UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 8096
UNDERHILL CONSTRUCTION CORP.,
Individually, and DIC CONCRETE CORP.,
individually and trading as DC_UNDERHILL,
a joint venture,
Respondents.
DECISION
BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
BY THE COMMISSION:
A May 12, 1975, decision of Review Commission Judge David G. Oringer is before this
Commission for review pursuant to 29 U.S.C. § 661(i). That decision, which is attached hereto as
1
Appendix A, disposed of three citations which alleged that respondent had violated 29 U.S.C.
§ 654(a)(2) by failing to comply with five occupational safety and health standards. For the rea-
sons that follow, the Commission affirms in part and reverses in part.
Serious Citation Number 1, as amended by the complaint, alleges one serious violation in
that two of respondent's employees were not wearing properly secured safety belts in contraven-
tion of 29 C.F.R. §§ 1926.28(a) and 1926.104 while working near an elevator shaft which was
not guarded as required by 29 C.F.R. § 1926.500(c)(1)(i). The Judge found respondent in viola-
tion of sections 1926.28(a) and 1926.104(a), but vacated the portion of the citation pertaining to
section 1926.500(c)(1)(i). He assessed a $800 penalty therefor.
The Commission affirms the Judge's decision except insofar as it affirms a violation of 29
C.F.R. § 1926.104(a) and assesses a penalty in excess of $400. Chairman Barnako and Commis-
sioner Cleary agree with the reasoning of the Judge in finding a violation of 29 C.F.R. §
1926.28(a). Also see Secretary v. Okland Construction Company, OSAHRC Docket No. 3395,
February 20, 1976, and the cases cited therein. They also agree with the Judge's vacation of the
portion of the citation pertaining to 29 C.F.R. § 1926.500(c)(1)(i). Commissioner Moran would
vacate the alleged violation of section 1926.28(a) on the grounds that the citation merely repeat-
1
Chairman Barnako does not agree to this attachment.
ed the indefinite language of the standard and, therefore, did not ‘describe with particularity the
2
nature of the violation’ as required by 29 U.S.C. § 658(a). However, Commissioner Moran
would affirm a violation for noncompliance with 29 C.F.R. § 1926.500(c)(1) in that the evi-
dence, as summarized by the Judge's decision, clearly establishes a violation of that standard.
Chairman Barnako and Commissioner Moran join in reversing the Judge's finding that re-
3
spondent violated 29 C.F.R. § 1926.104(a). That standard provides that:
‘Lifelines, safety belts, and lanyards shall be used only for employee safeguard-
ing. Any lifeline, safety belt or lanyard actually subjected to in-service loading, as
distinguished from static load testing, shall be immediately removed from service
and shall not be used again for employee safeguarding.’
It does not require the use of the protective equipment enumerated therein at any time. Com-
plainant has not alleged, nor does the evidence establish, that respondent used this equipment for
other than employee safeguarding or failed to comply with the second provision in the standard.
Accordingly, there is no violation thereof.
Considering those factors listed in 29 U.S.C. § 666(i), the Commission assesses a $400
penalty for Serious Citation Number 1. The Commission concludes that a reduction in penalty is
warranted because of its determination that only one standard was violated and because the grav-
ity of the situation does not warrant the higher penalty. Only two employees were exposed to the
hazard and there was not a high probability of a fall in view of the type of work they were per-
forming.
Serious Citation Number 2 alleged that respondent failed to comply with 29 C.F.R. §
1926.552(b)(2) in that ‘[t]he entrances of a material hoistway [were] not protected by substantial
gates or bars.’ Chairman Barnako and Commissioner Moran also join in vacating this citation
because the evidence does not establish the requisite degree of endangerment of respondent's
4
employees to the alleged hazard.
2
The citation failed to allege what type of personal protective equipment should have been used
and simply stated that:
‘Two employees were not wearing appropriate personal protective equipment
when grouting sills along the edge of an unguarded elevator shaft wall opening.’
3
Commissioner Cleary dissents from this conclusion. In his view, what was actually tried was
whether or not section 1926.104(b) rather than (a) was violated. The complaint alleged a viola-
tion of section 1926.104 (no subsection was mentioned) for a failure to wear appropriate person-
al protective equipment. Section 1926.104(b) provides that lifelines shall be secured above the
point of operation to an anchorage or structural member capable of supporting a minimum dead
weight of 5,400 pounds. Judge Oringer expressly found that the employees could have been pro-
tected by safety belts and lanyards secured to the elevator bucks, permanent securing for the ele-
vator doors anchored in concrete. The personal equipment is required by section 1926.28(a).
How it is worn or secured is addressed in section 1926.104(b).
4
Commissioner Cleary dissents. He would affirm the Judge's decision: (1) for the reasons stated
on pages 22 and 23 of the Judge's decision; (2) he believes that Commissioner Moran's reliance
The facts indicate that two of the respondent's employees were working on the 20th floor
of a building worksite grouting sills adjacent to an elevator shaft. The hoist, which was located
along the outside edge of the building, opened onto this floor. Although it was unguarded at the
time of the inspection, a guard was immediately available which would have provided adequate
protection if it had been in the proper position. Respondent's employees were observed no closer
to the hoist than 40 feet, and their work did not require them to work within close proximity
thereto.
Chairman Barnako finds that the facts fail to establish a ‘reasonable predictability’ that
respondent's employees would have been, were, or had been in the zone of danger
(mt,be,d070796) required by Secretary v. Gilles and Cotting, Inc., OSAHRC Docket No. 504,
February 20, citation for reasons stated in Moran agrees with this conclusion, he continues to ad-
here to his position that complainant must establish actual exposure of a cited employer's em-
ployees for the reasons stated in his dissenting opinion in Gilles and Cotting.
All Commission members agree with the Judge's disposition of the nonserious citation
for reasons stated in his decision.
Accordingly, the Judge's decision is affirmed except insofar as it affirmed violations of
29 C.F.R. §§ 1926.104(a) and 1926.552(b)(2) and assessed a penalty of $800 for Serious Citation
Number 1. The portion of Serious Citation Number 1 alleging a violation of 29 C.F.R. §
1926.104(a) is vacated and a penalty of $400 is assessed for that citation. Serious Citation Num-
ber 2 and the $500 penalty assessed therefor are also vacated. The remaining findings of the
Judge are affirmed.
FOR THE COMMISSION:
William S. McLaughlin
Executive Secretary
DATED: OCT 6, 1976
upon a lack of actual exposure lacks precedential support (See Gilles & Cotting, supra.); and (3)
he believes that the Chairman's reading of Gilles & Cotting is unduly narrow for the reasons set
forth in the concurring opinion to that decision.
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 11553
UNDERHILL CONSTRUCTION CORP.,
Individually, and DIC CONCRETE CORP.,
individually and trading as DC_UNDERHILL,
a joint venture,
Respondents.
Appearances:
For the Complainant: Francis V. LaRuffa, Regional Solicitor
Louis D. DeBernardo, Attorney
U. S. Department of Labor
Office of the Solicitor
1515 Broadway, Room 3555
New York, New York 10036
For the Respondent: Sachs, Montgomery, Molineaux & Pastore, Esqs.
437 Madison Avenue
New York, New York 10022
DECISION AND ORDER
David G. Oringer, Judge: This is a proceeding under section 10(c) of the Occupational
Safety & Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as ‘the Act’) to re-
view citations alleging two serious violations and one non-serious violation issued by the Secre-
tary of Labor (hereinafter referred to as ‘complainant’), to the employer pursuant to section 9(a)
of the Act, and a proposed assessment of penalties thereon issued in the aggregate sum of
$1,800.00, pursuant to section 10(a) of the Act, all documents being served on or about April 29,
1974.
The citations alleged that as a result of an inspection of the employer's workplace on
April 18, 1974, the employer (hereinafter referred to as ‘respondent’) at a workplace under its
ownership, operation and/or control, violated each of two standards in serious manner, and one
standard in non-serious manner, which standards were duly promulgated pursuant to the Act.
The standards allegedly violated by the respondent, read as follows:
Citation
1. 29 C.F.R. 1926.28(a)
(a) The employer is responsible for requiring the wearing
of appropriate personal protective equipment in all opera-
tions where there is an exposure to hazardous conditions or
where this part indicates the need for using such equipment
to reduce the hazards to the employees.
29 C.F.R. 1926.500(c)
(c) Guarding of wall openings. (??) Wall openings, from
which there is a drop of more than 4 feet, and the bottom of
the opening is less than 3 feet above the working surface,
shall be guarded as follows:
(i) When the height placement of the opening in re-
lation to the working surface is such that either a standard
rail or intermediate rail will effectively reduce the danger
of falling, one or both shall be provided;
Citation
2. 29 C.F.R. 1926.552(b)(2)
Serious Violation
(2) All entrances of the hoistways shall be protected by
substantial gates or bars which shall guard the full width of
the landing entrance. All hoistway entrance bars and gates
shall be painted with diagonal contrasting colors, such as
black and yellow stripes.
1. 29 C.F.R. 1926.100(a)
Non-Serious Violation
(a) Employees working in areas where there is a possibly
danger of head injury from impact, or from falling or flying
objects, or from electrical shock and burns, shall be pro-
tected by protective helmets.
A notification of proposed penalty was issued to the respondent by the complainant on
even date, to wit, on or about April 29, 1974, proposing penalties of $800.00 for each of the seri-
ous violations and $200.00 for the one non-serious violation, comprising total aggregate penal-
ties of $1,800.00. The violations, as alleged by the complainant, are described as follows:
Citation No. 1 for Serious Violation
Standard, regulation or Description of alleged violation
section of the Act
Two employees were not wearing
allegedly violated
appropriate personal protective
equipment when grouting sills along
the edge of an unguarded elevator
shaft wall opening. Location: 20th
floor open elevator shaft area.
1. 29 C.F.R. 1926.28(a)
Citation for Non-Serious Violation
Standard, regulation Description of alleged violation
or section of the Act Two employees working in an area
allegedly violated where there was possible danger of
1. 29 C.F.R. 1926.100(a) (page 27512) head injury from falling or flying ob-
jects were not protected by protec-
tive helmets. Location: 20th floor
along elevator shaft opening.
In its complaint, the complainant coupled that standard found at 29 C.F.R. 1926.104 to-
gether with the standard found at 29 C.F.R. 1926.28(a). In a preliminary motion immediately
prior to the trial of the action, the respondent moved to strike that portion of the complaint,
which motion was denied by the undersigned, inasmuch as pleadings may be liberally amended
and there was no showing of prejudice by the respondent. In addition thereto, in the event there
was a plea of surprise, this tribunal offered an adjournment to the respondent, which offer was
not accepted.
A timely notice of contest was served upon the complainant by the respondent on or
about May 20, 1974, contesting the citations as well as the penalties proposed therefor. Thereaf-
ter, a complaint was served by the complainant upon the respondent and an answer was filed by
the respondent with the complainant.
Subsequent thereto the case was assigned to the undersigned for trial and disposition
thereof. The case was set for hearing pursuant to notice, and ‘Order and Instructions to Partici-
pants' was sent to all parties. The case was set down for trial for Friday, August 30, 1974, at
Room 3800, 1515 Broadway, New York, New York. Response was made to the Judge's Order
and Instructions and the case was tried pursuant to the aforementioned notice. After trial, the par-
ties were given time in which to submit briefs, proposed findings of fact, and conclusions of law.
Having heard the testimony and observed the demeanor of the witnesses and having con-
sidered the same, together with the citations, notification of proposed penalty, notice of contest,
pleadings, motions, representations, stipulations and admissions of the parties, it is concluded
that substantial evidence, on the record considered as a whole, supports the following
FINDINGS OF FACT
1. The respondents Underhill Corporation and Dic Concrete Corporation are New York
corporations with principle offices located in Bayside, New York and Elmont, New York, re-
spectively. The respondents traded as Dic-Underhill, a Joint Venture, with its offices in Bayside,
New York, and is qualified to do business in the State of New York (Tr. pp. 4, 5).
2. The respondent regularly uses cement imported from Norway, cranes manufactured in
Wisconsin and Trucks manufactured in Detroit, Michigan, in its business (Tr. p. 5).
3. During the year 1973, the respondent had a net worth in excess of one million dollars
and employed more than 1,000 employees daily (Tr. p. 5).
4. The respondent was duly served with the citations and notification of proposed penalty
that are the subject of this proceeding and the respondent filed a timely notice of contest (Tr. p.
6).
5. The notice of hearing and the citations were posted by the respondent (Tr. p. 10).
6. The job site was a 29-story high rise apartment building which occupied the block
from 54th Street to 55th Street and had approximately 20,000 sq. ft. per floor (Tr. p. 27).
7. Prior to the commencement of the inspection, the complainant's representative, a Mr.
Richardson, went to the office of the General Contractor, Shapiro Construction Co., and identi-
fied himself by showing his credentials to the employer representative of the general contractor.
The government representative asked the representative of the general contractor to contact all of
the subcontractors. The representative of the general contractor contacted as many of the subcon-
tractors' representatives as it was possible to do. He went out on the worksite and was able to lo-
cate three or four contractors' representatives. The only representatives who went on the walk
around inspection were employees of the general contractor and of the carpeting subcontractor,
Prince Carpentry (Tr. pp. 27, 28).
8. The general contractor had a list of all the subcontractors on the worksite, one of which
was the instant respondent, Dic-Underhill, a Joint Venture. The complainant's representative
asked to speak to someone representing the respondent, Dic-Underhill. There was no such repre-
sentative available at the worksite at the time, as the general contractor's representative could not
find the foreman (Tr. pp. 28, 29, 32, 40).
9. The complainant's representative found two employees, Mr. Luigi Mattola and Mr.
Benjamin Gambino, who professed to be employees of the respondent. The next day, the com-
pliance officer spoke to the respondent's foreman, Mr. Bonovalta, who advised the Secretary's
representative that Mattola and Gambino were employees of the respondent and under his super-
vision. In addition thereto, the foreman verified that his company was working on the 20th floor
where the aforesaid Mattola and Gambino were working on the day of the inspection herein con-
cerned (Tr. pp. 32, 33, 38, 39, 40).
10. The Secretary's representative, the compliance officer, spent one hour in the office of
the general contractor prior to the inspection, awaiting representatives of all subcontractors to
join him on the walk around inspection (Tr. p. 42).
11. On the day of the inspection herein concerned, Messrs. Mattola and Gambino were
employees of the respondent (Tr. p. 52a).
12. On the day of the inspection herein concerned, the respondent's foreman, Mr. Bono-
valta, was working at another job during the time that the inspection took place (Tr. p. 53).
13. The foreman stated at the closing conference that the two men on the 20th floor,
Gambino and Mattola, were the respondent's employees and that they were supposed to be work-
ing on the 20th floor on the day that the inspection took place (Tr. pp. 53, 54).
14. During the time of the inspection herein concerned, the respondent had two employ-
ees grouting the sills at the edge of the 20th floor adjacent to the elevator shaft (Tr. p. 55).
15. The elevator shaft was approximately 31 feet long and 8 feet wide. The bucks or
framing for the doorways were already completed, however, there were no doors as yet installed
(Tr. pp. 64, 65).
16. One employee of the respondent, Mr. Gambino, was working at the edge of the eleva-
tor shaft spreading cement on the floor and smoothing it. The sill was about a foot wide and the
elevator shaft was approximately 180 feet from the ground. Mr. Gambino had his head and
shoulder partially into the shaft and Mr. Mattola was standing two or three or four feet from the
shaft, behind Mr. Gambino, at the time of the inspection (Tr. pp. 65, 66).
17. Mr. Gambino's head went into the shaft for about an inch (Tr. 134, 135).
18. The Secretary's representative, Mr. Richardson, heard something come down the shaft
that sounded like small concrete pieces and saw something come down that looked like a gray
blur that he believed to be a chunk of concrete (Tr. p. 136).
19. At the time the respondent's employee, Gambino, was grouting at the edge of the ele-
vator shaft and the other employee, Mottola, was approximately 3 or 4 feet behind him, neither
employee was wearing any kind of personal protective equipment such as safety belts or lan-
iards,(sic,be,d070896) nor were there any guard rails or any other type of protection against fall-
ing, at the edge of the elevator shaft on the 20th floor (Tr. pp. 67, 68, 71).
20. The two aforesaid employees of the respondent on the 20th floor were not wearing
helmets or any other type of head protection at the time they were grouting (Tr. p. 67).
21. There were guard rails on the 20th floor that were laying on the ground which were
made of metal dry wall studs that were put together so as to compose a top rail, mid rail and toe-
board. The guard rails were taken down by the respondent's employees before they began to pour
the grout or the finished concrete, because they could not have performed the work while the
guard rail was up. The guard rail had to be taken down in one piece as it was secured with rivets
(Tr. pp. 71, 72).
22. The respondent's employees would not have been able to grout the sill if they left the
guard rail up (Tr. p. 72). Guard rails could have been constructed so that the toeboard could be
removed. If the latter type of guard rail with a removable toeboard was used, no citation for this
item would have been issued (Tr. pp. 72, 73).
23. If a guard rail had been used which contained a top rail and intermediate rail, the
work could have gone on as long as the toeboard was removed and this would have effectively
reduced the danger of falling to the two employees (Tr. pp. 73, 74, 75).
24. As an alternative, the employees could have been protected by safety belts and lan-
iards secured to the elevator bucks (Tr. p. 76).
25. There was a material hoist on the outside of the building on the exterior attached to
the wall which had an opening on each floor. On each floor, the hoistway was provided with pro-
tection bars which could be placed in a vertical position so an employee could walk into the shaft
on to the material car, or it could be placed horizontally for protection against falling into the
hoistway by reaching up and pulling it down (Tr. pp. 79–84).
26. The closest distance of either of the respondent's employees to the material hoist shaft
was 40 feet (Tr. 85).
27. At the elevator shaft way, there was a danger of the employees falling into the shaft,
and at the material hoistway, with the bar vertical, there was a danger of the employees falling
into the material hoistway shaft.
28. In the event either of the respondent's employees fell into the material hoist shaft way,
there was probability of death. The respondent could have known of the hazards by just simple
observation of the material hoistway and could have seen the failure to have any type of guards
(Tr. pp. 92, 93, 94).
29. The fall at either the elevator shaft way or the material hoistway would have been up
to 20 floors or approximately 180 feet (Tr. pp. 93, 94).
30. There was a possibility that the respondent's employees sometime during the working
hours could have gone to the material hoist shaft for various reasons, e.g., to use the material
hoist, or look down the shaft, or go for a cigarette. There was a possibility that inasmuch as there
was access to the shaft, the employees could go to the shaft and possibly fall into it (Tr. p. 82).
31. If Mr. Mattola, the respondent's employee, walked approximately 10 feet, he would
have been underneath a floor opening where plumbers were working (Tr. p. 142).
32. The complainant's representatives took into account the elements mandated by 17(j)
of the Act in arriving at the penalties proposed in the notification of proposed penalty (Tr. pp.
94–115, 153–156).
OPINION
The respondent argued during the trial and in his brief that the inspection was invalid and
void inasmuch as the respondent was not given an opportunity to accompany the inspector dur-
ing his inspection. The facts surrounding the inspection were simple. The inspector went to the
office of the general contractor, exhibited his credentials and advised the general contractor that
he was upon the premises for the purposes of making a walk around inspection of the construc-
tion site and job. He asked the general contractor to get all of the foremen of all of the subcon-
tractors, as well as himself, to go on the walk around. The foremen for this respondent were not
available and, as the testimony revealed, were working on another larger project for the respond-
ent at the time that this inspection took place. The inspector, during his walk around, saw two
men working on the 20th floor and was advised by the general contractor's representative that
they were Dic-Underhill employees, because they belonged on the 20th floor. The inspector
spoke to both of the respondent's employees, a Mr. Gambino and a Mr. Mattola, who stated that
they were employed by Dic-Underhill. Subsequent thereto, on the next day, a foreman of the re-
spondent, Mr. Bonovalta, stated that his men were supposed to be working on the 20th floor on
the date and time of the inspection herein concerned, and that a Mr. Gambino and a Mr. Mattola
both were employees of the respondent.
The respondent argues that inasmuch as Mr. Bonovalta and the inspector did not ever
come face to face with the aforesaid Messrs. Gambino and Mattola at the same time, there is no
proof that the two men alleging to be Gambino and Mattola were, in fact, those individuals and
employees of the respondent. This tribunal finds this argument of little merit. Certainly, the pre-
ponderance of the uncontroverted credible evidence of record demonstrates that Gambino and
Mattola were employees of the respondent. There can be no stronger circumstantial evidence
than appears in the case at bar. The inspector remained in the office of the general contractor for
a full hour during which time the General contractor attempted to get the foremen of all the sub-
contractors. This respondent had no foreman upon the site at the time. The respondent argues,
inasmuch as there was no representative of management on the walk around, that the inspection,
at least insofar as it was concerned, was invalid. This tribunal finds this argument similarly with-
out merit.
A majority of the Commission has decided that accompaniment required in section 8(e)
of the Act is directory rather than mandatory and, therefore, this tribunal is constrained to follow
that decision. See Secretary v. Wright-Schuchart-Harbor Contractors, 2 OSAHRC 528, February
15, 1973.
Assuming arguendo, however, that the mandate in 8(e) of the Act wherein the word
‘shall’ is used was mandatory rather than directory, this tribunal still is of the opinion that the
complainant substantially complied with the 8(e) mandate. The compliance and health officer or
Labor Department inspector who represents the Secretary during an inspection or an investiga-
tion of the respondent's premises cannot, in my opinion, personally refuse a walk around to any
representative of management who wishes to accompany him. However, the respondent, if he
wishes to avail himself of this right, must have a foreman available upon the work site to accom-
pany the inspector when he makes his inspection. Any other holding would result, particularly on
a construction site, in the general foreman telling the subcontractors' foremen to hide so that their
employees could not be inspected. The Act, as well as accompaniment, also mandates inspection
without notice. When an inspector visits a construction work site without notice, he cannot bear
the additional burden of hunting down subcontractors' foremen, wherever they may be, if they
are not available upon the premises. In going to the general contractor, disclosing his credentials,
disclosing his identity and purpose, and requesting the general contractor to contact all of the
subcontractors' foremen upon the job, and spending an hour waiting for the group to assemble, in
my opinion, is substantial compliance with the mandate of the Act. To ask the Secretary to do
more than that which his representative did in the instant cause would be to saddle him with an
intolerable burden in effectuating the unequivocal mandate of the Congress, to wit, to reduce the
industrial holocaust which had endured for so long, until this Act was passed, and to diminish
industrial injury and death attendant to employment.
The respondent also moved to strike a paragraph of the complaint that added an addition-
al item of 29 CFR 1926.104 to that item of the citation alleging a violation of 29 CFR
1926.28(a). The respondent argues that this section could not be added in the manner performed
and, accordingly, that the standard found at 29 CFR 1926.28(a) should be VACATED.
At the commencement of the trial the respondent moved to strike that section of the com-
plaint amending the citation to add a violation of 29 CFR 1926.104 to that item alleging a viola-
tion of 29 CFR 1926.28(a). The amendment in the complaint did not conform to Rule 33(a)(3) of
this Commission's Rules, however the majority of the Commission, as late as April 2, 1975,
ruled that such amendments are proper and cite Brennan v. OSAHRC and Bill Echols Trucking,
487 Fed. 2d, 230, and National Realty & Construction Co., Inc. v. OSAHRC, 489 Fed. 2d, 1257,
as precedent therefor. (See Secretary v. Mid-Plains Construction Co., OSAHRC Docket No.
4584, April 2, 1975.) Such motion of the respondent, therefore, must be DENIED.
In any case, the respondent, if pleading surprise, was offered an opportunity for an ad-
journment prior thereto during the commencement of the trial and refused. Further, the respond-
ent was asked whether he could adduce proof of prejudice and adduced no such proof.
At the conclusion of the complainant's case, and at the conclusion of the entire trial, the
respondent moved to dismiss the citation, notification of proposed penalty and complaint on the
grounds that the complainant had not proven a prima facie case, which motion is DENIED. At
the end of the whole case, the respondent moved that the citation, notification of proposed penal-
ty and complaint be dismissed on the grounds that the complainant had not proven his case by a
preponderance of credible evidence of record and that motion, reserved at the time, is herewith
DENIED.
Insofar as the alleged violation is concerned, located at the elevator shaft, the Secretary
pleaded alternatively. The complainant alleged in his complaint that the respondent violated that
standard found at 29 CFR 1926.28(a) coupled with that standard found at 104(a) of the same se-
ries. In addition thereto, he pleaded alternatively that the respondent violated that standard found
at 29 CFR 1926.500(c)(1)(i), all involving the identical hazard, to wit, the employee Gambino
grouting a sill at the edge of the elevator shaft opening and the employee Mattola working some
three or four feet behind him. The hazard to be abated under either of the standards cited was
identical, to wit, the possibility of falling up to 20 floors or 180 feet through the elevator shaft
opening which is, in actuality, a wall opening. In my opinion, because of the three standards in-
volved, this respondent had alternative means of abating the hazard. He could have utilized a
guard rail by the wall opening with a removable toeboard. If this equipment was used, the com-
plainant's representative testified that he would not have cited him for a violation. Again, in the
event that it was impossible to perform the job if utilizing the type of guard rail that had been
available in this case, to wit, wherein the toeboard was not removable, then and in such case, the
respondent had the option to abate the hazard by using personal protective equipment such as a
safety belt and lanyard on at least the employee, Gambino.
It would be unfair, however, to find the respondent in violation of all of the standards in-
volved inasmuch as it would give him violations that would affect his history and good faith in
futuro and would allow a repeated violation to be alleged for any of the standards violated. Ac-
cordingly, this tribunal finds a violation of that standard found at 29 CFR 1926.28(a) coupled
with 104(a) to exist.
The respondent argues that it was impossible to perform the grouting at the edge of the
elevator shaft with the guard rails in place. The testimony adduced revealed that it would have
been impossible to perform the grouting with the guard rail in place that was available, to wit,
one made of studs without a removable toeboard. The Commission has held that impossibility of
performance is a viable defense and in a case involving alleged violations of 29 CFR
1926.500(b)(1) and (d)(1) involving an elevator shaft and an allegation of failing to provide
standard railings at such shaft, such defense of impossibility of performance was upheld.
(Secretary v. W. B. Meredith II, Inc., 9 OSAHRC 245.) While the latter decision was a unani-
mous decision of the Commission, the proof adduced in the instant cause may well have been
different, inasmuch as the compliance officer testified that in the event a guard rail was used with
a removable toeboard, then, and in such case, the work could have been performed once the toe-
board was removed. However, bearing in mind the precedential value of Secretary v. W. B. Mer-
edith II, Inc., supra, this tribunal finds that in the alternative, a violation of that standard found at
29 CFR 1926.28(a), coupled with 104(a), existed in this case, because certainly the use of safety
belts and laniards was an alternative method to abate the hazard existing in the instant cause, to
wit, that of falling 20 floors or up to 180 feet, a fall that could and would have resulted in death
or serious physical harm. The respondent argues that the standard found at 28(a) is void and un-
enforceable. Any such doubt in the mind of this tribunal has been resolved by the majority opin-
ion of the Commission in Secretary v. Hoffman Construction Company, OSAHRC Docket No.
644, (January 31, 1975); Secretary v. Carpenter Rigging and Contracting Corporation, OSAHRC
Docket No. 1399, (February 4, 1975), Secretary v. Eichleay Corp., OSAHRC Docket No. 2610
(February 20, 1975); Secretary v. Dic-Underhill, a Joint Venture, Docket No. 2232, (February
21, 1975). The latter decision involved the instant respondent.
Insofar as the alleged violation of that standard found at 29 CFR 1926.552(b)(2) is con-
cerned, the two employees of the respondent never were observed nearer than 40 feet from the
material hoist shaft and, accordingly, the respondent argues that they, therefore, were not truly
exposed to the hazard Evidence of record indicates that the bars on all floors were open from
around 9:30 a.m. until noontime, some two and one-half hours. An imminent danger notice was
posted around 12:40, which would make three hours of unguarded material hoist ways. In any
case, insofar as the 20th floor is concerned, the compliance officer's uncontroverted testimony on
page 162 shows that on that floor the material hoistway guard was in a vertical position and,
therefore, the hoistway was unguarded for at least two and one-half hours (Tr. p. 162). Insofar as
exposure is concerned, the United States Court of Appeals for the 2d Circuit stated that subpara-
graph 2 of 29 USC 654(a) requires employers to comply with occupational safety and health
standards promulgated under the Act. The Court stated that to prove a violation of OSHA, the
Secretary of Labor need only show that a hazard existed and that the area of the hazard was ac-
cessible to the employees of the cited employer or those of other employers engaged in a com-
mon undertaking. This decision referred to a situation that was created by the respondent em-
ployer. In my opinion, however, the second Circuit would hold that the Secretary need only show
the existence of a hazard and the accessibility of employees of a cited employer to the hazard.
(Secretary of Labor v. Occupational Safety and Health Review Commission and Underhill Con-
struction Corporation, Underhill Construction and Dic Concrete Corporation, individually, and
as participants in a Joint Venture known as Dic-Underhill, Joint Venture, petitioners, 357, 417,
March 10, 1975, Docket No. 74–1579, 74–1568.In the opinion of this tribunal, inasmuch as this
case arose in the 2d Circuit, the law of the case must follow the decisions of that Circuit.
The record indicates that two employees of the respondent were working on the 20th
floor of the building for at least two and on-half hours on the date of the inspection, during which
time the material hoist was unguarded, inasmuch as the material hoist bar was vertical rather than
horizontal. While a violation thus was committed, in that respondent's employees had access to
the area of the material hoist and, therefore, were potentially exposed thereto, the gravity was not
nearly as serious as that of the prior violation discussed herein inasmuch as the employees were
working no nearer than 40 feet from the material hoist shaftway. The uncontroverted testimony
of the complainant's representative was that there was a possibility that the respondent's employ-
ees sometime during working hours could have gone to the material hoist shaft for various rea-
sons, e. g., to use the material hoist or look down the shaft or go there to smoke a cigarette. He
testified that inasmuch as there was access to the shaft, there was always a possibility that the
employees could go to the shaft and possibly fall into it. This was sufficient access upon which
to predicate a violation of the standard in issue, given the Second Circuit's decision in Secretary
v. Di-Underhill, supra.(See Secretary of Labor v. Air Conditioning Electrical Systems, Inc.,
Docket No. 8055, mailed to the parties on April 2, 1975, and which will be filed with the Com-
mission on April 22, 1975.
Inasmuch as the alleged violation of that standard found at 29 CFR 1926.100(a) is con-
cerned, the standard requires that those employees working in areas where there is possible dan-
ger of head injury from impact, or from falling or flying objects, or from electrical shock and
burns are to be protected by protective helmets. Testimony adduced in this case was that in the
event Mattola walked ten feet from where he was standing, he would have been under a floor
hole and in danger of being struck on the head by falling or flying items. In my opinion, this tes-
timony, uncontroverted by the respondent, constitutes sufficient evidence upon which to predi-
cate a violation of the standard at issue. The evidence insofar as Gambino is concerned reflects
little more than a technical violation insofar as his entrance into the shaftway is concerned. One
inch of head entrance left little of his head in danger and certainly the helmet would not have
protected his shoulders from injury. However, in the event that Gambino finished his grouting, or
got up for some other reason and walked some 14 or 15 feet, he also would have been under a
floor hole in the floor above and would have been in danger of falling or flying objects. In my
opinion, while the possibility of injury, insofar as failure to wear a hard hat was concerned, was
not great, a violation was proven. An employer must do more than issue hard hats. An employer
has the primary responsibility to see to it that its employees wear the hats or are disciplined
therefor. In the instant cause, while one employee had his hat on the floor with him, the other one
was allowed to ascend to the 20th floor without even taking his hard hat with him. The Act does
not provide for punishment of employees, but this has not been shown to be so idiosyncratic an
act that the employer may be excused from not requiring obedience to the standard. There is no
evidence in the record that shows that this was an isolated act, or that any precautions whatsoev-
er were taken by the employer to see to it that men wore hard hats in hard hat areas.
Insofar as the penalties are concerned, the complainant has proposed penalties of $800.00
for each of the serious violations. In the opinion of this tribunal they are not of equal gravity and
they do not require equal penalties. Considering all of the elements of 17(j) of the Act, in my
opinion, the proposed penalty of $800.00 for the violation, alleged and found proven, of that
standard found at 29 CFR 1926.28(a), coupled with 104(a), is appropriate in the premises. The
penalty proposed, however, for violation of that standard found at 29 CFR 1926.552(b)(2) is of a
lesser gravity than the violation previously discussed and a penalty of $500.00 is appropriate.
Insofar as the alleged violation of 29 CFR 1926.100(a) found proven herein is concerned, the
penalty proposed in the amount of $200.00 is excessive, given the gravity and possibility of an
accident disclosed in the proof of record. Accordingly, considering all the elements of 17(j) of
the Act, this tribunal finds a penalty of $100.00 appropriate in the premises.
It may be noted in passing that Counsel argued during the trial that violations that are not
contested by a respondent and become final orders of the Commission without a trial thereon,
should not be weighed in arriving at a penalty, without the respondent being allowed to put in
proof concerning such uncontested final orders. In my opinion, this argument is of little merit.
The Act gives a respondent every chance to defend any allegation of violation and to have the
Secretary relitigate each allegation of violation that becomes a final order of the Commission
without any contest whatsoever would create endless litigation and would destroy the efforts of
the complainant to enhance the furtherance of the Act and fulfill the intent of Congress. In the
instant cause, however, the complainant has not furnished this tribunal with any record of any
allegations of violation that have become final orders without trial, so that this question is moot
in the case at bar. Notice, however, is taken of cases that have become final orders after trial and
are of record as such with the Commission.
Based on the foregoing considerations, the Judge makes the following
CONCLUSIONS OF LAW
1. At all times herein mentioned, this respondent was engaged in a business affecting
commerce, within the meaning of section 3 (5) of the Occupational Safety and Health Act of
1970. The respondent was, on the date of the inspection at his workplace herein concerned, and
at all of the times mentioned herein, an employee subject to the safety and health regulations
promulgated by the Secretary of Labor and referred to in the citation and complaint herein.
2. The respondent, on the day of the inspection herein concerned, was in serious violation
of that standard found at 29 CFR 1926.28(a), coupled with that standard found at 29 CFR
1926.104(a).
3. The respondent was in serious violation of that standard found at 29 CFR
1926.552(b)(2).
4. The respondent, on the day of the inspection herein concerned was in non-serious vio-
lation of that standard found at 29 CFR 1926.100(a).
5. The penalty of $800.00, proposed for the alleged serious violation of that standard
found at 29 CFR 1926.28(a), coupled with that standard found at 29 CFR 1926.104(a), found
proven herein, is appropriate in the premises herein.
6. The penalty of $800.00, proposed for the serious violation of that standard found at 29
CFR 1926.552(b), found herein, is inappropriate and must be modified so that a penalty of
$500.00 is assessed therefor.
7. The penalty of $200.00 proposed for the alleged non-serious violation of 29 CFR
1926.100(a), found proven herein, is inappropriate in the instant premises, and must be modified
so that a penalty of $100.00 is assessed therefor.
In view of the foregoing, good cause appearing therefor, it is ORDERED that:
1. The serious violation, alleged in the complaint, to wit, of that standard found at 29
CFR 1926.28(a), coupled with that standard found at 29 CFR 1926.104(a) and the penalty pro-
posed therefor in the sum of $800.00, are herewith AFFIRMED.
2. The serious violation of that standard found at 29 CFR 1926.500(c)(1)(i), pleaded in
the alternative, is herewith VACATED.
3. The serious violation alleged in the complaint, to wit, of that standard found at 29 CFR
1926.522(b) is herewith AFFIRMED.
4. The penalty in the sum of $800.00 proposed for the serious violation of that standard
found at 29 CFR 1926.552(b), above AFFIRMED, is modified, and a penalty of $500.00 is AS-
SESSED therefor.
5. The non-serious violation alleged in the complaint, to wit, of that standard found at 29
CFR 1926.100(a) is herewith AFFIRMED.
6. The penalty proposed, in the sum of $200.00, for non-serious violation of that standard
found at 29 CFR 1926.100(a), is herewith MODIFIED, and a penalty in the sum of $100.00 is
ASSESSED therefor.
SO ORDERED.
DAVID G. ORINGER,
JUDGE, OSAHRC
Dated: May 12, 1975