“Docket No. 567 TISHMAN REALTY & CONSTRUCTION COMPANY, INC.? OSHRC Docket No. 567 Occupational Safety and Health Review Commission July 31, 1973 ? Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners OPINIONBY: CLEARY OPINION: ?CLEARY, COMMISSIONER: On January 10, 1973, Judge William E. Brennan issued an initial decision and order in this case, affirming the Secretary’s citations and proposed penalties. On January 24, 1973, former Commissioner Burch directed that the decision and order be reviewed by the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as \”the Act\”). The Commission has reviewed the briefs filed by the parties and has considered the entire record.? We adopt the Judge’s decision insofar as it is consistent with the following. Review was directed in order to ascertain whether the provisions of 29 CFR 1910.12(c) render 29 CFR 1926.16 inapplicable to the instant case and, if so, whether the cited violations are supported by substantial evidence. Respondent, a general contractor for the construction of a building, was cited for failing to provide perimeter floor protection at various locations on the site, in contravention of 29 CFR 1926.500(d)(1), and for failing to adequately dispose of waste working materials,? contrary to the requirement of 29 CFR 1926.252(c).? A $500 penalty was proposed for the former, an alleged serious violation, and a $25 penalty was proposed? for the latter, an alleged non-serious violation. The existence of the cited conditions having been established, Judge Brennan affirmed the citations on two grounds.? First, evidence demonstrates that respondent’s job superintendent and numerous additional personnel employed by respondent at the construction site were exposed to the cited hazards. n1 Second, Judge Brennan holds that respondent, as the prime contractor, has overall responsibility for job safety, but cites 29 CFR 1926.16(a) as authority.? That section provides in part: . . . In no case shall the prime contractor be relieved of overall responsibility for compliance with the requirements of this part for all work to be performed under the contract. – – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – – n1 Respondent has presented no evidence rebutting the Secretary’s prima facie case, which is sufficient to establish employee exposure. – – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – -? Reliance upon this second ground is misplaced.? The provisions of 29 CFR 1910.12(c) state that subpart B of 29 CFR 1926, which includes the above cited section, is not incorporated as an occupational safety and health standard under section 6 of the Act.? This interpretive rule cannot serve as a basis for the Judge’s ruling.? However, independent substantial evidence, relied upon by the Judge and referred to, supra, supports the finding that respondent was in violation of the standards. It is ORDERED that the Judge’s decision, as modified, be affirmed. [The Judge’s decision referred to herein follows] BRENNAN, JUDGE, OSAHRC: This is an action arising under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter the Act), to review one Citation for? Serious Violation and one Citation for nonserious violation issued by the Secretary of Labor, (hereinafter Secretary) pursuant to Section 9(a) of the Act, and a Notification of Proposed Penalty in the total amount of $525.00 issued pursuant to Section 10(a) of the Act. On February 11, 1972, the Secretary through the New York Area Director of the Occupational Safety and Health Administration, issued to Tishman Realty & Construction Company, Inc., 666 Fifth Avenue, New York, New York, (hereinafter Respondent) two Citations as follows: 1.? A Citation for Serious Violation alleging Respondent was in violation of the Act at a workplace under its ownership, operation, or control located at 1166 6th Avenue, New York, New York (hereinafter workplace), by its failure to comply with the Occupational Safety and Health Regulation set forth at 29 CFR 1926.500(d)(1) because of its A.? 1) failure to provide any perimeter protection, i.e., neither top rail, midrail nor toeboards, on the 13th, 22nd, 23rd and 24th floors thereof; 2) failure to provide any perimeter protection on the 7th through 21st floors thereof at 20 foot sections near a material hoist; 3) failure to provide any perimeter protection on the 1st and 2nd floors thereof at 20 foot sections near a concrete hoist, and B.? failure to provide complete perimeter protection, i.e., no midrails or toe boards on the 12th through the 21st floors thereof. This Citation called for immediate abatement (R.p.1A): II.? A Citation for Non-Serious Violation at this workplace for failure to comply? with the Regulation set forth at 29 CFR 1926.252(c) because of its inadequate disposal of waste material as the job progresses. ?1) On the East end of the 12th floor, and 2) On the East end of the 13th floor. This citation called for abatement by February 22, 1972 (R.p.1). The Secretary also issued to this Respondent on February 11, 1972, a Notification of Proposed Penalty in the following amounts: I Citation for Serious Violation — $500.00. II Citation for Non-Serious Violation — $25.00 (R.p.2). Pursuant to Section 10(c) of the Act, the Respondent through a letter from its Assistant Secretary dated February 18, 1972, gave notice of its intention to contest both Citations and proposed penalties (R.p.3). This case was thereafter referred to the Occupational Safety and Health Review Commission, (hereinafter Commission) for hearing pursuant to Section 10(c) of the Act, notice thereof being given to the parties of record on February 28, 1972. On March 3, 1972, the Secretary filed his Complaint herein alleging in paragraph V thereof the violations set forth in the two Citations, which was followed by Respondent’s answer thereto, filed on March 10, 1972 (R.pp. 6, 9).? This case was assigned to the writer on March 21, 1972, notice thereof being given to the parties of record the same date. This case was consolidated with Barnaby Concrete Corporation (Docket No. 588) and Fireproof Products Co., Inc., (Docket No. 674) upon the Secretary’s motion (R.p.H-4) without objection by Order dated May 1, 1972 (R.p. H-7). These three cases were consolidated with Jaffie Contracting Company, Inc., (Docket No. 610), upon the Secretary’s Motion, without objection, by the order of Judge Harris dated May 4, 1972 (R.p. H-8). ?On May 3, 1972, the Secretary filed a Motion to Amend paragraph V of the Complaint previously filed in the Tishman case (Docket No. 567) to change the date of the alleged violation in the Complaint from February 11, 1972 to January 24 and January 27, 1972 (R.p. H-5, H-9).? This Motion was granted without objection by Order dated May 9, 1972 (R.p. H-11). The consolidated hearing herein was held as scheduled on May 18, 1972, in New York City. After granting three extensions of time requested by the Secretary within which to file briefs, proposed findings and conclusions, (R.p. H-19, H-21, H-22), said documents were filed by the Secretary on August 30, 1972.? No such submittals were filed by the Respondent herein. Having considered the entire record herein, the testimony and demeanor of the witnesses, the exhibits, the stipulations, representations and admissions of the parties, it is concluded that the substantial evidence of record considered as a whole supports the following findings of fact and conclusions of law. The Regulation relied upon by the Secretary in his Citation for Serious Violation reads as follows: 29 CFR 1926.500(d)(1) (d) Guarding of open-sided floors, platforms, and runways.? (1) Every opensided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder.? The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard. (f) Standard specifications (1) A standard railing shall consist of top rail, intermediate rail, toeboard, and posts, and shall have a vertical height of approximately 42 inches from upper surface of top rail to floor, platform, runway, or ramp level.? The top rail? shall be smooth-surfaced throughout the length of the railing. The intermediate rail shall be halfway between the top rail and the floor, platform, runway, or ramp. The ends of the rails shall not overhang the terminal posts except where such overhang does not constitute a projection hazard. Minimum requirements for standard railings under various types of construction are specified in the following paragraphs: (i) For wood railings, the posts shall be of at least 2-inch by 4-inch stock spaced not to exceed 8 feet; the toprail shall be of at least 2-inch by 4-inch stock; the intermediate rail shall be of at least 1-inch by 6-inch stock. The Regulation relied upon by the Secretary in his Citation for Non-Serious Violation reads as follows: 29 CFR 1926.252(c) (c) All scrap lumber, waste material, and rubbish shall be removed from the immediate work area as the work progresses. Early in the hearing the Secretary’s counsel advised that he would rely upon the following \”Rules of Construction,\” set forth in Subpart B — \”General Interpretations\”? of the instant Regulations (Tr. 31, 32). 29 CFR 1926.16 (a) The prime contractor and any subcontractors may make their own arrangements with respect to obligations which might be more appropriately treated on a jobsite basis rather than individually.? Thus, for example, the prime contractor and his subcontractors may wish to make an express agreement that the prime contractor or one of the subcontractors will provide all required first-aid or toilet facilities, thus relieving the subcontractors from the actual but not any legal, responsibility (or, as the case may be, relieving the other subcontractors from this responsibility).? In no case shall the prime contractor be relieved of overall responsibility for compliance with the requirements of this part for all work to be performed under the contract. (b) By contracting for full performance of a contract subject to section 107 of the Act, the prime contractor assumes all obligations prescribed as employer obligations under the standards contained in this part, whether or not he subcontracts any part of the work. ?(c) To the extent that a subcontractor of any tier agrees to perform any part of the contract, he also assumes responsibility for complying with the standards in this part with respect to that part.? Thus, the prime contractor assumes the entire responsibility under the contract and the subcontractor assumes responsibility with respect to his portion of the work.? With respect to subcontracted work, the prime contractor and any subcontractor or subcontractors shall be deemed to have joint responsibility. (d) Where joint responsibility exists, both the prime contractor and his subcontractor or subcontractors, regardless of tier, shall be considered subject to the enforcement provisions of the Act. No affected employee or authorized representative of affected employees expressed any desire to participate as a party herein. The following matters were stipulated to by the Secretary and this Respondent: The legal name of Respondent is Tishman Realty & Construction Co., Inc.? It is incorporated under the laws of the State of New York and its principal office is located at 666 Fifth Avenue, New York, New York.? At the time of the alleged violations, January 24 and 27, 1972, it was engaged in the construction of an office building located at 1166 Sixth Avenue, New York, New York, and many of the materials and supplies used by it were manufactured outside of the State of New York. It was further stipulated that Respondent is one of the largest builder-owners in the nation with a net worth of $32,205,000 in 1971.? Respondent had no history of previous violations of the Act and had a total average daily number of 1300 employees throughout the country, with 20 employees at the workplace here involved on January 24th, and 16 employees on January 27, 1972.? The Citations herein were posted at Respondent’s field office and upon each floor where a violation was alleged. The Secretary produced the testimony of Mr.? Kenneth McCabe a Certified Safety Professional and duly authorized Compliance Officer with over 15 years experience in the field of industrial safety. He testified to having conducted an investigation at the workplace here involved beginning on January 20th and ending on January 27, 1972.? After initially contacting Respondent’s Assistant Job Superintendent at the workplace, he observed the total absence of any perimeter protection on the four sides of the 13th, 22nd, 23rd and 24th floors of the building under construction.? Further, he observed on the 7th? through the 21st floors thereof, no perimeter protection at 20 foot sections on the East side of these floors near a material hoist and no perimeter protection on the East side of the 1st and 2nd floors thereof at 20 foot sections near a concrete hoist. Further that the 1st floor of this building was approximately 20 feet above the ground. As to the 20 foot unguarded sections on the 7th through the 21st floors, he testified that these openings were used by the concrete contractor to bring material onto the floor with the use of a material boom, called a \”Chicago boom.\” As the boom was moved upwards from floor to floor, the 20 foot sections on the perimeter of the building were left unguarded by any type of barricade or protection.? He testified to observing the concrete contractor, Barnaby Concrete Corporation (Docket No. 588) using the Chicago boom on the 21st floor of this building during this inspection. He further testified that employees of \”several contractors\” were working on the 24th floor level where there was no perimeter protection whatever for this completely decked floor which had an open core.? He additionally testified to seeing 5 or 6 of Respondent’s employees on the 21st floor and that there was a total of approximately 400 workmen at this job site. He further testified to observing on January 27,? 1972, incomplete perimeter protection, i.e., a steel cable but neither midrail nor toeboards on the four sides of the 12th, and 14th through 21st floors of this building. Additionally, this Compliance Officer was advised by Respondent’s Assistant Job Superintendent that Respondent, approximately two weeks prior to the inspection, had begun to install a protective cable at the perimeter of the floors and by January 21, 1972, had completed only some floors, but not those floors cited in the Citation. Mr. McCabe also testified to observing the East end of floors 12 and 13 at this job site where there was a \”lot\” of waste material present which created a tripping hazard to employees on these floors. It appeared that the West side of these floors had been cleaned and the excess material was moved to the East side thereof.? This material consisted of concrete, pieces of reinforcing rod, metal and pipe.? He stated that the tripping hazard was especially acute on the 13th floor as the concrete contractor was working on this floor doing some finishing work and there were some open shaftways without any protective barriers near the walk areas.? He stated that there were \”. . . quite a few men working in these general areas at various times . . .\” (Tr. 51).? The 13th floor had no perimeter protection of any kind and the 12th floor, had a cable at its perimeter, but did not have either midrail or toeboard. He additionally testified to the purposes of having midrail and toeboard protection at the perimeter of floors and to observing considerable activity on the ground adjacent to the building on all sides except the West side, which activity took place within 10 feet of the base of the building.? He observed men working on the North, South and West sides of the building just below grade level as well as men off loading structural? steel and other material from trucks which were located at the base of the building on the East side. Counsel for Respondent conceded that Respondent was the general contractor at this workplace (Tr. 65). Of the four Respondents participating in this consolidated hearing, (Tishman, No. 567; Barnaby, No. 588; Jaffie, No. 610; and Fireproof, No. 674) only this Respondent called any witness.? The one witness produced was Mr. Abelman, this Respondent’s Superintendent of construction at this workplace. This witness stated that as superintendent of the job he walked around the job at least once a day.? Nothing in this witnesses’ testimony controverts the existance of the conditions testified to by Officer McCabe concerning the total or partial absence of perimeter protection on the identified floors at this job site or the presence of waste material on the 12th and 13th floors thereof.? In fact, no evidence was introduced by this Respondent controverting said conditions. Respondent, through this witness, introduced its position relative to the Citation for Serious Violation, namely, that it was impossible to off load material onto a floor with the use of the Chicago boom when a 42\” barricade was in place, and toe boards were not necessary at this job site because some overhead protection was provided at all but one of the material hoists, i.e., the Chicago boom. Further, that there were covered ramps for employees to enter and exit the building as required by the State, and the areas at the base of the building, other than on the East side, \”Since the first time Mr. McCabe was there . . .\” (Tr. 188) were cabled off by stringing a cable at a 42\” height across the access to these areas, although no \”Do not enter\” signs were posted.? He readily admitted that the Chicago boom, \” — is usually used only on one or two floors — \” and claimed that as the boom is moved? upward, Respondent erects a cable at the open 20 foot section (Tr. 190, 191).? However, under cross examination this witness stated, \”on the date of the inspection if Mr. McCabe says they were open, (i.e., the 20 foot sections on the 1st, 2nd, and 7th through 21st floor where the Chicago boom had at one time been used), they were open.? We closed them up after that\” (parenthetical material supplied, Tr. 200). Essentially this testimony was in the nature of a request for a variance as to the requirement for perimeter protection at the 20 foot section of a floor where the Chicago boom was at work and an attack upon the reasonableness of the requirement of the regulation at issue concerning the necessity of toe boards. Neither argument can prevail in this proceeding.? If this Respondent believes that a variance, relative to either the requirement of perimeter protection at the Chicago boom location, or the necessity of toe board protection, is justifiable, it must seek such a variance through the provisions of Section 6 of the Act.? This record is silent as to any such steps having been taken by Respondent. The substantial and unrebutted evidence of this record establishes that this Respondent was in violation of Section 5(a)(2) of the Act by its failure to comply with the mandatory requirements of the Regulation set forth at 29 CFR 1926.500(d)(1) at the times and locations and in the manner set forth in the Citation for Serious Violation herein.? This violation was a serious violation within the meaning of Section 17(k) of the Act in that there was a substantial probability that death or serious physical harm could result from the conditions which existed at this workplace, i.e., completely unprotected or only partially protected perimeters on all floors of the instant building referred to? in the Citation herein, which conditions this Respondent knew or with the exercise of reasonable diligence could have known did exist. Further the substantial and unrebutted evidence of this record establishes that this Respondent was further in violation of Section 5(a)(2) of the Act by its failure to comply with the mandatory requirements of the Regulation set forth at 29 CFR 1926.252(c) at the times and locations and in the manner set forth in the Citation for Non-Serious Violation herein.? This violation was specifically determined not to be of a serious nature pursuant to Section 17(c) of the Act, but to have a direct or immediate relationship to occupational safety and health.? The evidence of record adequately supports this determination. The record herein establishes that this Respondent had at least one employee, its job superintendent, who toured this construction site daily as well as from 16 to 20 employees working at this job site on January 24 and 27, 1972.? As the general contractor of this construction job, with overall responsibility for the project, this Respondent was in the best position, in relation to any subcontractors, to detect and correct or have corrected any violations of Occupational Safety and Health Regulations. The provisions of the Regulation set forth at 29 CFR 1926.16, particularly that provision which reads; In no case shall the prime contractor be relieved of overall responsibility for compliance with the requirements of this part for all work to be performed under the contract. are controlling in this case. The Compliance Officer also testified to computing, in conjunction with the Area Director, the proposed penalties herein.? A 20% reduction in the maximum penalty of $1000 was allowed for Respondent’s good faith, i.e., Respondent had begun to install perimeter? protection cables two weeks before the inspection, 20% was allowed for no previous history of violations, the maintenance of accident records which reflected no serious accidents on this project, and a 10% reduction for the number of employees at the job site; resulting in a proposed penalty of $500 for the Serious Violation. In addition a $25 penalty was proposed for the non-serious violation. Due consideration having been given to the provisions of Section 17(j) of the Act as applicable to the evidence of record, and weighing particularly the gravity of the violations as balanced against the corrective steps immediately undertaken by Respondent, it is concluded that the penalties as proposed herein are not inappropriate. At all times involved in this case, Respondent herein was an employer engaged in a? business affecting commerce within the meaning of Section 3(5) of the Act and furnished employment to its employees at a workplace located at 1166 Sixth Avenue, New York City.? The Act is applicable to such employment within the meaning of Section 4(a) of the Act and the Commission has jurisdiction of the parties and of the subject matter herein. Based upon the foregoing findings and conclusions, and pursuant to the provisions of Sections 10(c) and 12(j) of the Act, it is hereby ORDERED 1.? That the Citation for Serious Violation, the Citation for Non-Serious Violation, and the Notification of Proposed Penalty in the total amount of $525.00, all dated February 11, 1972, directed to the Respondent herein, be and the same are hereby AFFIRMED. ?2.? Pursuant to Section 17(j) of the Act, said civil penalty in the total amount of $525.00 is hereby assessed against the Respondent herein.? “