“SECRETARY OF LABOR,Complainant,v.CARPENTER CONTRACTING CORPORATION,Respondent.OSHRC Docket No. 81-0838_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c).The Secretary of Labor alleges that Carpenter Contracting Corporation(\”Carpenter\”) committed a serious violation of the standard at 29 C.F.R.? 1926.500(d)(1) [[1]] in that it failed to guard the perimeters ofcertain open-sided floors of a parking garage under construction. Administrative Law Judge David G. Oringer concluded that there was noviolation and vacated the citation item. We agree with that conclusionand affirm the judge’s decision.IEmployees of Carpenter were working on a large four-level parking garagein Morristown, New Jersey, when that site was inspected by a complianceofficer from the Occupational Safety and Health Administration. Theparking garage was being constructed between two streets that differedsome 40 feet in elevation. The highest deck of the garage was, on oneside, level with the high street, and the lowest deck was, on the otherside of the garage, level with the lower street. The general contractoron the site had contracted with Kurtz Precast Corporation (\”KurtzPrecast\”) to construct the garage. Kurtz Precast, the manufacturer ofthe precast concrete pieces of which the garage would be built, thencontracted with Carpenter to set the pieces in place. Carpenterprovided its own tools and work force, the latter consisting ofapproximately 15 employees who were ironworkers, masons, laborers, andcrane and backhoe operators.The garage was constructed entirely of concrete members and was builtone vertical bay at a time starting with the lowest level and workingup. Starting from a fixed point, the deck in each bay was constructedby placing rough-surfaced concrete sections in the shape of \”double T’s\”that were 8-1\/2 to 11 feet wide and 58 to 60 feet long onto the supportconcrete framework of columns and beams. At each level, four double T’snormally would combine to form the deck of a single bay. Therefore, aseach double T was put into place, the perimeter of that deck expanded.When each double T arrived at the worksite by truck, three employees ofCarpenter attached tag lines, and the crane then lifted the double T andlowered it into position in the bay under construction. Five Carpenteremployees worked on whichever deck was being laid at the time: onesignaled the crane; two guided the section into place by pulling the taglines; and two minimally welded the pieces together so that they wouldstay until the permanent welding could be done when all the pieces ofthe deck had been laid and balanced. As each double T was set in place,the five employees would work from the expanding perimeter.In the citation, the Secretary alleged that Carpenter’s failure to guardthe open-sided floors in \” areas adjacent to decks being erected\” was aviolation of section 1926.500(d)(1). It was undisputed that a number ofthe decks within one, two, or three bays of the deck area underconstruction lacked perimeter guarding.The compliance officer who conducted the inspection was the Secretary’sonly witness. According to his testimony, the failure to guard theperimeters posed the hazard of employees falling 10 to 40 feet to thefrozen ground or to a lower level’s concrete deck. When asked if he hadseen any employees \”in an area around these unguarded open-sidedfloors,\” the compliance officer responded that he had observed employeesof Carpenter there \”performing functions of erection\” and that he sawCarpenter’s employees come \”[w]ithin inches\” of the unprotected edge\”numerous times\” while they were \”doing fitting up, as well as weldingand cutting off the hoisting groups on these pre-cast forms.\” Withreference to an unguarded deck that was pictured in Exhibit C-14,[[2]]the compliance officer stated that he observed employees of Carpenter\”traversing [that deck] when they were putting the extension cord andelectrical weld lines across the space,\” and that he saw employees ofCarpenter come \”within inches\” of that deck’s unguarded perimeter \”onnumerous occasions.\”William Weber, Carpenter’s superintendent at the worksite, wasCarpenter’s only witness. He testified that Carpenter’s employees werenot required to work near the edge of the decks adjacent to the bayunder construction and had \”no need to traverse that area.\” He notedthat the parking garage was \”perhaps 300 feet wide\” with \”ampleprotection\” against falls provided by \”stone or pre-cast pieces thatstood almost four feet high.\” He also observed that the structure waswide enough so that employees could avoid any fall hazard. When askedif any Carpenter employees went within 32 feet of the advancingperimeter, Weber testified that the erection crew did come closer whileputting the double T’s in place, but that no other employees came closerto any perimeters at any time since they \”were not allowed to\” based ondirect instructions in Carpenter’s contract forbidding any finishingwork on the concrete pieces until Kurtz Precast determined that the deckwas properly balanced. Weber testified that the welders in the erectioncrew performed the permanent welding after the deck had been set inplace and certified as balanced. Weber stated that employees were\”instructed to stay away from the open edges\” and \”had no businessthere.\” He admitted the possibility that they might on occasion, suchas \”if a pretty girl walked by,\” go near the unguarded perimeters of thedecks adjacent to the bay under construction.IIIn his decision, Judge Oringer found that certain bays in the erectionarea had no perimeter guarding. The judge concluded, however, thatthere was no violation of section 1926.500(d)(1) because the constantinstallation and removal of guarding at the advancing perimeter whilethe huge, heavy double T’s were swung in by crane would pose a greaterhazard than the lack of such guarding.IIIOn review the Secretary argues that Judge Oringer did not consider thatthe violation as alleged in the citation and presented by the Secretaryat the hearing dealt with \”areas adjacent to decks being erected.\” According to the Secretary, \”[a]ny evidence or holding relating toguardrails at the advancing perimeter is wholly irrelevant.\”The Secretary notes on review that the Commission stated in _Gilles &Cotting, Inc._, 76 OSAHRC 30\/D9, 3 BNA OSHC 2002, 2003, 1975-76 CCH OSHD? 20,448 at p. 24,425 (No. 504, 1976) that, as an element of aviolation, the Secretary must prove that \”employees either while in thecourse of their assigned working duties, their personal comfortactivities while on the job, or their normal means of ingress-egress totheir assigned workplaces, will be, are, or have been in a zone ofdanger.\” The Secretary contends that the evidence of record establishesthat Carpenter’s employees had access to and actually were at theunguarded outside perimeters of the adjacent decks. He notes that itwas undisputed that no perimeter guarding was present on many adjacentdecks. He contends that the evidence proves that Carpenter’s employeespassed by the unguarded edges of the adjacent decks while traveling toand from their assigned tasks and were therefore exposed to the hazardof falling 10 to 40 feet. To support this contention, the Secretaryrelies on Exhibit C-14, see note 2 _supra_, showing a person on theladder leaning against the outside edge of the adjacent deck. TheSecretary also notes the compliance officer’s testimony that he saw thewelders laying welding cables at the unguarded outer perimeter whilethey were working on the deck shown in Exhibit C-14. Furthermore, theSecretary argues that it was established that some of the masonsemployed by Carpenter did finishing work on completed adjacent decks. The Secretary urges the Commission to reverse the judge and assess a$700 penalty.Carpenter contends on review that Judge Oringer properly concluded thatthere was no violation of section 1926.500(d)(1) because guarding theadvancing perimeter would pose a greater hazard than the lack of suchguarding. Carpenter asserts that the Secretary does not take issue withthe judge’s conclusion regarding the advancing perimeter, the issue onwhich the parties focused at the hearing. Rather, the Secretary seeksreview of an issue not presented at the hearing — the perimeterguarding of the adjacent decks. Carpenter argues that, even assuming theadjacent decks were in issue, the Secretary failed to establish thatCarpenter’s employees performed assigned work on the adjacent decks orhad any other reason to be near the perimeter of those decks. Accordingto Carpenter, the adjacent decks referred to by the Secretary are thesame \”construction\” or \”erection\” areas that Judge Oringer addressed. Carpenter notes that the compliance officer identified the adjacentdecks as the \”Erection Area\” in his written descriptions that accompanythe photographic exhibits, including Exhibit C-14, which the Secretaryused to show the adjacent decks on which the violations allegedlyoccurred. Also, according to Carpenter, there was uncontrovertedevidence that its employees were not assigned tasks near the outerperimeter of the adjacent decks and that, in fact, they were givenspecific instructions to stay away from it. Carpenter additionallycites superintendent Weber’s testimony that the garage levels wereperhaps 300 feet wide with ample natural protection on one side and thatno employees except those on the erection crew went closer than 32 feetfrom the perimeter.IVIn applying _Gilles & Cotting, Inc_., _supra_, to this case, theadvancing perimeter of the bay under construction must be distinguishedfrom the perimeter of the completed decks in adjacent bays. The judgefound that it would have been more hazardous to constantly erect andremove guardrails at each point along the advancing perimeter than toperform the work without guarding those edges. The Secretary does nottake exception to that finding. Thus, we look only to the evidencewhich would prove exposure of Carpenter’s employees to the hazardpresented by unguarded decks in the areas adjacent to those undererection.[[3]]The evidence relied upon by the Secretary is at best ambiguous as to thelocation of the violation, and we therefore conclude that it isinsufficient to prove a violation with reference to the decks adjacentto the area under erection. When asked if he had observed any employeesof Carpenter \”in an area around these unguarded open-sided floors,\” thecompliance officer testified that he had seen employees of Carpenter\”performing functions of erection\” there. However, erection work wasperformed at the advancing perimeter, and therefore this testimony doesnot establish exposure at the adjacent decks. The compliance officeralso testified that he saw employees come \”[w]ithin inches\” of theunprotected edge \”numerous times\” while they were \”doing fitting up, aswell as welding and cutting off the hoisting groups on these pre-caseforms.\” The functions described in that statement also were those donewhen the double T’s were put in place, so the perimeter at which heobserved those employees was the advancing perimeter, not the adjacentdecks. The compliance officer further stated that he saw employees ofCarpenter \”traversing [the unguarded deck pictured in Exhibit C-14] whenthey were putting the extension cord and electrical weld lines acrossthe space\” and coming \”[w]ithin inches\” of that deck’s unguardedperimeter \”on numerous occasions.\” We can not determine from thattestimony whether the employees of Carpenter that he observed near theedge were making the minimum welds while the deck was being laid orwhether they were performing the permanent welding on the completeddeck. Moreover, Carpenter’s superintendent testified that theperimeter shown in Exhibit C-14 could have been an area under construction.In addition, other portions of the record that the Secretary relies uponare insufficient to satisfy his burden of proof under _Gilles &__Cotting, Inc_., _supra_. The Secretary contends in his brief on reviewthat the compliance officer identified the person on the ladder inExhibit C-14 as an employee of Carpenter. We note that the judge,consistent with the compliance officer’s testimony that he had notobserved any Carpenter employees on the ladder in question, found thatthe person shown on the ladder in Exhibit C-14 did not work forCarpenter. See _supra_ note 2. The Secretary also asserts in his briefon review that masons employed by Carpenter performed finishing work onthe completed decks. No evidence of record supports that assertion. The Secretary quotes the testimony of Weber, Carpenter’s superintendent,that Carpenter’s employees might go to the perimeter on occasion, suchas \”if a pretty girl walked by.\” We consider that testimony to bepurely speculative and accord it little weight.The evidence relied upon by the Secretary is too ambiguous or otherwiseinsufficient to prove that Carpenter’s employees were exposed during thecourse of their assigned job duties, their personal comfort activitieswhile working, or their normal way of ingress into or egress from theirassigned workplaces to the hazard of the unguarded perimeters on thedecks adjacent to the bay under construction. Carpenter thereforecannot be found in violation of section 1926.500(d)(1) for failing toguard those edges. We therefore vacate the citation item and proposedpenalty.[[4]]FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: JUN 26 1984CLEARY, Commissioner, dissenting:I agree with the majority that the focus of the citation in this case isnot exposure of Carpenter’s employees when working in proximity to theexpanding perimeter, but rather it is exposure of the employees to fallsfrom the unguarded decks adjacent to the bays under construction. However, I disagree with the majority’s conclusion that Carpenter’semployees were not subject to the hazard of falls from those completedadjacent decks.Although I concur with the majority that an access test, rather than anactual exposure test, is appropriate in determining whether employeesare exposed to a hazard, I have never adopted the narrow access testannounced in _Gilles & Cotting, Inc_., 76 OSAHRC 30\/D9, 3 BNA OSHC 2002,1975-76 CCH OSHD ? 20,448 (No. 504, 1976). The test in _Gilles &Cotting_, as applied by the majority to the instant case, would requirethe Secretary to prove that employees had reason to go near theunguarded perimeters of the adjacent decks during the course of theirassigned job activities, their personal comfort activities whileworking, or their normal way of ingress or egress from their assignedworkplaces.Nevertheless, while I do not adhere to the majority’s test, I believethat test was met in this case because the Secretary’s evidencedemonstrates that employees were necessarily in close proximity to theunguarded perimeters of the adjacent decks in the performance of theirassigned job activities. The compliance officer observed Carpenter’semployees when they were placing an extension cord and electrical weldlines on the deck pictured in Exhibit C-14. That photograph shows thatthe cord and lines were near the unguarded edge. It appears from theevidence that Carpenter’s employees were the ones who performed thewelding. Therefore, they were exposed during the course of theirassigned duties.My more fundamental disagreement with the majority is that their test isnot an adequate measure of employee exposure because it ignores thereality of a construction worksite. Employee movement around aworksite cannot be so neatly traced or predicted as the majority testassumes. _See_ _Novak & Co_., 84 OSAHRC, 11 BNA OSHC 1783, 1784, 1984CCH OSHD ? 26,779 at p. 34,250 (No. 80-2946-S, 1984) (constructionworksite was constantly changing, and route employees used to get totheir work areas changed from day to day and even from hour to hour). As I stated in my concurring opinion in _Gilles & Cotting_, theSecretary should not have to show that employees actually risked injuryand possible death before the Secretary can require abatement ofhazardous conditions.This case is similar to _Otis Elevator Co_., 78 OSAHRC 88\/E5, 6 BNA OSHC2048, 1978 CCH OSHD ? 23,135 (No. 16057, 1978), in which the employerwas cited for failure to guard several areas, including a flooropening. In that case, the employer argued that its employees wouldhave to take a circuitous route in order to expose themselves to thehazard of falling through the floor opening. The Commission declaredthat to accept the employer’s argument it would have to conclude thatemployees would travel precisely the same path at all times withoutdeviation in order to find a violation. The Commission said:We do not make such an assumption, and are unwilling to speculate as towhat might motivate an employee to approach an unguarded area. Duringthe life of a construction project it is not unreasonable to assume, asthe standard does, that an employee might, at some point in time, moveto an area not immediately proximate to his place of work. Further,neither the standard as applied nor the Act requires the Secretary toprove that during the inspection, an employee actually approached ademonstrated hazard, or that the compliance officer witnessed a nearaccident.6 BNA OSHC at 2050; 1978 CCH OSHD at p. 27,952.In _Special Metals Corp_., 80 OSAHRC 122\/B8, 9 BNA OSHC 1132, 1134, 1981CCH OSHD ? 25,018 at p. 30,908 (No. 76-4940, 1980), the Commission stated:The Commission’s access test is predicated on the recognition thatemployees may not be restricted to specific paths or movements abouttheir workplace. Given the random nature of employee movement, it isinappropriate to rely on employees to avoid a hazardous condition as theprimary means of protecting employees from that condition.In this case, Carpenter’s superintendent, Weber, testified that it wascertainly possible that Carpenter’s employees would go near the edge ofthe adjacent decks, albeit not in the performance of their assignedduties. That testimony acknowledges the randomness of employeemovement, which the Commission has recognized in other cases, atCarpenter’s worksite. It is hardly speculative, as the majority states.Carpenter notes that it gave its employees instructions to avoid theunguarded edges of the adjacent decks. However, the standard cited inthis case does not permit warnings to substitute for the physicalprotection mandated by the standard. The Commission has held that evenwhen an employer goes so far as to have an employee watch anunbarricaded area in order to prevent any employee from entering itthere was employee access to a hazard. _Concrete Construction Co_., 76OSAHRC 139\/A2, 4 BNA OSHC 1828, 1976-77 CCH OSHD ? 21,269 (No. 5692,1976), _aff’d_, 598 F.2d 1031 (6th Cir. 1979). The Commission foundthat it was reasonably foreseeable that employees could be in the zoneof danger simply because employees were moving about the site incarrying out their duties and access to the zone of danger was not blocked.In sum, I do not believe that the Act requires the Secretary to showthat an employer assigned employees work in a hazardous area or to tracecustomary routes of employees over a period of time. The standardinvolved here is an unambiguous and readily comprehensible standard: anopen-sided floor or platform that is six feet or more above an adjacentfloor or ground level must be guarded. The reasons for such guardingare obvious. I consider a test requiring inquiries as to what mightmotivate an employee to approach the unguarded perimeter of an adjacentdeck or documentation of the fact that any employee did so tounnecessarily complicate the straightforward requirement established bythe language of the standard.————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] The standard provides:Every open-sided floor or platform 6 feet or more above adjacent flooror ground level shall be guarded by a standard railing, or theequivalent, as specified in paragraph (f)(1)(i) of this section, on allopen sides, except where there is entrance to a ramp, stairway, or fixedladder. The railing shall be provided with a standard toeboardwherever, beneath the open sides, persons can pass, or there is movingmachinery, or there is equipment with which falling materials couldcreate a hazard,[[2]] The photograph designated as Exhibit C-14 shows welding cablelying on the deck, a ladder leaning against the outside edge of thedeck, and a person standing on the ladder. The compliance officertestified that he had not seen any of Carpenter’s employees going up ordown that ladder. Carpenter’s superintendent testified and JudgeOringer found that the person on the ladder in the photograph was not anemployee of Carpenter.[[3]] In _Gilles & Cotting, Inc._, _supra_, a Commission majority agreedthat to establish a section 5(a)(2) violation in multi-employerconstruction cases the Secretary would not have to prove that employeeswere actually exposed to a hazard because of the alleged noncompliance. Former Commissioner Barnako stated that the Secretary must, however,adduce evidence to show employee activity that, with \”reasonablepredictability,\” would bring the employee into \”the zone of danger\”created by the violation. Commissioner Cleary concurred stating that,rather than evaluating the danger to employees in spatial terms, hewould consider \”the risks to employees that may be reasonablyanticipated when a standard is breached\” (footnote omitted). 3 BNA OSHCat 2005, 1975-76 CCH OSHD at p. 24,427. Whether couched in terms of\”reasonable anticipation\” or \”reasonable predictability,\” we willinterpret _Gilles_ to require the Secretary to present evidencesufficient to support a finding that it is reasonable to predict oranticipate that employees will be, are or have been at risk as a resultof a violation. _See_ _Concrete Construction Corp_., 76 OSAHRC 139\/A2,4 BNA OSHC 1828, 1830, 1976-77 CCH OSHD ? 21,269 at p. 25,568 (No. 5692,1976), _aff’d_, 598 F.2d 1031 (6th Cir. 1979) (Secretary must establishthat it was \”reasonably foreseeable that employees could be in the zoneof danger because of the nature of their duties and activities on thesite\”).[[4]] The Commission has received a motion from Carpenter’s counsel todismiss the appeal as moot because Carpenter has ceased doing business. In light of our decision to vacate the citation item on the merits, weneed not rule on that motion.”