“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-4371 GALLO MECHANICAL CONTRACTORS, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0December 16, 1980DECISIONBefore CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Thisis a case arising under the Occupational Safety and Health Act of 1970, 29U.S.C. ?? 651?678 (?the Act?). The Secretary of Labor (?the Secretary?) issuedto Gallo Mechanical Contractors, Inc. (?Gallo?) a citation charging that Galloviolated section 5(a)(2) of the Act, 29 U.S.C. ? 654(a)(2), by failing to keepdebris cleared from two areas of a construction worksite at which Galloemployees were working. The citation alleged that Gallo failed to comply withthe construction standard pertaining to housekeeping at 29 C.F.R. ? 1926.25(a).[1] The Secretarycharacterized the violation as other than serious. Administrative Law Judge J.Paul Brenton affirmed the citation but determined that the violation was deminimis. The Secretary filed a petition for review of this determination.Pursuant to section 12(j) of the Act, 29 U.S.C. ? 661(i), Chairman Clearydirected review on the issue of ?[w]hether the administrative law judge erredin concluding that Respondent?s failure to comply with the standard at 29C.F.R. ? 1926.25(a) is a de minimis violation.?I??????????? OnSeptember 9, 1976, a compliance officer of the United States Department ofLabor?s Occupational Safety and Health Administration inspected the MichoudAssembly Facility in New Orleans, Louisiana. There, a building used for thevertical assembly of spacecraft was being modified for use in the space shuttleprogram. Gallo was the subcontractor installing plumbing, heating, airconditioning, and industrial pipe.??????????? Attwo locations in the vertical assembly building?on the first elevation(southeast side) and on the 76-foot elevation (northeast side)?the complianceofficer observed Gallo employees walking through work areas from which certainmatter had not been cleared. On the first elevation, the compliance officer saw?dunnage, . . . pieces of wood used for chocking, putting material off thefloor, excess material to be used, and material being removed from thelocation? and ?a combination of material and equipment to be removed, materialand equipment to be installed, some pieces of structural steel, small pieces ofchannel, a few pieces of . . . dunnage; one by fours, two by fours. . . .? Anemployee, Mr. Volpe, who worked at this location testified that there was?trash? consisting of pieces of steel, two by fours, and pipe. According to Mr.Volpe, those pieces of eight-inch diameter pipe measuring twenty feet longwould still he used, but not the shorter pieces, which would be discarded. Thecompliance officer saw employees ?weaving their way? through the debris. Mr.Volpe confirmed that he had to step over the debris, often sitting on pieces ofit to perform his work.??????????? Onthe 76-foot elevation, the compliance officer saw ?a number of pieces ofequipment, either to be installed or to be removed.? The equipment, which waselectrical equipment, was near a stairway on the northeast side. The complianceofficer testified that the Gallo employee who was working in this area wouldhave to walk over or around this equipment to get from the stairs to his worklocation.??????????? Thecompliance officer described the hazards arising from the conditions at boththe first elevation and the 76-foot elevation as ?tripping, falling on the sameelevation, busting your shins, twisting your ankles . . ..???????????? Inhis decision, Judge Brenton determined that most of the matter scattered at thetwo locations was not ?debris? within the meaning of section 1926.25(a). Thejudge concluded that debris is ?the remains of anything broken down ordestroyed thereby constituting ruins, fragments, or rubbish.? He found thatonly the pieces of steel characterized by the employee, Mr. Volpe, as trash anda small amount of other discarded material constituted debris. Because thetestimony did not show ?the nature and concentration of these items,? the judgefound that the hazards mentioned by the compliance officer?tripping, falling,twisting ankles, ?busting? shins?could only arise from contact with thematerials and equipment which were not debris. Accordingly, the judge foundthat Gallo?s failure to comply with section 1926.25(a) did not have any significantrelationship to employee safety. Therefore, although he affirmed the citation,the judge characterized the violation as de minimis.[2]??????????? Onreview, Gallo argues that the judge correctly decided the case. The Secretaryargues that the judge too narrowly limited ?debris? as used in section1926.25(a) to matter which will not or cannot be used again. The Secretary alsoargues that the matter which the judge characterized as debris presented asubstantial hazard to Gallo?s employees and that the judge therefore erred infinding the violation de minimis.II??????????? Section1926.25(a) requires that ?form and scrap lumber with protruding nails, andall other debris, shall be kept cleared from work areas . . .? (emphasisadded). There can be no real question that form and scrap lumber withprotruding nails can be used again?as form lumber and scrap lumber for chockingequipment or materials, and so forth. ?[A]ll other debris? is linked in thestandard to form and scrap lumber. This linkage certainly suggests that ?debris?is not limited to ruined or fragmented matter, that is, matter not destined forfuture use, any more than ?form and scrap lumber with protruding nails? is solimited. Accordingly we reject the judge?s definition of debris.??????????? Section1926.25(a) is concerned with housekeeping on construction worksites. It directsemployers to keep lumber and debris cleared ?from work areas, passageways, andstairs, in and around buildings and other structures.? Hazards of tripping andfalling, possibly resulting in sprains, fractures, and even concussions, canoccur if matter is scattered about working and walking areas. See BeallConstruction Co., 74 OSAHRC 7\/C13, 1 BNA OSHC 1559, 1973?74 CCH OSHD?17,339 (No. 557, 1974), aff?d, 507 F.2d 1041 (8th Cir. 1974).Accordingly, ?debris? within the meaning of section 1926.25(a) includesmaterial that is scattered about working or walking areas. Whether the materialhas been used in the past or can or will be used in the future is irrelevant.??????????? Weconclude, however, that equipment cannot be considered ?debris? within section1926.25(a).[3]The linkage of ?all other debris? with ?form and scrap lumber with protrudingnails? suggests that only material is covered by the standard. Moreover, thenature of construction work would generally preclude keeping work areas andpassageways entirely clear of equipment. Accordingly, although the materialsconsisting of wood, steel pieces, pipes, and other objects on the firstelevation constitute debris within section 1926.25(a), the equipment to beinstalled or removed on both elevations involved in this case is not debris.See Bethlehem Steel Corp., 79 OSAHRC 5\/D12, 7 BNA OSHC 1053, 1979 CCHOSHD ?23,287 (No. 13799, 1979); Marinas of the Future, Inc., 77 OSAHRC 201\/B1,6 BNA OSHC 1120, 1977?78 CCH OSHD ?22,406 (No. 13507, 1979). The portion of thecitation alleging noncompliance with the standard on the first elevation wastherefore properly affirmed by the judge, but the portion pertaining to the76-foot elevation where only electrical equipment was observed in the workingarea by the compliance officer must be vacated.III??????????? Thenumber and scattered placement of the materials reveal that there was apossibility of tripping or falling. The resultant injury could be as severe as?busting your shins [or] twisting your ankles,? in the compliance officer?swords, because some of the debris consisted of structural steel and pipes. Seealso Beall Construction Co., supra. Therefore, the relationship of thisviolation to employee safety was not negligible. Accordingly, the violation onthe first elevation was other than serious rather than de minimis. See Prattand Whitney Aircraft, Division of United Technologies Corp., 80OSAHRC ___, 8 BNA OSHC 1329, 1339, 1344, 1980 CCH OSHD ?24,447 24,447 at pp.29,829, 29,833 (No. 13591, 1980), pet. for review filed, No. 80?4102 (2dCir. June 24, 1980); see generally Southwestern Electric Power Co., 80OSAHRC ___, 8 BNA OSHC 1974, 1980 CCH OSHD ?24,732 (Nos. 77?3890 and 77?3391,1980); Fabricraft, Inc., 79 OSAHRC 49\/A2, 7 BNA OSHC 1540, 1979 CCH OSHD?23, 691 (No. 76?1410, 1979); Continental Oil Co., 79 OSAHRC 42\/C3, 7BNA OSHC 1432, 1979 CCH OSHD ?23,626 (No. 13750, 1979).??????????? Takinginto consideration Gallo?s medium size, good faith, and lack of a prior historyof violation, as well as the low gravity of the violation, we assess nopenalty.??????????? Accordinglywe modify the judge?s decision. We affirm as an other than serious violationthat portion of the citation alleging noncompliance with 29 C.F.R. ? 1926.25(a)on the first elevation. No penalty is assessed. We vacate that portion of thecitation alleging a violation on the 76-foot elevation. SO ORDERED.?BY THE COMMISSION?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: DEC 16, 1980\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-4371 GALLO MECHANICAL CONTRACTORS, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 June 16, 1977DECISION AND ORDERAPPEARANCESRobert E. Luxen, Esquire, Office of theSolicitor, U. S. Department of Labor, Dallas, Texas, on behalf of complainant\u00a0Morton H. Katz, Esquire, New Orleans,Louisiana, on behalf of respondent\u00a0Brenton, Judge??????????? Asubcontractor who neither creates nor controls an existing hazardous condition,to which his employees are exposed, cannot avoid a citation unless heaffirmatively shows that his employees were protected by means of realisticmeasures, taken as an alternative to literal compliance or that he did not havenor with the exercise of reasonable diligence could have had notice that thecondition was hazardous. Secretary v. Grossman Steel and Aluminum Corp.,76 OSAHRC 54\/D9, BNA 4 OSHC 1185, CCH OSHD ?20,691 (1976); Secretary v.Anning-Johnson Co., 76 OSAHRC 54\/A2, BNA 4 OSHC 1193, CCH OSHD ?20,690(1976); and Secretary v. Paramount Plumbing & Heating Co., Inc.,OSHRC DOCKET NO. 12652 (RC May 11, 1977).STATEMENT OF THE CASE??????????? OnSeptember 9, 1976, respondent, a sub-contractor while engaged in theinstallation of plumbing, heating, air conditioning, and industrial pipe withinMichoud [Vertical] Assembly Facility in New Orleans, Louisiana, was inspectedby complainant.??????????? Thisactivity resulted in the issuance by complainant to respondent on September 17,1976, of a non-serious and a serious citation alleging violations of ? 5(a)(2)of the Occupational Safety and Health Act of 1970 (?Act?), together with proposedpenalties for the violations totaling $785.00.??????????? Respondentfiled a notice of contest and after a complaint and an answer were filed by theparties the case came on for hearing in New Orleans, Louisiana, on March 15,1977.??????????? Thecomplaint alleged that respondent was engaged in a business affecting commercewhich remains undenied on the record.??????????? Uponthe commencement of the hearing complainant withdrew his $35.00 proposedpenalty for non-serious citation 2. Also, complainant moved to amend citation 1so as to allege a violation of 29 C.F.R. 1926.500(e)(1)(iii) instead of 29C.F.R. 1926.500(e)(1)(iv). This motion was granted over the objection ofrespondent because the nature and extent of the charge was not changed. Thealleged exposure remained the same under either standard. Respondent was notprejudiced because his defenses were not altered by the shift in the standardallegedly violated.THE CHARGESCitations 1 and 2 describeItem 2?29 CFR 1926.500(e)(1)(iv)CITATION 1?SERIOUS? Item 1?29 CFR 1926.500(e)(1)(iv)Stairways more than 44 inches wide butless than 88 inches wide having four or more risers were not provided with onestandard stair railing on each open side or one standard handrail on eachclosed side:(a) Vertical Assembly Building, C 76 elevation,northeast side on 9\/9\/76 at 2:20 p.m.?(b) Vertical Assembly Building, oneelevation above C 76 elevation, northeast side on 9\/9\/76 at 2:20 p.m.?(c) Vertical Assembly Building, oneelevation below C 76 elevation, northeast side on 9\/9\/76 at 2:20 p.m.? CITATION 2?NON-SERIOUS? Item 1?29 CRF 1926.25(a)Debris was not kept cleared from thefollowing areas:(a) Vertical Assembly Building, 1stelevation, southeast side on 9\/9\/76 to 1:10 p.m.?(b) Vertical Assembly Building, C 76elevation, northeast side on 9\/9\/76 at 2:00 p.m.THE STANDARDS??????????? Thestandards allegedly violated provide as follows:??????????? Citation1?29 CFR 1926.500(e)(1)(iii)(e) Stairway railings and guards. (1)Every flight of stairs having four or more risers shall be equipped with standardstair railings or standard handrails as specified below, the width of the stairto be measured clear of all obstructions except handrails:?(iii) On stairways less than 44 incheswide having both sides open, one stair railing on each side.???????????? Citation2?29 CFR 1926.25(a)(a) During the course of construction,alteration, or repairs, form and scrap lumber with protruding nails, and allother debris, shall be kept cleared from work areas, passageways, and stairs,in and around buildings or other structures.?NARRATION OF THE FACTSSTAIRWAY??????????? Theconstruction activity at the worksite was performed by a general and severalsub-contractors. There was a stairway located at an elevation described as 76.This stairway was less than 44 inches in width. It contained 12 or 14 risers.The floor or landing at the bottom of the stairs was steel checker plate. Oneside was wide open. At the opposite side was a wall, however, the stairway wasnot flush against the wall, leaving an open space the width of which was indispute. Respondent indicated about four inches and complainant up to threefeet. The preponderance of the credible evidence suggests that distance did notexceed six inches.??????????? Gurtler-Hebert,another sub-contractor on the jobsite erected the stairway and had thecontractual responsibility to provide the stair railings. They had not beeninstalled at the time of the inspection because the railings had not, up tothat time, arrived on the jobsite.??????????? Respondentthrough its foreman on the job, John Hudson, admitted that he and two otheremployees used the stairs in question to gain access to the next level above tocarry a length of hose to make a connection for a test below. The combinedexposure was one trip up and one trip down by each of three employees.??????????? Stairwaysbelow the 76 level had been installed with guardrails. John Hudson consideredthe unguarded stairway which they used on the one occasion as a luxury in lightof the fact that the only other available means of access was by a long ladderor being hoisted within the bucket of a crane for a considerable height.??????????? Theevidence is conflicting as to whether a fourth employee of respondent made useof the unguarded stairway on one occasion. There is no evidence that thisstairway was within accessible limits to any other employee on the constructionsite.HOUSEKEEPING??????????? Ithas become exceedingly difficult to generate a positive adjudicatory attitudetoward an alleged housekeeping violation, especially on a multi-employerconstruction site.??????????? Invariablythe pattern of the evidence is the same. A little bit of this and a lot of thatis quite often the generalized statement of a witness. In most cases it isreferred to as trash or debris without a meaningful description. And, moreimportantly, if a board or any easily removable object obstructs a workman?spath he would rather step over it or go around it than momentarily degrade,corrupt, or undignify his job status by moving the item from his path.Moreover, to this date this tribunal has not been able to focus upon any injuryoccurring because of the violative conditions as contemplated by 29 CFR1926.25(a).??????????? Inthis case counsel for complainant was able to cause his witnesses to specifythe items which were considered violative of the standard. They were describedby the compliance officer as pieces of wood used for chocking, putting [putty]material, excess material to be used, and material being removed at onelocation. At another location as a number of pieces of equipment either to beinstalled or removed. One employee described one of those locations where hewas working as containing pipe, wood, and pieces of steel. The pipe was in 20feet lengths and was there to be used. The wood was two by fours, lengthunknown. The nature, number, and character of the pieces of steel is alsounknown.??????????? Thelength of time these alleged conditions existed is not made clear on the recordin this case. The evidence just shows that exposure to the latter location wasto two welders for one work day. And to the other only to employees who mighthave an occasion to pass by as it was not a work station.LAW AND OPINION??????????? Respondentrelies upon Anning-Johnson Co. v. OSHRC & Secretary of Labor, 516F.2d 1081 (7th Cir. 1975). This tribunal is in complete agreement with thepropositions of law laid down in that case. The Review Commission, however, haschosen to modify the primary rule in that case by requiring the subcontractor,in addition to showing that he did not create or control the hazard, to showthat he lacked the expertise or ability to abate the violative conditions, orthat he took reasonable steps to protect his employees from the hazardousconditions. Secretary v. Paramount Plumbing & Heating Co., supra.Moreover, this tribunal, as the initial adjudicatory arm of the ReviewCommission, is charged by the Commission to follow its established precedentsunless stricken down by the Supreme Court of the United States.??????????? Inthis case, respondent established that it neither created nor controlled theviolative circumstances surrounding the stairway. Speculation would tend toindicate that respondent neither had the expertise nor the ability to abate thehazard. Nevertheless, respondent did not affirmatively offer, by its evidence,a hint that it was in no position to abate by some protective means. Moreover,there is no evidence that it took any reasonable steps to protect its employeesfrom the hazard of the open-sided stairway, such as requesting or cajoling thesub-contractor, responsible for making the stairway safe, to install temporaryequivalent protection to guard the sides of the stairway including grab rails.Further, there is no evidence that respondent was duty bound by contract orotherwise to make the test prior to the time the awaited guard rails would beinstalled.??????????? Respondentalso contends that its use of the stairway was de minimis, that it had noknowledge of the alleged condition, and that the alleged amended standard, 29CFR 1926.500(e)(1)(iii), is not applicable.??????????? Noneof those defenses are meritorious. John Hudson, respondent?s foreman was wellaware that the stairway was open-sided with no railings. His knowledge isimputed to respondent. Admirably he chose the least way to gain access to thenext higher level. Even so respondent cannot avoid the citation on thatproposition because Hudson and the other two employees were in fact exposed tothe hazard by ascending and descending the stairway.??????????? Althoughthe opening between the one side of the stairs and the wall may well haveprecluded a fall off that side, the opening still constituted an open side tothe stairway. This factor would go to the gravity of the violation.??????????? Thepreponderance of the evidence and the present rulings of the Commission in thiskind of case compels a finding that respondent violated the standard as chargedby the amendment of citation 1.??????????? Respondentalso maintains that its activity in using the unguarded stairway did notconstitute a serious violation. Respondent has misconstrued the application ofsection 17(j) of the Act. Comparison with death cases as a result of anunguarded trench cited as serious and a flight of open-sided stairs cited asnon-serious is commendable. But the sole issue under a given factual situationis whether there is a substantial probability that death or serious physicalharm could result because of the hazard alleged??????????? Otherwisestated, is there a possibility that death or serious physical harm could resultif an employee tripped or slipped on the stairway in question and for lack ofguardrails fell over the open-side, fell into the narrow opening on the otheropen side, or tumbled 12 or 14 risers to the steel checker plate below. Theevidence is clear that it is possible that a disabling or permanent injurycould result because of the existing hazard. Moreover, although not likely, itwould appear that an employee could be just as dead from a fall from top tobottom as he would be if buried in a trench cave-in.??????????? Respondentseeks to avoid the housekeeping violation on the grounds that it has shown thatit neither created nor controlled any one of the situations alleged.??????????? Thehousekeeping standard commands that form or scrap lumber with protruding railsbe kept cleared from work areas, passageways, and stairs, together with allother debris. Thus, the fashioners of the standard have declared that form andscrap lumber with protruding rails is debris. They fail to define debris orotherwise classify items which constitute debris. Apparently debris means theremains of anything broken down or destroyed thereby constituting ruins,fragments, or rubbish.??????????? Pipein 20 feet lengths is clearly not debris. Also materials to be used andequipment are not debris. A piece of wood which does not contain protrudingnails is not debris unless it is fragmented or clearly rubbish. It is difficultto ascertain from the dearth of the evidence what the pieces of steelrepresented. Inasmuch as the witness concluded they were trash they areaccepted as debris. And apparently the putty material was the ruins of its use.??????????? Thus,it would appear that the only items constituting debris under the standardalleged are putty and pieces of steel. The nature and concentration of theseitems is not made known on the record.??????????? Thehazard presented because of this alleged violation is tripping and perhaps aresulting fall. Here complainant extended it to busting shins apparentlybecause of the possibility of contact with stacked materials or equipment. Butthat kind of material and equipment is not debris.??????????? Inthis situation as with the stairway violation respondent failed toaffirmatively show that it took any steps to protect its employees. Obviouslyif there existed debris which presented a hazard to its employees respondenthad the ability to abate it.??????????? Inthis tribunal?s judgment the complainant?s evidence together with all theevidence for violation of 29 CFR 1926.25(a) falls short of making a case for afinding that the debris, putty, pieces of steel, and including the wood, ifany, to which respondent?s employees were exposed had a direct or immediaterelationship to safety or health.??????????? Accordinglythe violation should be considered de minimis.PENALTY CONSIDERATION??????????? Complainantproposed that respondent be assessed a penalty of $750 for the violation of 29CFR 1926.500(e)(1)(iii). Complainant?s evidence misses this mark. In fact heonly referred to the size of respondent?s business and history by evidence thatit employed 20 to 29 people and that it had no history of previous violations.Apparently respondent?s good faith was not questionable.??????????? Complainantdid not explore the gravity of the violation by argument. The record clearlyindicates that the duration of exposure was very slight, involving threeemployees, thus the degree of probability of an injury occurring because of theviolation was remote, in fact almost non-existent. Accordingly, a penaltyassessed in the amount of $50 is deemed appropriate for the violation.CONCLUSIONS OF LAW??????????? 1.The Review Commission has jurisdiction to hear and decide this case.??????????? 2.Respondent, a sub-contractor on a multi-employer construction site, is liablefor exposing its employees to a hazard of which it has knowledge, which itneither created or controlled, unless it takes realistic steps to protect itsemployees from that hazardous condition.??????????? 3.Respondent?s violation of 29 CFR 1926.500(e)(11)(iii) was a serious violationas charged in amended citation 1.??????????? 4.Respondent?s violation of 29 CFR 1926.2 ? (a) had no direct or immediaterelationship to safety or health and therefore is a de minimis violation as opposedto a non-serious violation as charged by citation 2.??????????? 5.Failure of complainant to support his proposed $750 penalty for the seriousviolation by any compelling evidence warrants a reduction to $50.ORDER??????????? It isordered that:??????????? Citation1 be and it hereby is, affirmed.??????????? Citation2 be and it hereby is, vacated.??????????? Apenalty of $50 be and it hereby is assessed for violation of 29 CFR1926.500(e)(1)(iii).?So ordered.?J. PAUL BRENTONJudgeDate: June 16, 1977?Atlanta, Georgia[1] The standardprovides that ?[d]uring the course of construction, alteration, or repairs,form and scrap lumber with protruding nails, and all other debris, shall bekept cleared from work areas, passageways, and stairs, in and around buildingsor other structures.?[2] Violations of theAct that are so remotely related to employee safety and health as not towarrant imposition of an abatement requirement or the assessment of a penaltyare characterized by the Commission as de minimis. See Southwestern Elec.Power Co., 80 OSAHRC ___, 8 BNA OSHC 1974, 1980 CCH OSHD ? 24,732 (Nos.77?3890 and 77?3391, 1980) (lead and separate opinions) and cases citedtherein.[3] In BechtelPower Co., 79 OSAHRC 34\/A2, 7 BNA OSHC 1361, 1979 CCH OSHD ? 23,575 (No.13832, 1979), the Commission adopted Administrative Law Judge Erwin L.Stuller?s conclusion that certain materials and equipment constituted ?debris?within the meaning of section 1926.25(a). As well as ?scattered hoses, chains,cables, pipes, . . . combustible materials . . . and various other excessmaterials,? there were at the worksite involved in that case ?odd pieces ofequipment? consisting of an unused ladder, clothing, and a water jug. RejectingBechtel Power Co.?s argument that ?debris? consists only of broken downor destroyed items, Judge Stuller held that the term ?includes within itsmeaning those cast off, unused, and temporarily abandoned items found . . .littering the work area and employee passageways [in this case].? In finding aviolation of the standard, Judge Stuller did not distinguish between thematerials that were scattered about and the ?odd pieces of equipment? thatallegedly also constituted part of the violative condition.The primary issue decided in BechtelPower Co.?that ?debris? within the meaning of section 1926.25(a) does notconsist solely of broken down or destroyed items?is consistent with ourinterpretation of the standard in this case. However, Bechtel Power Co. canalso be read as including certain types of equipment within the items whichmust be kept clear of work areas and passageways under the standard. To theextent that Bechtel Power Co. can be so read, we disapprove such aninterpretation.”