UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

August 25, 1977

DECISION

Before: BARNAKO, Chairman; and CLEARY, Commissioner.*

CLEARY, Commissioner:

On February 20, 1975, Administrative Law Judge Ben D. Worcester—issued his decision vacating two citations issued to respondent, Cornell & Company, Inc., alleging violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter cited as the ‘Act’].1 The citations were vacated on the ground that the Secretary failed to show employee exposure to the cited hazards.

Following exceptions to the Judge’s decision filed by the Secretary, review was directed on the following issues:

Whether the Administrative Law Judge erred in finding that respondent had not violated the Act with respect to compliance with the standards at 29 CFR § 1926.500(b)(1), 29 CFR § 1926.150(c)(1)(i), and 29 CFR § 1926.22(b)(1)?2

I. FACTS

Respondent is engaged in construction contracting work and maintains its principal place of business at Woodbury, New Jersey. It was engaged as a subcontractor for the erection of precast concrete walls at a project for the construction of a Hilton Hotel in Philadelphia.3 It was one of seven subcontractor working at the site.

On May 31, 1974, the construction site was inspected by an authorized representative from the Department of Labor. On that day respondent maintained a work force of seven employees, four of whom were working on the twentieth floor of the hotel. The others, constituting a ‘raising gang’, were located on the ground floor and performed the function of hoisting materials to the employees working on the twentieth floor.

Upon reaching the twentieth floor, the compliance officer observed 12 workers standing approximately ten feet from four elevator shafts. Respondent’s employees accompanying the compliance officer identified four of these individuals as being employed by respondent. At the time the four employees were on a coffee break and were not engaged in any work. Two of the elevator shafts were approximately 90 percent covered by 2′ x 10′ wooden planks. The other two shafts were 10 percent covered with similar planking. A 3 x 7 foot floor opening was located approximately 20-30 feet from the four employees. The compliance officer also observed an elevator shaft on the ground floor which was not provided with a mid-rail.

The inspection disclosed that there were no fire extinguishers at the worksite. Although respondent’s employees were not utilizing any flammable materials, there was a considerable amount of combustible debris on the lower floors and on the stairways.

On the ground floor, the compliance officer observed a cable strung one and one-half feet above the floor across the main walkway leading to the general contractor’s office. None of respondent’s employees was observed in that vicinity. Although one of respondent’s employees testified at the hearing that he ‘might have’ had occasion to use the walkway when going to the general contractor’s office, there was no evidence indicating that the cable was strung across the walkway at the time the employee may have used it.

As a result of these investigative findings, the Secretary issued two citations to respondent. Citation No. 1 alleged a ‘serious’ violation of section 5(a)(2) of the Act for failure to comply with the safety standard at 29 CFR § 1926.500(b)(1).4 The standard was alleged to have been violated at the following three locations:

(a) ground floor, by stairway no. 2—midrail not provided for elevator shaft

(b) 20th floor, elevator shafts no. 1, no. 2, no. 3 & no. 4—not fully enclosed by covers

(c) 20th floor,—opening approximately 3′ by 7′.

A $600 penalty was proposed for these violations.

Citation No. 2 alleged nonserious violations of section 5(a)(2) of the Act. It consisted of three items. Item 1, alleging noncompliance with the standard at 29 CFR § 1926.500(e)(1) for failure to guard a stairway, was vacated by the Judge and is not before us on review. Item 2 alleged a failure to comply with the standard at 29 CFR § 1926.150(c)(1)(i)5 by not providing portable fire extinguishers. Item 3 alleged that respondent was in noncompliance with the standard at 29 CFR § 1910.22(b)(1)6 by allowing a cable to be suspended above the walkway on the ground level, thereby creating a tripping hazard. No penalties were proposed for any of these nonserious items.

Judge Worcester vacated both citations on the ground that the Secretary failed to establish employee exposure. Regarding the citation for serious violation, the Judge found that the Secretary adduced no evidence pertaining to the elevator shaft located near stairway no. 2 on the ground floor. He also found that the employees on the twentieth floor were not exposed to the hazard posed by the unguarded elevator shafts because they were ten feet away from them. Finally, the Judge made no finding as to the 3 x 7 foot floor opening on the twentieth floor, although he vacated the allegation in his order dismissing the serious citation.

As to the nonserious citation the Judge found that respondent had not failed to comply with the fire protection requirements of 29 CFR § 1926.150(c)(1)(i). He premised his vacating of this item on the Secretary’s failure to establish any employee presence on the floors where debris was located and on the failure to establish the length of time debris was allowed to accumulate. The Judge impliedly found that there was no fire hazard at the worksite. Finally, the Judge vacated the item alleging noncompliance with 29 CFR § 1910.22(b)(1) (cable across walkway on ground floor) because he believed that construction workers are accustomed to such conditions and because ‘[i]t is reasonable to expect them to be alert . . .’ to such situations.

Respondent argues that both citations should be vacated because (1) its employees were not exposed to the conditions, and (2) its duty at the site was to erect precast concrete walls and it was not responsible for the creation or abatement of the cited conditions.

II. EXPOSURE

In Gilles & Cotting, Inc., 1975-76 CCH OSHD para. 20,448, 3 BNA OSHC 2002 (No. 504, 1975), the Commission held that a showing of actual exposure to a hazard is not necessary to establish a violation, and that the Secretary can prove exposure under what the Chairman described as a practical test of a ‘reasonable predictability’ of access to a hazard and what was described in my separate opinion as a test of reasonable anticipation of the risks to employees from a hazard. It was further stated that such access could be established by showing:

that employees either while in the course of their assigned working duties, their personal comfort activities while on the job, or their normal means of ingress-egress to the assigned workplaces, will be, are, or have been in a zone of danger.

On the basis of Gilles & Cotting, we agree with Judge Worcester that the evidence fails to establish employee exposure to the hazards posed by part (a) of the citation for serious violation alleging failure to comply with the guarding requirements of § 1926.500(b)(1) and by item 3 of the citation for nonserious violation alleging noncompliance with the housekeeping requirements of § 1910.22(b)(1).

The Secretary adduced no evidence concerning part (a) of the serious citation, which alleged a failure to provide a midrail at the elevator shaft on the ground floor. The evidence is also insufficient to sustain part (c) of the citation for the serious violation alleging a failure to guard the 3 x 7 foot floor opening on the twentieth floor. The only evidence adduced at the hearing on this item was a statement by the compliance officer that he observed the four employees on their coffee break approximately 20-30 feet from the floor opening. The record is devoid of evidence indicating where the opening was located in relation to the employees’ work areas. Therefore, we conclude that access to the hazard has not been established. See Gilles & Cotting, Inc., supra.

Similarly, we vacate item 3 of the nonserious citation alleging that respondent failed to comply with 29 CFR § 1910.22(b)(1) by allowing a cable to be strung across a walkway leading to the general contractor’s office. The only employee of this employer shown to have entered the general contractor’s office was respondent’s foreman. He was unable to state, however, whether he had stepped over the cable. Indeed, the foreman could not remember whether he used that walkway or another path which led to the office. Although the evidence establishes that three employees were working on the ground floor, the record fails to disclose the location of their work duties in relation to the cited hazard or whether they would otherwise use the walkway where the cable was placed. Therefore, although this was a main walkway, any inference that respondent’s employees used it would be based on speculation. We therefore find that a ‘reasonable predictability’ of access has not been established. See Gilles & Cotting, supra.

We find, however, that the Secretary has shown that the employees were exposed to the unguarded elevator shafts and to the hazard posed by the lack of fire extinguishers. Employee exposure to the four elevator shafts on the twentieth floor has been established. The evidence shows that four of respondent’s employees, while on their coffee break, were standing approximately ten feet from the shafts. We find that the employees were close enough to the open shafts to have been endangered by the hazard of falling.

Regarding item 2 of the nonserious citation, the evidence establishes that fire extinguishers were not provided at the worksite. The argument that respondent’s employees were not working with combustible materials and that they were, therefore, not exposed to a fire hazard is inapposite. The standard, stating that ‘a fire extinguisher . . . shall be provided for each 3,000 square feet . . .’ (emphasis added) is clearly mandatory and is not predicated on the existence of an obvious fire hazard.

In any event, we note that a fire hazard, specifically combustible debris on the stairway, was present at the worksite. Had a fire broken out in the stairways, the lack of fire extinguishers would have reduced the chances of safe egress from the worksite.

Finally, in his decision, Judge Worcester state in vacating the citations:

Experienced construction workers are accustomed to conditions such as this and the conditions mentioned in the other items. It is reasonable to expect them to be alert to debris underfoot, floor openings, cables, open shafts, unguarded perimeters and many other such things common to buildings under construction.

This statement implies that safety and health standards having the force of law need not be complied with when experienced employees are exposed to hazardous conditions. But, experienced as well as inexperienced workers may be subject to accidents resulting from inadequate operating procedures, poor training, and employee inadvertence. Cf. Hartford Accident & Indemnity Co. v. Cardillo, 112 F.2d 11, 15 (D.C. Cir. 1940), cert. denied, 310 U.S. 649 (1940); A & M Sheet Metal, Inc., 1975-76 CCH OSHD para. 20,099, 3 BNA OSHC 1668 (No. 4435, 1975) (dissenting opinion).

  We, therefore, expressly reject Judge Worcester’s reasoning as being in conflict with the statutory purpose of protecting ‘every working man,’ including those who are experienced. Section 2(b) of the Act.

III. CONTROL

Respondent argues that the citations should be vacated because it had no responsibility for creating or abating the hazardous conditions. Inasmuch as employee access has been shown only to the violations cited at part (b) of the serious citation (unguarded elevator shafts) and in item 2 of the nonserious citation (failure to provide fire extinguishers), we consider respondent’s argument only as to these items.

In Anning-Johnson Co., 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (Nos. 3694 & 4409, 1976) and Grossman Steel & Aluminum Co., 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12,775, 1976) the Commission set forth the duties under section 5(a)(2) of the Act of subcontractors working on multiple-employer construction sites. In order to avoid the imposition of inappropriate or unrealistic abatement requirements on a construction subcontractor, we held that a subcontractor showing that it neither created the violative condition nor controlled the hazard such that it could realistically rectify the condition in the manner contemplated by the cited standard7 could show as an affirmative defense either of the following: (a) its employees were protected by realistic measures taken as an alternative to literal compliance with the cited standard8, or (b) it did not and could not with the exercise of reasonable diligence have had notice that the condition was hazardous.

The evidence establishes that guarding the elevator shafts was not respondent’s responsibility but that of another subcontractor at the site, Otis Elevator Co. But there is no evidence indicating whether respondent could have not literally complied with the standard or what steps, if any, respondent took as an alternative to literal compliance.9 Therefore, on the record before us, respondent has failed to establish the affirmative defenses.10 However, because the early stages of this litigation antedated the Anning-Johnson and Grossman decisions, we will afford respondent an opportunity to present additional evidence bearing on the defenses.

Concerning item 2 of the nonserious citation for failure to provide fire extinguishers, we find on the record that the affirmative defenses have not been established. Respondent argues that the provision of fire extinguishers was the duty of the general contractor who planned to provide them at a later stage of construction. But there is nothing indicating that respondent could not have reasonably complied with the cited standard.11 Nevertheless, for the reasons assigned in our disposition of the § 1926.500(b)(1) violation, we will afford respondent an opportunity to present additional evidence on the defense.

We note however, that the affirmative defenses set forth in Anning-Johnson and Grossman are designed to reduce the burden of Literal compliance with standards when such compliance would be unrealistic in light of the subcontractor’s functions on the jobsite. They are not intended to eliminate the duty to undertake compliance which is within an employer’s capability, merely because the duty to comply was contracted to another party. At the time of the inspection a fire hazard existed at the worksite. The general contractor’s promise to furnish extinguishers at a later date would have been of no help to employees had there been a fire before that time.

Although the citation impliedly held respondent responsible for the lack of extinguishers throughout the worksite, we find that the purpose of the Act and essential fairness would be served by a more practical order requiring subcontractors to insure the availability of fire extinguishers or alternatives at their work stations on the jobsite, thereby rectifying the hazardous condition in the manner contemplated by the cited standard. Extinguishers would therefore be available to protect employees from fires occurring in their immediate vicinity and could be used to aid employees in escaping should a fire occur elsewhere.

IV. PENALTIES

The Secretary has proposed a $ 600 penalty for the citation for serious violation. We find the proposed penalty to be excessive. A substantial penalty reduction is in order because we have vacated two of the three parts of the citation. Also, regarding part (b) which is affirmed, we find that a 20-story fall would result in death or serious physical injury. However, employees were ten feet from the opening and, therefore, there was not a high probability of a fall and the gravity of the violation is low. Further, only seven employees were working on the site, respondent has a good safety history, having received only one previous uncontested citation, and has shown good faith in this matter. We find a penalty of $100 to be appropriate.

Considering respondent’s size, history, and good faith, we agree with the Secretary that no penalty should be assessed for item 2 of the citation for nonserious violation. In assessing no penalty we also note that the likelihood of a tire at the site was small. Therefore making the violation one of low gravity.

Accordingly, it is ORDERED that part (b) of the citation for serious violation alleging noncompliance with § 1926.500(b)(1) and item 2 of the nonserious violation for noncompliance with § 1926.150(c)(1)(i) are affirmed, unless, within 10 days of the issuance of this decision, respondent moves that the items be remanded for presentation of additional evidence. A penalty of $100 is assessed for the violation of § 1926.500(b)(1), and no penalty is assessed for the violation of § 1926.150(c)(1)(i). In all other respects, the Judge’s decision is affirmed.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: AUG 25, 1977

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

February 20, 1975

DECISION AND ORDER

Howard K. Agran, Esq. of Philadelphia, Pa. for the Secretary

J. C. Sheppard, Vice-President, Cornell and Company, Inc., of Woodbury, New Jersey for the Respondent

Ben D. Worcester, Judge, OSAHRC

This proceeding arises pursuant to a notice of contest filed by the Respondent on June 28, 1974, under the provisions of section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq.) hereinafter the Act. On June 10, 1974, a Citation was issued alleging that the Respondent and violated section 5(a)(2) of the Act. The matter came on to be heard in Philadelphia, Pennsylvania on November 15, 1974. After the Complainant rested, the Respondent moved for dismissal on the ground that the Complainant had failed to sustain the burden of proof. The preliminary finding of the court at trial was that the notion should be granted. Final ruling was reserved so that the Complainant would have an opportunity to submit proposed findings and a memorandum of law.

The Secretary cited Cornell for violation of 29 CFR 1926.500(b)(1) for alleged failure to cover elevator shaft openings in a floor in a highrise building under construction at one location on the ground floor and at four locations on the 20th floor. No evidence was offered with reference to Serious Violation No. 1(a) pertaining to stairway no. 2 on the ground floor. The employees on the 20th floor were sent there to put pier caps and column covers on windows on the perimeter, but they were having a coffee break when the Secretary’s inspector was there. They were no nearer than 100 feet to the nearest elevator shaft then. They were never exposed to any hazard involving the elevator shaft.

There is no proof that any employee used the unprotected stair on the 18th floor. The Respondent was alleged to have exposed employees to an unguarded stairway in violation of 29 CFR 1926.500(e)(1) but the only employee who used this stairway was the union steward accompanying the compliance officer on the walk around. He said that he followed the inspector up this stairway. He pointed out that it was more convenient for employees to use another stairway which was in the center of the building. A photograph received in evidence shows that the subject stairway was on the perimeter.

The Secretary also alleged that there was a violation of 29 CFR 1926.150(c)(1)(i) on the 5th and 6th floors where the compliance officer saw some carboard boxes lying on the floor. No employees were seen there. The witness did not say how long the cartons had been there, nor did he try to ascertain if they had lain there more than a few minutes. A few cardboard cartons in a steel and concrete structure may constitute a hazard if allowed to accumulate over a period of time, but there was no proof of exposure of the Respondent’s employees to a hazard as alleged.

The third non-serious item involved a cable strung across a ground floor walkway to the project superintendent’s office alleged to be a tripping hazard in violation of 29 CFR 1910.22(b)(1).

Experienced construction workers are accustomed to conditions such as this and the conditions mentioned in the other items. It is reasonable to expect them to be alert to debris underfoot, floor openings, cables, open shafts, unguarded perimeters and many other such things common to buildings under construction. There is no means available to any employer whereby every task performed in high-rise building construction can be made free of all hazards. The Congress was aware of this as is shown by the purpose clause of the Act where it is stated that it wanted to assure: ‘. . . so far as possible . . .’12 that every worker would have a safe and healthful place to work.

The motion of the Respondent, Cornell and Company, Incorporated, is granted. It is further ordered that Citations 1 and 2 dated June 10, 1974, and the proposed penalty of $600.00 be vacated and that this proceeding be dismissed.

BEN D. WORCESTER

Judge, OSAHRC

Dated: FEB 20, 1975

Hyattsville, Maryland

*Commissioner Moran participated in discussions of this case, but not the final voting, which occurred subsequent to the end of his term, which expired on April 27, 1977.

1 The citations are described on pages 4 and 5, infra.

2 Former Commissioner Van Namee added the following issue for review.

Whether my Colleague’s Direction for Review is untimely within the meaning of section 12(j) of the Act in view of the fact that the judge’s report was certified to the Commission on January 31, 1975, some 46 days prior to review being ordered.

For reasons set forth in R. W. Setterline & Sons Co., 1975-76 CCH OSHD para. 20,682, 4 BNA OSHC 1214 (No. 7377, 1976), we find that the direction for review was timely issued.

3 The Judge failed to find whether respondent is engaged in a business affecting commerce and is therefore subject to the provisions of the Act. The record discloses, however, that respondent maintains its principal place of business in New Jersey and was engaged in construction at a site in Pennsylvania. Thus, respondent has conducted business in more than one state and is engaged in a business affecting commerce. See Edward W. Vander Linden d/b/a Shorecrest Concrete Contractors, 1975-76 CCH OSHD para. 20,166, 3 BNA OSHC 1739 (No. 3249, 1975).

4 § 1926.500 Guardrails, handrails, and covers

(b) Guarding of floor openings and floor holes.

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

5 § 1926.150 Fire protection

(c) Portable firefighting equipment—

(1) Fire extinguishers and small hose lines.

(i) A fire extinguisher, rated not less than 2A, shall be provided for each 3,000 square feet of the protected building area, or major fraction thereof. Travel distance from any point of the protected area to the nearest fire extinguisher shall not exceed 100 feet.

6 § 1910.22 General requirements

(b) Aisles and passageways

(1) Where mechanical handling equipment is used, sufficient safe clearances shall be allowed for aisles, at loading docks, through doorways and wherever turns or passages must be made. Aisles and passageways shall be kept clear and in good repairs, with no obstruction across or in aisles that could create a hazard.

7 For a discussion of the factors to be considered in determining whether the employer could have realistically complied with the cited standard, see Anning-Johnson Co., supra n.13.

8 See Anning-Johnson Co., supra n.16

9 We also note that on the record before us there is no evidence to indicate whether respondent contacted either the general contractor or Otis Elevator to request abatement of the hazard.

10 We find that the falling hazards associated with unguarded elevator shafts are patently obvious. Clearly, respondent knew or should have had notice of the violation.

11 Alternative fire fighting apparatus, as specified in §§ 1926.150(c)(1)(ii) and (iii), may also be substituted for a 2A rated extinguisher, i.e. one 55-gallon drum of water with two fire pails, or a gardentype hose line with the indicated capacity for discharging water.

12 29 U.S.C. 651(b), section 2(b), Occupational Safety and Health Act of 1970.