“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-0088 STAHR AND GREGORY ROOFING CO., INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 January 4, 1979DECISIONBefore CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Adecision of Administrative Law Judge Harold A. Kennedy is before the Commissionpursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29U.S.C. ? 651 et seq. [?the Act?]. In his decision, Judge Kennedy affirmed twononserious violations of the Act for failure to comply with the standards at 29C.F.R. ? 1926.450(a)(9)[1] and 29 C.F.R. ?\u00a01926.500(b)(1).[2] No penalty was assessedfor the former violation. A penalty of $30 was assessed for the latter. TheJudge also affirmed a serious violation for failure to comply with the standardat 29 C.F.R. ? 1926.500(d)(1)[3] with respect to theperimeter of the second floor.[4] A penalty of $50 wasassessed for the serious violation.??????????? Neitherparty filed a petition for discretionary review of the Judge?s decision. OnDecember 22, 1976, former Commissioner Moran directed that the case be reviewedby the Commission ?for error.? The Secretary of Labor did not file a brief onreview. Respondent asked the Commission to consider on review the samearguments that it urged before the Judge.??????????? Stahrand Gregory was the roofing contractor on a two-story service and officebuilding at a power plant under construction in Cason, Texas. Most of the factsare not in dispute. Respondent?s nine or ten employees on the jobsite climbedup to the roof three times a day on each of the three or four days they were atthe inspected worksite. They reached the roof by ascending two ladders. Thefirst was a wooden ladder extending from the ground level to the second flooron the outside of the building. After stepping off the ladder at the edge ofthe second floor, which was about 4 feet above ground, the employees walkedtoward the interior of the structure past an unguarded floor opening to thesecond ladder.??????????? Theemployees stepped off the first ladder to their left. The edge of the secondfloor was completely unguarded for some distance in that direction. Immediatelyto the right of the first ladder was a vertical steel beam. The floor openingextended toward the center of the building directly behind the vertical beam. Asecond vertical beam was located at the far end of the opening, directly behindthe first vertical beam when the two beams are viewed from the outside edge ofthe second floor. Thus, the floor opening was about 2 feet to the employees?right as they stepped off the ladder onto the second floor. When following thenormal route to or from the roof, the employees were closest to both hazardswhen stepping on or off the first ladder.??????????? Betweenthe two vertical beams on the second floor referred to above, an unknown personhad strung a sagging rope at a height of about 35 inches along the side of thefloor opening closest to the path respondent?s employees used. The ladder ofanother subcontractor had been placed in a vertical position near the innermostend of the floor opening. It is unknown how long the ladder either had been orwould be so positioned. The compliance officer agreed with respondent?switnesses that the rope and ladder would serve as a warning to workers of thefloor opening. Respondent?s foreman, Melvin King, testified that respondent didnot warn its employees about the hole, but that everyone knew it was there.??????????? Thesecond ladder was a permanently-affixed metal ladder that ran from the secondfloor to the roof through a 3 foot by 3 foot ?scuttle hole? in the roof. Theside rails of the second ladder extended only 3 or 4 inches above the rooflevel. No grab rails were provided. The flat roof was approximately 24 feetabove ground.??????????? Thegeneral contractor was responsible for erecting guardrails on the jobsite andprovided both of the ladders used by respondent?s employees. Respondent knewabout the cited conditions, but did not request the general contractor tocorrect any of them. Although respondent normally warns its employees about theedges of buildings and unguarded floor openings, no such warnings were given onthis jobsite.??????????? JudgeKennedy found that respondent?s employees had been exposed to all threenoncompliant conditions.[5] We agree with the Judgethat the facts support the Judge?s finding that respondent?s employees hadaccess to the hazards presented by the lack of sufficient siderail extension onthe upper ladder, the open second floor perimeter, and the unguarded flooropening. The test to be applied here is whether respondent?s employees wereshown to have had access to the hazards presented by the violative conditions. Gilles& Cotting, Inc., 76 OSAHRC 30\/D9, 3 BNA OSHC 2002, 1975?76 CCH OSHDpara. 20,448 (No. 504, 1976).??????????? Thetest is met with respect to each of the hazardous conditions cited here.Respondent had nine or ten employees at the worksite for a period of three orfour days. The employees climbed to the roof three times daily. There was noperimeter protection in the area where respondent?s employees got on and offthe lower ladder at the edge of the second floor. The employees passed within 2to 8 feet of the floor opening while proceeding between the upper and lowerladders. When coming down from the roof, it would be necessary for some of anygroup of employees to wait at an area close to both hazards while individualsstarted down the lower ladder. Moreover, the hazards presented by the unguardedperimeter near the ladder and the inadequately protected floor opening werelocated such that for the employees to avoid one hazard, they would likelyapproach closer to the other. The upper ladder was the only means used by theemployees to go between the second floor and their place of work on the roof.Although the exposure of each of respondent?s employees to individual citedhazards may have been relatively brief when viewed singly, clearly access to thehazards has been established. In any event, brevity of exposure does not negatethe finding of a violation. American Bechtel, Inc., 77 OSAHRC 214\/A2, 6BNA OSHC 1246, 1977?78 CCH OSHD para. 22,466 (No. 11340, 1977). Rather,duration of exposure is a factor to be considered in determining the gravity ofthe violation for the purpose of penalty assessment. Id.??????????? TheJudge then addressed the issue of respondent?s liability in terms of thedefense afforded construction subcontractors by the Commission decisions in GrossmanSteel and Aluminum Corp., 76 OSAHRC 54\/D9, 4 BNA OSHC 1185, 1975?76 CCHOSHD para. 20,691 (No. 12775, 1976) and Anning-Johnson Co., 76 OSAHRC54\/A2, 4 BNA OSHC 1193, 1975?76 CCH OSHD para. 20,690 (No. 4409, 1976), whichwere issued by the Commission two days before the hearing in this case. TheJudge found that Stahr and Gregory had knowledge of the hazardous conditions inquestion but did not create or control them. The Judge also found, in agreementwith respondent?s contentions, that it did not have the means to installguardrails because of union jurisdictional rules and lack of training andequipment, and that respondent was unable to construct and install handrails orgrabrails on the metal ladder because it was a permanent, structural feature ofthe building. In addition, the Judge found that safety belts and lifelines wereunrealistic as a means of protection while employees were getting on or off theladder at the edge of the second floor.??????????? JudgeKennedy noted that the general contractor was contractually responsible forguardrails. The Judge also observed, however, that Stahr and Gregory made noattempt to have the general contractor correct any of the cited conditions. Inaddition, the Judge found that respondent did not instruct its employees toavoid the cited hazards. Accordingly, he affirmed the three citations.??????????? Weagree that the Judge properly concluded that respondent has failed to establishthe defense made available to construction subcontractors by the Commissiondecisions in Anning-Johnson, supra and Grossman Steel, supra. Werecognize that respondent neither created the violative conditions nor wascapable of abating them in the manner contemplated by the cited standards.Nevertheless, it was incumbent upon respondent to take those alternativemeasures that were available to protect its employees. J. H. MacKay ElectricCompany and U. S. Engineering Company, ?? OSAHRC ??, 6 BNA OSHC 1947, 1978CCH OSHD para. 23,026 (Nos. 16110 & 16111, 1978). In this case the recordshows that respondent made no attempt to implement alternative methods ofemployee protection. Respondent argues that complaining to the generalcontractor would have been of little value. This contention is unpersuasive.Each of the cited conditions presented a fall hazard of about 14 feet.Consequently, merely complaining to the general contractor would have beenpresumptively inadequate, in any event, because of the seriousness of thehazards confronting respondent?s employees and because of respondent?s failureto demonstrate that other means of employee protection were unavailable. J.H. MacKay, supra, n. 6. Therefore, respondent?s asserted defense must fail.See, e.g., Ray Boyd Plaster and Tile, Inc., 78 OSAHRC 47\/D8, 6 BNA OSHC1648, 1978 CCH OSHD para. 22,794 (No. 76?814, 1978).??????????? Finally,the Judge properly took into consideration respondent?s safety program and thebrief exposure of respondent?s employees when he assessed the proposed penaltyof $30 for the nonserious violation and reduced the penalty for the seriousviolation from the $500 proposed to $50. No penalty was proposed for the ladderviolation and none was assessed. Having considered the penalty assessmentcriteria set forth at section 17(j) of the Act, we find the Judge?s assessmentof penalties to be appropriate.??????????? Accordingly,the Judge?s decision is affirmed.So ORDEREDFOR THE COMMISSION:RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: JAN 4, 1979?BARNAKO, Commissioner; concurring in part anddissenting in part:??????????? Iagree with the majority opinion that Stahr and Gregory (S & G) violated thestandard at 1926.450(a)(9) by using, without grab rails, the metal ladder withside rails that only extended 3 or 4 inches above the roof landing. I would,however, vacate the 1926.500(b)(1) allegation with respect to theinadequately-guarded floor opening and the 1926.500(d)(1) allegation withrespect to the unguarded, open-sided floor.??????????? Iwould vacate the alleged violation of 1926.500(b)(1) because the record doesnot establish that S & G?s employees were exposed to the hazard. See Gilles& Cotting, Inc., 76 OSAHRC 30\/D9, 3 BNA OSHC 2002, 1975?76 CCH OSHDpara. 20,448 (No. 504, 1976).[6] As indicated in themajority opinion, the floor opening involved was on the second floor level andwas partially, although inadequately, guarded by a length of rope that saggedto a height of 35 inches; an aluminum ladder, pitched between the floor and aceiling beam, was positioned in front of the rope. The evidence establishedthat the only time the employees were on the second floor level was to gainaccess to the roof. S & G?s employees traveled from the ground to thesecond floor by using a wooden ladder placed against the exterior edge of theopen-sided second floor. The employees had to step off the left side of theladder onto the second floor because the right side of the ladder was lashed toa vertical steel beam at the second floor level for stability. The relevantfloor opening was located diagonally behind the right side of the woodenladder. Once on the second floor, the employees had to walk diagonally to theirleft in order to reach the metal ladder which lead to their ultimatedestination on the roof. The inadequately-guarded floor opening was, therefore,located in the opposite direction of the path that the employees had to take toget to the metal ladder. To return to the ground level, the employees wouldreverse their previously indicated steps and approach the wooden ladder fromthe side that was not lashed to the steel beam, the side of the ladder furthestfrom the inadequately-guarded floor opening.??????????? In myview, the zone of danger for employees is much nearer to the edge of an openingwhen some perimeter protection is provided than when none is present. See FrankC. Gibson, 78 OSAHRC 32\/E7, 6 BNA OSHC 1557, 1978 CCH OSHD para. 22,686(No. 13925, 1978). This is true here since the sagging rope and aluminum ladderserved as a warning to the employees of the floor opening. As the evidenceabove indicates, the S & G employees were not shown to have entered or tohave reason to enter the danger zone created by the inadequately-guarded flooropening. Moreover, it is pure speculation to suggest, as the majority does,that the employees loitered around the floor opening while massed on the secondfloor waiting to get down the wooden ladder. Therefore, because the record doesnot establish that employees entered or had reason to enter the danger zonecreated by the inadequately-guarded floor opening, the Secretary has notestablished a violation. See my separate opinion in Otis Elevator Co.,78 OSAHRC ___\/___, 6 BNA OSHC 2048, 2052?53, 1978 CCH OSHD para. ___ (No.16057, Oct. 13, 1978).??????????? Iwould also vacate the alleged 1926.500(d)(1) unguarded, opensided floorallegation. Although the guardrail was absent from the entire length of thesecond floor, the record does not establish any exposure to a fall hazardexcept at the area immediately adjacent to the ladder and then exposure waspresent only briefly when the employees alighted from or stepped onto the ladder.Although the majority apparently agrees with this finding, they neverthelessfind a violation without addressing S & G?s main contention advanced at thehearing, that a guardrail provides no protection to employees while they arealighting from or stepping onto the ladder since the railing must be removedduring that time to permit access to the floor or ladder.??????????? Commonsense dictates that guardrails cannot be in place immediately adjacent to theladder when employees are getting on or off the ladder. Only if guardrails areabsent at this point can employees reach the ladder or floor without having torisk a fall by climbing over or crawling under the guardrails, and of course,if guardrails are absent they can not serve any safety function. Because exposurewas limited to the area immediately adjacent to the ladder and because theguardrails must be removed at the only point in time when employees wereexposed to the hazard, I would vacate the citation.??????????? Iwould further note, however, that the cited standard is inapplicable to thehazard to which the compliance officer stated the citation was addressed. Thecompliance officer testified that guardrails were needed as a device whichemployees could hold while getting on and off the ladder. He stated, ?Well, anytime you use a ladder on the outside perimeter of a building there is always aprobability of falling and you got to make sure you catch hold of the ladder.?The standard at 1926.500(d)(1) is not addressed to this hazard. Indeed eventhough the compliance officer recommended guardrails for this hazard, he alsostated, in relation to another citation, that side rails extending not lessthan 36 inches above the landing, as required by 1926.450(a)(9), would provideprotection against falls for employees who were getting on or off a ladder.[7] I agree. Moreover, thetestimony and exhibit SX?7 establish that the wooden ladder had side railsextending 36 inches above the landing. Therefore the evidence establishes thatS & G had provided protection for the hazard to which the complianceofficer stated the citation was addressed.[1] The citedstandard, 29 C.F.R. ? 1926.450(a)(9), states:?1926.450 Ladders(a)General requirements(9)The side rails shall extend not less than 36 inches above the landing. When thisis not practical, grab rails, which provide a secure grip for an employeemoving to or from the point of access, shall be installed.[2] The citedstandard, 29 C.F.R. ? 1926.500(b)(1), states in relevant part:?1925.500 Guardrails, handrails, and covers.(b)Guarding of floor openings and floor holes.(1)Floor openings shall be guarded by a standard railing and toeboards orcover\u00a0.\u00a0.\u00a0. In general, the railing shall be provided on allexposed sides . . .[3] The citedstandard, 29 C.F.R. ? 1926.500(d)(1), states in relevant part:?1926.500 Guardrails, handrails, and covers.(d)Guarding of open-sided floors, platforms, and runways.(1)Every open-sided floor or platform 6 feet or more above adjacent floor orground level shall be guarded by a standard railing, or the equivalent . . . onall open sides, except where there is entrance to a ramp, stairway, or fixedladder . . ..[4] The seriouscitation alleged a failure to provide perimeter guarding in accordance with thestandard at 29 C.F.R. ? 1926.500(d)(1) with respect to the second floor and theroof. Judge Kennedy found that the cited standard was not applicable to theroof based on the Commission decision in Central City Roofing Co., Inc.,76 OSAHRC 61\/A2, 4 BNA OSHC 1286, 1976?77 CCH OSHD para 20,761 (No. 8173,1976). Inasmuch as the disposition of the Judge is not adverse to respondentregarding the issue of the applicability of the cited standard to the flat roofhere, and the issue is not one of compelling public interest, we will notaddress it. See Union Camp Corp., 77 OSAHRC 166\/A2, 5 BNA OSHC 1799,1977?78 CCH OSHD para. 22,103 (No. 12203, 1977). The Judge, however, did notinclude any reference to the roof citation in his Order. Accordingly, theportion of the serious citation alleging a violation of the Act for failure toguard the perimeter of the roof is hereby vacated.[5] Judge Kennedy inhis decision states that the record does not suggest that any significanthazard is presented by the lack of adequate handrails on the metal ladder andthat the Secretary could have cited the condition as de minimis. The Judge alsostates that respondent?s employees need not, and did not, go close enough tothe floor opening to be in any danger of falling. These remarks, standingalone, could be interpreted to indicate a finding of lack of exposure to thecited conditions. The remarks are made in the context of the Judge?s discussionof penalty assessment. The Judge, however, also specifically finds exposure ofrespondent?s employees to each of the violative conditions. Therefore, in lightof his decision as a whole, we interpret the above language as a finding of lowgravity with respect to the ladder and floor opening violations.[6] In Gilles &Cotting, I set forth the test I would apply to establish employee exposure.I stated that exposure need not be based on actual exposure but could also bebased upon a rule of access grounded upon reasonable predictability thatemployees will be, are, or have been in a zone of danger. Absent an admissionby the respondent, however, I stated that I would require the Secretary toestablish access by evidentiary facts.[7] See transcript atpage 27.”