UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS. 14741, 14794, 14809, 15032
BAXTER ELECTRIC COMPANY, WENTZ PLUMBING AND HEATING, TRI SALES ASSOCIATES, H.H. ROBERTSON
Respondents.

February 18, 1977

DECISION

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

This case is before the Commission pursuant to a sua sponte order for review.1 The parties have filed no objections to the Administrative Law Judge’s decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge’s decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge’s decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975 76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975 76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge’s decision is accorded the significance of an unreviewed Judge’s decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975 76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

Dated: FEB 18, 1977

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

(SEAL)

MORAN, Commissioner, Concurring:

I would affirm the Judge’s decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority’s view regarding the significance of decisions rendered by Review Commission Judges.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS. 14741, 14794, 14809, 15032
BAXTER ELECTRIC COMPANY, WENTZ PLUMBING AND HEATING, TRI SALES ASSOCIATES, H.H. ROBERTSON
Respondents.

July 13, 1976

DECISION AND ORDER

APPEARANCES:

RICHARD C. SCOTT, Esquire, United States Department of Labor, Office of the Solicitor, Kansas, City, Missouri For the Complainant

DEAN G. KRATZ, Esquire, McGrath, North, O’Malley, Kratz, Dwyer, O’Leary & Martin P. C., Omaha, Nebraska For the Respondents, Olson Construction Company, Wentz Plumbing and Heating, and H. H. Robertson Company

MR. WARD F. BAXTER, President, David A. Baxter and Sons, Inc., Omaha, Nebraska, For the Respondent, Baxter Electric Company

MR. LAWRENCE D. FELDHACKET, President, Tri Sales Associates, Ralston, Nebraska, For the Respondent, Tri Sales Associates

STATEMENT OF CASE

Vernon Riehl, Judge, OSHRC

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 contesting citations issued by the complainant against the respondents under the authority vested in the complainant by section 9(a) of that Act. The citations alleged that an inspection of a workplace under the operation and control of the respondents revealed the existence of workplace conditions that violated section 5(a)(2) of the Act for the reason that these conditions failed to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof.

The Citations allege that the violations resulted from a failure to comply with standards promulgated by publication in the Federal Register.

A description of the alleged violations contained in said citation states:

Secretary of Labor v. Olson Construction Company

OSHRC Docket 14683

Citation Number 1, Nonserious Violation

Item 1, 29 CFR 1926.500(d)(2)

(North Side of Structure) Main access runway to the interior of the structure which was located 18 above the adjacent level had 89‘ of its east side unprotected by a guardrail and 366‘ of its west side lacking an intermediate railing.

Item 2, 29 CFR 1926.500(b)(8)

(a) (Interior of Structure) Two 7 1/2‘ diameter floor holes, one located adjacent to the northwest and one located adjacent to the northeast east stairways on floors 1 through 6, were not provided with required covers or guards.

(b) (Interior of Structure) Twenty-four inch by 7 3/4‘ floorholes located on east side of east mechanical shaft on floors 1 through 6 were not provided with required cover or guards.

Item 3, 29 CFR 1926.501(f)

(Interior of Structure) Three stairways, center, southeast and northwest, which ran from the basement to the sixth floor were of the hollow pan tread design and were not filled with concrete or other material.

Citation Number 2, Serious Violation

Item 1, 29 CFR 1926.500(b)(1)

(Interior of Structure) The following floor openings lacked or were not provided with adequate guardrails: 1. The 40 x 94‘ south elevator shaftway lacked guardrails from the first through the sixth floors. 2. The north mechanical shaftway between the second and sixth floors had guardrails rails built of 2 x 4’s which had uprights spaced 126‘ apart on two of its sides and 96‘ on the other two sides. 3. The south mechanical shaftway which measured 136‘ by 96‘ was not protected by a cover or guardrail on floors 3 through 6.

Citation Number 3, Serious Violation

Item 1, 29 CFR 1926.500(c)(1)(i)

(a) (Interior of Structure) Southeast stairway was open on the exterior side. The opening measured 22 in width and was present from the first through the sixth floors.

(b) (Basement Area) Wall opening located in the north side of the south mechanical room and south side of the north mechanical room measured 52‘ in height, 149‘ in length and 63‘ above adjacent level, was not guarded.

Citation Number 4, Serious Violation

Item 1, 29 CFR 1926.28 and 1926.104(a)

(Exterior Steel Framework of Structure) Four employees were observed working at elevated heights ranging from 30 to 60 without the required protection of lifelines, safety belts and lanyards.

Citation Number 5, Serious Violation

Item 1, 29 CFR 1926.500(d)(1)

(a) (Interior of Structure) Two hundred and seventy feet of open-sided floor on east side and approximately 140 on the north and south sides of floors 1–3 which were in part finished (concrete poured) and worker noted performing task below, were not equipped with required toeboards.

(b) (Interior of Structure) Floors 1 through 4 which consisted of permanent metal decking and/or poured concrete were not provided with adequate protection on its open sides.

(c) (Basement Area) Open-sided floors in the north and south sides of the area adjacent to the mechanical rooms measured 67‘ above the next level and were 207‘ in length and were not guarded.

Secretary of Labor v. Baxter Electric Company,

OSHRC Docket 14741

Citation Number 1, Nonserious Violation

Item 1, 29 CFR 1926.500(d)(2)

(North Side of Structure) Amin access runway to the interior of the structure which was located 18 above the adjacent level had 89‘ of its east side unprotected by a guardrail and 366‘ of its west side lacking an intermediate railing.

Item 2, 29 CFR 1926.501(f)

(Interior of Structure) Three stairways, center, southeast and northwest, which ran from the basement to the sixthe floor were of the hollow pan tread design and were nor filled with concrete or other material.

Item 3, 29 CFR 1926.500(b)(8)

(a) (Interior of Structure) Two 7 1/2‘ diameter floor holes, one located adjacent to the northwest and one located adjacent to the northeast stairways on floors one through six, were not provided with required covers or guards.

(b) (Interior of Structure) Twenty-four inch by 7 3/4‘ floor holes located on east side of east mechanical shaft on floors one through six were not provided with required covers or guards.

Citation Number 2, Serious Violation

Item 1, 29 CFR 1926.500(b)(1)

(Interior of Structure) The following floor openings lacked or were nor provided with adequate guardrails: 1. Forty foot by 94‘ south elevator shaftway lacked guardrails from the first through the sixth floors. 2. North mechanical shaftway between the second and sixth floors had guardrails built of 2 x 4’s which has uprights spaced 136‘ apart on two of its sides and 9 6 ‘ on the other two sides. 3. South mechanical shaftway which measured 13 6 ‘ by 96‘ was not protected by a cover or guardrail on floors three through six.

Citation Number 3, Serious Violation

Item 1, 29 CFR 1926.500(d)(1)

(a) (Interior of Structure) Two-hundred-seventy feet of open-sided floor on east side and approximately 140 on the north and south sides of floors one through three which were in part finished (concrete poured) and worker noted performing task below, were not equipped with required toeboards.

(b) (Interior of Structure) Floors one through four which consisted of permanent metal decking and/or poured concrete were not provided with adequate protection on its open sides.

Citation Number 4, Serious Violation

Item 1, 29 CFR 1926.500(c)(1)(i)

(Interior of Structure) Southeast stairway was open on the exterior side. The openings measured 22 in width and were present from the first through the sixth floors.

Secretary of Labor v. Wentz Plumbing and Heating

OSHRC Docket 14794

Citation Number 1, Nonserious Violation

Item 1, 29 CFR 1926.500(d)(2)

Item 2, 29 CFR 1926.500(b)(8)

(a) (Interior of Structure, First Through Sixth Floors) Two 7–1/2 “‘ diameter floor holes, one located adjacent to the northwest and one located adjacent to the northeast stairways on floors one through six, were not provided with required covers or guards.

(b) (Interior of Structure, First Through Sixth Floors) Twenty-four inch by 7 3/4‘ floor holes located on east side of each mechanical shaft on floors one through six were not provided with required covers or guards.

Item 3, 29 CFR 1926.501(f) (Interior of Structure)

Three stairways, center, southeast and northwest, which ran from the basement to the sixth floor were of the hollow pan tread design and were not filled with concrete or other material.

Citation Number 2, Serious Violation

Item 1, 29 CFR 1926.500(b)(1)

(Interior of Structure) The following floor openings lacked, or were not provided with, adequate guardrails: 1. A 40 x 94‘ south elevator shaftway lacked guardrails from the first through the sixth floors. 2. North mechanical shaftway, between the second and sixth floors, had guardrails built of 2 x 4’s which had uprights spaced 136‘ apart on two of its sides and 96‘ on the other two sides. 3. South mechanical shaftway, which measured 136 ‘ by 96‘, was not protected by a cover or guardrail on floors three through six. 4. (North Basement Area, Mechanical Room) A 42“‘ diameter sump pit which measured 7 in depth (two feet of water in the bottom) was not provided with required guard or cover.

Citation Number 3, Serious Violation

Item 1, 29 CFR 1926.500(c)(1)(i)

(a) (Interior of Structure) Southeast stairway was open on the exterior side. The openings measured 22 in width and were present from the first through the sixth floors.

(b) (Basement Area) Wall opening, located in the north side of the south mechanical room an south side of the north mechanical room measured 52‘ in height, 149‘ in length and 63‘ above adjacent level, was not guarded.

Citation Number 4, Serious Violation

Item 1, 29 CFR 1926.500(d)(1)

(a) (Basement Area) Open-sided floors in the north and south sides of the area adjacent to the mechanical rooms measured 67‘ above the next level and were 207‘ in length and were not guarded.

(b) (Interior of Structure) Two hundred and seventy feet of open-sided floor on east side and approximately 140 on the north and south sides of floors one through three which were in part finished (concrete poured) and worker noted performing task below, were not equipped with required toeboards.

(c) (Interior of Structure) Floors one through four which consisted of permanent metal decking and/or poured concrete were not provided with adequate protection on its open sides.

Secretary of Labor v. (Tri Sales Associates

OSHRC Docket 14809

Citation Number 1, Nonserious Violation

Item 1, 29 CFR 1926.500(d)(2)

Item 2, 29 CFR 1926.500(b)(8)

(a) (Interior of Structure, 1st—6th Floor) Seven and one-half inch diameter floor holes, one located adjacent to the northwest and one located adjacent to the northeast stairways on floors one through six were not provided with required covers or guards.

(b) (Interior of Structure, 1st—6th Floor) Twenty-four inch by seven and three-fourths inch floor holes located on east side of east mechanical shaft on floors one through six were not provided with required covers or guards.

Item 3, 29 CFR 1926.501(f) (Interior of Structure)

Three stairways, center, southeast and northwest, which ran from the basement to the sixth floor were of the hollow pan tread design and were not filled with concrete or other material.

Citation Number 2, Serious Violation

Item 1, 29 CFR 1926.500(b)(1)

(Interior of Structure) The following floor openings lacked or were not provided with adequate guardrails: 1. South elevator shaftway, 40 x 94 “‘, lacked guardrails from the first through the sixth floors. 2. North mechanical shaftway between the second and sixth floor had guardrails built of two-by-fours which had uprights spaced 136‘ apart on two of its sides and 96‘ on the other two sides. 3. South mechanical shaftway which measured 136‘ by 96‘ was not protected by a cover or guardrail on floors three through six.

Citation Number 3, Serious Violation

Item 1, 29 CFR 1926.500(d)(1)

(a) (Interior of Structure) Two hundred-seventy feet of open-sided floor on the east side and approximately 140 on the north and south sides of floors one through three, which were in part finished (concrete poured) and worker noted performing task below, were not equipped with required toeboards.

(b) (Interior of Structure) Floors one through four which consisted of permanent metal decking and/or poured concrete were not provided with adequate protection on its open sides.

Citation Number 4, Serious Violation

Item 1, 29 CFR 1926.500(c)(1)(i)

(Interior of Structure) Southeast stairway was open on the exterior side. The openings measured 22 in width and were present from the first through the sixth floor.

Secretary of Labor v. H. H. Robertson Company

OSHRC Docket 15032

Citation Number 1, Nonserious Violation

Item 1, 29 CFR 1926.500(d)(2)

Item 2, 29 CFR 1926.500(b)(8)

(a) (Interior of Structure) Two 7–1/2‘ diameter floor holes, one located adjacent to the northwest and one located adjacent to the northeast stairways on floors one through six were not provided with required covers of guards.

(b) (Interior of Structure) Twenty-four inch by seven and three-fourths inch floor holes located on east side of east mechanical shaft on floors one through six were not provided with required cover or guards.

Citaion Number 2, Serious Violation

Item 1, 29 CFR 1926.500(b)(1)

(Interior of Structure) The following floor openings lacked or were not provided with adequate guardrails: 1. South elevator shaftway, 40 x 94 “‘, lacked guardrails from the first through the sixth floors. 2. North mechanical shaftway between the second and sixth floors had guardrails built of two-by-fours which had uprights spaced 136‘ apart on two of its sides and 96‘ on the other two sides. 3. South mechanical shaftway which measured 136‘ by 96‘ was not protected by a cover or guardrail on floors three through six.

Citation Number 3, Serious Violation

Item 1, 29 CFR 1926.500(c)(1)(i)

(Interior of Building) Southeast stairway was open on the exterior side. The openings measured 22 in width and were present from the first through the sixth floors.

Citation Number 4, Serious Violation

Item 1, 29 CFR 1926.500(d)(1)

(b) (Interior of Structure) Floors one through four, which consisted of permanent metal decking and/or poured concrete were not provided with adequate protection on its open sides.

A hearing was held November 18, 19, 1975, in Lincoln, Nebraska.

DISCUSSION

All of the cases arose out of a health and safety inspection of the construction site of the State Office Building in Lincoln, Nebraska. The respondent, Olson Construction Company, was the general contractor at the jobsite. The other respondents herein had limited functions: Wentz Plumbing and Heating, the plumbing; H. H. Robertson Company, the steel decking work; Baxter Electric Company, the electrical work, and Tri Sales Associates, the stud welding.

At the time of the inspection at the worksite, the compliance officer observed a runway without standard guardrails which led into the interior of the structure on the north side. This runway was 18 feet above the adjacent level (T. 19).

He found a floor opening located adjacent to the northwest stairway and a floor hole opening located adjacent to the northeast stairway on each floor, one through six. The holes were not barricaded or capped or protected in anyway, and they measured 7–1/2 inches in diameter (T. 20). Further examination of the interior of the structure revealed a floor hole opening, 24 inches by 7–3/4 inches, located on the east side of each mechanical shaftway on floors one through six, which was also uncovered and unprotected (T. 22).

Construction had progressed to the point where three stairways in the building were completed enough to provide accessibility. The stairways were located in the southeast corner, the northeast corner and the northwest corner. The stairs were of hollow-pan design, and were not filled, constituting a tripping hazard (T. 22). None of the stairways were barricaded, although one stairway had a sign on it that said ‘keep out’ (T. 23).

The above-described violations were cited by the compliance officer as nonserious violations due to the hazards involved.

A floor opening is one which is large enough to allow an employee to fall through the opening. In contrast, a floor hole opening is one which constitutes only a tripping hazard. In all of the openings found, there was either no protection or inadequate protection.

From the first through the sixth floor, the south elevator shaft was open. The shaft measured 40 feet in length by 9 feet 4 inches in width (T. 25). The north elevator shaft was protected (T. 26). The distance from the first floor opening to the level below was approximately 15 feet. The distance from the sixth floor was 60 to 70 feet (T. 26).

The Compliance officer found that the north mechanical shaftway between the second and sixth floor had guardrails built with 2 by 4’s; however, the uprights for the guardrails were spaced 13 feet 6 inches apart on two sides and 9 feet 6 inches apart on the other two sides. The OSHA standard requires that they be spaced a distance no greater than 8 feet (T. 25). if these uprights were spaced too far apart, they would not support the required two hundred pounds of lateral movement required by the standard. Moreover having such a guardrail, could give an employee a false sense of security (T. 27).

The compliance officer found that the south mechanical shaftway had no protection whatsoever from the third to the sixth floor by either cover, barricade or guardrail (T. 26). These particular mechanical shaftways measured 13 feet 6 inches by 9 feet 6 inches (T. 26). If an employee fell through one of the holes from any of the floors, he would suffer death or serious physical harm (T. 29).

The compliance officer also found exterior wall openings at each landing of the southeast stairway on each floor from the first through the sixth. These wall openings were not equipped with guardrails (T. 30). The lack of guardrails aggravated the tripping hazard caused by the hollow-pan stairways in that an employee who tripped would not fall merely to the bottom of the stairs but probably through the wall opening (T. 31).

The distance such an employee could fall would vary from about 18 to 70 feet (T. 31). The existence of a standard guardrail would have reduced the falling hazard (T. 31). If an employee fell through the open-sided wall from the first through the fourth floor, he would probably suffer serious physical harm such as broken bones; but an employee falling from anything higher than the fourth floor would probably suffer death (T. 32).

The compliance officer stated that he observed four employees of the Olson Construction Company working at elevated heights ranging from 30 to 60 feet without safety belts or lanyards. There was no protection furnished such as safety nets, catch platforms, or temporary floors, except in some areas (T. 32, 33). The employees who were working in the southwest area were exposed to the danger of falling (T. 33, 34).

The manner of the installation of the steel cable as a guardrail in the instant case constituted an increased hazard because of the potential for lateral movement (T. 39). There was no midrail, and the wire was only 30 inches high at the midpoint which in itself would almost constitute a tripping hazard (T. 39). An employee who fell would certainly suffer serious physical harm or death, even from the first floor (T. 39).

In the basement area, the compliance officer found open-sided floors in the north and south sides of the area adjacent to the mechanical rooms which measured 6 feet 7 inches to the lower adjacent level and these openings were not provided with guards of any kind (T. 40). If an employee fell through these openings, he would suffer only minor injuries, but this violation was included in the serious violations because of grouping (T. 42). The compliance officer also found wall openings located in the north side of the south mechanical room and the south side of the north mechanical room, which were 6 feet 3 inches above the adjacent level. These openings were unguarded (T. 42, 43). Here again, an employee would probably suffer only minor injuries from such a fall, but this violation was included as a serious violation because of grouping (T. 43).

The facts establish that all the violations of the standards as alleged in the citations existed in at least some degree.

We are confronted with the question of exposure or accessibility of employees to these hazards.

Respondent, in its brief, states that the inspection of the project on August 8, 1975 (T. 13) was made because of a complaint filed against the employer. Respondent said the complaint was filed by Jerry Claycomb, job steward of the ironworkers union, who apparently had a grudge against Olson because of Olson’s refusal to allow the ironworkers a coffee break (T. 181, 234).

The evidence would indicate that there was some friction over the coffee break but we do not feel it is a material factor in the instant case.

With some minor exceptions, all the respondents on the project received exactly the same citations. This is illustrated by the following:

Violation	Brief Description	Olsen	Wentz	Robertson	Tri-Sales	Baxter
Nonserious IV (1)	Standard railing (runway)	29 CFR 1926.500(d)(2)	same	same	same	same
IV(2)(a)	floor hole cover (N.W.)	1952.500(b)(8)	same	same	same	same
IV(2)(b)	floor hole cover (east)	1926.500(b)(8)	same	same	same	same
IV(3)	fill stairways w/ concrete	1926.501(f)	same	same	same	same
Serious V(1)	floor openings	1926.500(b)(1)	same	same	same	same
V(2)(a)	wall openings	1926.500(c)(1)(i)	same	same	same	same
V(2)(b)	openings (basement)	1926.500(c)(1)(i)	same	same	same	same
V(3)	safety belts, etc. (25 ft.)	1925.501(a)	same	same	same	same
V(4)(a)	toeboard for railing	1926.500(d)(1)	same V(3)(a)	same	same	same
V(4)(c)	guardrails (basement)	1926.500(d)(1)	same V(3)(a)	same	same	same

It is respondent’s contention that Compliance Officer Adams inspected the project, determined the violations, and then applied them to each and every contractor whom he had been told was performing work on the project, without regard to whether any of the contractors’ employees were or were not exposed to the hazard.

This has been a most difficult case to decide. The difficulty being that there is in our mind very serious credibility gaps on both the part of the complainant’s case and that of the respondents. The evidence is very conflicting. The complainant has a borderline case of both access and exposure. We are vacating a number of citations partly because of lack of credibility on part of the complainant’s case and failure on part of the complainant to prove the cases against the respondents by a preponderance of credible testimony.

We will not set out in detail all of the testimony listing the various credibility gaps. However, we cite the following testimony as illustrative of some of the conflicts in the testimony which required us to make a decision as to which testimony was credible:

Q. O. K. Now exactly where were these employees working in the building?

A. (By the Compliance Officer) In the south, southwest area which was adjacent to the work sheds and all on the southeast corner of the building, I would say approximately 20, 30, maybe 15 to 20 feet from the west wall.

Q. ...do you know what they were doing?

A. No.

Q. Do you know whose employees they were?

A. These ones that I am referring to here would be Olson employees. These are the ones that are on his—

Q. How did you find out they were Olson’s employees?

A. Through inquiry.

Q. Of whom?

A. Of the employer as well as the employee representatives who were with me.

Q. Did you have an Olson employer representative with you?

A. Yes.

Later on we have the following testimony from Mr. Nun:

Q. (By Mr. Kratz) Mr. Nun, the work that your company was doing on this project was the exterior framework of the structure, is that correct?

A. It was the structural steel, yes, and the precast.

Q. And the precast.

And I guess you said on the date of this inspection this was being done in the southwest corner. Would that be the southwest quadrant of the project?

A. Yes.

Q. And Olson did not have any employees doing the exterior steel framwork, did they?

A. No, sir.

Mr. Jerry Claycomb, employed by the Walt Brewer Construction Company as an ironworker, testified as follows:

Q. Are you a member of the Ironworkers’ Craft Union?

A. Yes.

Q. By whom were you employed on August 8, 1975?

A. Allied Steel.

Q. What was your job with Allied Steel?

A. I was job steward.

(T. 172)

The record indicates that Allied Steel Erectors, who was the employer of Jerry Claycomb, apparently received no citation whatsoever for this violation and Olson was incorrectly cited.

OLSON CONSTRUCTION COMPANY, OSHRC DOCKET 14683

FINDINGS OF FACT

1. Olson Construction Company, is a corporation with a principal place of business in Lincoln, Nebraska, where it was the general contractor on a construction project.

2. At the time of the inspection, respondent employed approximately 23 employees at the work site.

3. Respondent’s worksite was inspected on August 8, 1975, by an authorized representative of the Secretary. As a result of this inspection, respondent was issued a citation for other than serious violation, four citations for serious violations, and a notification of proposed penalties on August 19, 1975. Respondent timely filed a notice of contest to the aforesaid citations and notification of proposed penalties pursuant to section 10(c) of the Act.

4. August 8, 1975, the access runway to the north side of the building worksite, which was more than 4 feet above the adjacent ground level, was not guarded with a standard guardrailing exposing respondent’s employees to the hazard of falling from said runway.

5. The inspection of August 8, 1975, found three floor openings: one located by each of the north stairways and one located on the east side of the east mechanical shaft. They were not covered or otherwise guarded exposing respondent’s employees to the hazard of stepping into said holes and tripping.

6. On the date of the inspection, the hollow-pan-type treads on three stairways were not filled exposing respondent’s employees to the hazard of tripping.

7. On August 8, 1975, inspection revealed that there were certain floor openings not guarded by a standard railing, toeboards or cover, to wit: 1) the 40 foot by 9 foot 4 inch south elevator shaftway from the first through the sixth floor, 2) the north mechanical shaftway between the second and sixth floor, and 3) the south mechanical shaftway from the third through the sixth floor. All of these openings exposed respondent’s employees to falls from heights ranging from 12 feet to over 60 feet.

8. There was a substantial probability that, as a result of a fall from such height, one of respondent’s employees could suffer death or serious physical harm. Respondent knew or could have known with the exercise of reasonable diligence of the presence of the violation.

9. The compliance officer’s inspection of August 8, 1975, revealed the existence of wall openings for the southeast stairway which were not guarded with a standard guardrail from the first through the sixth floor, and, openings located in the north side of the south mechanical room and the south side of the north mechanical room, in the basement area, where there was a drop of more than 4 feet. The bottom of the opening was less than 3 feet above the working surface. The height and placement of the opening in relation to the working surface was such that a standard guardrail would have effectively reduced the danger of respondent’s employees falling through said wall openings (from 12 to 60 feet).

10. There was a substantial probability that death or serious physical harm could result from a fall through the wall openings, and that respondent knew or could have known with the exercise of reasonable diligence of the presence of the violation.

11. On the day of the inspection, a toeboard was not provided for the perimeter guarding on the north, east, and south sides of floors one through three where falling materials could create a hazard to employees working below exposing respondent’s employees to the hazard of being struck by dropped tools and materials.

12. On the day of the inspection, it was found that there was no standard guardrail provided for floors 1 through four in the interior of the structure on its open sides, and open-sided floors in the basement area in the north and south sides adjacent to the mechanical rooms. These open sides were more than 6 feet above the adjacent floor or ground level; thus, exposing respondent’s employees to the hazard of falling from said open sides.

13. On the day of inspection, there existed a substantial probability that death or serious physical harm could result from falls through these open-sided floors and respondent knew or could have known with the exercise of reasonable diligence of the presence of the violation.

CONCLUSION OF LAW

1. Respondent is an employer within the meaning of section 3 of the Occupational Safety and Health Act of 1970 and is subject to the jurisdiction of the Occupational Safety and Health Review Commission in this proceeding.

2. Respondent has violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 in that it failed to comply with the nonserious Occupational Safety and Health Standard as set forth in citation 1, items 1, 2 and 3, (29 CFR 1926.500(d)(2); (29 CFR 1926.500(b)(8), and 29 CFR 1926.501(f)).

3. Respondent has violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 in that failed to comply with 29 CFR 1926.500(b)(1), serious violation, as alleged in citation 2, item 1 of the serious violation.

4. Respondent has violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 in that it failed to comply with 29 CFR 1926.500(c)(1)(i) as set forth in citation number 3, item 1 of the serious violation.

5. Respondent has violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 in that it failed to comply with 29 CFR 1926.500(d)(1) as set forth in citation 5, item 1, of the serious violation. The violations alleged in the citations for serious violations constitute serious violations within the meaning of section 17(k) of the Occupational Safety and Health Act of 1970.

6. The penalties proposed for the foregoing serious and nonserious violations were appropriate with respect to the gravity of the violation, the size of respondent’s business, the good faith of the respondent, and respondent’s history of previous violations.

DECISION

Based on the above findings of fact and conclusions of law, it is hereby ORDERED that:

1. The citations and the penalties proposed for the nonserious violations are affirmed (citation 1, items 1, 2 and 3).

2. Citation 2, item 1; citation 3, item 1 and citation 5, item 1 (serious violations) and their proposed penalties are affirmed.

3. Citation 4, item 1 and the proposed penalty therefor are vacated

BAXTER ELECTRIC COMPANY, OSHRC DOCKET 14741

DISCUSSION

There is no credible evidence of record that any of the Baxter employees were exposed or had access, within the meaning of the standards, to any of the hazards at any of the places set forth in the serious and nonserious citations issued to respondent.

FINDINGS OF FACT

1. Respondent, Baxter Electric Company, is a corporation located in Lincoln, Nebraska, and at the time of inspection was engaged as a subcontractor at a worksite at 14th and L Streets, Lincoln, Nebraska, where it was an electrical contractor on a construction project.

2. Respondent employed approximately 23 employees at the aforesaid worksite.

3. Respondent is an employer within the meaning of the Act.

4. As a result of an inspection, of the aforesaid worksite, by an OSHA compliance officer on August 8, 1975, respondent was issued a citation for other than serious violations, three citations for serious violations and a notification of proposed penalties on August 25, 1975. On August 27, 1975, respondent timely filed with a representative of the Secretary a notice of intent to contest the citations and the notification of proposed penalties therefor pursuant to section 10(c) of the Act.

5. Jurisdiction of this proceeding is conferred upon the Commission by section 10(c) of the Act.

6. On August 8, 1975, the access runway to the north side of the building, which was more than four feet above the adjacent ground level, was not guarded with a standard guardrailing.

7. On August 8, 1975, three floor hole openings, one located by each of the north stairways and one located on the east side of the east mechanical shaft, were not covered or otherwise guarded.

8. On August 8, 1975, the hollow-pan-type treads on three stairways were not filled.

9. On August 8, 1975, certain floor openings were not guarded by a standard railing and toeboards or cover, to wit: 1) the 40 foot by 9 foot 4 inch south elevator shaftway from the first through the sixth floor, 2) the north mechanical shaftway between the second and sixth floor, and 3) the south mechanical shaftway from the third through the sixth floor.

10. There is no credible evidence that any of respondent’s employees were exposed or had access to the foregoing hazards.

11. On August 8, 1975, the wall openings for the southeast stairway were not guarded with a standard guardrail from the first through the sixth floor where there was a drop of more than 4 feet, and the bottom of the opening was less than 3 feet above the working surface, and where the height and placement of the opening in relation to the working surface was such that a standard guardrail would effectively reduce the danger of falling.

12. There was no credible evidence that any of respondent’s employees were exposed or had access to the hazards of the preceding paragraph.

13. On August 8, 1975, no toeboard was provided for the perimeter guarding on the north, east, and south sides of floors one through three where falling materials could create a hazard to employees working below.

14. On August 8, 1975, a standard guardrail was not provided for floors one through four in the interior of the structure on its open sides, which open sides were more than 6 feet above the adjacent floor or ground level.

15. There is no credible evidence that any of respondent’s employees were either exposed or had access to the hazards as set forth in the two preceding paragraphs.

CONCLUSIONS OF LAW

2. The Secretary has failed to carry the burden of proof to show that the respondent has been in violation of the standards as set forth in the serious and nonserious citations issued to respondent.

DECISION

Based upon the above findings of fact and conclusions of law, it is hereby ORDERED that the citations and proposed penalties (serious and nonserious) are vacated.

WENTZ PLUMBING AND HEATING, OSHRC DOCKET 14794

DISCUSSION

There is no credible evidence of record that any of the Wentz employees were exposed or had access, within the meaning of the standards, to any of the hazards at any of the places set forth in the serious and nonserious citations issued to respondent.

FINDINGS OF FACT

1. Respondent, Wentz Plumbing and Heating, is a corporation with a principal place of business in Lincoln, Nebraska, and was engaged as a plumbing contractor on a construction project at 14th and L Streets, Lincoln, Nebraska.

2. Respondent employed approximately seven employees at its aforesaid worksite.

3. Respondent is an employer within the meaning of the Act.

4. As a result of an inspection on August 8, 1975, by a compliance officer of OSHA, of the aforesaid worksite, respondent was issued a citation for other than serious violations, three citations for serious violations, and notification of proposed penalties on August 21, 1975. On September 2, 1975, respondent timely filed with a representative of the Secretary a notice of intent to contest the citations and the notification of proposed penalties therefor pursuant to section 10(c) of the Act.

5. On August 8, 1975, the access runway to the north side of the building, which was more than 4 feet above the adjacent ground level, was not guarded with a standard guardrailing.

6. On August 8, 1975, three floor hole openings, one located by each of the north stairways and one located on the east side of the east mechanical shaft, were not covered or otherwise guarded.

7. On August 8, 1975, the hollow-pan-type treads on three stairways were not filled.

8. On August 8, 1975, certain floor openings were not guarded by a standard railing and toeboards or cover, to wit: 1) the 40 foot by 9 foot 4 inch south elevator shaftway from the first through the sixth floor, 2) the north mechanical shaftway between the second and sixth floor, and 3) the south mechanical shaftway from the third through the sixth floor.

9. There is no credible evidence that any of respondent’s employees were exposed or had access to the foregoing hazards as set forth in the preceding paragraphs.

10. On August 8, 1975, the wall openings for the southeast stairway were not guarded with a standard guardrail from the first through the sixth floor and openings located on the north side of the south mechanical room and the south side of the north mechanical room, in the basement area, where there was a drop of more than 4 feet and the bottom of the opening was less than 3 feet above the working surface, and where the height and placement of the opening in relation to the working surface was such that a standard guardrail would effectively reduce the danger of falling.

11. There was no credible evidence that any of respondent’s employees were exposed or had access to the hazards of the preceding paragraph.

12. On August 8, 1975, no toeboard was provided for the perimeter guarding on the north, east, and south sides of floors one through three where falling materials could create a hazard to employees working below.

13. On August 8, 1975, a standard guardrail was not provided for floors one through four in the interior of the structure on its open sides and open-sided floors in the basement area in the north and south sides adjacent to the mechanical rooms, which open sides were more than 6 feet above the adjacent floor or ground level.

14. There is no credible evidence that any of respondent’s employees were either exposed or had access to the hazards as set forth in the two preceding paragraphs.

CONCLUSIONS OF LAW

1. Respondent is an employer within the meaning of section 3 of the Occupational Safety and Health Act of 1970 and is subject of the jurisdiction of the Occupational Safety and Health Review Commission in this proceeding.

2. The Secretary has failed to carry the burden of proof to show that the respondent has been in violation of the standards as set forth in the serious and nonserious citations issued to respondent.

DECISION

Based upon the above findings of fact and conclusions of law, it is hereby ORDERED that the citations and proposed penalties for serious and nonserious violations are vacated.

TRI SALES ASSOCIATES, OSHRC DOCKET 14809

DISCUSSION

There is no credible evidence of record that any of the Tri Sales Associates employees were exposed or had access, within the meaning of the standards, to any of the hazards in any of the places set forth in the serious and nonserious citations issued respondent.

FINDINGS OF FACT

1. Respondent, Tri Sales Associates, is a corporation located in Ralston, Nebraska, and at the time of the inspection by the OSHA compliance officer was engaged as a stud welding contractor on a construction project at 14th and L Streets, Lincoln, Nebraska.

2. Respondent employed approximately two employees at its aforesaid worksite.

3. As a result of an inspection on August 8, 1975, by an authorized representative of the Secretary, of the aforesaid worksite, respondent was issued a citation for other than serious violations, three citations for serious violations, and notification of proposed penalties on August 25, 1975. On September 9, 1975, respondent timely filed with a representative of the Secretary a notice of intent to contest the citations and the notification of proposed penalties therefor pursuant to section 10(c) of the Act.

4. Jurisdiction of this proceeding is conferred upon the Commission by section 10(c) of the Act.

5. On August 8, 1975, the access runway to the north side of the building, which was more than 4 feet above the adjacent ground level, was not guarded with a standard guardrailing.

6. On August 8, 1975, three floor hold openings, one located by each of the north stairways and one located on the east side of the east mechanical shaft, were not covered or otherwise guarded.

7. On August 8, 1975, the hollow-pan-type treads on three stairways were not filled.

9. There is no credible evidence of record that any of the respondent’s employees were exposed or had access to the foregoing hazards as set forth in the preceding paragraphs.

10. On August 8, 1975, no toeboard was provided for the perimeter guarding on the north, east, and sough sides of floors two and three where falling materials could create a hazard to employees working below.

11. On August 8, 1975, a standard guardrail was not provided for floors two and three in the interior of the structure on its open sides, which sides were more than 6 feet above the adjacent floor or ground level.

12. There is no credible evidence of record that any of respondent’s employees were exposed or had access to the hazards as set forth in the preceding paragraphs.

CONCLUSIONS OF LAW

2. The Secretary has failed to carry the burden of proof to show that the respondent has been in violation of standards as set forth in the serious and nonserious citations issued respondent.

DECISION

Based upon the above findings of fact and conclusions of law, it is hereby ORDERED that the citations and proposed penalties (serious and nonserious) are vacated.

H. H. ROBERTSON COMPANY, OSHRC DOCKET 15032

DISCUSSION

There is no credible evidence of record of any H. H. Robertson employees were exposed or had access, within the meaning of the standards, to any of the hazards at any of the places set forth in the serious and nonserious citations issued to respondent.

FINDINGS OF FACT

1. Respondent, H. H. Robertson Company, is a corporation located in Pittsburgh, Pennsylvania. At the date of inspection by a compliance officer of OSHA, it was engaged as a steel decking contractor on a construction project at 14th and L Streets, Lincoln, Nebraska.

2. Respondent employed approximately five employees at its aforesaid worksite.

3. Respondent is an employer within the meaning of the Act.

4. As a result of an inspection on August 8, 1975, by an authorized representative of the Secretary, of the aforesaid worksite, respondent was issued a citation for other than serious violations, three citations for serious violations and notification of proposed penalties on August 26, 1975. On September 22, 1975, respondent timely filed with a representative of the Secretary a notice of intent to contest the citations and the notification of proposed penalties therefor pursuant to section 10(c) of the Act. Jurisdiction of this proceeding is conferred upon the Commission by section 10(c) of the Act.

5. On August 8, 1975, the access runway to the north side of the building, which was more than 4 feet above the adjacent ground level, was not guarded with a standard guardrailing.

6. On August 8, 1975, three floor hole openings, one located by each of the north stairways and one located on the east side of the east mechanical shaft, were not covered or otherwise guarded.

7. On August 8, 1975, certain floor openings were not guarded by a standard railing and toeboards or cover, to wit: 1) the 40 foot by 9 foot 4 inch south elevator shaftway from the first through the sixth floor, 2) the north mechanical shaftway between the second and sixth floor, and 3) the south mechanical shaftway from the third through the sixth floor.

8. There is no credible evidence that any of respondent’s employees were exposed or had access to the foregoing hazards as set forth in the preceding paragraphs.

9. On August 8, 1975, the wall openings for the southeast stairway were not guarded with a standard guardrail from the first through the sixth floor, where there was a drop of more than 4 feet and the bottom of the opening was less than 3 feet above the working surface, and where the height and placement of the opening in relation to the working surface was such that a standard guardrail would effectively reduce the danger of falling.

10. There is no credible evidence that any of the respondent’s employees were exposed or had access to the foregoing hazards as set forth in the preceding paragraphs.

11. On August 8, 1975, no toeboard was provided for the perimeter guarding on the north, east, and south sides of floors one through three where falling materials could create a hazard to employees working below.

12. On August 8, 1975, a standard guardrail was not provided for floors one through four in the interior of the structure on its open sides, which open sides were more than 6 feet above the adjacent floor or ground level.

13. There is no credible evidence that any of respondent’s employees were exposed or had access to the hazards as set forth in the two preceding paragraphs.

CONCLUSIONS OF LAW

2. The Secretary has failed to carry the burden of proof to show that the respondent has been in violation of the standards as set forth in the serious and nonserious citations issued to the respondent.

DECISION

Based upon the above findings of fact and conclusions of law, it is hereby ORDERED that the citations and proposed penalties (serious and nonserious) are vacated.

Vernon Riehl

Judge, OSHRC

Date: July 13, 1976