UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

September 3, 1974

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

CLEARY, COMMISSIONER:

On January 12, 1973, Judge James A. Cronin, Jr. issued his decision and order in this case, modifying the Secretary of Labor’s citation for serious violation to allege a non-serious violation; amending the pleadings to conform to the evidence; affirming that citation as modified and amended; and, assessing a penalty of $200 for the violation. Judge Cronin also affirmed, with no penalty, the citation for two non-serious violations.

Thereafter, review was directed pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., hereinafter referred to as ‘the Act’). The issues on review relate to Judge Cronin’s finding of a non-serious violation of the Act by failure of respondent to comply with the standard at 29 CFR § 1926.500(d)(1).

The Commission has reviewed the entire record in this case. The decision of the Judge is adopted insofar as it is consistent with the following.

The alleged failure to comply with the standard at 29 CFR § 1926.500(d)(1) involved the inadequacy of guardrails on a platform protruding from the 33rd floor of an office building under construction Respondent, who owned the platform, was a subcontractor installing the exterior wall system on the building. The platform was used for landing construction materials hoisted up to the 33rd floor by crane. The platform was movable and had been used for this same purpose on lower floors. A pipe and wire rope guardrail was provided on each of the two sides which were perpendicular to the edge of the building. Approximately one and one-half weeks before the inspection, respondent had completed its use of the platform. Sometime after respondent finished with the platform, the two rails were damaged so that they provided little or no protection to anyone on the platform. Nevertheless, although the cause and time of the damage to the platform existing on the date of inspection are unknown, it is undisputed that the originally installed guardrails had neither toeboards nor intermediate rails even before respondent finished using the platform. Respondent’s employees were, therefore, actually exposed to the hazard of falling each time they went onto the platform to land materials. On this basis, Judge Cronin deemed the pleadings amended to conform to the evidence under rule 15(b) of the Federal Rules of Civil Procedure and found that respondent had failed to comply with the standard while its employees were still using the platform.

We find this amendment of the pleadings to conform to the evidence to be proper and consistent with the remedial purposes of the Act. Although an amendment under rule 15 would not be proper where the issue on which the amendment is based was not consensually tried or respondent was otherwise prejudiced, such is not the case here. Respondent’s assertion that the undamaged guardrails were equivalent to standard guardrails was not a necessary element of respondent’s other asserted defenses of non-exposure and lack of control. Thus, respondent was not misled into introducing the evidence of the platform’s earlier condition. Moreover, there is no evidence of prejudice to respondent here. Respondent was not deprived of the opportunity to litigate the issue of the undamaged platform and that issue was, in fact, litigated. Indeed, respondent’s primary defense in its post-hearing brief was that,

At all times during which the platform was in the possession and control of respondent, the platform was guarded by the equivalent of a standard railing.

Similarly, respondent’s post-hearing reply brief stated,

. . . respondent has consistently maintained the position that the railings in question were safe and constituted the equivalent of a standard railing at all times when the platform was in respondent’s possession.

Consistent with this argument, respondent had introduced evidence at the hearing on the condition of the platform prior to May 24. Finally, although respondent filed a brief on review, it chose not to challenge the propriety of the Rule 15 amendment in that brief.

Similarly, because respondent litigated the issue in fact and did not exercise the further opportunity to challenge this aspect of the Judge’s decision on review, there can be no assertion that the notice requirements of the Administrative Procedure Act (5 U.S.C. § 554(b)(3)) were not met. Cf. N.L.R.B. v. United Aircraft Corp., Hamilton Standard Division, 490 F.2d 1105 (2d Cir., 1973).

In finding this violation to be non-serious, the Judge apparently confused seriousness with gravity. The Commission has held that to establish that a violation is serious, it need only be shown that there is a substantial probability of death or serious physical injury if an accident occurs and that the employer knew or, with the exercise of reasonable diligence, could have known of the hazard. The probability that a fall might occur is relevant only to the gravity. See Emory H. Mixon, No. 403 (December 11, 1973); Standard Glass & Supply Co., No. 585 (April 27, 1973); Crescent Wharf & Warehouse Co., No. 1 (April 27, 1973). Both elements are present in this case. First, one cannot doubt that a substantial probability exists that death or serious physical harm could result from a fall from a height of 18 to 33 stories. Second, respondent’s knowledge is inferred from the obvious nature of the violation. To view a small, open-ended platform suspended at this height is to perceive the risk of falling. Thus, we find this violation to be serious within the meaning of section 17(k) of the Act.

Having found a serious violation, we turn to the issue of penalty assessment. Because a violation has been found only for the period while the installed guardrails were intact, the evidence is consistent with Judge Cronin’s determination of gravity based on the likelihood of an accident occurring. We therefore do not find the Judge’s application of the section 17(j) factors for penalty assessment or the $200 penalty assessed to be inappropriate.

Therefore, it is ORDERED that:

(1) the rule 15(b) amendment to conform the pleadings to the evidence is affirmed;

(2) the Judge’s modification of the Secretary of Labor’s citation charging a non-serious violation rather than a serious violation is vacated;

(3) the Secretary of Labor’s citation for serious violation of the Act for failure to comply with the standard at 29 CFR § 1926.500(d)(1), as amended, is affirmed;

(4) a penalty of $200 assessed therefore is affirmed;

(5) the non-serious violations of the Act for failure to comply with the standards at 29 CFR § 1926.450(a)(9) and 29 CFR § 1926.450(b)(12) are affirmed with no penalty assessed.

MORAN, CHAIRMAN, dissenting:

The process by which complainant’s allegations of wrongdoing was amended was clearly erroneous. Thus this decision is wrong even though I find that it was harmless error to accomplish the change in this case by an amendment to the pleadings because the respondent waived the issue and the use of this platform by its employees had ceased prior to the inspection.

Many months after the inspection of this platform, both the Judge and the Commission allowed an amendment to the citation which specified that the offense took place on May 24. This amendment occurred after it was shown at the hearing that respondent’s employees had ceased using this substandard platform a week and one-half before that date.

This is not a case where the liberal rules of pleading are to be applied for we are faced here—not with pleadings—but with a citation to which specific statutory conditions have been attached.

29 U.S.C. § 658 requires that the citation.

shall describe with particularity the nature of the violation

and that it

shall be prominently posted . . . at or near each place a violation referred to in the citation occurred.

There is a reason for these requirements: so employees will know what is being alleged in order that they can have the opportunity to take action accordingly.1

The statute requiring the posting of citations and specifying what shall be stated thereon has not been modified by the Federal Rules of Civil Procedure. The statutory criteria must be observed at all times. Amendments should not be allowed unless those amendments are posted and the time for responsive action reinstated. Otherwise the purpose of a citation and the very reason for posting it are nullified.

However, as stated above, the unique circumstances present here have mooted that issue in this case.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

January 12, 1973

CRONIN, JUDGE, OSAHRC:

This is a proceeding under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter called the Act) contesting two Citations and Notification of Proposed Penalty issued by the Complainant on June 5, 1972 against the Respondent under the authority of Sections 9(a) and 10(a) of the Act.

The Citations were issued as a result of an inspection on May 24, 1972 of a Respondent workplace on the 33rd and 34th floors of 100 Pine Street, San Francisco, California, and allege that Respondent violated Section 5(a)(2) of the Act by failing to comply with 3 occupational safety standards or regulations of the Act promulgated and adopted by the Secretary of Labor pursuant to Section 6(a) of the Act at 29 CFR 1910.12, namely 29 CFR § 1926.500(d)(1), 29 CFR 1926.450(a)(9), and 29 CFR § 1926.450(b)(12). The violation of 29 CFR § 1926.500(d)(1) is alleged to be ‘serious’; violations of the other standards are alleged to be non-serious.

The alleged violation of 29 CFR § 1926.500(d)(1), to be abated ‘immediately,’ was described in the Citation for Serious Violation No. 1 as follows:

Employer failed to provide required railing or equivalent protection for open-sided platform and floor on 33rd floor Front Street side of building.

The standard as promulgated by the Secretary provides:

1926.500(d)(1) Every open-sided floor of 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,2 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.

The standard at 1926.500(f)(1) in pertinent part, states:

(1) A standard railing shall consist of top rail, intermediate rail, toeboard, and posts . . . The intermediate rail shall be halfway between the top rail and the . . . platform . . .

The alleged violation of 29 CFR 1926.450(a)(9), to be abated in ‘2 days,’ was described in the Citation as follows:

Employer failed to provide required side rails to extend not less than 36 inches above landing for ladder access to chair cage.

The standard as promulgated by the Secretary provides:

1926.450(a)(9) The side rails shall extend not less than 36 inches above the landing. When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point of access, shall be installed.

The alleged violation of 29 CFR § 1926.450(b)(12), to be abated in ‘2 days,’ was described in the Citation as follows:

Employer failed to provide required spacing of 12 inches on cleats or rungs on ladder extension to chair cage.

The standard as promulgated by the Secretary provides:

1926.450(b)(12) Cleats shall be inset into the edges of the side rails one-half inch, or filler blocks shall be used on the rails between the cleats. The cleats shall be secured to each rail with three 10d common wire nails or other fasteners of equivalent strength. Cleats shall be uniformly spaced, 12 inches top-to-top.

The Notification of Proposed Penalty proposes to assess a penalty of $600 for the Citation For Serious Violation and no penalties for the two non-serious violations.

Pursuant to due notice, this case was heard at San Francisco, California on October 26, 1972. Proposed Findings of Fact, Conclusions of Law and briefs were filed by both the Secretary and Respondent.

JURISDICTION AND ISSUES

The Respondent, a California corporation, is an installer of curtain wall systems and engaged in ‘construction work’ as that phrase is defined at 29 CFR § 1910.12(b). During the period from September or October 1971 through June 1972, at 100 Pine Street, San Francisco, California, the Respondent’s employees installed curtain wall material manufactured at Seattle, Washington by Fentron Industry. On these facts, Respondent is found to be engaged in a business affecting commerce, and therefore, an ‘employer’ within the meaning of Section 3(5) of the Act. Jurisdiction over the Respondent and the subject matter is thus conferred on this Commission.

The Complaint alleges that on May 24, 1972, Respondent violated 29 CFR § 1926.500(d)(1) in that Respondent failed to guard by a standard railing, or the equivalent, on all open sides, an opensided platform located 33 floors above ground level which constituted a temporary condition where there was a danger of employees or materials falling therefrom.

The Complaint also alleges a violation of 29 CFR § 1926.450(a)(9) in that Respondent failed to provide side rails extending not less than 36 inches above the access landing to a chair cage on the 33rd floor at 100 Pine Street.

Further, the Complaint alleges that Respondent violated 29 CFR § 1926.450(b)(12) in that Respondent failed to uniformly space the cleats 12 inches top-to-top on a job-made ladder located on the 34th floor at 100 Pine Street.

Finally, the Complaint avers that the violation of 29 CFR § 1926.500(d)(1) was serious in that there was a substantial probability that death or serious physical harm could result from the condition alleged to exist, and Respondent knew, or could with the exercise of reasonable diligence have known, of the presence of the violation.

Respondent, in its answer, denies all allegations.

The issues to be resolved and determined are:

1. Whether Respondent violated the standards as alleged?

2. If Respondent violated the cited standards are the proposed penalties appropriate under the Act?

FINDINGS OF FACTS

The entire record has been considered and evaluated in its entirety. The facts set forth below are specifically found in resolving the issues presented in this case.

The Respondent, a California corporation, is the largest of 3 or 4 companies in the San Francisco Bay area engaged in curtain wall installation and its gross billings for contracts performed in 1971 were ‘one million two hundred.’ The number of employees employed by Respondent on a daily basis in 1971 ranged from 40 to 130 and the annual payroll was $900,000 (Tr. 7, 9–10).

From about September or October 1971 through the latter part of June 1972 the Respondent was a subcontractor installing curtain wall systems on every floor of a 33 story building located at 100 Pine Street, San Francisco, California (Tr. 36).

During the week and a half prior to May 24, 1972, the date of the Compliance Officer’s inspection, employees of the Respondent and two other subcontractors, a sheet metal contractor and plasterer subcontractor, as well as employees of Swinterton and Walberg, the General Contractor, were working on the 33rd floor of the Pine Street worksite (Tr. 36). On May 24, 1972, four of Respondent’s employees were engaged in hanging window washing rail tracks on the north outside wall on the floor (Tr. 103).

At the time of the inspection, Respondent owned an 8 foot by 6 foot platform which extended out from and was attached to the north end of the building, approximately 10 inches above the floor level of the 33rd floor (Tr. 13, Respondent’s Exhibit 1). The purpose of the platform was to land curtain wall material onto the building and had been so used by the Respondent’s employees at every floor level (Tr. 36).

Respondent last used the platform approximately one week and a half before May 24, 1972. However, other subcontractors continued to use the platform for landing material on a regular basis, with Respondent’s knowledge, as they had done throughout the construction of the building (Tr. 37, 46).

Shortly before the Respondent stopped using the platform, Respondent also gave the General Contractor permission to use the platform on a regular basis (Tr. 40). This platform was removed by the Respondent from the building near the end of June 1972 (Tr. 41).

During the latter part of March 1972, the platform was attached to the 18th floor of the building (Tr. 46–48). At that nine, there was no guardrail along the edge of the platform extending farthest from the building. The railing on the two sides of the platform positioned perpendicular to the building consisted of two pipe standards, 36 to 42 inches high, inserted and secured into larger pipe sleeves at the four corners of the platform. Wire cables 3/8’ thick, connecting the pipes, were suspended between the pipes about 36 to 42 inches above the level of the platform (Respondent’s Exhibit 1, Tr. 47, 49, 118). No toeboards were positioned underneath these cable railings at any time (Tr. 116, 188). When the Respondent’s employees last used the platform in May, 1972, the guardrails were in the same condition as in March (Tr. 112).

The materials landed on the platform by the Respondent were generally crated, weighed as much as 700 pounds, and were hoisted up to the platform on a Chicago Boom crane. Occasionally, separate ‘incidental’ pieces of material were landed on the platform (Tr. 52) and sometimes, items like ‘pipe’ (Tr. 118). When the crane lifted the materials to platform height, two workmen ‘walked’ the suspended materials around the side of the platform to the end farthest from the building. Then, they ‘walked’ the materials onto the platform and a waiting dolly. The materials then were rolled into the building by way of a temporary ramp attached to the platform (Tr. 50–52, 57).

On May 24, 1972, there was no guardrail on the right side of the platform (as one looks out from the building). The pipe stanchion was broken off and the cable missing. On the left side, the pipe stanchion was bent, causing the attached cable to hang down, drooping to about 6‘ above the level of the platform (Tr. 68). There was no direct evidence that any of Respondent’s employees or any other persons went onto the platform on May 24, 1972.

On the date of inspection, the side rails of the ladder used by Respondent’s employees as an access to a chair cage did not extend 36 inches above the 33rd floor level (Tr. 73–74). On the job ladder extension of another chair cage unit being used by Respondent’s employees the spacing between the rings of the ladder extension (4 or 5 in number) measured more than 12 inches while the remainder of the ladder rings were spaced 12 inches apart (Tr. 75–76). When descending into the chair cages, Respondent’s employees tied off the safety belts and secured their safety lines (Tr. 73).

Respondent has no record of previous safety violations under the Act and while having no formal safety program Respondent’s employees are required to attend safety meetings when called by General Contractors (Tr. 12).

DISCUSSION

A. As to Violation

On this record Respondent was in violation of 29 CFR § 1926.450(a)(9) and 450(b)(12) on May 24, 1972. There is no reason to question the accuracy of the Compliance Officer’s observations of the two job-made ladders which was left unchallenged by Respondent’s evidence.

A more difficult question to be resolved is whether a ‘serious’ ‘violation of 29 CFR § 1926.500(d)(1) has been established on this record.

Respondent’s defense to this alleged violation essentially is in two parts. Respondent first contends that the platform complied with the standard in question whenever used by Respondent’s employees. We must disagree. The side railings depicted in Respondent’s Exhibit 1 clearly are not ‘standard’ as that term is defined in 1926,500(f)(i) because there are no intermediate rails, halfway between the top rails and the platform. Also, without some type of intermediate protection the Respondent’s guardrails cannot be found to be the ‘equivalent’ of a standard railing. To be classified the ‘equivalent,’ the protection afforded must be substantially similar to that provided by a ‘standard’ railing. Obviously, due to the complete absence of intermediate protection, the railings in this case provide less protection than a ‘standard’ railing and therefore, are not the ‘equivalent.’

Moreover, the absence of toe boards under the side railings in a situation where ‘incidental pieces’ of material, such as pipe, could fall off the platform also constitutes a violation of the provisions of 29 CFR § 1926.500(d)(1).

Respondent’s second contention in defense appears to be that, when its own employees stopped using the platform in early May, 1972 and the General Contractor was granted permission to use it, responsibility for complying with the standard in question passed from the Respondent to the General Contractor. Again, we must disagree. The record is clear that when Respondent’s employees were using the platform, the standard was being violated. Later, after it stopped actively using the platform, Respondent continued to maintain ownership, authority and control over the platform. Under these circumstances mere permission to another to use the platform, without more, cannot relieve the Respondent of the duty of continuing compliance with the standard.

Moreover, although the Complaint alleged that the violation of 29 CFR § 1926.500(d)(1) took place on May 24, 1972 alone, the Respondent knowingly acquiesced to, and participated in, the introduction of evidence relating to the condition of the guardrails throughout the entire period of Respondent’s use of the platform. Therefore, pursuant to Rule 15(b) of the Federal Rules of Civil Procedure, the Complaint and Citation are deemed amended to conform to the record evidence and to further allege that Respondent was in violation of 29 CFR 1926.500(d)(1) during early May 1972 when its employees were still landing materials on the platform.

The next question to be resolved is whether Respondent’s violation of the standard is ‘serious’ as alleged by the Secretary.

Section 17(k) of the Act provides that . . .

a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

Obviously, due to the platform’s deplorable condition on May 24, 1972, a strong likelihood existed that an accident resulting in serious injury could occur on that date; but only if people were working on the platform, and there is no evidence that this was the case on May 24 or at any other time when the platform was. in that condition 3 With respect to the period when Respondent’s employees and others were actively using the platform, the level of the violation’s gravity clearly was much lower and insufficient evidence was introduced by the Secretary to establish that the likelihood or probability that a serious accident could occur was ‘substantial.’ No ‘serious’ violation, therefore, can be found for May 24 or for any period prior thereto.

B. As to Penalty

All four factors prescribed in Section 17(j) of the Act, the size of Respondent’s business, gravity of the violations, the good faith of the Respondent, and history of previous violations, have been duly considered.

Respondent is a medium size company with no prior history of violations under the Act. Although violations of 29 CFR § 1926.450(a)(9) and 450(b)(12) did occur, the gravity of these violations was negligence due to employee use of safety lines. On these facts, no penalties for those violations appear warranted.

With respect to the non-serious violation of 29 CFR 1926.500(d)(1), however, we consider that a penalty of $200 should be assessed. The level of the violation’s gravity was clearly higher, and the violation’s duration considerably longer, than the two other non-serious violations.

CONCLUSIONS OF LAW

1. The Respondent is an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act and is obliged to comply with the standards promulgated under Part 1926 of the Act.

2. On May 24, 1972, the Respondent was in violation of 29 CFR § 1926.450(a)(9), 1926.450(b)(12) and 1926.500(d)(1).

3. During the early part of May, 1972 when Respondent’s employees were working on the platform, Respondent was in violation of 29 CFR § 1926.500(d)(1).

4. The record evidence fails to establish that Respondent’s violations were ‘serious’ within the meaning of Section 17(k) of the Act.

5. No penalties for violation of 29 CFR § 1926.450(a)(9) and 1926.450(b)(12) are warranted under the circumstances.

6. A penalty of $200 for Respondent’s violation of 29 CFR 1926.500(d)(1) is appropriate.

ORDER

Based on the foregoing findings, conclusions of law and the entire record, it is ORDERED that:

1. Items No. 1 and No. 2 of the Citation issued June 5, 1972, charging violations of 29 CFR § 1926.450(a)(9) and 450(b)(12) are hereby AFFIRMED.

2. No penalties are assessed for items No. 1 and No. 2 of the Citation.

3. The Citation for Serious Violation issued June 5, 1972, is deemed amended to conform to the evidence and is further modified to charge a non-serious violation of 29 CFR § 1926.500(d)(1) rather than a ‘serious’ violation. As so amended and modified, the Citation is hereby AFFIRMED.

4. For Respondent’s violation of 29 CFR 1926.500(d)(1), a penalty of $200 is ASSESSED.

1 One of the things the employees may do is contest the reasonableness of the abatement period provided they act ‘within fifteen working days of the issuance of a citation’ 29 U.S.C. § 659(c). Obviously when the posted citation alleges one date and that date is changed during a court hearing six months or more afterwards, this right is lost. It would be particularly true in a construction industry case like this, for example, where there are frequent changes in the workforce. Employees who were working on this platform on the date of the actual violation (which was never stated on the citation) may have gone on to some other work by the time of the incorrect date which was stated on the citation.

2 Obvious typographical error, context makes clear that ‘(f)(1)’ was intended. Also, there is no paragraph ‘(f)(i).’

3 The record does not reflect when the top railings no longer afforded any protection, the point when the ‘substantial probability’ of a serious accident could be conclusively presumed.