GELCO BUILDERS, INC.
OSHRC Docket No. 14505
Occupational Safety and Health Review Commission
November 17, 1977
[*1]
Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A, Fellner, Office of the Solicitor, USDOL
Francis V. LaRuffa, Reg. Sol., USDOL
M. David Gelman, Gelco Builders Inc., for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Commissioner:
The issues on review are (1) whether the standard at 29 C.F.R. 1926.700(b)(2) n1 applies only to employees performing concrete construction or masonry work and (2) whether employees using a ladder to gain access are engaged in "work" within the meaning of the standard. Judge Jerome C. Ditore concluded that Section 1926.700(b)(2) applies only to persons performing concrete construction or masonry work, and that use of a ladder to gain access was not work within the scope of the standard. For the reasons that follow, we reverse and hold that Gelco violated the standard.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Section 1926.700(b)(2) is within Subpart Q of the construction standards. Subpart Q is entitled, "Concrete, Concrete Forms, and Shoring." The standard states:
Section 1926.700 General provisions. . . .
(b) Reinforcing steel. (1) . . .
(2) Employees shall not be permitted to work above vertically protruding reinforcing steel unless it has been protected to eliminate the hazard of impalement.
[*2]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Respondent (Gelco) was the general contractor for a four-story steel frame building in New York, New York. When an OSHA compliance officer inspected the worksite the building had a concrete floor on the first level and metal deeking on the other levels. Along the north side of the first level, where an exterior wall would eventually be constructed, a twenty foot long concrete base extended from east to west. Steel rebars approximately three feet high and spaced eight to ten inches apart protruded vertically from the base. The bars were bent, twisted, and leaning toward the inside of the building.
A 40 foot metal ladder extended from the first to the second level along the north side of the structure. The second level was twenty feet above the ground and its north edge was directly above the concrete base. The ladder was centered over the middle of the concrete base and provided the only means of access to the second level. The compliance officer observed two Gelco employees using the ladder to reach the second level where they were in the process of installing perimeter guarding.
As a result [*3] of the inspection the Secretary issued Gelco a citation for violation of Section 1926.700(b)(2) in that two of its employees were exposed to the hazard of impalement while using the ladder. n2 In his complaint, the Secretary amended his deseription of the violation to allege additional exposure while the two employees worked on the second level.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 The Secretary also charged Gelco with violations of Section 1926.150(c)(1)(ii) (lack of sufficient firefighting equipment) and Section 1926.450(a)(9) (side rails of ladder did not extend at least 36 inches above landing). Judge Ditore affirmed both violations. Neither party has excepted to his disposition of these charges, and consequently they are not before us.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The compliance officer thought that if the employees fell from the ladder they would be impaled on the rebar. He testified that while the employees were on the second level neither was tied off, and consequently they were exposed to the hazard of impalement if they fell from the perimeter.
Gelco's supervisor [*4] testified that, while both he and a laborer were on the second level, they were not at the edge but were erecting perimeter guarding farther back in the interior of the level. He also testified that the laborer was tied off.
Judge Ditore ruled that Section 1926.700(b)(2) was inapplicable because it is located under Subpart Q - "Concrete, Concrete Forms and Shoring" and therefore applies only to persons performing concrete construction or masonry work, while Gelco's employees were installing perimeter guarding. The Judge made two additional determinations relevant to the violation at issue. He found the evidence inconclusive as to whether the laborer was tied off while working on the second level. He also concluded that while the employees used the ladder to gain access to the second level, they were not "working" on or from the ladder. Their use of the ladder, he concluded, was a violation of Section 1926.450(a)(9) rather than a violation of Section 1926.700(b)(2). Supra note 2.
On review n3 the Secretary argues that subpart headings are merely organizational devices, that they are not intended to limit the scope of a broadly phrased standard, and that they are descriptive [*5] of hazards rather than employee functions. The Secretary also argues that the standard is located in Subpart Q because the hazard of impalement generally arises from concrete construction, that the standard covers all employees since, unlike Section 1926.700(b)(1), it is not limited to employees performing a particular function. n4 Finally, he argues that his interpretation of the standard's scope is entitled to substantial deference, and the Judge's interpretation is unreasonable because it would afford protection to only some employees solely on the basis of their work assignment or job title.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 Gelco moved to have the Secretary's brief stricken on the grounds of untimeliness in that the Secretary was five days late in filing his brief. The Secretary responded that the delay was caused by a shortage of personnel and that Gelco failed to allege prejudice from the delay. Because the Secretary has satisfactorily explained the short delay in filing his brief and because Gelco has not shown it was prejudiced by the delay, the Commission denies Gelco's request to strike the Secretary's brief.
n4 Section 1926.700(b)(1), in pertinent part, states:
(b) Reinforcing steel. (1) Employees working more than 6 feet above any adjacent working surfaces, placing and tying reinforcing steel in walls, piers, columns, etc., shall be provided with a safety belt. . . .
[*6]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The Secretary argues that, assuming the standard is applicable, the employees were exposed to the hazard of impalement while working on the second level and while using the ladder. Specifically, he argues that, contrary to the Judge's conclusion, the employees were "working" when they used the ladder.
We conclude that Section 1926.700(b)(2) is not limited to employees engaged in performing concrete construction or masonry work. n5 In general, the construction safety standards found in subparts pertaining to specific types of work are intended to protect all employees on the jobsite, not only those engaged in that type of work. n6 Moreover, the orderly application of the construction safety standards suggests that the same standards should apply to all employers on a construction site. In construction work, hazards created by one contractor often affect employees of other contractors. Similarly, protective devices installed by one contractor often benefit all employees on the site. Accordingly, in order to avoid confusion and duplication of effort, all employees should be accorded the same protection [*7] against the same hazards.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 For his own part, however, Chairman Cleary notes that if the standard were inapplicable, the elements of a "general duty clause" (29 U.S.C. 654(a)(1)) violation were proven and the pleadings should be conformed to the proof. See Usery v. Marquette Cement Manufacturing Co., No. 76-4083 (2d Cir. August 29, 1977); National Realty and Construction Co. v. OSHRC, 489 F.2d 1257, 1265 (D.C. Cir. 1973).
n6 For example, Section 1926.750(b)(1)(iii), found in Subpart R - "Steel Erection," provides that "A safety railing of 1/2-inch wire rope or equal shall be installed . . . around the periphery of all temporary-planked or temporary metal-decked floors. . . ." If this standard applied to protect only those employees engaged in steel erection, then the other employees with access to the perimeters of such floors would have to be protected by a standard railing, or the equivalent, pursuant to Section 1926.500(d)(1). The standards obviously do not contemplate such an anomalous result. See Pima Construction Co., 76 OSAHRC 106/D3, 4 BNA OSHC 1620, 1976-77 CCH OSHD para. 20,998 (No. 5221, 1976).
[*8]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The Commission has formulated rules governing multi-employer construction sites which assure that all employees on such a site receive the protection intended by the standards. Grossman Steel and Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1976); Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (No. 3694, 1976). These rules recognize that one subcontractor may often have to "comply" with a standard by requesting that another contractor, with control over a particular hazardous condition, do whatever is necessary to assure literal compliance with a standard. Thus, although some subcontractors may not have the expertise to literally comply with standards applicable to specific types of work, it is not unreasonable to require them to protect their employees in accordance with those standards, for they can either request that the responsible contractor install the required protection, or take other realistic steps to protect their employees against the hazards. n7
- - - - - - - - - - - - - - - - - -Footnotes- [*9] - - - - - - - - - - - - - - - - -
n7 We note that Gelco is the general contractor rather than a subcontractor, and, because of its supervisory control over the entire worksite, would be responsible for violations it could reasonably have been expected to prevent or abate by reason of its supervisory capacity. Grossman Steel and Aluminum Corp., supra; Anning-Johnson Co., supra.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Applying our multi-employer construction site rules to this case, we note that the concrete subcontractor, had it been cited, would have been found in violation of Section 1926.700(b)(2). Moreover, Gelco, the general contractor, could obtain abatement in accordance with the standard from the concrete subcontractor. Supra n. 7. Thus, Section 1926.700(b)(2), the specific standard pertaining to the nature of the hazard, is the applicable standard in this case because it is this standard to which the responsible subcontractor would look when instructed to abate the hazard of impalement.
Regarding the second issue, we conclude that the use of the ladder constituted "work" within the meaning of Section 1926.700(b)(2). [*10] n8 In our opinion, "work" includes the necessary activity of gaining access to the work station. See Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,448 (No. 504, 1976); Robert E. Lee Plumbers, Inc., 75 OSAHRC 56/C2, 3 BNA OSHC 1150, 1974-75 CCH OSHD para. 19,594 (No. 2431, 1975). Furthermore, a narrow reading of the standard which does not consider use of a ladder as work would be inconsistent with the standard's purpose of protecting employees against impalement. Brennan v. Gerosa, Inc., 491 F.2d 1340 (2nd Cir. 1974).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 Because we find a violation with respect to the use of the ladder, we do not reach the question of whether a violation occurred on the second level.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
We have reviewed the gravity of the violation, Respondent's size, good faith, and history of previous violations. We find that the Secretary's proposed penalty of $75.00 is proper under the circumstances.
Accordingly, the citation for noncompliance with 29 C.F.R. 1926.700(b)(2) is affirmed and a penalty [*11] of $75.00 is assessed. In all other respects, the Judge's decision is affirmed.