Docket No. 588

BARNABY CONCRETE CORPORATION

OSHRC Docket No. 588

Occupational Safety and Health Review Commission

July 2, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission upon an order of Chairman Moran directing review of a decision of Judge William E. Brennan. Judge Brennan affirmed Complainant's citation alleging a 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"). He assessed a penalty of $700.

The order directing review indicated the following issue:

Whether the citation was issued with reasonable promptness, as required by section 9(a) of the Act.

We have reviewed the record, * and we find no prejudicial error in the Judge's decision. The question on which review was directed was not raised in the issue formulation stage of these proceedings. Therefore we cannot now consider it. Chicago Bridge and Iron Company,

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* Respondent was given an opportunity to submit a brief on review. It elected not to do so.

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Accordingly it is ORDERED that the Judge's disposition of this case is affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: For the reasons I expressed in Secretary v. Plastering, Incorporated, Secretary v. Advanced Air Conditioning, Inc., 658(a):

. . . the Secretary . . . shall with reasonable promptness issue a citation. . . .

It is a double standard of justice, I submit, to penalize an employer for not complying with a statutory requirement when the citation charging that violation does not comply with statutory requirements which are part of the very same statute. The law should apply equally to both the Secretary of Labor and the employer and this Commission is in error when it overlooks the Secretary's nonobservance as it has done in this case.

[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 [*3] Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et. seq. (hereinafter the Act), to review one Citation for Serious 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 amount of $700 issued pursuant to Section 10(a) of the Act.

On February 14, 1972, the Secretary through the New York Area Director of the Occupational Safety and Health Administration, issued to Barnaby Concrete Corp., 300 East 44th Street, New York, New York, (hereinafter Respondent) one Citation for Serious Violation alleging that it was in violation of Section 5(a)(2) of the Act by failure to comply with the Occupational Safety and Health Regulation set forth at 29 CFR 1926.500(d)(1) at a construction site located at 1166-6th Avenue, New York City, (hereinafter workplace), because of its failure to provide any perimeter protection, i.e., neither top rail, midrail nor toe boards, on the open sided 22nd floor of the building under construction at this workplace, and a 20 foot section of the 21st floor, thereof where a Chicago boom off loads. On the same date the Secretary issued a Notification of [*4] Proposed Penalty in the amount of $700.00 based upon the Serious Violation (R.p.2). This Citation called for immediate abatement (R.p.1). n1

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n1 The Secretary additionally issued to Respondent the same date a Citation for Non-Serious Violation containing three Items and proposing a penalty thereon in the amount of $105.00 (R.p.1A). Although Respondent initially contested this Citation (R.p.3), it subsequently through its counsel, paid the proposed penalty of $105.00 (R.p.10), and early at the hearing formally moved to withdraw its Notice of Contest to the Citation for Non-Serious Violation. The Secretary thereupon moved to amend his Complaint by deleting all references to this Citation. Both Motions were granted and this Non-Serious Citation was not at issue at the hearing herein (Tr. 8-13).

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Pursuant to Section 10(c) of the Act, the Respondent by letter dated February 28, 1972, gave notice of its intention to contest the citations and proposed penalties.

This case was thereafter referred to the Occupational Safety [*5] and Health Review Commission, (hereinafter Commission) for hearing pursuant to Section 10(c) of the Act, notice thereof being given the parties of record on March 3, 1972.

Thereafter the Secretary filed his Complaint charging in paragraph VII thereof the violations alleged in the Citation for Serious Violation (R.p.6). On March 24, 1972, Respondent filed its Answer (R.p.11) after being granted an extension of time so to do (R.pp.7, 8). It also requested that this case be consolidated with the Tishman case (Docket No. 567), which request was granted by Commission Order dated April 11, 1972 (R.p.12).

On April 11, 1972, these consolidated cases were assigned to the writer, notice thereof being given the parties of record the same date.

The consolidated hearing herein was held as scheduled on May 18, 1972, in New York City. No affected employees or representative thereof indicated any desire to participate as a party.

After granting three extensions of time within which to file briefs, proposed findings and conclusions as requested by the Secretary, said documents were filed by the Secretary on August 24, 1972. No such submittals were filed by the Respondent herein. [*6]

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 open-sided 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 [*7] 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 stock.

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 sub-contractors 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 [*8] 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 [*9] 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.

The following matters were stipulated to by the Secretary and this Respondent:

The legal name of Respondent is Barnaby Concrete Corp. It is incorporated under the laws of the State of New York and its principal office is located at 300 East 44th Street, New York, New York. At the time of the alleged violations, January 24, 1972, it was engaged in the pouring of structural concrete in the construction of a commercial building located at 1166 Sixth Avenue, New York, New York and many of the materials, equipment and supplies used by it were manufactured outside of the State of New York.

Further, as compared to other firms in New York City, doing similar work, Respondent is "a substantial firm," with sales in 1971 of approximately $12,000,000. Respondent had no previous history of violation of the Act and employed an approximate average daily number of 400 employees in 1972. Lastly that the Citation [*10] and notice of time and place of hearing were posted at the workplace.

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. He began his formal inspection of this Respondent on January 24, 1972, after having first contacted Respondent's general superintendent and timekeeper on the jobsite on January 21, 1972.

Mr. McCabe testified to observing, on the East end of the 21st floor of the building under construction, a 20 foot open section at the perimeter which had no protection whatever. At this location from 2 to 4 of Respondent's employees were engaged in off loading concrete reinforcing rods and matting from a material hoist called a Chicago boom. None of these individuals had any life lines or other safety restraining devices. In the opinion of this witness, if a perimeter cable had been strung at this 20 foot section and lowered about 5 inches from its required 42 inch height, the material [*11] which he observed being off-loaded could have been off loaded and the employees so engaged would have been afforded some degree of protection. Similarly, a toe board, as required, if installed would also have afforded some protection.

He further testified that Respondent had approximately 60 employees working on this 21st floor on January 24, 1972, performing various tasks and that even when no material was being off loaded, this 20 foot section at the perimeter was left completely unguarded.

Additionally, he testified to observing approximately 10 of Respondent's employees working on the 22nd floor on January 24th and to the total lack on all four sides of any perimeter protection whatever. He testified that he observed a total of from 150 to 160 workmen on the 21st and 22nd floors and further, that these conditions were readily observable by either Respondent's foremen on these floors or by its general foreman who made periodic checks of the worksite.

The Respondent herein presented no witnesses and this record contains no substantial evidence contradicting the observations testified to by Compliance Officer McCabe. On this state of the record it is therefore concluded [*12] that on January 24, 1972, this Respondent was in violation of Section 5(a)(2) of the Act by its failure to comply with the mandatory perimeter protection requirements of the Regulation set forth at 29 CFR 1926.500(d)(1) on the 21st and 22nd floors of the workplace here involved as alleged in the Citation for Serious Violation.

Although not specifically claimed by this Respondent, a subcontractor at the workplace in question, it is not relieved of the legal responsibility to comply with the mandatory Regulation at issue, i.e., to provide the required perimeter protection for its employees, by virtue of the general contractor's, (Tishman; Docket No. 567) overall obligation to provide such protection. This Respondent had a choice, to either itself erect the required perimeter protection for its employees or to prohibit its employees from working on unguarded floors until such protection was provided by the general or prime contractor (29 CFR 1926.16).

The violation herein found to exist at this workplace on January 24, 1972, 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 [*13] from the conditions which existed and this Respondent knew, or with the exercise of reasonable diligence could have known of their existence.

Compliance Officer McCabe additionally testified to computing the proposed penalty herein: No reduction in the maximum $1000 penalty was allowed for Respondent's size as it had over 100 employees at the instant workplace. A 20% reduction was allowed for the absence of any history of prior violations of the Act. a 10% reduction was allowed for Respondent's good faith in that there was a cable strung on the 21st floor, except for the 20 foot section at issue, evidencing some safety consciousness by Respondent, and Respondent had sent its timekeeper to a safety seminar presented by the Secretary and was maintaining accident reports, which reflected a slightly higher than average frequency rate of lost time due to accidents, none of which had been either fatal or "too serious." Additionally, Respondent took immediate steps to correct the condition observed on the 21st floor by placing a temporary barricade at the 20 foot open section and appeared to initiate corrective measures on the 22nd floor.

Due consideration having been given [*14] to the provisions of Section 17(j) of the Act as applicable to the evidence of record, and weighing particularly the gravity of the violation as balanced against what immediate corrective measures were taken or initiated by Respondent, it is concluded that the penalty as proposed herein is appropriate.

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.

In view of Respondent's withdrawal of its contest to the Citation for Non-Serious Violation and payment of the penalties proposed thereon, this Citation is deemed to be the final order of the Commission pursuant to the provisions of Section 10(a) of the Act.

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 and [*15] Notification of Proposed Penalty in the amount of $700, dated February 14, 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 amount of $700 is hereby assessed against the Respondent herein.