Docket Nos. 425; 426 (Consolidated)

ARMOR ELEVATOR COMPANY, INC.

OSHRC Docket Nos. 425; 426 (Consolidated)

Occupational Safety and Health Review Commission

November 20, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order directing review of a decision rendered by Judge Donald K. Duvall. The Judge found Respondent in serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter "the Act") for having violated the provisions of 29 C.F.R. 1926.500(b)(1). n1 He assessed a penalty of $500. In addition, Judge Duvall vacated a citation for non-serious violation of the standard prescribed by 29 C.F.R. 1926.450(a)(7).

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n1 At the time this matter arose the standards cited herein were precribed by Part 1518 of Title 29, C.F.R. They are now found in Part 1926 and for purposes of clarity we will use their present designation.

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In making his determinations, the Judge vacated the non-serious allegation because Complainant had not sustained his burden of proving the existence of the violation by "clear and convincing evidence of record." He affirmed the serious violation on the basis that Complainant had proved its existence by "a preponderance of the evidence of record." n2

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n2 In making his determination as to this violation the Judge also concluded (1) that Respondent had not contracted away its responsibility to its employees, and (2) that the violation was not an isolated instance as found by the trial judge in Secretary of Labor v. National Realty and Construction Company, Inc., As to the first of these it is sufficient to note that one cannot by private contract evade responsibility under the Act. As to the second defense Respondent's reliance on National Realty was misplaced since that case arose under section 5(a)(1) of the Act. Moreover, the Judge correctly decided that an isolated instance was not involved.

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We have reviewed the record and conclude that the Judge did not commit reversible error in disposing of this case. Accordingly, we affirm his decision to the extent that it is consistent herewith.

The Judge's decision was rendered prior to the Commission decision in Secretary of Labor v. The Ceco Corporation, Ceco established a substantial evidence standard, as a measure of the quantum of proof complainant must adduce to meet his burden of persuasion. In establishing the standard, the majority opinion relied on that portion of section 7(c) of the Administrative Procedure Act n3 which requires agency orders to be supported by ". . . reliable, probative, and substantial evidence."

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n3 5 U.S.C. 556(c).

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It is apparent that the terms "reliable, probative, and substantial" are used in the conjunctive and all modify the term "evidence." It is also apparent that the terms "reliable" and "probative" are qualitative. Clearly then, the term "substantial" was intended to have a qualitative rather than a quantitative meaning as it is used in section 7(c). n4

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n4 The term "substantial evidence" has a quantitative meaning when agency decisions are on judicial review. It has been variously defined to mean more than a scintilla but less than a preponderance or sufficient to justify a refusal to direct a verdict, if trial were to a jury. See generally: Words and Phrases, "Substantial Evidence." In addition, it's noted that the record before a reviewing court includes both an evidentiary record and the expertise of the agency as embodied in its decision.

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In this regard, we note that the preponderance rule is the usual standard applied to the evidentiary record in agency proceedings. See: Woodby v. Immigration and Naturalization Serv. 385 U.S. 276, 284-285 (1966); Kent v. Hardin, 425 F. 2d 1346, 1349 (5th Cir. 1970); McCormick, Handbook on Evidence, Sec. 355 at p. 853 (2 ed., 1972); Jaffe, Administrative Law; Burden of Proof and Scope of Review, 79 Har. L.R. 914 (1966). The preponderance rule is appropriate for our proceedings, we hereby adopt it, and hereby overrule Ceco to the extent that it announces a different rule. We conclude, therefore, that Judge Duvall applied the proper standard to decide the serious violation in this case. It also follows that his announced use of a clear and convincing standard to decide the non-serious violation was improper. n5

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n5 In view of our disposition of the non-serious violation the error was not of sufficient moment to constitute reversible error.

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We turn now to the evidence adduced regarding the alleged, non-serious violation. The record indicates that Complainant's representative, McCabe, while standing at the entrance of an elevator shaft in Respondent's workplace, observed an unsecured ladder leaning against the rear wall of the shaft. The base of the ladder rested on three planks, and in McCabe's opinion was about 4 1/2 feet out from the rear wall. The shaft measured out at eight feet long by eight feet wide. n6 McCabe estimated the ladder to be 12 feet long and he estimated its top at 9 1/2 feet above the planks. He ascertained that the ladder had been used but did not ascertain when it had been used. On these facts Complainant issued his citation for a non-serious violation of 29 C.F.R. 1926.450(a)(7). n7

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n6 The shaft measurements were made at a later date.

n7 The standard provides, as follows:

Portable ladders shall be used at such a pitch that the horizontal distance from the top support to the base will not be greater than 1/4 the vertical distance between these points.

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To establish a violation Complainant necessarily had to establish any two of the three dimensions. In this he failed because McCabe erred in his estimates. That is, if we assume that the ladder was 12 feet long and its top at 9 1/2 feet above the planks, then a 4 1/2 feet distance for the base is a mathematical impossibility. On dimensions of 12 and 9 1/2 feet the base of the ladder would had to have been about 7 3/10 feet away from the rear wall, i.e., almost at McCabe's feet. It was not so located. Accordingly, McCabe erred either as to the length of the ladder, the base distance, or both. We cannot say which, if any, of the estimates were correct for to do so would be to engage in idle speculation. Moreover, we cannot say that ladder was used in the position that McCabe saw it i.e., it may well have been moved after it was used. Under these circumstances we conclude that Complainant has not, by a preponderance of the evidence, established the existence of a violation of 29 C.F.R. 1926.450(a)(7).

For the reasons given the decision of the Judge is affirmed and it is so ORDERED.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in this decision concluding that the Judge did not commit reversible error in disposing of this case. However, I believe that the overruling of Ceco is unnecessary. Ceco established a "substantial evidence" standard as the burden of proof to be met in Commission cases. I believe that only a restatement rather than an overruling clarifying the burden of proof is necessary.

It seems to me that the difficulty is only one of semantics resulting from a use of nomenclature to describe a burden of proof that is also used to describe the scope of judicial review in findings of fact. Accordingly, I simply say in the interest of clarity that the burden of proof in Commission cases is the usual civil burden of proof; i.e. preponderance of evidence.

[The Judge's decision referred to herein follows]

DUVALL, JUDGE, OSAHRC: This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. (hereinafter referred to as the "Act") to review two citations and proposed penalties issued by the Secretary of Labor (hereinafter referred to as "Complainant") pursuant to sections 9(a), 10(a), and 17(b) and (c) of the Act. The citation for serious violation, issued on December 28, 1971, alleges that Armor Elevator Company, Inc., (hereinafter referred to as "Respondent"), a corporation engaged in the manufacture and installation of elevators, violated section 5(a)(2) of the Act by reason of non-compliance with an occupational safety and health standard promulgated pursuant to section 6 of the Act, namely, 29 C.F.R. 1518.500(b)(1) (failure to guard floor openings). Notification of proposed penalty in the amount of $500.00 was issued by the Complainant on January 7, 1972, for this serious violation. The non-serious citation, issued on January 7, 1972, alleges that the Respondent violated occupational safety and health standard 29 C.F.R. 1518.450(a)(7), for which violation a proposed penalty of $50.00 was issued on the same date. Both citations were issued on the basis of an inspection conducted by the Complainant on December 27, 1971, of a workplace under Respondent's ownership, operation, or control located at 1500 Broadway, New York, New York. On January 17, 1972, Respondent filed notice of contest respecting both citations and proposed penalties.

Although the two contested citations were established as separate cases by the Commission, to wit, Docket Numbers 425 and 426, they involved the same employer, the same general location, and arose out of the same inspection. Accordingly, pursuant to section 2200.10 of the Commission's Rules of Procedure the two cases were consolidated, on motion of Complainant, by order of the undersigned Judge on February 29, 1972, both cases having previously been referred to the Commission for hearing and decision in accordance with sections 10(c) and 12(e) of the Act. After due notice, a hearing in this consolidated matter was held before the undersigned Judge on March 30, 1972, at New York, New York with both parties appearing and represented by counsel. Respondent's affected employers were represented at the hearing by the business agent of Local 1, International Union of Elevator Constructors.

This case arises under section 5(a)(2) of the Act which provides that each employer (meaning a person engaged in a business affecting commerce who has employees) shall comply with occupational safety and health standards promulgated under the Act. The two occupational safety and health standards cited in this case were promulgated by the Secretary of Labor pursuant to section 6 of the Act by adoption and extension of 29 C.F.R. part 1518 (now designated as part 1926), which became effective on August 29, 1971 (36 F.R. 7372, 7381 (April 17, 1971); 29 C.F.R. 1910.12, 36 F.R. 10469 (May 29, 1971)).

Section 9(a) of the Act provides in pertinent part that when the Secretary of Labor or his authorized representative believes that an employer has violated any standard or regulation promulgated pursuant to the Act "he shall with reasonable promptness issue a citation to the employer. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated. . . ."

Section 17 of the Act provides in pertinent part as follows:

(b) Any employer who has received a citation for a serious violation of the requirements of section 5 of this Act, of any standard, rule, or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, shall be assessed a civil penalty of up to $1000.00 for each such violation.

(c) Any employer who has received a citation for a violation of the requirements of section 5 of this Act of any standard, rule or order promulgated pursuant to section 6 of this Act, or of regulations prescribed pursuant to this Act, and such violation is specifically determined not to be of a serious nature, may be assessed a civil penalty of up to $1,000.00 for each such violation.

(j) The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

(k) For purposes of this section, 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.

The occupational safety and health standards cited herein provide in pertinent part as follows:

"29 C.F.R. 1518.500(b) -- Guarding of floor openings and floor holes.

"(1) Floor openings shall be guarded by a standard railing and toe boards or cover as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides except at entrances to stairways.

"(f) Standard specifications. (1) A standard railing shall consist of top rail, intermediate rail, toe board, and post, 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 rail shall not overhang the terminal posts except where such overhang does not constitute a projection hazard. . . .

"(5)(ii) The floor opening cover shall be capable of supporting the maximum intended load and so installed as to prevent accidental displacement.

"29 C.F.R. 1518.450 -- Ladders.

"(A) General Requirements

"(7) Portable ladders shall be used at such a pitch that the horizontal distance from the top support to the base will not be greater than 1/4 the vertical distance between these points."

The issues here to be determined are (1) whether the Respondent violated the standards specified in the citations herein, and (2) whether the penalties proposed for such alleged violations were reasonable and proper.

FINDINGS OF FACT

The record as a whole contains reliable, probative and substantial evidence to support the following findings of fact:

1. Respondent is a Delaware Corporation, having its principal office at 534 National Turnpike, Louisville, Kentucky, with an office at 60-01 31st Avenue, Woodside, New York (Tr. 16).

2. Respondent is engaged in the business of manufacturing and installing elevators and many of the materials and supplies used by Respondent are manufactured outside the State of New York (Tr. 16; Complaint, page 2).

3. Respondent employed approximately 1,540 employees on an average daily basis during 1971 and had a net worth of $20,900,000 for the year 1970 (Tr. 17).

4. Respondent has no previous history of violations under the Act (Tr. 17).

5. On December 27, 1971, Mr. Kenneth McCabe, safety and health compliance officer with the Occupational Safety and Health Administration, U.S. Department of Labor, conducted an inspection of Respondent's workplace located at 1500 Broadway, New York, New York (Tr. 26-27). Mr. McCabe is a certified safety professional and was accompanied on his inspection by Respondent's foreman (Tr. 26-27).

6. Complainant issued to Respondent a citation for serious violation on December 28, 1971, and a notification of proposed penalty on January 7, 1972, for violation of the following standard under the Occupational Safety and Health Act of 1970 at Respondent's aforestated workplace, with prescribed date for correction of said violation and the proposed penalty:

29 C.F.R. 1518.500(b)(1) -- failure to guard all floor openings (standard railings and toe boards): (1) fourteenth and half floor motor room; (2) 13th floor -- number 10 elevator shaftway entrance -- immediately.

7. On January 7, 1972, Complainant issued to Respondent a citation and notification of proposed penalty for violation of 29 C.F.R. 1518.450(a)(7) -- 12 foot wooden ladder located in number 5 elevator shaft (5th floor) has a slope of less than 4 (not secured) -- December 28, 1971.

8. Respondent's notice of contest of both of the foregoing citations and notifications of proposed penalty

9. Proper service of the citations and notifcations of proposed penalty were made on Respondent (Tr. 17-18).

10. The notice of hearing in this proceeding was properly posted by the Respondent (Tr. 4).

11. In the course of his inspection of Respondent's workplace, Mr. McCabe observed and reported an unsecured 12-foot wood ladder leaning against the rear wall of elevator shaft number 5 at the fifth floor level and resting on about 3 planks about 4 1/2 feet out from the back wall of the shaft, which was an opening of about 8 feet by 8 feet. The top of the ladder rested against the back wall of the shaft at a point just under a plate affixed about 9 1/2 feet up said wall (Tr. 29-30, 48).

12. Mr. McCabe observed the slope of the ladder to be such that the horizontal distance from the top support to the base (about 4 1/2 feet) was greater than 1/4 the vertical distance between these points (about 9 1/2 feet) (Tr. 31-32, 49).

13. Mr. McCabe did not measure all the aforestated distances, but approximated them based on subsequent measurement of the elevator shaft opening (Tr. 32-33).

14. Mr. McCabe observed the ladder from the front position as if he were going to climb it, and the planks it was resting on ran perpendicular to the ladder rungs or from front to rear of the shaft opening (Tr. 51-52).

15. The shaft opening was planked overhead in such a way, in Mr. McCabe's opinion, as to preclude placement of this ladder in a position of slope so as to comply with the cited standard (Tr. 32).

16. Being unsecured and without safety feet, the ladder could have slipped forward on the planks, or, depending on the weight of a person on the ladder and the frictional forces, off the side of the planks by toppling (Tr. 52-53).

17. Mr. McCabe did not see any employee of Respondent use the ladder, but was informed by Respondent's foreman that the ladder was used to set a plate about nine and a half feet up the back wall of the elevator shaft, just above the top of the ladder (Tr. 30). The foreman also indicated that to perform that work the particular ladder could be no closer to the back wall because it was planked out above the man in order to protect him while working there (Tr. 55-58).

18. The ladder was removed by Respondent immediately on the inspection day (Tr. 47).

19. In determining the proposed penalty of $50.00 for the alleged non-serious violation, Complainant considered the gravity of the violation, the size of Respondent's business, and Respondent's good faith and history of prior violations (Tr. 35-37).

20. In the course of his inspection of Respondent's workplace, Mr. McCabe observed and reported that number 10 elevator shaftway entrance, about four feet wide and without a door, on the 13th floor, had no guard or barricade. One of Respondent's employees was working in this shaftway entrance and another employee was working inside an elevator car platform in the shaftway about four feet above the 13th floor level. Four other shaftway entrances at the same location had barricades. A barricade was placed in front of the unprotected elevator shaftway entrance at the suggestion of Mr. McCabe during his inspection (Tr. 38-39, 60).

21. The barricade provided by Respondent's foreman at Mr. McCabe's suggestion was a standard railing with toe-board, mid-rail, and top-rail provided by the prime contractor, Goodnor Construction Company, which did not substantially interfere with work performance by Respondent's employees (Tr. 39, 63-64, 85).

22. Mr. McCabe assumed that a barricade had previously been placed before the number 10 shaftway entrance, but had been removed by Respondent's employees in order to perform their work (Tr. 39, 64-65, 81-82).

23. In the course of his inspection of Respondent's workplace, Mr. McCabe observed and reported that in the motor room (about 25 feet by 30 feet in size) on the 14 1/2 floor, substantial areas of the floor openings for five elevator shafts were unguarded. Specifically, the front one-half (four feet by eight feet) of one floor opening was unguarded, with contiguous planks covering only the back half of the opening, and three adjacent openings had a few non-contiguous planks across them which did not cover the openings completely and a person could have fallen between the unanchored planks (Tr. 39-40, 42, 66-73).

24. Mr. McCabe considered this a serious violation because in his opinion there was a substantial probability that Respondent's employees could inadvertently fall through one of the floor openings (and down an open elevator shaft) in this motor room, which was a working or tool room area for Respondent's employees who might pass as close as one foot to such opening. Such a fall would definitely result in serious injury or death. Mr. McCabe testified that Respondent knew of this condition because Respondent's foreman, who accompanied him on this inspection, was in the motor room and would have previously been in the area because of the technical competence required in Respondent's work in this area. Also, because the motor room is a tool storage area, Respondent's employees would have previously been in the motor room and the fact that planks were partially placed over the floor openings indicate that Respondent knew there was a risk exposure (Tr. 40-42).

25. Mr. McCabe observed two of Respondent's employees working in the motor room who were tied into a safety line (Tr. 73-74).

26. Respondent placed barricades around the floor openings in the motor room the day of the inspection or the next morning (Tr. 79).

27. On the date of the inspection, there was and is an existing contract between Respondent, as subcontractor, and Goodnor Construction Company, as prime contractor, which provided in pertinent part as follows:

Work not included: preparatory work in conjunction with the elevator installation including a legal hoist-way properly framed and enclosed, suitable pit of proper depth with drains and water proofing if required, machine room and pent house properly lighted and ventilated, concrete floors, adequate access doors, ladders and guards, supports for elevator machine and sheave beams (Contract, page 7).

The Armor Elevator Company, Inc. is to be in no way responsible for making the building comply with the Building Code, Labor Law, or other applicable laws; . . .

We will provide Public Liability and Workmens Compensation Insurance for work performed under this contract. We assume no liability for injuries or damages to persons or property except those directly due to our acts or omissions . . . (Contract, page 25).

12. The Subcontractor hereby assumes the entire responsibility and liability for any and all injury or death of any and all persons including but not limited to the Contractor's employees, and for any and all damage to property caused by or resulting from or arising out of any act or omission on the part of the Subcontractor in connection with this subcontract, or of the prosecution of the work hereunder, and the Subcontractor shall indemnify and save harmless the Contractor and the Owner from and against all liability, loss, expense or damage which they or either of them may incur as a result of claims or suits arising out of any and all such injuries, deaths, or damage, and the Subcontractor, if requested by the Contractor or Owner, shall assume and defend at its own expense, any suit, action or other legal proceeding arising therefrom . . . (Standard General Conditions, page 3).

13. In addition to the foregoing agreements and of indemnity and not in substitution thereof, the Subcontractor shall procure and keep in force, from the inception until the completion of its work, the following insurance, in form satisfactory to the Contractor:

(a) Workmens Compensation Insurance . . .;

(b) Bodily Injury Liability Insurance . . .;

(c) Property Damage Insurance . . . (Standard General Conditions, page 3).

18. All persons employed by the Subcontractor in the prosecution of the work hereunder shall be subject to safety regulations of the Owner and any laws enforced or to be established. The Subcontractor shall use its best efforts to maintain good order among its employees and to avoid employment of any unfit person or anyone unskilled in the work assigned to him. The Subcontractor shall use its best efforts to confine its employees and all other persons who come on the construction site at the Subcontractor's request, or for reasons relating to the performance of the work, to that portion of the construction site or to roads leading to or from such worksite, and to any other area which the Owner may permit the Subcontractor to use. The Subcontractor shall also take all necessary measures and precautions to protect and to avoid damage, or loss of, property while on the construction site. Such measures and precautions shall include, but shall not be limited to, all necessary safeguards for warning and protecting workmen and others against hazards, and to prevent accidents of any kind whenever work is being performed in proximity to any moving or operating machinery, equipment or facilities. (Standard General Conditions, page 4).

20. Any provision required by any applicable and valid Federal, State or local law, ordinance, rule or regulation, to be included in this agreement, shall be deemed to be incorporated herein (Standard General Conditions, page 4).

28. Mr. Edward J. Becker, Respondent's construction manager, testified that the word "guards" in the foregoing contract provisions includes barricades. Mr. Becker also testified that the foregoing contract provisions did not prevent Respondent from placing barricades in order to protect the welfare and safety of its personnel. Mr. Becker also stated that if the hazards at the worksite exceeded the normal hazards of the work, under the contract the procedure would be for the Respondent to tell the prime contractor to properly safeguard the job and reduce the hazards to Respondent's employees (Tr. 88).

29. Mr. Becker further testified that under the contract provisions the general contractor has the responsibility for protecting the floor openings (Tr. 85, 87).

30. The reference to ladders in the contract provisions has no relationship to the positioning of the ladder as discussed in this proceeding (Tr. 88-89).

31. The prime contractor is contractually required to provide barricades because it has the source of supply to furnish them, which the Respondent does not (Tr. 96-97).

32. Respondent's foreman has the title of jobsite foreman; he is an hourly-rated employee with full authority to direct the men within the scope of their employment (Tr. 97).

33. The elevator shaft barricades referred to were present on the job prior to the time that the Respondent arrived at the work place to perform their work (Tr. 98).

34. In determining the proposed penalty of $500 for the alleged serious violation, Complainant considered the gravity of the violation, the size of the Respondent's business, and Respondent's good faith and history of previous violations (Tr. 43).

35. Subsequent to the date of inspection, Mr. McCabe observed that the open shaftways in the motor room had been protected with barricades (Tr. 45-46).

DISCUSSION

Respecting Respondent's alleged non-serious violation of 29 C.F.R. 1518.450(a)(7), I do not find clear and convincing evidence of record to support the citation that on or about December 27, 1971, the portable ladder in elevator shaftway #5 at the fifth floor level, which was under Respondent's control, was used at a pitch such that the horizontal distance from the top support to the base was greater than one-fourth the vertical distance between those points. The relevant evidence is derived principally from the testimony of Complainant's sole witness, Mr. McCabe, a qualified safety professional (Tr. 26), based on his inspection of the work place. While Mr. McCabe apparently measured only the dimensions of the elevator shaftway in which the ladder rested and estimated therefrom the horizontal and vertical distances pertinent to determination of the ladder's pitch from a limited observation point in front of the ladder, in view of Mr. McCabe's expertise and credibility, unrebutted by cross-examination or any measurements or testimony of witnesses of Respondent, such evidence cannot, as a matter of law, be deemed insufficient to provide a reasonable and probative basis for a finding of violation.

The fact, demonstrated by Respondent in its brief (pp. 4-5), that given a ladder length of 12 feet and a vertical cable distance of 9 1/2 feet the horizontal distance from the wall to the base of the ladder must mathematically be 7 feet (rather than 4 1/2 feet, as estimated by Mr. McCabe) tends to confirm Complainant's contention of violation. The admitted absence of measurements of the critical distances does put a premium on the credibility of the observer (Mr. McCabe) and the accuracy of his estimates of distances. So that the fact that Mr. McCabe's estimate of the horizontal distance as 4 1/2 feet, whereas the actual horizontal distance must have been at least 7 feet, an underestimate of almost 3 feet, must be given due weight in evaluating his other testimony.

At the same time, it is noted that Mr. McCabe testified on direct examination that the ladder "appeared to be well out past the halfway point" and that the horizontal distance was "about four and a half feet" (Tr. 30-31, emphasis added); and on cross examination that the ladder "seemed to be . . . more than four feet out. In fact, it might have been even more" (Tr. 49-50). Given this obvious context of estimated distance, Mr. McCabe's inaccurate estimate is understandable, particularly in view of the lapse of time (four months) since his inspection, and the relatively poor position from which he observed the ladder (Tr. 101). More importantly, it appears that the other two critical distances were apparently established independent of Mr. McCabe's estimation. The length of the ladder as 12 feet, although possibly a length estimated by Mr. McCabe, was stated in the citation, reiterated on cross examination (Tr. 48), and relied on by Respondent in its brief. The vertical distance up the elevator shaft wall as 9 1/2 feet was a distance given to Mr. McCabe by Respondent's foreman (Tr. 30). It follows that whatever margin of error Mr. McCabe's estimate of the horizontal distance of the ladder may be subject to, the other critical distance (vertical) necessary to establish the pitch of the ladder is not subject to a similar margin of error. In any event, it seems clear from the record that the horizontal distance of the ladder from the wall was more than four feet, over two feet more than the standard permitted, given a vertical wall distance of 9 1/2 feet.

While Mr. McCabe did not see Respondent's employees actually use the ladder in the position in which he observed it, he was reliably informed by Respondent's foreman at the workplace that the same 12-foot ladder was "used to set a plate about nine and a half feet up that wall of the elevator shaft, and this ladder was resting just under that plate, and it was set" (Tr. 30, 54-58). In the circumstances, including the fact that the shaftway was apparently planked over above the plate being installed, Mr. McCabe assumed that the ladder was in the same position when used by Respondent's employees. However logical Mr. McCabe's assumption might be, it does not eliminate the possibility that the plate on the elevator shaft wall could have been removed and thus permitted extension or placement of the ladder a greater vertical distance up the wall to the point -- of undetermined distance -- where the shaftway was planked over. This possibility exists even though the unrebutted testimony shows that the ladder was used by Respondent's employees to set or affix the plate to the wall and that task apparently could only be accomplished with the ladder in the cited position, immediately under the plate.

Complainant's proof on this issue is less than clear and convincing for another reason. Absent testimony from any witness who saw the ladder being used by Respondent's employees in the cited position, Complainant has the burden of showing when the violation occurred. See Hodgson v. Ellison Electric, The logical inference Complainant apparently would have us draw is that the alleged violation occurred on or about December 27, 1971, the date of inspection. But under the contract of record (p. 3) installation of the elevators at the workplace was scheduled to begin approximately on July 1, 1971, almost six months prior to the inspection, and there was no testimony at the hearing whether or not the work was on schedule or when the ladder had been used in its cited position.

On balance, I conclude that there is insufficient evidence of record to establish clearly and convincingly that Respondent's employees used the ladder at a time when it failed to comply with the cited standard, 29 C.F.R. 1518.450(a)(7).

Respecting the two alleged instances of violations of standard 29 C.F.R. 1518.500(b)(1), a preponderance of the evidence of record appears to sustain Complainant's position. A fair reading of all pertinent provisions of the contract between Respondent and its prime contractor, including the paragraph specifically cited by Respondent on page 7 of the contract, did and does not relieve Respondent of the duty of complying with the cited occupational safety and health standards duly promulgated under the Act, as required by section 5(a)(2) of the Act. Although provision of ladders and guards (barricades) was specifically excluded from work for which Respondent was responsible under the contract, Respondent assumed the entire responsibility and liability for any and all injury or death of any and all persons arising out of any act of Respondent as subcontractor in connection with the contract (Contract, Standard General Conditions, p. 3; Tr. 91). More specifically, the contract provides for the subcontractor to take ". . . all necessary safeguards for warning and protecting workmen and others against hazards . . ." (Contract, Standard General Conditions, p. 4; Tr. 93-94). It seems clear from the testimony of Mr. Edward J. Becker, Respondent's construction manager, that while the prime contractor (Goodnor Corporation) provided the guards under the contract, its responsibility was not exclusive respecting the specific placement of guards (or ladders) where and when needed as the work progressed (Tr. 88-89). Indeed, the contract makes the subcontractor subject to any safety regulations or laws in force (Contract, Standard General Conditions, p. 4; Tr. 92-93).

The facts that the prime contractor placed guards around open elevator shafts prior to Respondent's entry on the job so as to protect all workers in the area and that the prime contractor had the contractual duty to provide the guards primarily because it had the source of supply for such guards through the carpenters' union do not in the circumstances of this case relieve Respondent of its statutory obligation to provide its employees with a safe place to work.

Respecting the open #10 elevator shaftway on the 13th floor, Mr. McCabe's unrebutted testimony was that Respondent's employee was working at and over the edge of a four-foot opening to the shaftway without any safeguards against falling down the shaftway. The evidence suggests that a barricade had been in front of this opening, just as the other elevator shaftway openings on the floor were guarded, but that Respondent's employees removed the guard in order to perform their work (Tr. 64-65). Respondent argues that in the circumstances of this case it should not be cited where Respondent's employee, without Respondent's consent, negligently placed himself in the dangerous position for which the employer is being cited, and where the barricades, even if provided, would have had only a very limited utilitarian function (Respondent's brief, pp. 8-12). In support of this proposition, Respondent cites two cases involving serious violations of the general duty clause (Section 5(a)(1) of the Act, not under the specific standards provision (Section 5(a)(2)), which is here involved. Complainant asserts that since the Act authorizes the Secretary of Labor to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce in order to assure so far as possible every working man and woman safe and healthful working conditions (Section 2(b)(3)), Respondent has the duty of strict compliance with these specific standards.

While the Act does not impose strict or absolute liability upon an employer where non-compliance with a standard is found, regardless of fault, it seems clear that the law is to be liberally construed in favor of broadly protecting employees. National Realty & Construction Company, Inc., In National Realty it was stated that the Act did not require proof by the Secretary that express permission was given the employee who performed the violative act in order to hold the employer responsible for the violation. In that case, the employer's foreman performed a violative act contrary to employer's established, well-known safety rules and this act was shown to be an isolated and rare occurrence from which no inference could be drawn that Respondent permitted such action or knew or with the exercise of reasonable diligence could have known of the action, which was so singular and momentary as to constitute neither a "condition" nor a "practice" within the meaning of section 17(k) of the Act. On its face alleging two instances of unguarded floor openings existing for an unspecified period of time prior to the date of inspection in an area subject to supervision by Respondent's foreman, the record in the present case is not so convincing that Respondent fulfilled its specific duty under the Act to keep its workplace free of the hazard of unguarded floor openings, particularly in such a hazardous type of work as elevator installation.

Respondent appears to take the position that in such an inherently hazardous type of work increases in hazard are merely relative and, presumably, do not warrant an assessment of penalty so long as the risk is minimized in terms of the number of people exposed and the effectiveness of safety equipment used or available. It is conceded here that at least the employee working in the shaftway opening was in a dangerous position, with a substantial probability of serious injury resulting from the existence of such a condition or method of operation. While Respondent may doubt the efficacy of a standard railing in reducing the probability of injury, the provisions of the standard, particularly subsection (f), would seem to indicate otherwise. In any event, compliance with the standard is required by the Act and Respondent's employee at the worksite was able to work in the shaft (more safely) with the railing in place. If the protection of even one employee's life was increased by such compliance the intent of the Act would be served.

Respecting the alleged unguarded shaft openings on the 14 1/2 floor, the record does not clearly show that the two employees tied into a life line in the motor room at the time of the inspection were working in or using the half-open shaft at the time. Mr. McCabe testified on cross-examination that these employees were not working in that shaft (Tr. 73). While only Respondent's employees apparently used the motor room, it was a tool storage area which was transited frequently by those employees (Tr. 40-41). The noncontiguous, unanchored planks on the other openings in the motor room were certainly subject to accidental displacement and, according to Mr. McCabe's unrebutted testimony, would not have prevented someone from falling into the shaft. The probability of substantial injury was real under these circumstances and Respondent, through its foreman who had full authority to direct its employees, knew or, by reasonable diligence, could have known of the unguarded shaft openings which caused the dangerous condition.

In determining the $500 proposed penalty for the serious violation of the cited standard, Complainant's consideration of the gravity of the violation and the size of Respondent's business, crediting Respondent with a good faith safety program and no prior violations under the Act (Tr. 43-44), appears reasonable and proper and consistent with the provisions of sections 17(b) and (k) of the Act.

CONCLUSIONS OF LAW

1. The Respondent is, and at all times material hereto, was engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.

2. The Respondent is, and at all times material hereto, was subject to the requirements of the Act and the standards duly promulgated thereunder, including the safety and health regulations for construction, specifically, 29 C.F.R. 1518.450(a)(7) and 1518.500(b)(1) (and now designated as 29 C.F.R. 1926.450(a)(7) and 1926.500(b)(1)), as adopted by 29 C.F.R. 1910.12 (36 F.R. 10469, May 29, 1971).

3. The Occupational Safety and Health Review Commission has jurisdiction of the parties and of the subject matter herein under the provisions of section 10(c) of the Act.

4. The citations for serious and non-serious violations and the notifications of proposed penalty and all pleadings in this matter have been properly served or posted in compliance with the notice and service requirements of the Act, including section 9, and the pertinent regulations promulgated thereunder.

5. Pursuant to section 6 of the Act, by publication of 29 C.F.R. 1910.12(a) of the Federal Register of May 29, 1971 (36 F.R. 10469), the Claimant duly adopted the safety and health regulations for construction at 29 C.F.R. part 1518 (36 F.R. 7373, 7381) (April 17, 1971), which standards became effective on August 29, 1971.

6. On December 27, 1971, Respondent did not violate the standard for ladders, 29 C.F.R. 1518.450(a)(7), and the proposed penalty of $50.00 for that alleged violation should be vacated.

7. On December 27, 1971, Respondent violated the standard for guard rails, hand rails and covers, 29 C.F.R. 1518.500(b)(1), while engaged in the installation of elevators at its work place located at 1500 Broadway, New York, New York,.

8. The latter aforestated violation was a serious violation within the meaning of section 17(k) of the Act.

9. In determining the proposed penalty for said serious violation, the Complainant considered the gravity of the violation and Respondent's size, good faith, and history of previous violations, and the proposed total penalty of $500.00 is appropriate and consistent with the provisions of sections 17(b) and (j) of the Act.

ORDER

Based on the foregoing findings of fact and conclusions of law and the record as a whole, including the proposed findings of fact, conclusions of law, and briefs submitted by the parties, and good cause appearing, it is hereby ORDERED, that:

1. The Complainant's citation for violation and notification of proposed penalty of $50.00 issued on January 7, 1971, for violation of occupational safety and health standard 29 C.F.R. 1518.450(a)(7) be, and hereby is vacated.

2. The Complainant's citation for serious violation issued on December 28, 1971, and notification of proposed penalty of $500.00, issued on January 7, 1972, for violation of occupational safety and health standard 29 C.F.R. 1518.500(b)(1) be, and hereby is, affirmed.