UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 9507

ABBOTT-SOMMER, INC.,

 

                                              Respondent.

 

 

February 17, 1976

 

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BY THE COMMISSION:

The decision of Administrative Law Judge Thomas J. Donegan in this case, dated September 4, 1975, is before the Commission pursuant to an order issued under section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter the ‘Act’]. The decision vacated Item Number 1 of Citation Number One alleging a failure by Abbott-Sommer, Inc., to provide potable water to its employees working on a flat roof. Items numbered 2 and 3 alleging failure to require employees to wear head protection while hoisting bags of slag to the roof and failure to provide an enclosed trash chute, were affirmed. Citation Number Two alleging non-compliance with the guarding requirements of safety standard 29 CFR § 1926.500(d)(1) was affirmed. Judge Donegan also affirmed Citation Number 3 alleging non-compliance with safety standard 29 CFR § 1926.28(a) because an employee was working at the edge of the roof pulling bags of slag onto the roof without proper personal protective equipment. Civil penalties in the total amount of $925 were assessed for the violations.

The order for review was issued sua sponte by Commissioner Moran on the following issues:

(1) Was the occupational safety and health standard codified at 29 C.F.R. § 1926. 500(d)(1) applicable in this case?

(2) Did the Judge properly follow the rule set forth in Underhill v. Brennan, 513 F.2d 1032 (2d Cir., 1975) and properly apply the rule set forth in Anning-Johnson v. OSAHRC, 516 F.2d 1081 (7th Cir., 1975) in deciding this case?

The parties have filed no exceptions to the Judge’s decision. Hence there is no appeal to the full Commission. Also, the parties have declined to brief the issues listed in the order for review issued sua sponte by Commissioner Moran. This being so, we decline to pass upon these issues or any other aspect of the Judge’s disposition in the absence of a compelling public interest. See Boring & Tunneling Co., of America, Inc., No. 5782, OSHD Para. 20,253, —— OSHC —— (December 29, 1975). Accordingly, the Judge’s decision is affirmed.

 

So ORDERED.

 

FOR THE COMMISSION:

 

William S. McLaughlin

Executive Secretary

DATED: FEB 17, 1976

 

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

The refusal of the foregoing opinion to address the directed issues leaves unresolved the Commission’s position on two important issues which have recently been resolved by Circuit Court decisions that conflict with the Commission’s action in this case.

Employees of respondent were engaged in laying tar paper on the flat roof of a building under construction when its worksite was inspected. Because the perimeter of this roof was not enclosed with guardrails, respondent was charged with a failure to comply with the occupational safety standard codified at 29 C.F.R. § 1926.500(d)(1), which provides that:

‘Every opensided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent. . . .’

 

In Secretary v. S. D. Mullins Company, Inc. & Diamond Roofing Company, 4 OSAHRC 1415 (1973), appeal docketed, Nos. 73–3704 and 73–3705, 5th Cir., November 14, 1973, the Commission ruled that the above-cited standard applied to flat roofs, a decision from which I dissented. The Commission concluded that this standard was applicable to flat roofs because:

‘. . . a flat roof being constructed by employees and upon which they walk during the course of their work is a ‘floor’ rather than a roof to such employees.’

 

This position has been reaffirmed by a divided Commission in Secretary v. Lance Roofing Company, Inc., 6 OSAHRC 95 (1974), appeal docketed, No. 74–1343, 5th Cir., February 8, 1974, and several other cases.

Subsequently, however, in Langer Roofing and Sheet Metal, Inc. v. Secretary of Labor & OSAHRC, 524 F.2d 1337 (7th Cir. 1975), the Circuit Court ruled that the interpretation of section 1926.500(d)(1) advocated by the Secretary and adopted by the Commission did not accord with normal usage and was unreasonable, particularly in view of that fact that 29 C.F.R. § 1926.451(u)(3),[1] the only regulation expressly requiring protection for roof edges, does not apply to flat roofs and even specifically exempts roofs having slopes of less than 4 inches in 12.[2]

Thus, the question which should be resolved here is whether the Commission will adhere to its prior positions or whether it will adopt the view of the Circuit Court. Cf. Textron, Inc., 196 NLRB No. 127, 80 LRRM 1099, reversed on other grounds in National Labor Relations Board v. Bell Aerospace, Division of Textron, Inc., 416 U. S. 267, 94 S. Ct. 1757 (1974).

As I state in my dissent in S. D. Mullins, supra, interpreting the term ‘floor’ in the cited standard to mean ‘roof’ is contrary to common sense and fails to provide fair notice of what this standard requires. Accordingly, I believe that the Commission should adopt the Circuit Court’s viewpoint on this question.

The Commission’s failure to address this issue leaves our trial courts uncertain as to just what position is taken by the Commission. Likewise, the Commission’s failure to consider the relevance of the Circuit Court’s opinion in Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975), for another alleged violation in this case leaves unsettled the important question of subcontractor liability for safety infractions on multi-employer worksites.

In Anning-Johnson it was held that subcontractors working on multi-employer construction sites were not liable for nonserious violations of standards to which their employees were exposed, but which the subcontractors neither created nor were responsible for, pursuant to their contractual duties. This Anning-Johnson rule conflicts with our rule that subcontractors may be cited for violations to which their employees are exposed, notwithstanding the fact that violations are nonserious and were not created by, or the responsibility of, the cited subcontractor—a position taken by this Commission in a number of cases.[3]

In this case, respondent, who was a roofing subcontractor, was charged with a nonserious violation of 29 C.F.R. 1926.252(a)[4] because there was no enclosed chute from the roof level to the ground for disposing of debris and an employee of respondent was observed throwing debris from the roof.

One of the defenses that respondent posed to this charge was that responsibility for installing the chute rested with the general contractor and not respondent.[5] The Judge rejected this defense, giving the following reasons for his ruling: (1) no showing had been made that respondent’s status as a subcontractor prevented it from erecting the chute; (2) if the required protection is not provided by the contractor, a subcontractor must provide it or stop work until it is supplied; and (3) a subcontractor is not relieved of responsibility for compliance with the Act by the contractor’s overall responsibility.

Each of the reasons given by the Judge for rejecting this defense is addressed in the Circuit Court’s opinion in Anning-Johnson. First, the Court in Anning-Johnson did not require that the cited subcontractors show that they were prevented from correcting the alleged violations to escape liability for those violations. In fact, the subcontractors in that case stipulated that they were not prohibited from abating the alleged violations. Secondly, the suggestion that subcontractors stop work until the required protection is provided by the general contractors was characterized by the Anning-Johnson Court as an unrealistic and economically unfeasible solution. Lastly, the Court held that a subcontractor is, under some circumstances, relieved of liability for safety infractions to which his employees are exposed and, as noted above, defined those circumstances. Accordingly, I find that the Judge should be reversed on the basis of the Anning-Johnson decision.

For the foregoing reasons, I would vacate Citation 2 and Item 3 of Citation 1.

Since the Commission decision does not address any of the matters covered in Judge Donegan’s decision, the same is attached hereto as Appendix A.

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 9507

ABBOTT-SOMMER, INC.,

 

                                              Respondent.

 

 

DECISION AND ORDER

APPEARANCES:

For the Complainant:

Francis V. La Ruffa

Regional Solicitor

U.S. Department of Labor

by: Louis D. DeBernardo, Attorney

1515 Broadway

New York, New York 10036

 

For the Respondent:

David Neuwirth, Attorney

250 West 57th Street

New York, New York 10019

 

Donegan, Judge:

This is a proceeding pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act).

The Respondent, Abbott-Sommer, Inc., a roofing contractor, had a place of employment at 319 Cumberland Avenue, Totowa, New Jersey when this worksite was inspected on July 17 and 18, 1974 by a compliance officer (inspector) of the Occupational Safety and Health Administration, U.S. Department of Labor.

As a result of this inspection there were issued to the Respondent on August 1, 1974 a citation number one for nonserious violations (3 items), a citation number two for a serious violation, a citation number three for a serious violation, and a notification of a total proposed penalty of $1,645 for all of the alleged violations.

The Respondent timely contested the three citations and the proposed penalties.

The contested citations, proposed penalties and the standards allegedly violated are as follows:

Citation Number One (Nonserious)—

Item Number 1

St. Joseph’s Home for the Aged, North wing roof, employees did not have any potable water supplied.

 

Abatement Date:

Immediately upon receipt of this citation.

 

Proposed Penalty:

$35

Standard cited:

29 CFR 1926.51(a)(1)

 

§ 1926.51 Sanitation.

 

(a) Potable water.

(1) An adequate supply of potable water shall be provided in all places of employment

 

Item Number 2

North wing, yard area. Employees hoisting bags of slag to the roof did not have any head protection to protect them from falling materials and debris.

 

Abatement Date:

Immediately upon receipt of this citation.

 

Proposed Penalty:

$105

Standard cited:

29 CFR 1926.100(a)

 

§ 1926.100 Head Protection.

 

(a) Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, shall be protected by protective helmets.

 

Item Number 3

‘North wing, 4th floor did not have an enclosed chute for the disposal of materials. Debris and materials were dropped more than approx. 40 feet to the ground below where a workmen was carrying a ladder.’

 

Abatement Date:

August 22, 1974

 

Proposed Penalty:

$105

 

Standard cited:

29 CFR 1926.292(a)(sic)

 

§ 1926.252 Disposal of Waste Materials.

 

(a) Whenever materials are dropped more than 20 feet to any point lying outside the exterior walls of the building, an enclosed chute of wood, or equivalent material, shall be used. For the purpose of this paragraph, an enclosed chute is a slide, closed in on all sides, through which material is moved from a high place to a lower one.

 

Citation Number Two (Serious)

 

Item Number 1

‘St. Joseph’s Home for the Aged, 4th floor roof, North wing. Opensided floor did not have any perimeter protection whatsoever to protect the employee from falling more than approx. 40 feet to the ground below.

 

Employees roofing the west wing 4th floor were working above and adjacent to the 14 parapet which enclosed the floor.’

 

Abatement Date:

Immediately upon receipt of this citation.

 

Proposed Penalty:

$700

 

Standard cited:

29 CFR 1926.500(d)(1)

 

§ 1926.500 Guardrails, Handrails, and Covers.

 

(d) Guarding of open-sided floors, platforms, and runways.

(1) Every opensided 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.

 

Citation Number Three (Serious)

 

Item Number 1

‘St. Joseph Home for the Aged, north wing 4th floor roof. Employee holding on to the hoist support leaning from the edge of the openside of the roof, extending his right arm beyond normal reach to pull bags of slag on to the roof was not wearing personal protective equipment to prevent falling more than approx. 40 feet to the ground below.’

 

Abatement Date:

Immediately upon receipt of this citation.

 

Proposed Penalty:

$700

 

Standard cited:

29 CFR 1926.28(a)

 

§ 1926.28 Personal Protective Equipment.

 

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

 

The Respondent’s answer does not deny the allegations of the complaint that Abbott-Sommer, Inc. is a New York corporation that maintains an office and place of business in New York City and engages in business activities affecting commerce within the meaning of section 3 of the Act. At the opening of the hearing the Respondent admitted that the Commission has jurisdiction under section 10(c) of the Act (T. 12–13).

No affected employees or representatives of affected employees have appeared or have elected to participate in this proceeding (T. 11–12).

ISSUES AND FINDINGS

At the time of the inspection the Respondent was engaged, as a subcontractor, in installing a roof on the fourth floor level of a building being constructed by a general contractor. More precisely, four employees of the Respondent were laying tar paper under the supervision of a Mr. Boloscio, the Respondent’s foreman, as depicted in exhibit C–1, a photograph taken by the inspector when he was inspecting the work site on July 17, 1974.

In this photograph Mr. Boloscio is standing with his back to the parapet at the edge of the roof while holding a piece of tar paper. One of the four employees leaning over the edge of the roof at the far side of Mr. Boloscio is indicated by the letter ‘D’ marked on exhibit C–1. The parapet (marked ‘P’ in exhibit C–1), around the perimeter of the wing of the roof appearing in exhibit C–1, was approximately 14 inches in height.

The Respondent’s employees were also engaged in hoisting bags of slag from the ground to the roof and pulling the bags on to the roof from the hoist, as depicted in exhibits C–4, C–5, and C–6.

The four levels of the wing of the building where the Respondent’s employees were working at the time of the inspection appear in exhibits C–2, C–4, C–5, and partially in C–3. The distance from the ground level to the parapet on the roof level was approximately 40 feet.

There were six people employed by the Respondent at its temporary work site in Totowa, New Jersey when the inspection was made on July 17 and 18, 1974 (T. 20, 95). Abbott-Sommer, Inc. is a successor corporation to Abbott Roofing and Sheet Metal Works which had been in existence for approximately fifty years. Richard Schlessinger, the president of the Respondent, was also president of the predecessor corporation, having succeeded his father in that position. The Respondent is of medium size in comparison with other companies engaged in similar activities, and the gross business for 1974 averaged approximately three million dollars (T. 148, 160).

The inspector testified that he did not give the Respondent any credit for good faith because abatement of the conditions cited was not implemented while he was at the work site, and it was apparent to him that the Respondent did not have a safety program. In evaluating good faith, he said he especially took into consideration the statements made by foreman Boloscio concerning the general contractor’s responsibilities for the alleged violations and the employee’s responsibility to supply potable water for their own use (T. 68, 92–95).

The statements Mr. Boloscio made to the inspector at the time of the inspection should be considered in evaluating the Respondent’s good faith. On the other hand, the credible testimony of Mr. Schlessinger requires that these statements, particularly concerning the potable water, not be accepted as the sole criteria in assessing the Respondent’s good faith. The evidence does not sustain a finding that the Respondent was devoid of good faith.

The Respondent had no history of previous violation of the Act (T.96).

Citation Number One (Nonserious)

Item No. 1—

It is alleged that the Respondent did not supply any potable water for the four employees and foreman on the roof as pictured in exhibit C–1. The cited standard requires that an adequate supply of potable water shall be provided in all places of employment.

When the inspector inquired concerning the availability of potable water, he was informed by Mr. Boloscio that it was the employees’ responsibility to provide their own drinking water. The inspector observed a thermos container on the roof where the employees were working, but testified that he would not say whether the thermos belonged to the Respondent or an employee. The foreman had informed him that the employees brought their own drinking water in a container to the work site.

Although the inspector did not ascertain the capacity of this thermos, he estimated it to be about one or two quarts, and said that it did not provide an adequate supply of water for the employees working on the roof because the temperature was in the ‘90’s’ and the work was strenuous (T. 68–74, 92, 102). The inspector was aware of a five gallon water cooler in the general contractor’s shanty which he said was not available to the employees at the work site (T. 103, 108).

Mr. Schlessinger, the president of Abbott-Sommer, Inc. testified that the drinking water in the general contractor’s shanty was available to the Respondent’s employees. He stated that the Respondent had also provided a thermos container of a gallon capacity for the employees which was filled and refilled with drinking water from the water cooler in the general contractor’s shanty (T. 151–152, 160–161).

It is concluded that the substantial evidence of record does not sustain a finding that the Respondent did not supply any potable water to the employees working on the roof at the time of the inspection or that the amount of drinking water supplied was not adequate. The cited standard was not violated as alleged in this item of the citation.

Item No. 2—

In this item it is alleged that employees hoisting bags of slag to the roof in the yard area adjacent to the north wing of the building did not have any head protection to protect them from falling materials and debris. The cited standard [29 CFR 1926.100(a)] requires that employees be protected by protective helmets when working in areas where there is a possible danger of head injury from falling objects.

Two of three employees of the Respondent in the area where bags of slag were being hoisted from the ground to the roof were not wearing hard hats. The two employees who were not wearing hard hats were exposed to the hazard of the bags of slag falling (T. 75–82, 108–110, 122; Exhibits C–4, C–5, C–6).

Mr. Schlessinger testified that the Respondent’s employees at this work site were supplied with hard hats and foreman Boloscio had been given four or five hard hats prior to going out on the job site about a week and a half prior to July 17, 1974 (T. 152–153, 162).

It is concluded that the Respondent was in violation of the cited standard as alleged in the citation. The time for the abatement of this violation set forth in the citation was reasonable. The gravity[6] of this violation was not high and in applying the other criteria of section 17(j)[7] of the Act it is determined that $50 is an appropriate penalty for this violation of the cited standard.

Item No. 3—

It is alleged in the description of this violation that there was no enclosed chute from the 4th floor of the north wing of the building to the ground below, a distance of approximately 40 feet; and that debris and materials were dropped over the exterior wall of the building from the 4th floor roof to the ground below where a workman was carrying a ladder (Exhibit C–3). The standard 29 CFR 1926.252(a)[8] alleged to have been violated requires that an enclosed chute be used whenever materials are dropped more than 20 feet to any point lying outside the exterior walls of a building.

The inspector observed an employee throwing debris from the 4th floor roof to the ground outside the exterior wall of the north wing of the building. At the time of the inspection there was no enclosed chute at this location for the disposal of debris. The inspector identified this area of the ground as a passageway leading into the north wing of the building which was used by workmen including the Respondent’s employees. A workman, wearing a yellow hard hat and carrying a ladder, was walking in this ground area at the time the inspector observed the debris being thrown over the side of the roof. The inspector did not determine whether this workman was an employee of the Respondent (T. 36–68, 101, 153; Exhibits C–1, C–2, C–3).

The Respondent contends that the responsibility for installing the enclosed chute rested with the general contractor (J. R. Stevenson) and not with the Respondent who was a subcontractor. The general contractor did install an enclosed chute at this location subsequent to the inspection (T. 115–116, 120, 123–129, 151).

It is concluded that the employees of the Respondent had access to the ground area on which debris was thrown from the roof. This was used as a passageway in gaining access to the 4th floor roof area where these employees were working and as a result they were exposed to the hazard of falling debris. Although it is not known whether the workman carrying the ladder in exhibit C–3 is an employee of the Respondent, the Complainant need only show that the area of the hazard was accessible to employees of the Respondent or other employees at the work site[9].

The contention of the Respondent that it is not responsible for the violation is rejected. There is no showing that its status as a subcontractor prevented it from erecting an enclosed chute for the disposal of debris. A subcontractor is not relieved of responsibility for compliance with the Act by the contractor’s overall responsibility. If the required protection is not provided by the contractor, then the subcontractor must provide it or stop work until it is provided by the contractor.

The Respondent is found to be in violation of the standard as alleged in this item. The abatement period of the citation is reasonable. It is concluded that $75 is an appropriate penalty for this violation under the criteria of section 17(j) of the Act.

Citation Number Two (Serious)

It is alleged that the open-sided 4th floor roof on the north wing of the building did not have any perimeter protection to prevent the employees who were roofing adjacent to the 14 inch high parapet of the roof from falling more than 40 feet to the ground below. The standard cited [29 CFR 1926.500(d)(1)] requires that open-sided floors, platforms, and runways be guarded as set forth in the standard.

This standard is applicable to the fourth floor flat roof where four employees of the Respondent were laying tar paper at the time of the inspection[10].

The 14 inch high parapet, which is marked with a ‘P’ on exhibit C–1, was the only enclosure around the perimeter of the fourth floor roof level. One of the employees was leaning over the edge of the roof while standing with one foot on the parapet and one foot on the floor of the roof as indicated by the mark ‘D’ on exhibit C–1. Other employees were working with their backs within one foot of the edge of the roof. The employees were not wearing safety belts or any other type of personal protective equipment for the purpose of preventing them from accidentally falling off the edge of the roof to the ground, which was approximately 40 feet below. The 14 inch high parapet enclosing the perimeter of the roof did not afford any protection to the employees for the purpose of preventing accidental falls over the edge of the roof (T. 22–35, 119–120; Exhibits C–1, C–2, C–5).

Mr. Schlessinger testified that there were rail sockets 5 or 6 feet inside the 14 inch parapet enclosure which were intended for the purpose of installing a fence after the work was completed (Exhibit C–1). He said the fence had not been installed at the time of the inspection because it was necessary to flash the parapet walls and bring the roofing out along the perimeter (T. 153–154, 163)

If a fence had been installed at the location of these rail sockets, it would not have protected the employees who were flashing the parapet walls and roofing in the area between these rail sockets and the parapet. There is no showing in this case that guarding of the perimeter of the fourth floor roof in compliance with the cited standard would have created a greater hazard for the employees working on the roof or would have prevented them from continuing their roofing activities.

It is concluded that the Respondent was in violation of the cited standard as alleged in the citation. This was a serious violation within the meaning of section 17(k) of the Act[11]. The citation abatement time for this violation was reasonable. In applying the criteria of section 17(j) of the Act, it is determined that $400 is an appropriate penalty for this violation.

Citation Number Three (Serious)

It is alleged that an employee was not wearing personal protective equipment to prevent him falling from the fourth floor roof to the ground while leaning over the edge of the roof to pull bags of slag on to the roof (Exhibit C–6). The cited standard [29 CFR 1926.28(a)] requires that employees wear appropriate personal protective equipment where there is an exposure to hazardous conditions. The employer is charged in the standard with the responsibility of requiring the employee to wear such equipment.

The employee appearing in exhibit C–6 was exposed to the hazard of falling to the ground below while leaning over the edge of the roof for the purpose of pulling the bag of slag on to the roof. He was not wearing any protective equipment to prevent him from accidentally falling. The distance from the parapet, on which the left foot of the employee was resting, to the ground below was approximately 40 feet; and there was nothing which would have prevented this employee from falling to the ground if he had lost his left hand grasp on the vertical upright support of the hoist (T. 83–87, 91, 93, 110–113; Exhibit C–5, C–6).

There is credible and substantial evidence in the record to support a finding that this employee could have been protected from an accidental fall to the ground if he had been wearing personal protective equipment in the form of a safety belt with a lanyard about 6 feet long attached to the hoist structure or a secured post on the roof. This safety belt and lanyard would not create a tripping hazard or interfere with stability of the hoist if that structure had been adequately secured to the roof. The safety belt and lanyard would not have prevented the employee from handling the bags of slag although it would have slowed him down in his work performance (T. 134–144, 155–160, 163–164).

It is concluded that the Respondent was in violation of the cited standard, and that this violation was of a serious nature as provided in section 17(k) of the Act. The citation abatement time for this violation was reasonable. Considering the criteria of section 17(j) of the Act, it is determined that $400 is an appropriate penalty for this violation.

CONCLUSIONS OF LAW

1. The Respondent, Abbott-Sommer, Inc., was at all times material to this proceeding an employer engaged in business affecting interstate commerce within the meaning of section 3 of the Act.

2. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter of this proceeding as provided in section 10 of the Act.

3. The place of employment maintained by the Respondent at Totowa, New Jersey was inspected by an authorized employee of the Secretary of Labor on July 17 and 18, 1974 in accordance with section 8 of the Act.

4. The Respondent did not violate 29 CFR 1926.51(a)(1) as charged in item No. 1 of citation number one and consequently was not in violation of section 5(a)(2) of the Act in this instance.

5. The Respondent was in violation of section 5(a)(2) of the Act as a result of not being in compliance with the following standards promulgated by the Secretary of Labor as charged in the citations issued to the Respondent on August 1, 1974:

Citation Number One (Nonserious):

Item No. 2—29 CFR 1926.100(a)

Item No. 3—29 CFR 1926.252(a)

 

Citation Number Two (Serious):

29 CFR 1926.500(d)(1)

 

Citation Number Three (Serious):

29 CFR 1926.28(a)

 

6. Appropriate civil penalties pursuant to the provisions of section 17(j) of the Act are assessed as follows for these violations:

Citation Number One:

Item No. 2—$50

            Item No. 3—75

 

Citation Number Two—$400

 

Citation Number Three—$400

 

ORDER

Based on the foregoing findings of fact and conclusions of law, it is ORDER:

1. That Item No. 1 of Citation Number One be, and is hereby vacated.

2. That Items Nos. 2 and 3 of Citation Number One be, and are hereby affirmed.

3. That Citations Numbered Two and Three be, and are hereby affirmed.

4. That the penalty of $35 proposed for the violation alleged in Item No. 1 of Citation Number One be, and is hereby vacated.

5. That the penalties proposed for Items Nos. 2 and 3 of Citation Number One and for Citations Number Two and Three be, and are hereby vacated; and that civil penalties for these violations be and are hereby assessed as follows:

Citation Number One:

Item No. 2–$50

Item No. 3–75

 

Citation Number Two—$400

 

Citation Number Three—$400

 

 Dated: September 4, 1975

Seattle, Washington

THOMAS J. DONEGAN

Judge


[1] That standard provides in pertinent part that:

‘A catch platform shall be installed below the working area of roofs more than 16 feet from the ground to eaves with a slope greater than 4 inches in 12 inches without a parapet.’

 

[2] The roof in this case would also be exempt under 29 C.F.R. 1926.451(u)(3) because it had a parapet.

[3] See, e.g., Secretary v. R. H. Bishop Co., 8 OSAHRC 930 (1974).

 

[4] This standard provides:

‘Whenever materials are dropped more than 20 feet to any point lying outside the exterior walls of the building, an enclosed chute of wood, or equivalent material, shall be used. For the purpose of this paragraph, an enclosed chute is a slide, closed in on all sides, through which material is moved from a high place to a lower one.’

 

[5] Respondent also defended against this charge on the grounds that complainant had failed to show that employees of respondent were exposed to the hazard of falling debris since the compliance officer had not determined if a workman he observed in the area of the hazard was an employee of respondent. The Judge rejected this defense, noting that under the rule of Brennan v. OSAHRC and Underhill Construction Corporation, 513 F.2d 1032 (2nd Cir. 1975), complainant need only show that the area of the hazard was accessible to employees of the cited employer or those of other employers engaged in a common undertaking—a showing that was made in this case. The ruling in Underhill, however, does not appear to be dispositive in this case. In Underhill, the court limited its holding to situations ‘where . . . an employer is in control of an area, and responsible for its maintenance.’ Id. at 1038. Underhill employed over 400 employees at the worksite inspected. Although it was a subcontractor, the court noted that ‘it had considerable control over and responsibility for the work areas at the building site.’ Id. at 1033, n. 1. Respondent in this case had only a handful of employees at the worksite inspected. Moreover, the only evidence in the record on the issue of responsibility for installing a chute for debris indicates that the general contractor, and not respondent, was responsible therefor.

[6] Examples of some of the factors that are considered in determining the degree of gravity of the violation are: number of employees exposed to risk of injury; duration of employee exposure; precautions taken against injury, if any; and, degree of probability of occurrence of an injury.

[7] Section 17(j) provides:

‘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.’

 

[8] This standard was erroneously identified in item 2 of citation number one as 29 CFR 1926.292(a). The complaint correctly identifies the standard as 29 CFR 1926.252(a). There was no issue raised and there is no showing that the Respondent was misled or prejudiced by this error (T. 38).

[9] See: Secretary v. Dic-Underhill, A Joint Venture, 7 OSAHRC 134 (RC 1974), 513 F. 2d 1032 (2nd Cir. 1975).

 

[10] See: Secretary v. S.D. Mullins Company, Inc. and Diamond Roofing Company, Inc., 4 OSAHRC 1415 (RC 1973).

[11] Section 17(k) provides:

For purposes of this section, 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.