster and Tile, Inc., 78 OSAHRC 47/D8, 6 BNA OSHC
1648, 1978 CCH OSHD para. 22,794 (No. 76–814, 1978).
Finally,
the Judge properly took into consideration respondent’s safety program and the
brief exposure of respondent’s employees when he assessed the proposed penalty
of $30 for the nonserious violation and reduced the penalty for the serious
violation from the $500 proposed to $50. No penalty was proposed for the ladder
violation and none was assessed. Having considered the penalty assessment
criteria set forth at section 17(j) of the Act, we find the Judge’s assessment
of penalties to be appropriate.
Accordingly,
the Judge’s decision is affirmed.
So ORDERED
FOR THE COMMISSION:
RAY H. DARLING, JR.
EXECUTIVE SECRETARY
DATED: JAN 4, 1979
BARNAKO, Commissioner; concurring in part and
dissenting in part:
I
agree with the majority opinion that Stahr and Gregory (S & G) violated the
standard at 1926.450(a)(9) by using, without grab rails, the metal ladder with
side rails that only extended 3 or 4 inches above the roof landing. I would,
however, vacate the 1926.500(b)(1) allegation with respect to the
inadequately-guarded floor opening and the 1926.500(d)(1) allegation with
respect to the unguarded, open-sided floor.
I
would vacate the alleged violation of 1926.500(b)(1) because the record does
not establish that S & G’s employees were exposed to the hazard. See Gilles
& Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975–76 CCH OSHD
para. 20,448 (No. 504, 1976).[6] As indicated in the
majority opinion, the floor opening involved was on the second floor level and
was partially, although inadequately, guarded by a length of rope that sagged
to a height of 35 inches; an aluminum ladder, pitched between the floor and a
ceiling beam, was positioned in front of the rope. The evidence established
that the only time the employees were on the second floor level was to gain
access to the roof. S & G’s employees traveled from the ground to the
second floor by using a wooden ladder placed against the exterior edge of the
open-sided second floor. The employees had to step off the left side of the
ladder onto the second floor because the right side of the ladder was lashed to
a vertical steel beam at the second floor level for stability. The relevant
floor opening was located diagonally behind the right side of the wooden
ladder. Once on the second floor, the employees had to walk diagonally to their
left in order to reach the metal ladder which lead to their ultimate
destination on the roof. The inadequately-guarded floor opening was, therefore,
located in the opposite direction of the path that the employees had to take to
get to the metal ladder. To return to the ground level, the employees would
reverse their previously indicated steps and approach the wooden ladder from
the side that was not lashed to the steel beam, the side of the ladder furthest
from the inadequately-guarded floor opening.
In my
view, the zone of danger for employees is much nearer to the edge of an opening
when some perimeter protection is provided than when none is present. See Frank
C. Gibson, 78 OSAHRC 32/E7, 6 BNA OSHC 1557, 1978 CCH OSHD para. 22,686
(No. 13925, 1978). This is true here since the sagging rope and aluminum ladder
served as a warning to the employees of the floor opening. As the evidence
above indicates, the S & G employees were not shown to have entered or to
have reason to enter the danger zone created by the inadequately-guarded floor
opening. Moreover, it is pure speculation to suggest, as the majority does,
that the employees loitered around the floor opening while massed on the second
floor waiting to get down the wooden ladder. Therefore, because the record does
not establish that employees entered or had reason to enter the danger zone
created by the inadequately-guarded floor opening, the Secretary has not
established a violation. See my separate opinion in Otis Elevator Co.,
78 OSAHRC ___/___, 6 BNA OSHC 2048, 2052–53, 1978 CCH OSHD para. ___ (No.
16057, Oct. 13, 1978).
I
would also vacate the alleged 1926.500(d)(1) unguarded, opensided floor
allegation. Although the guardrail was absent from the entire length of the
second floor, the record does not establish any exposure to a fall hazard
except at the area immediately adjacent to the ladder and then exposure was
present only briefly when the employees alighted from or stepped onto the ladder.
Although the majority apparently agrees with this finding, they nevertheless
find a violation without addressing S & G’s main contention advanced at the
hearing, that a guardrail provides no protection to employees while they are
alighting from or stepping onto the ladder since the railing must be removed
during that time to permit access to the floor or ladder.
Common
sense dictates that guardrails cannot be in place immediately adjacent to the
ladder when employees are getting on or off the ladder. Only if guardrails are
absent at this point can employees reach the ladder or floor without having to
risk a fall by climbing over or crawling under the guardrails, and of course,
if guardrails are absent they can not serve any safety function. Because exposure
was limited to the area immediately adjacent to the ladder and because the
guardrails must be removed at the only point in time when employees were
exposed to the hazard, I would vacate the citation.
I
would further note, however, that the cited standard is inapplicable to the
hazard to which the compliance officer stated the citation was addressed. The
compliance officer testified that guardrails were needed as a device which
employees could hold while getting on and off the ladder. He stated, ‘Well, any
time you use a ladder on the outside perimeter of a building there is always a
probability of falling and you got to make sure you catch hold of the ladder.’
The standard at 1926.500(d)(1) is not addressed to this hazard. Indeed even
though the compliance officer recommended guardrails for this hazard, he also
stated, in relation to another citation, that side rails extending not less
than 36 inches above the landing, as required by 1926.450(a)(9), would provide
protection against falls for employees who were getting on or off a ladder.[7] I agree. Moreover, the
testimony and exhibit SX–7 establish that the wooden ladder had side rails
extending 36 inches above the landing. Therefore the evidence establishes that
S & G had provided protection for the hazard to which the compliance
officer stated the citation was addressed.
[1] The cited
standard, 29 C.F.R. § 1926.450(a)(9), states:
§
1926.450 Ladders
(a)
General requirements
(9)
The side rails shall extend not less than 36 inches above the landing. When this
is not practical, grab rails, which provide a secure grip for an employee
moving to or from the point of access, shall be installed.
[2] The cited
standard, 29 C.F.R. § 1926.500(b)(1), states in relevant part:
§
1925.500 Guardrails, handrails, and covers.
(b)
Guarding of floor openings and floor holes.
(1)
Floor openings shall be guarded by a standard railing and toeboards or
cover . . . In general, the railing shall be provided on all
exposed sides . . .
[3] The cited
standard, 29 C.F.R. § 1926.500(d)(1), states in relevant part:
§
1926.500 Guardrails, handrails, and covers.
(d)
Guarding of open-sided floors, platforms, and runways.
(1)
Every open-sided floor or platform 6 feet or more above adjacent floor or
ground level shall be guarded by a standard railing, or the equivalent . . . on
all open sides, except where there is entrance to a ramp, stairway, or fixed
ladder . . ..
[4] The serious
citation alleged a failure to provide perimeter guarding in accordance with the
standard at 29 C.F.R. § 1926.500(d)(1) with respect to the second floor and the
roof. Judge Kennedy found that the cited standard was not applicable to the
roof based on the Commission decision in Central City Roofing Co., Inc.,
76 OSAHRC 61/A2, 4 BNA OSHC 1286, 1976–77 CCH OSHD para 20,761 (No. 8173,
1976). Inasmuch as the disposition of the Judge is not adverse to respondent
regarding the issue of the applicability of the cited standard to the flat roof
here, and the issue is not one of compelling public interest, we will not
address it. See Union Camp Corp., 77 OSAHRC 166/A2, 5 BNA OSHC 1799,
1977–78 CCH OSHD para. 22,103 (No. 12203, 1977). The Judge, however, did not
include any reference to the roof citation in his Order. Accordingly, the
portion of the serious citation alleging a violation of the Act for failure to
guard the perimeter of the roof is hereby vacated.
[5] Judge Kennedy in
his decision states that the record does not suggest that any significant
hazard is presented by the lack of adequate handrails on the metal ladder and
that the Secretary could have cited the condition as de minimis. The Judge also
states that respondent’s employees need not, and did not, go close enough to
the floor opening to be in any danger of falling. These remarks, standing
alone, could be interpreted to indicate a finding of lack of exposure to the
cited conditions. The remarks are made in the context of the Judge’s discussion
of penalty assessment. The Judge, however, also specifically finds exposure of
respondent’s employees to each of the violative conditions. Therefore, in light
of his decision as a whole, we interpret the above language as a finding of low
gravity with respect to the ladder and floor opening violations.
[6] In Gilles &
Cotting, I set forth the test I would apply to establish employee exposure.
I stated that exposure need not be based on actual exposure but could also be
based upon a rule of access grounded upon reasonable predictability that
employees will be, are, or have been in a zone of danger. Absent an admission
by the respondent, however, I stated that I would require the Secretary to
establish access by evidentiary facts.
[7] See transcript at
page 27.