UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS. 1858 & 1860
A. MUNDER & SON, INC., AND ROBERT CATINO, INC.
Respondent.

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BARNAKO, Chairman:

The issue in these consolidated cases is whether the employees of Respondents A. Munder and Son, Inc. (Munder) and Robert Catino, Inc. (Catino) were exposed to the hazards presented by conditions which failed to conform to the requirements of Complainant’s (Labor) occupational safety and health standards. The facts are these.

Munder and Catino were subcontractors on a building construction site in New York City. When this site was inspected by Labor, Munder, a sheet metal contractor, was engaged in installing steel decking onto the building frame. Its employees on the 10th floor were engaged in welding operations; on the 11th through 13th floors they were sorting and spreading loose decking. They were not observed working any closer than 10 feet from the edge of the building but would have to move to the perimeter to complete their work. The decking on the ninth floor had been completed but the employees were on that floor cleaning it and moving their welding equipment to the upper floors through a stairway located approximately 100 feet from the nearest building perimeter. There is no evidence that the work being performed by Munder’s employees on this floor would bring them any closer to the edge. The 9th and 10th floors were equipped with ¼-inch cables as perimeter protection but the 11th through 13th floors were completely unguarded.

In going to their work floors, Munder’s employees would climb stairways located approximately 30 feet from a 10-by 10-foot opening in which the scaffolding for a concrete hoist was being installed by another subcontractor. This opening was neither guarded nor covered in any way. While climbing the stairs the employees would at times rest either on the stairs or on the fifth, sixth, seventh, or eighth floors but at no times were observed resting closer than 20 feet from the opening.

Catino was a carpentry subcontractor responsible for guarding hazardous areas, including the installation of guardrails around elevator shaft openings and handrails on the stairways, except that the general contractor was responsible for guarding the hoist opening. On the fourth floor Catino’s employees were prefabricating barricades at a bench located about 50 feet from the hoist opening. They would then install the barricades at an elevator shaft opening 20 feet from the hoist opening. This work did not require them to come any closer to the hoist opening, and they were experienced employees aware of its location. The inspector conceded that they would not be working in or around the hoist opening.

Lastly, two compressed gas cylinders, one oxygen and one acetylene, were lying unsecured on their sides and without valve protection caps. Labor’s inspector testified that if a valve is broken or opened as a result of these conditions the cylinder could explode or become a ‘torpedo’ through the building. These cylinders were located near the main entrance to the building and employees of both Munder and Catino were observed passing within 10 feet of them. The cylinders were not the property of either Munder or Catino and their employees did not handle the cylinders; the conditions were corrected during the inspection by the general contractor.

On these facts Munder and Catino were cited for alleged violations of the Occupational Safety and Health Act of 1970[1] for failing to comply with 29 C.F.R. § 1926.500(b)(1)[2] as to the hoist opening on the fourth floor (Catino) and on the fifth through eighth floors (Munder) and 29 C.F.R. § 1926.350(a)(1) and (a)(9) as to the gas cylinders.[3] Munder was also cited for failing to comply with 29 C.F.R. § 1926.750(b)(1)(iii) as to the 10th through 13th floors and 29 C.F.R. § 1926.500(d)(1) as to the ninth floor.[4]

There is no dispute that the conditions existing failed to comply with the cited standards and Administrative Law Judge James D. Burroughs in his decision so concluded. He further concluded that employees of both Munder and Catino were exposed to the hazards created by the gas cylinders, and he recommended affirmance of the citations alleging those violations. As to the shaft opening and unguarded perimeter allegations he held that Labor had failed to prove employee exposure, and he would vacate. For the reasons given below we adopt his decision with the exception of the § 1926.750(b)(1)(iii) charge.

Subsequent to Judge Burrough’s decision herein we held that our rule of employee exposure would be a practical rule of access based on reasonable predictability. Gilles & Cotting, Inc., No. 504, BNA 3 OSHC 2002, CCH OSHD para. 20,448 (OSHRC, Feb. 20, 1976). Labor must prove that employees have been, are, or will be in zones of danger during either their assigned working duties, their personal comfort activities while on the jobsite, or their movement along normal routes of ingress to and egress from their assigned workplaces. And the zone or zones of danger will be defined according to the type of hazards presented in each case. That is, Labor must show the nature of the hazard and the areas on the jobsite where employees would be required or likely to go and further show a coincidence or overlapping of the two.

In this case there are two different kinds of hazards. The unguarded or inadequately guarded floor perimeters and hoist opening constitute static hazards such that for an employee to fall he would have to come to the edge of the floor or opening. On the other hand, the gas cylinders present a dynamic hazard capable of coming to the employee because a cylinder could explode or move through the work area of its own volition. The zone of danger would obviously comprise the area through which a cylinder could reasonably be expected to cause injury.

The facts show that employees of both Munder and Catino came in close proximity to the gas cylinders during the normal course of their activities on the site. It is reasonably predictable that the dynamic hazard presented by either an explosion or projectile would penetrate their areas of ingress and egress and Judge Burroughs properly so held. Bechtel Power Corporation, No. 5064, BNA 4 OSHC, 1005, CCH OSHD para. 20,503 (OSHRC, Mar. 11, 1976); The Budd Company, 7 OSAHRC 160, 164 n.7, BNA 1 OSHC 1548, 1551 n.7, CCH OSHD para. 17,387 at 21,915 n.7 (1974), aff’d, 513 F.2d 201 (3d Cir. 1975). Since Labor has here shown coincidence of the zone of danger and the employees’ work area, we will affirm the citations alleging violation of 29 C.F.R. § 1926.350(a)(1) and (a)(9).

We reach a similar conclusion with respect to Munder’s employees on the 10th through 13th floors. There the employees were engaged in securing the decking, were 10 feet from the unguarded perimeters, and would have to move to the perimeters to complete their work. In these circumstances it is reasonable to define the employees’ work area to include the unguarded perimeters and the falling hazard thereby presented. See Underhill Construction Corporation, No. 2516, BNA 4 OSHC 1146, CCH OSHD para. 20,631 (OSHRC, April 19, 1976). Since again the work area coincides with the hazard, we find Munder in violation of 29 C.F.R. § 1926.750(b)(1) (iii).[5]

The situation is different as to the lower floors. The work being performed by Munder’s employees on the ninth floor consisted of cleaning and moving equipment through a stairway located no closer than 100 feet from the inadequately guarded perimeter, and Labor presented no evidence that the employees in the course of their work would come any closer to the edge. Similarly, Munder’s employees were using stairways no less than 30 feet from the hoist opening; the best the inspector could say is that they might wander to the opening. In both instances Labor’s proofs failed to show correspondence of a hazard with work areas. Lastly, Catino’s employees were barricading an elevator shaft 20 feet from the hoist opening. Labor did not show that their work area included the hoist opening, and the inspector conceded that it did not. Therefore we will vacate the citations alleging the § 1926.500(b)(1) and (d)(1) violations.

We turn now to assessment of appropriate penalties. Judge Burroughs would assess no penalties for the gas cylinder violations, and we adopt his decision for the reasons he assigns.

Munder’s violation of § 1926.750(b)(1)(iii) on the 10th floor consists of using ¼-inch rather than ½-inch wire rope as perimeter guarding. Moreover, on this floor welding operations were in progress whereas on the higher floors decking was still being sorted and spread. It may well be that similar ¼-inch wire rope was eventually to have been installed on the 11th through 13th floors as well.[6] In this regard, we note that Labor considered Munder’s safety program to be very good and its attitude cooperative. We conclude, as did Labor, that Munder has acted in good faith in this matter. Lastly, the parties stipulated that Munder is of small size relative to other sheet metal contractors in the New York City area, and while it had previously been inspected, the record does not show any prior violations of the Act. On balance, we conclude that no penalty is appropriate for this violation.

Accordingly, in Docket No. 1858, we affirm the citations alleging violations of 29 C.F.R. §§ 1926.350(a)(1), 1926.350(a)(9), and 1926.750(b)(1)(iii), unless, within ten days of the receipt of this decision, Respondent Munder requests an opportunity to present additional evidence regarding the defense discussed in footnote 5. In Docket No. 1860, the citations for violation of 29 C.F.R. §§ 1926.350(a)(1) and 1926.350(a)(9) are affirmed, unless within ten days of the receipt of this decision, Respondent Catino requests a similar opportunity. All other citations are vacated, and no penalties are assessed. It is so ORDERED.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATE: AUG 17, 1976

CLEARY, Commissioner, CONCURRING:

I concur in the disposition of the items at issue in these consolidated cases. I do not, however, adopt the method by which the Chairman determines whether employees were exposed to hazardous conditions.

In my concurring opinion in Gilles & Cotting, Inc., 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,448 (No. 504, February 20, 1976), I stated that:

There is nothing talismanic about . . . the term ‘zone of danger’ as used by the lead opinion. The test that is really applied may be more precisely stated in terms of the risks to employees that may be reasonably anticipated when a standard is breached (footnote omitted).

Thus, I disassociate myself from those portions of the lead opinion wherein my colleague mechanically applies a ‘zone of danger’ test to determine whether there was employee exposure to the cited noncomplying conditions.

In addition, I disagree with the Chairman insofar as he would further complicate any test of employee exposure by introducing the concept of ‘static’ or ‘dynamic’ hazards. This concept unnecessarily introduces analytical complications into an already overly rigid ‘zone of danger’ approach. In examining questions of employee exposure to noncomplying conditions, it is enough that we identify the nature of the hazard against which a standard is directed and then consider the ‘risks to employees that may be reasonably anticipated when . . . [the] standard is breached.’ Gilles & Cotting, Inc., supra (concurring opinion). I find this flexible approach more practicable.

Although I disagree with the Chairman’s approach, I nevertheless concur in his findings regarding employee exposure to the noncomplying conditions at issue in these cases.

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

All citations should be vacated in this case because the evidence fails to establish that respondents were responsible for the alleged violative conditions or that their employees were actually exposed thereto. Consequently, I agree that the § 1926.500(b)(1) and (d)(1) charges against Munder and the § 1926.500(b)(1) charges against Catino must be vacated because of complainant’s failure to establish either actual or potential employee exposure. The reasons why the remaining charges should also be vacated was expressed in my dissenting opinion in Secretary v. Gilles & Cotting, Inc., OSAHRC Docket No. 504, February 20, 1976. Briefly stated, these charges cannot be affirmed because the complainant must prove actual exposure of an employer’s employees to the alleged hazardous conditions in order to establish a violation of the Act.

The majority’s reversal of the Judge’s vacation of the § 1926.750(b)(1)(iii) charge against Munder is improper because complainant failed to prove actual exposure of Munder’s employees to the alleged hazard.

As I predicted in the Gilles & Cotting case, ‘the nebulousness of the [Barnako-Cleary access rule] will result in undesirable imprecision in applying it.’ The validity of that prediction is shown in this case in my colleagues’ inability to agree on what the rule means. Furthermore, the evidence is insufficient under both Chairman Barnako’s ‘reasonable predictability’ rule and Commissioner Cleary’s ‘reasonable anticipat[ion]’ rule (if those criteria have any meaning).

Though it is true that the work of securing decking would require Munder’s employees to move to the perimeter of the floors, the record does not indicate that the employees inevitably would be exposed to a falling hazard.[7] To the contrary, it is more reasonable to conclude from the evidence that wire ropes would have been installed by the time the employees came within close proximity to the edge. As Munder’s assistant treasurer stated:

‘The only point I wanted to make was that the perimeter protection around that building was the responsibility of the general contractor, who had been providing the perimeter protection right along. The only point that I can see in this whole thing is the fact that when the perimeter protection was put into place, at [what] point did it become necessary to have it there? Our men from what Mr. Richardson [the inspector] said were not working close to the edge of the building, therefore, I can’t see a reason for the citation since the men were not in any particular danger, and the floor was still in a temporary nature. The perimeter protection had just not been put into place as yet, you know when he made his inspection.’

Judge Burrought recognized the validity of these remarks in his decision, which is attached hereto as Appendix A, by concluding that:

There was no evidence presented to reflect that any work was done closer than 10 feet to the perimeter. The compliance officer assumed that work probably would progress to a point where employees would be in danger. However, it is just as reasonable to assume that the ½ inch wire cable would be placed in conformity with the standard whenever the employees became exposed to the danger of a fall. The Commission must decide cases on facts and not assumptions. The facts do not support the conclusion that the exposure of Munder’s employees to the hazard created by the absence of of the ½-inch wire cable was realistic. Since there was no realistic exposure there can be no violation.

Moreover, even if it were certain that the employees eventually would have worked near the edges of the floors lacking proper guarding I find it unjustifiable and I find it unjustifiable and counterproductive to base liability on employees’ future exposure. In Secretary v. Gilles & Cotting, Inc., supra, I outlined what I submit as a much more rationale approach as follows:

‘In my view, the rule established in this case will result in punishing many innocent employers. This would be precluded under an actual exposure rule without significantly impeding the corrective purposes of the Act. After employers are advised of unsafe conditions by inspections, they can be expected to voluntarily correct those conditions before their employees are actually exposed thereto. This is consistent with congressional recognition of the fact that the purposes of the Act can best be achieved by voluntary means.’ (Footnotes omitted.)

Finally, the § 1926.750(b)(1) charge against Munder and the § 1926.350(a)(1) and (9) charges against both employers should be vacated on the basis of the holding in Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975), that employers are not liable under the Act for conditions which they did not create, cause, or otherwise have responsibility for. As Judge Burroughs noted in his decision, ‘[t]here is no evidence to show that Munder had any responsibility for providing ½-inch wire rope around the periphery of the temporary floor.’ As for the § 1925.350 charges, Chairman Barnako concedes in footnote 5 of his opinion that ‘neither Munder nor Catino created or was responsible for correction of the gas cylinder violations.’ Accordingly, vacation of these charges is required by the Seventh Circuit’s Anning-Johnson decision.[8]

APPENDIX A

29 CFR 1926.500(a)(1)[9]

Failure to provide a floor opening by a standard railing and toe board on all exposed sides. Location: open concrete Hoist Shaft. Middle of building.

5th floor 10 x 10 opening.

6th floor 10 x 10 opening.

7th floor 10 x 10 opening.

8th floor 10 x 10 opening.

A notification of proposed penalty was also issued on November 21, 1972, proposing the following penalties for the alleged violations:

Item No.	Alleged Violation	Proposed Penalty
1	29 CFR 1926.750(b)(1)(iii)	$135.00
2	29 CFR 1926.500(d)(1)	40.00
3	29 CFR 1926.350(a)(1)	None
4	29 CFR 1926.350(a)(9)	25.00
5	29 CFR 1926.500(b)(1)	30.00

A citation was issued to Robert Catino, Inc. (hereinafter sometimes referred to as Catino) on November 27, 1972, alleging a failure to comply with three (3) safety standards. The citation described the alleged non-serious violations as follows:

Item No.	Standard Allegedly Violated	Description
1	29 CFR 1926.500(b)(1)	Failure to provide standard guarding of floor openings by a standard railing and toe board on all exposed sides. Location: Middle area of building on the following floors along the proposed concrete hoist shaft. (a) 1st floor 10 x 10 opening (b) 2nd floor 10 x 10 opening (c) 3rd floor 10 x 10 opening (d) 4th floor 10 x 10 opening (e) 5th floor 10 x 10 opening (f) 6th floor 10 x 10 opening (g) 7th floor 10 x 10 opening (h) 8th floor 10 x 10 opening and the following (i) 2nd floor North Side 7 x 10 (j) 1st floor North East Area 10 North side of opening exposed
2	29 CFR 1926.350(a)(1)	Failure to provide two oxygen compressed GH5 cylinders with valve protection caps. Location: 1st floor Northeast Area.
3	29 CFR 1926.350(a)(9)	Failure to secure two oxygen compressed gas cylinders in a upright position. Location: 1st floor Northeast Area.

The notification of proposed penalty issued on the same date as the citation proposed a penalty of $125.00 for the alleged violation of 29 CFR 1926.500(b)(1). A penalty of $25.00 was proposed for the alleged violation of 29 CFR 1926.350(a)(9).

Timely notices of contests were filed by the respondents. The complainant advised the Occupational Safety and Health Review Commission of the notices of contest and the Commission assumed jurisdiction of the cases. On March 9, 1973, the Commission granted complainant’s motion to consolidate the cases for hearing. On March 12, 1973, the cases were assigned to this Judge for purposes of conducting a hearing pursuant to Section 10(c) of the Act.

A hearing was held in these consolidated cases in New York City on April 4, 1973. No additional parties desired to intervene in the proceedings.

Prior to evidence being presented complainant moved to delete all sub-parts of item No. 1 of the citation, with the exception of sub-part (d), issued to respondent Catino. The motion was granted (Tr. 4) and item No. 1 was amended to read as follows:

Failure to provide standard guarding of floor openings by a standard railing and toe board on all exposed sides. Location: Middle area of building on the following floors along the proposed concrete hoist shaft.

(d) 4th floor 10 x 10 opening.

ISSUES

The primary issues for determination pertain to whether respondents Munder and Catino committed violations of section 5(a)(2) of the Act by failing to comply with the safety standards as hereinafter indicated for each respondent.

A Munder & Son, Inc.

1. 29 CFR 1926.750(b)(1)(iii)

2. 29 CFR 1926.500(d)(1)

3. 29 CFR 1926.350(a)(1)

4. 29 CFR 1926.350(a)(9)

5. 29 CFR 1926.500(b)(1)

Robert Catino, Inc.

1. 29 CFR 1926.500(b)(1)

2. 29 CFR 1926.350(a)(1)

3. 29 CFR 1926.350(a)(9)

In the event either respondent committed any of the violations as alleged, a determination must be made as to the appropriate penalty or penalties, if any, to be assessed for the violations.

FINDINGS OF FACT

The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically determined in resolving the proceeding.

1. On October 30, 1972, the complainant, through a duly authorized compliance officer, conducted an inspection of a construction project at Bankers Trust Plaza, Greenwich and Liberty Streets, New York, New York. (Tr. 8) A. Munder & Son, Inc. and Robert Catino, Inc. were subcontractors on the job. The general contractor was Fisher-Washington Building Corporation. (Tr. 9)

2. A. Munder & Son, Inc. is a New York Corporation with its principal place of business located at 2810 38th Avenue, Long Island, New York. It is an employer affecting commerce within the meaning of the Act and employees an average daily number of approximately 80 persons. (Tr. 5)

3. Munder had a net worth of approximately $1,000,000 in 1972 and is a small sheet metal contractor in relation to other sheet metal contractors in the New York City area. (Tr. 5)

4. Robert Catino, Inc. is a New York corporation with its principal office located at 136 E. 55th St., New York, New York. It is an employer affecting commerce within the meaning of the Act and has an average daily employment of approximately 20 to 25 persons. (Tr. 5–6)

5. Catino is a carpentry contractor and is small as compared to other like contractors in the New York City Area. (Tr. 6) It was responsible for installing barricades around the elevator shafts and placing hand rails on the stairways. (Tr. 32)

6. At the time of the inspection, Munder had approximately 29 persons employed at the jobsite. (Tr. 23) Catino had four employees on the worksite at the time of inspection. (Tr. 37)

7. The tenth floor contained loose steel decking which was ready to be tacked. Approximately 12 employees of Munder were spreading and sorting out the steel decking and setting up to weld. A safety railing of 1/4 inch wide wire cable was installed around the periphery of the tenth floor. (Tr. 10–11, 45)

8. The eleventh floor contained steel decking which had not been completely tacked down. Employees of Munder were working on the floor. There was no type of safety railing around the periphery of the eleventh floor. (Tr. 12–13, 53–54)

9. Employees of Munder were also working on the twelfth and thirteenth floors of the building sorting out steel decking. There was no type of safety railing around the periphery of the twelfth and thirteenth floors. (Tr. 13–15, 53–54)

10. No employees of Munder were observed working closer than 10 feet to the perimeter of the 10th, 11th, 12th or 13th floors of the building. The employees were working within the interior of the building. (Tr. 24–25, 49–50, 60) No employees of Munder were in immediate danger at the time of inspection. (Tr. 50)

11. The ninth floor had steel decking which was tacked down. There was a 1/4-inch cable around the periphery of the ninth floor. There was no midrail or toeboard on the ninth floor. Employees of Munder were on the ninth floor. They were moving welding machinery and equipment to the upper floors. (Tr. 16–17, 55)

12. The first nine floors of the building were permanent floors. The 10th floor and upward were temporary floors. (Tr. 17, 45, 54)

13. The work of Munder on the ninth floor had been completed and no employees were exposed to the perimeter of the ninth floor. The equipment being moved off the ninth floor was done by use of the stairway. (Tr. 64–65) The stairway was at no point closer than 100 feet to the perimeter of the building. (Tr. 65)

14. A concrete hoist shaft opening of approximately 10 x 10 was located in he middle of the building and extended from the first floor to the eighth floor. A scaffold was being erected in the opening. There was no type of guard around the shaft on the 4th, 5th, 6th, 7th, or 8th floors. (Tr. 19–20, 32–33) Each floor was approximately 10 high. There was no type of protection provided to break the impact in the event someone fell. (Tr. 20, 33)

15. Employees of Munder were not working on the 5th, 6th, 7th or 8th floors. The elevator contractors were on strike and employees had to walk up the stairways. Employees of Munder were using the stairways and would at times rest on the 5th, 6th, 7th or 8th floors. The stairway was approximately 30 feet from the concrete hoist shaft. (Tr. 21, 44, 62–63) No employees were observed resting closer than 20 feet to the hoist shaft. (Tr. 64)

16. The contractual responsibility for providing protection around the concrete hoist shaft was that of the general contractor. (Tr. 66, 70)

17. Two compressed gas cylinders, one oxygen and one acetylene, were located in the northeast corner of the first floor. The cylinders were lying on their sides and were unsecured. There were no caps over the valve of the cylinders. (Tr. 17–19, 34–35) The cylinders were near the main entrance of the building. Employees of Munder and Catino were observed passing within approximately ten feet of the cylinders. (Tr. 18, 34–35, 41–42, 57)

18. The gas cylinders were not owned by Munder or Catino. (Tr. 43, 56) The employees of Catino and Munder did not handle the gas cylinders. (Tr. 41, 52)

19. An unadjusted penalty of $100.00 was proposed against Munder by complainant for the alleged violation of 29 CFR 1926.350(a)(9). The gravity was considered to be low. (Tr. 28) In arriving at the unadjusted penalty, complainant considered the alleged violation in conjunction with the alleged violation of 29 CFR 1926.350(a)(1) for which no penalty was proposed. (Tr. 27–28)

20. In determining the proposed penalty against Munder, complainant allowed a 20 percent reduction for good faith, a 20 percent reduction for history and 5 percent for size. (Tr. 22–23, 25, 27–30) A further reduction of 50-percent was allowed for abatement. (Tr. 28)

21. Munder has a good safety program and was cooperative during the inspection. (Tr. 23)

22. Two employees of Catino were working on the fourth floor. They were placing barricades around the elevator shaft. The elevator shaft was approximately 20 feet from the concrete hoist shaft. (Tr. 31, 34, 57–58) The work of the employees of Catino never took them any closer than 20 feet to the hoist shaft. (Tr. 70–72)

23. The employees of Catino working on the fourth floor were experienced in working around openings and knew what they were doing. (Tr. 60, 74) They had been installing barricades around openings for 20 years. They were aware of their distance from the concrete hoist shaft. (Tr. 74)

24. The barricades which employees of Catino were placing around the elevator shaft on the fourth floor were prefabricated approximately 50 feet from the hoist shaft and carried to the elevator shaft. They were installed within a few minutes. (Tr. 71–73)

25. An unadjusted penalty of $100 was proposed against Catino by complainant for the alleged violation of 29 CFR 2926.350(a)(9). The gravity of the violation was considered to be low. (Tr. 40) In arriving at the unadjusted penalty, complainant considered the alleged violation in conjunction with the alleged violation of 29 CFR 1926.350(a)(1) for which no penalty was proposed. (Tr. 40)

26. In determining the proposed penalty against Catino, complainant allowed a 20-percent reduction for good faith, a 20-percent reduction for history and 10-percent for size. (Tr. 36–37, 39) An abatement credit of 50-percent was also allowed Catino on the penalty proposed against it. (Tr. 39–41)

LAW AND OPINION

Complainant alleges that respondents violated Section 5(a)(2) of the Act by failing to comply with safety standards promulgated under the Act. Section 5(a)(2) of the Act provides that each employer shall comply with occupational safety and health standards promulgated under the Act. A determination must be made as to whether respondents violated the standards cited in the citations issued to them.

Alleged violations committed by Munder

1. 29 CFR 1926.750(b)(1)(iii)

Section 1926.750(b)(1)(iii) of 29 CFR provides as follows:

Floor periphery—safety railing. A safety railing of 1/2-inch wire rope or equal shall be installed, approximately 42 inches high, around the periphery of all temporary-planked or temporary metal-decked floors of tier buildings and other multifloored structures during structural steel assembly.

The evidence is undisputed that the 10th, 11th, 12th, and 13th floors were temporary metal-decked floors and that a safety railing of 1/2 inch wire rope or equal was not installed around the periphery of those floors. A violation of the standard appears to be established. However, the resolution of this issue is not so simple. The ramifications of determining a violation against Munder extend beyond the mere fact that the specifications of 29 CFR 1926.750(b)(1)(iii) were not fulfilled.

The avowed purpose of the Act is to provide safe and healthful working conditions for employees. A duty is created between the employer and his employees to achieve this stated objective. Generally, each employer is responsible for the working conditions of his employees and for assuring compliance with standards applicable to the actions and conduct of his employees. The crux of any violation is whether there has been employee exposure to an unsafe working condition rather than the fact that specifications of a standard have not been followed. If no employees had ventured to work on the 10th, 11th, 12th or 13th floors, the specifications of 29 CFR 1926.750(b)(1)(iii) would still have been unsatisfied, but there would have been no employee exposure. There could have been no employee injury without exposure to the hazard for which the standard was promulgated. Since the primary objective of the standards is to protect employees, that objective would have been achieved by employer restraint on the actions of his employees.

Where employees of different employers are working in the same establishment, such as in this case, difficult matters of judgment are involved. One must ascertain who created the hazard and whose employees were exposed to the unsafe working conditions. An employer who does not create the hazard may nevertheless be in violation of the standard if he knew or reasonably should have known of the hazard before permitting his employees to work in the hazardous area where they are exposed to the dangers for which the standard was promulgated. The employer creating the hazard may also be in violation if his actions and conduct endangered an employee, whether his own or those of another employer.

There is no evidence to show that Munder had any responsibility for providing the 1/2 inch wire rope around the periphery of the temporary floors. Thus, insofar as Munder is concerned, the pertinent issue is whether Munder’s employees were exposed to the hazard presented by the standard which it allegedly violated. There is no dispute over the fact that Munder was aware of the absence of the 1/2 inch wire rope. It contends, however, that the employees were not in any danger and were not exposed to the hazard for which the standard was promulgated to prevent—namely, falling off the edge of the building. (Tr. 69)

Employees of Munder were working on the 10th, 11th, 12th and 13th floors of the building. They were working within the interior of the building and none were closer than 10 feet to the perimeter of the various floors. The complainant appears to take the position that the mere presence of employees of Munder on the floors without the 1/2 inch wire cable was per se a violation of the standard by Munder. (Tr. 76–77) Such an interpretation is neither reasonable nor fair.

Is a whole floor automatically hazardous to all employees on it by virtue of the absence of a 1/2 inch wire cable around the periphery? This question must be answered in the negative. There is evidence that the floors were approximately 200 x 300 in dimensions. (Tr. 65) Obviously, there were many areas where employees could work on the floors without any danger of being exposed to a possible fall over the perimeter of the floors. It is unrealistic to conclude that employees of Munder were exposed to a possible fall over the edges of the floors simply because they were performing work on the floors without the 1/2 inch wire cable around the periphery. Where a condition or hazard was not created by a particular employer, there must be substantial evidence to reflect a reasonable connection between the violation and actual exposure of that employer’s employees to the condition for which the standard was promulgated to remedy.

What constitutes actual exposure to an unsafe working condition? This question can not be resolved without first ascertaining the hazard or unsafe working conditions for which the standard seeks to eliminate. Once this fact is determined, whether there is actual exposure is dependent upon the facts and reasonable judgment. The judgment being exercised must be fair, impartial and aimed at promoting the objectives of the Act. The safety of the employees should be paramount.

Munder did not create the hazard and will not be held in violation of the standard unless its employees were exposed or affected by the hazard. The absence of the 1/2 inch wire cable exposed anyone working in close proximity to the perimeter of the floors to a possible fall. The pertinent question is how close must one be working to the perimeter to be in danger of falling over the edge of the floor. The answer to this question must necessarily vary according to the circumstances of each case (e.g. type of work being performed and closeness to the edge) and definitive limits are difficult to determine. The proven facts of this case are convincing that a working distance of 10 feet from the perimeter of the floors did not endanger the safety of any employee.

The danger forseen by the compliance officer was more illusory than real. Anyone accidentally falling 10 feet from the perimeter of a floor is in no real danger of falling over the edge. Indeed, the compliance officer admitted that the employees were in no real danger at the time he observed them. (Tr. 50) The exposure of Munder’s employees was too remote to conclude that Munder was in violation of the standard. A buffer zone of 10 feet was sufficient to protect the employees. Employees use to working at considerable heights can be expected to exercise reasonable care in the execution of their assigned duties.

There was no evidence presented to reflect that any work was done closer than 10 feet to the perimeter. The compliance officer assumed that work probably would progress to a point where employees would be in danger. However, it is just as reasonable to assume that the 1/2 inch wire cable would be placed in conformity with the standard whenever the employees became exposed to the danger of a fall. The Commission must decide cases on facts and not assumptions. The facts do not support the conclusion that the exposure of Munder’s employees to the hazard created by the absence of the 1/2-inch wire cable was realistic. Since there was no realistic exposure there can be no violation.

2. 29 CFR 1926.500(d)(1)

Section 1926.500(d)(1) of 29 CFR provides as follows:

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)(1) 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.

The evidence is undisputed that the 9th floor had no toeboard or intermediate railing as specified in paragraph (f)(1) of the section. However, this does not per se imply that Munder is in violation of the standard. There is no evidence to indicate that Munder was charged with the responsibility of insuring that the 9th floor contained a toeboard and intermediate rail around the perimeter. Munder must be judged on the basis of whether its employees were exposed or affected by the hazards resulting from the absence of the intermediate rail and toeboard.

It is apparent that the requirements for intermediate rails and toeboards around open-sided floors is to protect employees from accidental falls over the edge of the floors and to prevent tools or equipment from being accidentally shoved over the side and crating a hazard for any employees working below. The evidence does not reflect that Munder’s employees were exposed to either of these hazards. Munder had finished its work on the 9th floor and was in the process of moving equipment from the 9th floor to the upper floors by use of the stairway. The stairway was located approximately 100 feet from the perimeter of the floor. The compliance officer admitted that the employees were working inside the building and were not exposed to the perimeter. (Tr. 64–65)

The fact that a prime contractor or another subcontractor may have violated a standard does not automatically justify a determination of the same violation against other employers working in the same establishment. There may be instances where such a determination is justified (e.g. erecting and using of unsafe scaffolding by prime contractor which is later used by a subcontractor), but the determination must be based on proven facts. If the facts do not reflect actual exposure of employees to the hazard or hazards for which the standard was promulgated, then a violation will not be sustained. The objective of the act is to protect employees from unsafe working conditions. This objective contemplates realistic unsafe conditions which relate directly to the work being accomplished by the employees.

The complainant seeks to sustain its burden on this issue by simply proving that employees of Munder were on the 9th floor. In view of the type of hazards for which the standard seeks to prevent, the evidence is insufficient. There is no evidence to reflect how close employees were to the perimeter. The compliance officer admitted that the employees were working inside the interior of the 9th floor and not exposed to the perimeter. No evidence was introduced by complainant to justify any determination that any employees of Munder working on the 9th floor were in danger or exposed to any actual harm.

Alleged Violations Committed by Munder and Catino

1. 29 CFR 1926.350(a)(1)

Section 1926.350(a)(1) of 29 CFR provides as follows:

Valve protection caps shall be in place and secured.

The evidence is undisputed that two gas cylinders located in the northeast corner of the first floor had no valve protection caps in place and secured. The cylinders were near the main entrance to the building.

The gas cylinders were not owned by Munder or Catino and its employees did not use or handle them. Since they had no responsibility for care of the cylinders, the pertinent issue is whether their employees were exposed to the hazard emanating from the condition of the cylinders. There is no dispute over the fact that Munder and Catino knew of the violation of the standard.

The primary hazard presented by the absence of the valve caps was the possibility that something could fall on or strike the valves and cause an explosion. (Tr. 27) Employees of Munder and Catino were observed within 10 feet of the gas cylinders. This was well within a harmful range in the event one of the cylinders exploded. While the chances of such an event actually occurring were extremely remote, the possibility nevertheless existed. A distance of 10 feet would not have been sufficient to have assured the safety of employees of Munder and Catino in the event of an explosion. The hazard presented here is quite unlike that presented by the alleged violation of 29 CFR 1926.750(b)(1)(iii) where a distance of 10 feet was determined to afford sufficient safety to the employees. In the event one of the cylinders exploded, fragments would have been hurled several feet. Under the circumstances the potential hazard necessitates a greater protective range for employees. Employees were exposed to a hazard for which the standard was promulgated to prevent.

2. 29 CFR 1926.350(a)(9)

Section 1926.350(a)(9) of 29 CFR provides as follows:

Compressed gas cylinders shall be secured in an spright position at all times except, if necessary, for short periods of time while cylinders are actually being hoisted or carried.

The evidence is undisputed that the two gas cylinders were unsecured and were lying on their sides. Since Catino and Munder did not have responsibility for care of the cylinders, a determination must be made as to whether their employees were exposed to the dangers for which the standard was promulgated. There is no dispute over the fact that Catino and Munder were aware of the violation of the standard and that their employees approached within 10 feet of the cylinders.

If one of the cylinders had been struck on the valve with an object, a possibility existed that the cylinder could have become a projectile similar to a torpedo. (Tr. 27) Anyone in the immediate vicinity in such an eventuality would have been in danger. Since the exposure was to the possibility of a projected object, a distance of 10 feet was not sufficient to assure the safety of the employees. Munder and Catino sufficiently exposed their employees to the hazard to conclude that they were in violation of the standard.

3. 29 CFR 1926.500(b)(1)

The citation and complaint in the Munder case allege a violation of 29 CFR 1926.500(a)(1), whereas the citation and complaint in the Catino case refers to an alleged violation of 29 CFR 1926.500(b)(1). There is no 29 CFR 1926.500(a)(1). The description in the citation and complaint in Munder make it clear that reference was intended to be to 29 CFR 1926.500(b)(1). The alleged exposure of both respondents were to an open concrete hoist shaft. The citation issued to Munder described the violation with sufficient particularity to advise Munder that the violation consisted of the absence of a standard railing and toeboard around the concrete hoist shaft on the 5th, 6th, 7th and 8th floors of the building. The inadvertent references to 29 CFR 1926.500(a)(1) did not mislead Munder. The evidence presented to substantiate the violation was also consistent with a violation of 29 CFR 1926.500(b)(1). Since Munder was fully apprised of the facts surrounding the alleged violation, the Commission is not prevented from considering and deciding the facts as pertaining to the correct subsection. See American Newspaper Publishers Association v. NLRB, 193 F.2d 782, 799–800 (7th Cir. 1951), aff’d. 345 U.S. 100 (1953), wherein the court stated:

* * * The failure to specify in the complaint the correct subsection of the Act did not require the Board to dismiss this charge without a consideration as to the sufficiency of the proof. Where, as here, the complaint clearly describes an action which is alleged to constitute an unfair labor practice but fails to allege which subsection of the Act has been violated or alleges the wrong subsection, such failure or mistake, if it does not mislead the parties charged, does not prevent the Board from considering and deciding the charge so presented.

Section 1926.500(b)(1) of 29 CFR provides as follows:

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.

A concrete hoist shaft approximately 10 x 10 was located in the middle of the building. There was no type of railing or toeboard around the concrete shaft on the 4th, 5th, 6th, 7th and 8th floors and no type of protection to soften the impact in the event someone fell. Munder and Catino did not have the responsibility for providing railings and toeboards around the hoist shaft. They did have a responsibility not to expose their employees to the hazards created by the absence of the railings and toeboards.

The reasoning of the complainant in citing Munder for a violation of this standard is difficult to comprehend. Its employees were not working on the 5th, 6th, 7th and 8th floors. There was no direct exposure to the hazards associated with the absence of the railings and toeboards around the concrete hoist shaft. Employees were simply using the stairways, which were in conformity with the safety standards, on these floors to ascend to their working areas. The elevator contractors were on strike and the employees had no other available avenues of gaining access to the working areas. The stairway was approximately 30 feet from the concrete hoist shaft. Since the employees occasionally stopped on these floors to rest, complainant considers they were exposed to a possible fall into the hoist shaft. Such logic stretches the imagination beyond reasonable limits.

The evidence is undisputed that Munder’s employees had no assigned duties on the 5th, 6th, 7th or 8th floors. It seems reasonable that Munder was justified in concluding that the concrete hoist shaft on these floors offered no danger to its employees. The duties of the employees only required them to ascend the stairway on these floors to get to their work areas. They did not have to work on these floors.

Complainant’s logic seems to presume that the employees, while resting on these floors, would intentionally or unintentionally expose themselves to the danger of the unguarded concrete hoist shaft. The important criteria is whether the duties assigned to the employee by the employer exposed him to an unsafe working condition. The employer can not be judged guilty of a violation on the basis of an irresponsible act of an employee which he did not know of or could not reasonably anticipate. If an employee decides to expose himself to a hazard which is outside the scope of his assigned duties there is little an employer can do until after the event has occurred.

There is no evidence to support the complainant’s fear that employees would expose themselves to the unguarded hoist shaft. No employees were observed any closer than 20 feet to the hoist shaft as they ascended the stairway. Such exposure, when coupled with the fact that they had no assigned duties on the floors, was too remote to be realistic.

Two employees of Catino were placing barricades around the elevator shaft on the 4th floor. The elevator shaft was approximately 20 feet from the concrete hoist shaft. The employees had no assigned duties any closer than 20 feet to the concrete hoist shaft and were aware of their distance from the shaft.

A 20 foot zone is more than sufficient protection to prevent an employee from falling over an unguarded shaft. This is especially true for employees experienced in working around openings. The two employees of Catino were experienced in placing barricades around openings and had been doing that type of work for approximately 20 years. A distance of 20 feet from an unguarded opening presents no hazard to employees whose jobs for 20 years have been to place barricades around openings. The exposure of Catino’s employees on the fourth floor was too remote to warrant any conclusion that it violated the cited standard.

APPROPRIATENESS OF PENALTIES

Once a notice of contest is served, the authority to assess civil penalties under the Act resides exclusively with the Commission. The Commission, in Section 10(c) of the Act, is charged with affirming, modifying or vacating citations issued by the Secretary under Section 9(a) and notifications issued and penalties proposed by the Secretary under Sections 10(a) and 10(b). The Commission, by Section 17(j) of the Act, is expressly required to find and give ‘due consideration’ to the size of the employer’s business, the gravity of the violation, the good faith of the employer and the history of previous violations in determining the assessment of an appropriate penalty. See Secretary of Labor v. Nacirema Operating Company, Inc., OSHRC Docket No. 4.

In Nacirema the Commission stated that the four criteria to be considered in assessing penalties cannot always be given equal weight. It indicated that the principal factor to be considered in assessing an appropriate penalty for a violation is the gravity of the offense. In Secretary of Labor v. National Realty and Construction Company, Inc., OSHRC Docket No. 85, the Commission stated that in determining the gravity of a violation, several elements must be considered, including but not necessarily limited to the following: (1) the number of employees exposed to the risk of injury; (2) the duration of the exposure; (3) the precautions taken against injury, if any; and (4) the degree of probability of occurrence of an injury.

The Commission in Secretary of Labor v. J. E. Chilton Millwork and Lumber Company, Inc., OSHRC Docket No. 123, indicated that relatively minor monetary penalties do little to effectuate the objective of the Act, namely, to insure a safe and healthful workplace. The same rationale was applied by the Commission in Secretary of Labor v. General Meat Company, Inc., OSHRC Docket No. 250. Small monetary penalties were eliminated in both cases since the violations had been abated. However, this rationale was directed toward relatively minor violations of the Act which would be better described as de minimis. The Commission recognized that there would be instances where a small penalty would be justified. Whether small monetary penalties are justified must be determined by the relationship between the non-serious violation involved and the corresponding degree of gravity. Secretary of Labor v. Hydroswift Corporation, OSHRC Docket No. 591.

Munder and Catino have been determined to have violated 29 CFR 1926.350(a)(1) and 29 CFR 1926.350(a)(9). No penalties were proposed by complainant for the violations of 29 CFR 1926.350(a)(1). Penalties of $25.00 were proposed for the violations of 29 CFR 1926.350(a)(9). The $25.00 penalties were determined by complainant due to the combination of the two violations [29 CFR 1926.350(a)(1) and (a)(9)] rather than the single violation of 29 CFR 1926.350(a)(9). (Tr. 28, 40) The compliance officer believed the $25.00 penalties for the violations of 29 CFR 1926.350(a)(9) were justified because of the combination of the two items. The use of this approach is unjustified in determining a penalty for a single violation.

Where violations are separately stated in a citation, each violation must stand on its own insofar as the determination of a penalty is concerned. It is inappropriate to combine separate violations only for purposes of determining a penalty and conclude that the gravity of two or more violations warrant proposing a penalty for one of them. Section 17(j) of the Act speaks in terms of ‘the gravity of the violation’. The criteria of Section 17(j) must be applied to each separate violation contained in the citation and the penalties determined according to the factors specified in Section 17(j).

After consideration of the four criteria provided by Section 17(j) and applying the rationale of the Commission in J. E. Chilton Millwork and Lumber Company, Inc., supra, and General Meat Company, Inc., supra, for each separate violation, it is concluded that the gravity of the violations do not warrant the assessing of any penalties. The gravity of the violations must be construed to be extremely low. The probabilities of the valves being hit by an object and causing an explosion or setting the cylinders in motion as a torpedo were highly remote. The employees were not handling or using the cylinders. Any exposure would have been very brief since they were merely walking by the cylinders. The probability of an occurrence of an injury was remote.

Consideration has also been given to arriving at some consistency and uniformity in assessing penalties. In Secretary of Labor v. G. C. Colyer & Co., Inc., OSHRC Docket No. 573, the complainant did not consider violation of 29 CFR 1926.350(a)(9) of such a gravity to warrant a penalty and no penalty was assessed by the Commission. The facts surrounding the violation in that case were similar to the circumstances surrounding the violation of 29 CFR 1926.350(a)(9) in these cases.

CONCLUSIONS OF LAW

1. The respondents were at all times material hereto engaged in a business affecting commerce within the meaning of Section 3 (5) of the Act.

2. The respondents were at all times material hereto subject to the requirements of the Act and the standards promulgated thereunder.

3. Munder and Catino violated Section 5(a)(2) of the Act by committing non-serious violations of safety standards published at 29 CFR 1926.350(a)(1) and 29 CFR 1926.350(a)(9).

4. Munder and Catino did not commit non-serious violations of the safety standard published at 29 CFR 1926.500(b)(1).

5. Munder did not commit non-serious violations of the safety standards published at 29 CFR 1926.750(b)(1)(iii) and 29 CFR 1926.500(d)(1).

6. No penalties are appropriate for the violations of safety standards 29 CFR 1926.350(a)(1) and 29 CFR 1926.350(a)(9).

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, it is

ORDERED:

1. That items 3 and 4 of the citation issued to Munder on November 21, 1972, which pertained to alleged violations of 29 CFR 1926.350(a)(1) and 29 CFR 1926.350(a)(9), are affirmed and that the remaining items of the citation are vacated;

2. That items 2 and 3 of the citation issued to Catino on November 27, 1972, which pertained to alleged violations of 29 CFR 1926.350(a)(1) and 29 CFR 1926.350(a)(9), are affirmed and that the remaining item of the citation is vacated; and

3. That the notifications of proposed penalties issued to Munder and Catino on November 21, 1972, and November 27, 1972, respectively, are vacated.

Dated this 22 day of May, 1973.

JAMES D. BURROUGHS

Judge

Copies sent by certified mail to:

Francis V. LaRuffa

Regional Solicitor

1515 Broadway, Rm. 3555

New York, New York 10036

Fred Munder

A Munder and Son, Inc.

28–10 Thirty-eighth Avenue

Long Island City, New York 11101

Robert Catino, President

Robert Catino, Inc.

136 East 55th Street

New York, New York 10022

[1] 29 U.S.C. 651 et seq. hereinafter ‘the Act.’

[2] This standard requires in pertinent part that ‘[f]loor openings shall be guarded by a standard railing and toe boards or cover. . ..’ A ‘floor opening’ is defined at 29 C.F.R. § 1926.502(b) as ‘[a]n opening measuring 12 inches or more in its least dimension in any floor, roof, or platform through which persons may fall.’

[3] These standards require respectively that ‘[v]alve protection caps shall be in place and secured’ and that cylinders ‘shall be secured in an upright position at all times except, if necessary, for short periods of time while cylinders are actually being hoisted or carried.’

[4] 29 C.F.R. § 1926.750(b)(1)(iii) requires that ‘[a] safety railing of ½-inch wire rope or equal shall be installed, approximately 42 inches high, around the periphery of all temporary-planked or temporary metal-decked floors of tier buildings and other multifloored structures during structural steel assembly.’ 29 C.F.R. § 1926.500(d)(1) provides in pertinent part that ‘[e]very opensided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing . . . on all open sides . . ..’ The first standard is limited to steel erection whereas the second applies generally.

[5] The record shows that neither Munder nor Catino created or was responsible for correction of the gas cylinder violations, and Munder argued before the Judge that perimeter protection was the responsibility of the general contractor. We have said that in circumstances of this kind the duty of the subcontractor is to exert reasonable efforts to have violative conditions corrected by the responsible contractor or by the general contractor, or to take other appropriate steps to protect its employees from hazards to which they have access and which it could reasonably be expected to detect. We further said that the burden is on the employer to show that it has discharged this duty. Grossman Steel & Aluminum Corp., No. 12775 (OSHRC, May 12, 1976); Anning-Johnson Co., Nos. 3694 & 4409 (OSHRC, May 12, 1976).

Neither Respondent has shown that it took any steps to have the violations corrected or to otherwise protect its employees. Under the circumstances of this case, however, we will afford the Respondents an additional opportunity to present evidence to establish this defense.

[6] We note Munder’s argument that the general contractor had been providing perimeter protection on a continual basis. See note 5 supra. Indeed, the record shows that all floors below the 11th floor were equipped with perimeter guarding in the form of a ¼-inch cable.

[7] Chairman Barnako’s reliance on Secretary v. Underhill Construction Company, OSAHRC Docket No. 2516, April 19, 1976, for applying the access rule is misplaced since the majority therein found that employees working four feet from the edge of an unguarded floor were actually exposed to a falling hazard.

[8] For discussion of the unfairness and impropriety of the Barnako-Cleary rule on subcontractor liability, see my separate opinions in Secretary v. Truland-Elliot, OSAHRC Docket No. 11259, July 21, 1976; Secretary v. Otis Elevator Company, OSAHRC Docket No. 8468, May 14, 1976; Secretary v. Grossman Steel & Aluminum Corporation, OSAHRC Docket No. 12775, May 12, 1976; Secretary v. Anning-Johnson Company, OSAHRC Docket Nos. 3694 & 4409, May 12, 1976.

[9] There is no 29 CFR 1926.500(a)(1). The description of the violation indicates that reference was intended to be to 29 CFR 1926.500(b)(1), and for purposes of this decision reference will be to 29 CFR 1926.500(b)(1).