UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 4179
DERR CONSTRUCTION COMPANY,
Respondent.

April 26, 1977

DECISION

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

MORAN, Commissioner:

A decision of Review Commission Judge John J. Morris, dated November 13, 1974, is before this Commission for review pursuant to 29 U.S.C. § 661(i). That decision, which is attached hereto as Appendix A, held that respondent violated 29 U.S.C. § 654(a)(2) by failing to comply with the occupational safety standard codified at 29 C.F.R. § 1926.28(a) and vacated five other alleged violations.

Review of this case was directed on the following issues:

1. Was 29 C.F.R. § 1926.28(a) properly promulgated particularly in view of the wording change made in December 1972?

2. If the current version of 29 C.F.R. § 1926.28(a) was improperly promulgated, is the original version thereof enforceable against the respondent?

3. Is the original version of 29 C.F.R. § 1926.28(a) unenforceably vague?

4. Whether the Administrative Law Judge erred in finding that respondent was not in serious violation of the Act for failure to comply with the standard at 29 C.F.R. § 1926.752(j).

5. Whether the Administrative Law Judge erred in finding that respondent was not in violation of the Act for failure to comply with the standards at 29 C.F.R. § 1926.450(a)(9), 29 C.F.R. § 1926.500(d)(1) and 29 C.F.R. § 1926.550(a)(6).

The Secretary has withdrawn his exceptions to those portions of the Judge’s decision vacating the alleged violations of sections 1926.500(d)(1) and 1926.550(a)(6). Remaining in issue therefore are the alleged violations of sections 1926.28(a), 1926.752(j), and 1926.450(a)(9). For the reasons set forth below, the Judge’s disposition of these citations is affirmed.[1]

Respondent’s worksite was inspected by an authorized representative of the Secretary of Labor on June 15, 1973. At the time of the inspection, respondent was engaged in the erection of the skeletal steel frame for a 31 story building in Denver, Colorado. The inspector observed one of respondent’s employees working on the top edge of a stell girder on the 13th floor. The employee was not wearing a safety belt. Respondent was charged with a serious violation of section 1926.28(a) in that death or serious injury would result if a fall should occur.

The above-cited standard was initially promulgated on April 17, 1971, pursuant to section 107 of the Contract Work Hours and Safety Standards Act, 40 U.S.C. § 333. At that time, it was worded as follows:

The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions and where this part indicates the need for using such equipment to reduce the hazards to the employees.[2] (Emphasis added.)

As so worded, it was adopted by the Secretary of Labor on May 29, 1971, as an occupational safety and health standard pursuant to his authority under 29 U.S.C. § 655(a)[3] to adopt any established Federal standard as an occupational safety and health standard for a period of two years from the effective date of the Act without regard to the procedural safeguards of the Administrative Procedure Act, 5 U.S.C. § 553. On December 16, 1972, the Secretary published a revision of the construction standards contained in Part 1926 of the Code of Federal Regulations. Administrative reasons were given as the purpose for the revision, and the failure to follow the rulemaking procedures provided in the Administrative Procedure Act was justified on the basis that no substantive changes were made in the standards contained therein.[4] The only change in section 1926.28(a) was the substitution of the word ‘or’ for the word ‘and.’ Respondent was cited under the amended version of the standard.

The question of whether the word change was properly promulgated has been the source of disagreement within the Commission. The majority has taken the position that there was no substantive change. Secretary v. Sweetman Construction Company, OSAHRC Docket No. 3750, March 2, 1976; Secretary v. Isseks Brothers, Incorporated, OSAHRC Docket No. 6415, January 29, 1976; Secretary v. Island Steel & Welding, Ltd., 17 OSAHRC 143 (1975); Secretary v. Eichleay Corporation, 15 OSAHRC 635 (1975); Secretary v. Carpenter Rigging and Contracting Corporation, 15 OSAHRC 400 (1975). I have dissented in each of those decisions and concluded that the original version of the standard remained in effect because it was not repealed by the modified version which was improperly promulgated. See Secretary v. United States Steel Corporation, OSAHRC Docket No. 2975, November 14, 1974; 1A Sutherland Statutory Construction § 23.24 (4th ed. C. Sands rev. 1972).

In the instant case the propriety of the promulgation of the standard is moot because we all agree that the evidence is sufficient to establish a violation thereof regardless of whether the changed word is interpreted to mean the alternative or conjunctive. Another standard in Part 1926, 29 C.F.R. § 1926.105(a), requires the use of safety belts when work is performed at heights in excess of 25 feet. Secretary v. Leon Marrano & Sons, Inc., 17 OSAHRC 202 (1975) (concurring opinion). Furthermore, respondent’s employee was obviously exposed to a hazardous condition by his failure to use a safety belt when performing work on the narrow surface of a girder at a height of 13 stories. Under these circumstances, we also conclude that section 1926.28(a) is not unenforceably vague as applied in this case. Secretary v. General Bronze Architectural Products, 18 OSAHRC 224 (1975).

Respondent was charged with a serious violation of 29 C.F.R. § 1926.752(j), in that:

‘The employer failed to assure that floor openings were planked over or guarded at the 11th floor level. Employees were exposed to a fall of 7 floors to temporary planking on the 3rd floor.’

The evidence indicates that the floor opening referred to was an uncovered and unguarded elevator shafting on the 10th floor.[5] A generator had just been moved on to the floor through the opening and the general contractor, who was responsible for covering floor holes, had not yet replaced the covering although he had been requested to ‘keep them covered.’

The Judge held that the evidence failed to establish employee exposure to this alleged violation. He found that the testimony of the inspector on this matter was a ‘bare legal conclusion’ and that his testimony that respondent’s employees were ‘in that area’ was so indefinite that it was ‘of no probative value to establish exposure.’ We agree with the Judge’s finding and hold that the evidence is insufficient to establish exposure under either an ‘accessibility’ or ‘actual exposure’ rule. See Secretary v. Gilles & Cotting, Inc., OSAHRC Docket No. 504, February 20, 1976.

Respondent was also charged with a nonserious violation of 29 C.F.R. § 1926.450(a)(9), because:

‘Side rails of ladders did not extend 36 inches above landings on 7, 8, 9, 10, and 11th floors.’

With respect to this charge and the unguarded floor opening charge discussed above, the record indicates that the general contractor at the site was responsible for furnishing and installing decking materials below the working floor, keeping floor holes on those floors covered, and providing conforming ladders.

The United States Court of Appeals for the Seventh Circuit has held that subcontractors working at a multi-employer construction site are not liable under the Act[6] for nonserious violations of safety standards when the subcontractors neither created, caused, nor were otherwise responsible for the alleged violative conditions. Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975). Finding that the respondent made a reasonable effort to have the ladder deficiency corrected, we conclude that the Anning-Johnson holding is applicable in the instant case and that vacation of the violation is required.[7]

Accordingly, the Judge’s decision is affirmed.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

BY: Gloria W. White

Acting Executive Secretary

DATED: APR 26, 1977

CLEARY, Commissioner, CONCURRING IN PART AND DISSENTING IN PART:

I agree with the disposition concerning the alleged violation of the personal protective equipment standard published at 29 CFR § 1926.28 (a) for the reasons assigned by the Chairman.

I also concur with the vacation of the alleged violation of the ladder standard published at 29 CFR § 1926.450(a)(9). Although the general contractor was contractually responsible for compliance with the standard, respondent is a steel erection subcontractor, the employees of which were exposed to the violative condition. A subcontractor cannot rely upon a contractual provision to abrogate its responsibility for protecting its employees from exposure to the hazards contemplated by a standard. See Circle Industries Corp., 4 BNA OSHC 1724, 1976 77 CCH OSHD para. 21,119 (No. 4356, 1976). When the Secretary proves that a subcontractor’s employees have been exposed to violative conditions that the subcontractor neither created nor controlled, the subcontractor may defend itself by establishing that it protected its employees by realistic measures taken as an alternative to literal compliance with the standard. Anning-Johnson Co., 4 BNA OSHC 1193, 1975 76 CCH OSHD para. 20,690 (Nos. 3694 & 4409, 1976). What is realistic will vary according to the circumstances. Anning-Johnson Co. at note 16. The ladder hazard here is of a low level of gravity, respondent had requested that the general contractor station ladders in conformity with the standard, and no other realistic alternative was available. Data Electric Co., Inc., 5 BNA OSHC 1077, 1977 78 CCH OSHD para. 21,593 (No. 13122, 1977). Accordingly, I agree that respondent has established a defense to the alleged violation.

I dissent, however, to vacating the alleged violation of the standard published at 29 CFR § 1926.752(j) requiring floor openings to be covered or guarded. Commissioner Moran errs in concluding that the Secretary failed to prove that respondent’s employees were actually exposed or had access to the unguarded elevator shaft. The Secretary need not prove actual exposure to a violative condition in order to sustain his burden of proof. He is required to show only that employees had access to the violative condition. Gilles & Cotting, Inc., 3 BNA OSHC 2002, 1975 76 CCH OSHD para. 20,448 (No. 504, 1976). The compliance officer testified that at least some of respondent’s 35 on-site employees were exposed to the shaft.[9] The evidence also shows that the ladders used to reach the floors above and below that in which the shaft was located were within a few feet of the unguarded shaft. In order to walk from one ladder to the other, it was necessary for employees to pass within a few feet of the shaft. Inasmuch as this floor was immediately below that on which respondent’s employees were installing metal sheeting on the day of inspection, it is reasonable to infer that it would have been necessary for employees to use the ladders. I would draw this inference. Moreover, the compliance officer testified that during the inspection the foreman acting as respondent’s representative stated that respondent’s employees were in the area of the unguarded shaft. This statement was an admission which was received without objection and was unrebutted. The testimony, therefore, has probative value. Morgan & Culpepper, Inc., 5 BNA OSHC 1123, 1977 78 CCH OSHD para. 21,605 (No. 9850, 1977). Access to the violative condition has clearly been established on the basis of this evidence. Gilles & Cotting, Inc., supra. Respondent has failed to rebut the evidence. See Public Improvements, Inc., 4 BNA OSHC 1864, 1976 77 CCH OSHD para. 21,326 (No. 1955, 1976). I would find that respondent’s employees were exposed to the violative condition.

I also disagree with the Chairman’s assignment of reasons for vacating the violation. First, the evidence does not show that respondent had lifted a generator through the unguarded shaft just before the inspection so that compliance at the time of inspection was impossible. Respondent has the burden of proving the defense of impossibility of compliance, as the cases cited by the Chairman indicate. See also Brennan v. OSAHRC and Underhill Construction Co., 513 F.2d 1032 (2d Cir. 1972). The only evidence on this point consists of the following testimony:

Q: [by respondent’s president and representative at hearing]: We had one situation, Bill, that—when we were cited as a matter of fact, where we—where I first met Mr. Kay [the compliance officer] and that was where we had left a hole open and didn’t really give the General Contractor sufficient advance notice to plank over the hole or to put a guardrail around the hole and that’s when we jumped that generator and change shack out of the hole to the floor above and we did correct that situation?

A: [by respondent’s site foreman]: It seemed like it, it seemed like that, that they got the hand rail up around there faster. (Tr. 39 40)

Q: [by the Judge]: I am not much of an Iron Worker, what is that [i.e., raising foreman] designation?

A: [by respondent’s president]: . . . in the case of the raising gang foreman here, he had an additional responsibility and that was to see that the General Contractor had his hand rails placed around the vacated openings before he jumped out of the hole and has some material where he could cover up the hole as soon as we vacated the hole. And in that particular case, of uncovered holes, and I was there when it happened, we had fallen down on our job there, and got out of that hole without having any term [sic] there to cover it up and actually, it wasn’t our job to cover that hole because we are only responsible under the terms of our contract to cover the working deck, but we had an obligation there, I believe to the General Contractor to give him as much advance notice as we could and let him have his people ready to cover the hole and put his hand rail on . . .[10] (Tr. 43 44)

In order to find, as the Chairman does, that the lifting of the generator had ‘just been performed,’ an inference is required.[11] On basis of the above testimony, however, I would infer that the operation of lifting the generator had been completed a sufficient time before inspection to permit the floor opening to be covered or guarded in compliance with the standard. Even if the two inferences are equally reasonable, I would reject the Chairman’s result because respondent has the burden of proving that compliance was impossible on the ground that it would have precluded performance of its work, and respondent has failed to meet its burden.

Recently, we stated that when it is impossible to comply literally with a standard, an employer must take such reasonable alternative means as are available to protect its employees. Taylor Building Associates, 5 BNA OSHC 1083, 197778 CCH OSHD para. 21,592 (No. 3735, 1977) (lead opinion and Chairman Barnako’s concurring opinion). Respondent did not introduce any evidence that alternative means of protection were unavailable. It must follow perforce that respondent has also failed to sustain this burden.

Finally, I observe that in my opinion Okland Construction Company, supra, relied upon in the concurring opinion, is cited too broadly. Okland Construction is not entirely clear as to its scope. I understand the decision to be nothing more than a restatement of the Commission’s precedent of generally accepting judges’ decisions based on credibility determinations. See Evansville Materials, Inc., 3 BNA OSHC 1740, 1975 76 CCH OSHD para. 20,187 (No. 3444, 1975). The Chairman’s reliance on the decision in this case conflicts with the Administrative Procedure Act, 5 U.S.C. § 551 et seq., which provides at section 8(a) that ‘. . . the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule.’ The initial decision is that rendered by an administrative law judge. While an agency must consider the judge’s decision and the evidence of record upon which it is based, Cinderella Career and Finishing School, Inc. v. Federal Trade Commission, 425 F.2d 583, 588 (D.C. Cir. 1970), the findings of the judge are merely part of the record and are not binding on the agency. OKC Corp. v. Federal Trade Commission, 455 F.2d 1159, 1162 (10th Cir. 1972). An agency may under some circumstances overrule a judge’s finding based on the credibility of witnesses observed by the judge. See Federal Communications Commission v. Allentown Broadcasting Corp., 349 U.S. 358, 364 (1955). The Chairman’s position not only rejects these well established principles according an agency a broad scope of review in the absence of limitation, but also applies a scope of review that is inconsistent with our own rules. See 29 CFR § 2200.91a(b)(1); 41 Fed. Reg. 53015 (1976).[12]

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 4179
DERR CONSTRUCTION COMPANY,
Respondent.

FINAL ORDER DATE: December 13, 1974

APPEARANCES:

William J. Kilberg, Solicitor of Labor T. A. Housh, Jr., Regional Solicitor Henry C. Mahlman, Associate Regional Solicitor Ronald G. Whiting, Trial Counsel of Denver, Colorado for the Secretary of Labor.

E. L. Derr, pro se of Fort Worth, Texas for the respondent.

STATEMENT OF THE CASE

John J. Morris, Judge, OSAHRC:

This is a proceeding pursuant to 29 USC 659(c) for an adjudication under the Occupational Safety and Health Act of 1970, (29 USC 651, et seq, hereafter called the Act). Respondent is contesting certain citations issued by complainant under the authority vested in complainant by 29 USC 658.

The citations allege that on June 15, 1973 complainant inspected a workplace described as the erection of a 32 story bank building and located at 18th and California Streets (in Denver, Colorado).

It is further alleged that on the basis of the inspection at the above workplace respondent violated 29 USC 654(a)(2) of the Act by failing to comply with occupational safety and health standards promulgated by complainant, pursuant to 29 USC 655. Abatement by various dates was proposed.

Three contested citations were issued on August 7, 1973 and it is alleged that the standards violated were published in the Code of Federal Regulations as hereinafter noted.

The description of the violation alleged in citation number 1, item 1, states as follows:

The employer failed to assure that safety belts were used by iron workers during final bolting up and plumbing up. Some employees were working on outside of beams exposed to a direct fall of 13 stories to ground below.

The citation alleges that the standard violated is codified at 29 CFR 1926.28(a); a civil penalty of $550 is proposed.

The foregoing standard as promulgated by complainant provides as follows:

§ 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.

As to citation number 1, item 1:

Respondent was inspected on June 15, 1973 at a construction site which was a steel skeleton framed building under construction at 18th and California Avenues in Denver, Colorado (Tr. 8, 9). The compliance officer observed an employee of respondent at the top edge of the steel girder not wearing a belt with lanyard fastened to the building (Tr. 11). There was a potential fall of 13 stories (Tr. 11). The employee was an iron worker and the general superintendent identified him as an employee of the respondent (Tr. 13; compl’s. ex’s. 1, 2, 3 show the employee on the steel girder; Tr. 12–14).

For this alleged serious violation there was an unadjusted penalty of $1,000 (Tr. 20, compl’s. ex. 7a). As noted by the compliance officer if a fall occurred death or serious physical harm was likely (Tr. 21). In computing the final proposed penalty of $550 the compliance officer allowed a 20% credit each for good faith and history, 5% for size (more than 20 employees) (Tr. 20–21).

The description of the violation alleged in citation number 2, item 1, states as follows:

The employer failed to assure that floor openings were planked over or guarded at the 11th floor level. Employees were exposed to a fall of 7 floors to temporary planking on the 3rd floor.

The citation alleges that the standard violated is codified at 29 CFR 1926.752(j). A civil penalty of $550 was proposed.

The foregoing standard as promulgated by the Secretary provides as follows:

§ 1926.752 Bolting, riveting, fitting-up, and plumbing up.

(j) All unused openings, in floors, temporary or permanent, shall be completely planked over or guarded in accordance with Subpart M of this part.

As to citation 2, item 1:

On the construction site was an open shaft-way involving a potential fall of 7 stories (Tr. 15–16). The opening was not planked over nor were there any guardrails (Tr. 16).

The compliance officer indicated that the same fall hazard was involved from the floor openings as from the steel girders (Tr. 22). Further he used the same methods and adjustments to arrive at the proposed penalty as he had used in arriving at the proposed penalty of $550 in connection with citation number 1.

The description of the violation alleged in citation number 3, item 1, states as follows:

Side rails of ladders did not extend 36 inches above landings on 7, 8, 9, 10 and 11th floors.

The citation alleges that the standard violated is codified at 29 CFR 1926.450(a). A civil penalty of ‘none’ was proposed.

The foregoing standard provides as follows:

§ 1926.450 Ladders.

(a) General requirements.

(9) The side rails shall extend not less than 36 inches above the landing. When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point of access, shall be installed.

As to citation 3, item 1:

Complainant’s evidence indicated that a ladder did not extend 36 inches above the landing (Tr. 22). Most of the ladders on the jobsite, however, were in compliance (Tr. 23). There was no proposed penalty (Tr. 22) as the gravity was low (Tr. 22). Complainant’s exhibit 6 is a photograph taken looking upward on the ladder at level 10 showing its landing on the beam where there are no guardrails or platforms (Tr. 17).

The description of the violation alleged in citation number 3, item 2, states as follows:

Standard guard rails were not provided on the 7th floor ladder landing platform, nor were ladder landing platforms provided at the 8, 9, 10 and 11th floor levels.

The citation alleges that the standard violated is codified at 29 CFR 1926.500(d)(1). A civil penalty of $35 was proposed.

The foregoing standard provides as follows:

§ 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 toe-board 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 3, item 2 is illustrated by complainant’s exhibit 6 which is a photograph looking upward on the ladder showing the lack of a guardrails or platforms (Tr. 17). Involved was a fall hazard of possible serious injury. The compliance officer considered the gravity to be less than the gravity involved with the alleged serious violations. He further considered the frequency of the violation and used the same adjustment factors as he had in connection with the serious violation resulting in a 45% adjustment together with an additional 50% abatement credit; the final proposed civil penalty was $35 (Tr. 23, 24).

The description of the violation alleged in citation number 3, item 3, states as follows:

Maintenance records showing dates and results of inspections were not available for the two Peco cranes on the jobsite.

The citation alleges that the standard violated is codified at 29 CFR 1926.550(a)(6). A civil penalty of ‘none’ was proposed.

The foregoing standard provides as follows:

§ 1926.550 Cranes and derricks.

(a) General requirements.

(6) A thorough, annual inspection of the hoisting machinery shall be made by a competent person, or by a government or private agency recognized by the U.S. Department of Labor. The employer shall maintain a record of the dates and results of inspections for each hoisting machine and piece of equipment.

Citation 3, item 3; involved are unavailable maintenance records. The compliance officer was advised that the records were not available on the jobsite (Tr. 18); however, it was indicated that such records were available at the company main office in Tyler, Texas (Tr. 18–19, 58). The crane involved is known as a Peco crane, which is a climbing tower crane used for steel erection (Tr. 19). This equipment was owned by respondent (Tr. 19). The compliance officer did not propose a monetary penalty. He considered that the gravity of the alleged violation was low (Tr. 24).

The description of the violation alleged in citation number 3, item 4, states as follows:

Iron workers were not using containers to store or carry bolts. Iron workers were throwing bolts from the 11th to the 12th floor.

The citation alleges that the standard violated is codified at 29 CFR 1926.752(a)(1). A civil penalty of ‘none’ was proposed.

The foregoing standard as promulgated by the Secretary provides as follows:

§ 1926.752 Bolting, riveting, fitting-up, and plumbing-up.

(a) General requirements. (1) Containers shall be provided for storing or carrying rivets, bolts, and drift pins, and secured against accidental displacement when aloft.

Citation 3, item 4: The compliance officer noted that iron workers were not using containers to store or carry bolts and on one occasion he observed the throwing of a bolt from the 11th to the 12th floor (Tr. 19). The compliance officer described this as an ‘isolated incident’ involving two employees. Other iron workers were using containers (Tr. 20). The compliance officer recommended no penalty on the basis that the hazard involved was a possibility of knocking off a bolt and striking someone passing beneath (Tr. 25).

In connection with the serious as well as the non-serious violations the compliance officer stated that all of respondent’s employees were exposed to all of the hazards (Tr. 27).

Cross-examination developed in part that there had been no serious injuries on this particular job (Tr. 28); further it was noted that safety belts were available at the jobsite (Tr. 32). Respondent has safety meetings and safety rules and all of the described conditions had been abated (Tr. 33–34).

RESPONDENT’S EVIDENCE

Respondent’s evidence indicates that safety belts were issued and were supposed to be worn; further the employees had been instructed to wear them (Tr. 37). However, the employees do not like to wear them and if all those who did not wear them were discharged there would be times when they would not have any help available (Tr. 32, 37). The work deck was described as clean (Tr. 38). There was evidence that the general contractor was responsible for the floors beneath this respondent (Tr. 39). Respondent’s letter of August 14, 1973 was offered and received in evidence (Tr. 40–41). The matters set forth in the letter indicate that the floor openings are to be protected by the general contractor under the terms of his contract. Further, respondent noted that he was making every effort to make this a safe job and in connection with the citations directing that certain precautions be taken by all company employees (Tr. 38).

In connection with the failure to use safety belts respondent’s president instructed the foreman at the closing conference and later that employees without safety belts were to be fired (Tr. 35, 40–41, 46–47). Previously employees had not been fired or disciplined (Tr. 47).

Respondent holds weekly safety meetings (Tr. 51–52). Disciplining of employees depends upon availability of help (Tr. 52–53). Respondent’s president indicated that while the iron workers did not like to wear safety belts some progress had been made with them (Tr. 32, 56–57).

After respondent contested this enforcement action, and a complaint and an answer having been filed by the parties, the case came on for hearing in Denver, Colorado on January 28, 1974. No parties desired to intervene in the proceedings. Notice of the hearing was posted and served on the authorized employee representative (Tr. 5).

STATEMENT OF JURISDICITION

Respondent is a Texas Corporation having 35 employees and doing business in all of the several states west of the Mississippi river with the exception of California and Arizona (Tr. 7, 48–49).

In view of the above it is apparent that the Occupational Safety and Health Review Commission has jurisdiction of the subject matter of this litigation.

ISSUES PRESENTED

1. Can this Judge sua sponte raise the issue of employee exposure?

2. Does the responsibility to comply with safety regulations fall on the general contractor instead of respondent subcontractor as contended by respondent? (Tr. 44)

3. Is respondent relieved from liability because it bid this contract under the American Institute of Steel construction standards, which places liability on the general contractor to cover floor openings (Tr. 44, 49, 51).

4. What civil penalty, if any, is appropriate if a violation is established?

In a number of decisions the Review Commission has clearly ruled that exposure to respondent’s employees is a necessary element to sustain a violation. Secretary v. Hawkins Construction Company, 8 OSAHRC 569, (May 20, 1974); Secretary v. City Wide Tuckpointing Company, OSAHRC Docket Number 247, (May 24, 1973); Secretary v. Otis Elevator Company, OSAHRC Docket Number 688 (October 8, 1974). In Secretary v. Sletten Construction Company, OSAHRC Docket Number 967 (October 3, 1974), the Review Commission held, in part,

A violation cannot be affirmed unless the evidence establishes that some of respondent’s employees were exposed to the alleged hazard.

In view of the Review Commission pronouncements it appears that a Review Commission Judge is obliged, sua sponte, to raise the issue of employee exposure.

As to citation number 1, item 1 the transcript shows exposure in that an employee of respondent was observed not wearing a belt (Tr. 11, 12). The employee was identified by respondent’s superintendent (Tr. 12–14). Citation number 1, item 1 1 should be affirmed; no factual controversy was presented.

As to citation number 2, item 1: the transcript fails to indicate exposure. Respondent’s notice of contest as to this citation stated as follows:

We had just jumped a generator welding unit out of this opening and the general contractor had not covered the opening.

The above admission does not constitute a sufficient showing of employee exposure. The task of moving a generator unit through the opening cannot be performed with the floor opening covered. Citation number 2, item 1 should be vacated.

Citation number 3, items 1, 2 and 3 fail to reflect employee exposure and the citations and all proposed penalties therefor should be vacated.

Citation number 3, item 4 (throwing of bolts) reflect employee exposure but the facts do not establish a violation of the standard. Two employees were not using containers to carry or store bolts (Tr. 20). However, the standard requires that ‘containers shall be provided . . ..’ Failure to use does not establish that the containers were not provided. Further it must be noted that other iron apparently had been provided with containers (Tr. 20). Citation number 3, item 4 and the proposed penalty of ‘none’ should be vacated.

The testimony of the compliance officer that Derr construction employees were involved or were exposed to all of the hazards (Tr. 27) is a bare legal conclusion of no supporting evidentiary value; further the testimony to the effect that respondent’s superintendent stated Derr employees were ‘in that area’ (Tr. 28) is of no probative value to establish exposure.

One of the contentions of respondent is that the responsibility for safety regulations falls on the general contractor as he is the representative of the owner. The Congressional mandate does not recognize a delegation of responsibility from a sub-contractor to a general contractor or to any other person. Irrespective of a contractual relationship between contractor and sub-contractor the law is clear that an employer is responsible for the safety of his own employees if those employees are exposed to the particular hazard that falls within the purview of the standard violated. Secretary v. Hoffman Electric Company, OSAHRC Docket Number 2039 (May 1974).

Respondent’s contention that it is the owner’s responsibility to cover floor openings (in accordance with AISC code; Tr. 49) cannot be sustained. As noted above the obligation of an employer to protect his own employees cannot be delegated or avoided by industry standards.

As to the appropriateness of the penalty: it is the obligation of the Review Commission to consider the appropriateness of the penalty and to make an independent analysis apart from the recommendations of the Secretary.

Section 17(j) of the Act (29 USC 661(i)) provides as follows:

‘The Commission shall have full 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.’

As noted by the Review Commission in previous cases the statutory factors are not necessarily to be accorded equal weight in a given case nor does the Commission give a particular factor the same weight under different factual situations. Secretary v. Nacirema Operating Company, 1 OSAHRC 33; Secretary v. Broadview Construction Company, OSAHRC DOCKET NO. 124, Rev. Comn., 1973. Following the Review Commission criteria the most singularly important element is the gravity of the violation and in connection therewith the following elements, among other must be considered: the number of employees exposed to the risk of injury; the duration of the exposure; the precautions taken against injury, if any; and the degree of the probability of an occurrence of an injury. In connection with the alleged serious violation number 1 the employee was shown to be at the top edge of the steel girder (Tr. 11). The duration of the exposure was not indicated. No precautions were taken by this employee against the risk of injury, however, safety belts were available (Tr. 32). The degree of probability of an occurrence of an injury is not indicated in the record although if an accident occurred the employee described in serious citation number 1 would be subject to a 13 story fall to the outside or a 20 foot fall to the inside of the building (Tr. 14). Such a fall would involve death or serious physical injury. Considering all the statutory criteria a penalty in the amount of $300 is warranted for citation number 1. All other citations and proposed penalties are to be vacated for the reasons heretofore stated.

FINDINGS OF FACT

1. Respondent is a Texas corporation doing business in all states west of the Mississippi River with the exception of California and Arizona (Tr. 7, 48–49).

2. Respondent is a contractor in the steel erection business having approximately 35 employees (Tr. 7, 48).

3. The facts as to the alleged violation set forth in citation 1, item 1 are set forth in the uncontroverted statement of evidence which is adopted by reference herein (Summary).

4. The record as to the alleged violation of citation 2, item 1 and citation 3, items 1, 2 and 3 fails to establish employee exposure. (Totality of record)

5. The facts relied on to establish a violation of citation 3, item 4 fail to present a case within the purview of the standard. (Summary)

CONCLUSIONS OF LAW

1. Respondent is and was at all times relevant to the issues herein, engaged in a business affecting commerce within the meaning of 29 USC 652 (Facts 1).

2. Respondent is and was at all times herein mentioned, an employer within the meaning of 29 USC 652(5) and subject to the provisions of the standards promulgated under 29 USC 655 (Facts 1, 2).

3. Respondent violated 29 CFR 1926.28(a) and citation 1, item 1 should be affirmed. (Facts 3)

4. The proposed civil penalty of $550 for the violation established in the preceding paragraph should be vacated and a penalty of $300 is assessed in lieu thereof.

5. Respondent did not violate 29 CFR 1926.752(j) and citation 2, item 1 should be vacated. (Facts 4)

6. The proposed civil penalty of $550 for the violation alleged in the preceding paragraph should be vacated.

7. Respondent did not violate 29 CFR 1926.450(a)(9); 29 CFR 1926.500(d)(1); or 29 CFR 1926.550(a)(6) and citation 3, items 1, 2 and 3 should be vacated; further the proposed civil penalties respectively of ‘none’, $35, and ‘none’ should be vacated. (Facts 4)

8. Respondent did not violate 29 CFR 1926.752(a)(1) and citation number 1, item 4 should be vacated; further the proposed civil penalty of ‘none’ should be vacated. (Facts 5)

ORDER

Based on the foregoing findings of fact and conclusions of law it is hereby ADJUDGED AND ORDERED:

1. Citation 1, item 1 for the alleged violation of 29 CFR 1926.28(a) is affirmed.

2. The proposed civil penalty of $550 for the violation established in the preceding paragraph is vacated and a civil penalty of $300 is established in lieu thereof.

3. Citation 2, item 1 for the alleged violation of 29 CFR 1926.752(j) is vacated.

4. The proposed civil penalty of $550 for the violation alleged in the preceding paragraph is vacated.

Items

Standards Allegedly Violated

Proposed Penalty

29 CFR 1926.450(a)(9)

None

29 CFR 1926.500(d)(1)

$35

29 CFR 1926.550(a)(6)

None

29 CFR 1926.752(a)(1)

None

Are vacated.

So ORDERED in the City and County of Denver, Colorado.

John J. Morris

Judge, OSAHRC

November 13, 1974

[1] No question has been raised regarding the Judge’s vacation of the citation alleging noncompliance with 29 C.F.R. § 1926.752(a)(1). We affirm for the reasons given by the Judge.

[3] 29 C.F.R. § 1910.12, 36 Fed. Reg. 10469 (1971). The standard, originally designated as 29 C.F.R. § 1518.28(a), was redesignated as 29 C.F.R. § 1926.28(a) on December 30, 1971. 36 Fed. Reg. 25232 (1971).

[5] The pleadings were amended at the hearing to conform to the evidence under Rule 15(b) of the Federal Rules of Civil Procedure.

[6] The Occupational Safety and Health Act of 1970, 84 Stat. 1590, 29 U.S.C. § 651 et seq.

[7] I would also vacate this charge because the record fails to prove, by a preponderance of the evidence, actual exposure of respondent’s employees to the allegedly hazardous conditions.

[8] E.g., General Motors Corp., 76 OSAHRC 149/C9, 4 OSHC 1946, 1976 77 OSHD para. 21,420 (1976); John R. Davies & Son, 76 OSAHRC 48/C13, 4 OSHC 1173, 1975 76 OSHD para. 20,634 (1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 OSHC 2032, 1975 76 OSHD para. 20,428 (1976).

[9] The majority rejects this testimony as an unsupported legal conclusion having no probative value. I disagree with this assessment of opinion testimony on a matter not requiring expert knowledge. Exposure is a term connoting factual as well as legal meaning when drawn from the observations of a witness. See generally McCormick, Evidence § 11 and § 12 (2d ed. Cleary, et al. 1972). This testimony was given in the context of responding to a question of fact, not law. Testimony of such a nature is admissible under Fed. R. Ev. 701 and 704. See also the ‘collective facts’ rule.

[10] As the Chairman stated, Commissioner Moran’s reliance on the Seventh Circuit’s Anning-Johnson Co., supra, is improper. The quoted testimony clearly indicates that respondent did not take all realistic alternative means to protect its employees as required by our Anning-Johnson Co., supra, decision. It could have and should have informed the general contractor of its intended use of the shaft prior to use.

[11] As this discussion indicates, both the Judge and the Chairman failed to distinguish between two distinct periods of time: the time during which the generator was being lifted through the shaft and the time of the inspection. Only after making this distinction can an accurate analysis be made.

[12] Commission Rule 91a provides as follows:

§ 2200.91a Review by the Commission.

(b) Petitions for discretionary review shall be filed only upon one or more of the following grounds:

(1) A finding of material fact is not supported by a preponderance of the evidence.