FIRST COLONY CORPORATION
OSHRC Docket No. 15607
Occupational Safety and Health Review Commission
April 18, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Marshall H. Harris, Regional Solicitor, USDOL
Paul T. Theisen, for the employer
OPINION:
DECISION
This case is before the Commission pursuant to a sua sponte order for review. 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. [*2] 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.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
The Judge properly concluded that the cited standard, 29 C.F.R. § 1926.500(d)(1), does not apply to flat roofs. Secretary v. Central City Roofing Co., OSAHRC Docket No. 8173, June 4, 1976. He erred, however, in allowing complainant to amend the charge to allege noncompliance with 29 C.F.R. § § 1926.28(a) and 1926.105(a) and in affirming the citation as so amended. Because of the unique nature of citations under the Act, such amendments, made after the filing of a notice of contest, are inherently prejudicial and, therefore, should be prohibited except in the most extraordinary of circumstances. Secretary v. Warnel Corporation, OSAHRC Docket No. 4537, March 31, 1976 (dissenting opinion). Vacation of the citation is therefore required.
Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976 I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance [*3] of decisions rendered by Review Commission Judges. Since my colleagues do not address any of the matters covered in Judge Brennan's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.
APPENDIX A
DECISION AND ORDER
Marshall H. Harris, Regional Solicitor
David E. Street, U.S. Department of Labor, for the Secretary of Labor
Paul T. Theisen, for the respondent
Brennan, W.E.; A.L.J.
This action arises under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 659(c) (hereinafter the Act), to review a Citation and proposed penalty issued pursuant to Sections 9(a) and 10(a) of the Act, 29 U.S.C. 658(a) and 659(a) by the Secretary of Labor through the Area Director of the Occupational Safety and Health Administration for Charleston, West Virginia (hereinafter Complainant), to First Colony Corporation (hereinafter Respondent), following an inspection of a construction site located at the Diamond Shamrock Chemical Plant, Kingwood, West Virginia (hereinafter worksite).
On October 21, 1975, Mr. Tharon Jack, a duly authorized Compliance Safety and Health Officer of Complainant's Charleston, West Virginia [*4] office, conducted an inspection of Respondent's worksite.
As a result of this inspection, Respondent was issued a one-Itemed Citation for Nonserious Violation, and a one-Itemed Citation for Serious Violation of 29 U.S.C. 654(a)(2) on October 23, 1975, together with a Notification proposing a total of $635 in penalties for the alleged violations (R. pp. 1, 2).
Through a letter dated November 3, 1975, from its Safety Coordinator, Respondent noted its contest to the Citations and proposed penalties (R. p. 3).
A Complaint was filed on November 24, 1975 which, among other things, reiterated the allegations set forth in the Citations (R. p. 6). On December 11, 1975, before any responsive pleading to this Complaint was filed, the Complaint was amended to allege in the Citation for Serious Violations, a violation of 29 C.F.R. 1926.28(a) in the alternative, as well as an alternative allegation that no safety nets were provided for employees working on top of silos approximately 75 feet above ground (Tr. 7).
Through a letter from its Safety Coordinator dated December 11, 1975, Respondent withdrew its contest to the Citation for Nonserious Violation and paid the $35 penalty proposed thereon [*5] (R. p. 8).
On December 24, 1975, Respondent filed its Answer to the amended Complaint through its counsel (R. p. 10).
Pursuant to written notices (R. p. J-1, J-3), this case was tried in Fairmont, West Virginia no March 8, 1976, both parties appearing through counsel. No affected employees or representatives thereof desired party status (Tr. 3).
Post-trial briefs were filed by both parties (R. p. J-10, J-11). Having considered the entire record herein, the testimony and demeanor of the witnesses, the exhibits, stipulations, representations, admissions and arguments of the parties, it is concluded that the substantial, reliable and probative evidence of this record considered as a whole supports the following findings of fact and conclusions of law.
The following matters were stipulated to by the parties.
The Respondent herein is an Ohio corporation, with its principal office located at Marietta, Ohio. When inspected on October 21, 1975, it was engaged in the construction business at the worksite here involved. It utilizes tools and materials in its business which have moved in interstate commerce. It considers itself a medium-sized contractor with total sales for 1974 of [*6] 23 million dollars. It employs about 350 employees on the average. No injuries are associated with this case. It had been inspected by Complainant on four prior occasions, one such inspection resulting in the issuance to it of one Citation for Nonserious Violations, consisting of 15 Items, and a second inspection resulting in another Citation for Nonserious Violations, consisting of 10 Items. No Citations issued as a result of two other inspections (Tr. 4-8).
Based upon these stipulated facts it is concluded that Respondent is an employer engaged in a business affecting commerce who has employees, within the meaning of Sections 3(3), 3(5) and 3(6) of the Act, 29 U.S.C. 652(3), (5) and (6), and that the Act applies to the worksite involved herein, within the meaning of Section 4(a) of the Act, 29 U.S.C. 653(a). Upon the filing of Respondent's Notice of Contest herein, the Review Commission has jurisdiction in this matter pursuant to Section 10(c) of the Act, 29 U.S.C. 659(c).
The Citation for Serious Violation, as amended, and Standards cited, provide as follows:
|
Standard |
Description of Alleged Violation |
|
29 C.F.R. 1926.500(d)(1) |
Employees were observed working on |
|
|
top of the concrete ailos which were |
|
|
75 feet above the adjacent ground |
|
|
and were not guarded by standard |
|
|
railings or alternatively (by amend- |
|
|
ment to the Complaint) |
|
|
|
|
29 C.F.R. 1926.28(a) n1 |
Employees were working on top of the |
|
|
concrete silos without the use of |
|
|
personal protective equipment such |
|
|
as safety belts, approximately 75 |
|
|
feet above the ground |
|
|
or alternatively-that employees were working on top |
|
|
of the concrete silos without being |
|
|
provided with safety nets, where the |
|
|
work place was approximately 75 feet |
|
|
above the ground. |
[*7]
Immediate abatement was ordered and a $600 penalty proposed.
29 C.F.R. 1926.500(d)(1)
(d) Guarding of open-sided floors, platforms, and runways
(1) Every opensided floor or platform 6 feet of more above adjacent floor ar ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.
C.F.R. 1926.28(a)
(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.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 This is the only Standard cited as a foundation for the amendment (R. p. 7).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*8]
There is no dispute as to the operative facts of this case. On October 21, 1975, while making an inspection at the Shamrock Chemical Plant near Kingwood, West Virginia, Compliance Officer Jack observed there of Respondent's employees working atop two of four concrete, chemical storage silos (numbers 115 and 116) being constructed at this site by Respondent. These employees were engaged in installing the concrete caps or tops to these structures which involved spreading concrete onto the previously installed steel sub-decking as hoisted to the top thereof by a crane. The steel sub-decking was solid, had no holes therein and thus there was no danger of falling through this sub-decking. He photographed these silos, which photographs were entered in this record as Exhibits C-1, C-2 and C-3. These silos were 75 feet high. Acound the top perimeter of each, permanent uprights for permanent guardrails had been installed. Employees were observed standing near the edge of the top of two of these silos, within two to three feet of the edge, particularly when buckets of concrete were being hoisted to this top level.
No guardrails of any description, i.e., permanent or temporary, were [*9] present on the day of the inspection. None of the three employees were using life belts nor secured lifelines. No nets or any other device had been installed around the sides of the silos to catch any employee who might have fallen off the top. Respondent's employees stop these silos were exclusively engaged in installing the concrete, they were not engaged that day in working upon the installation of any type of guardrails. n2 (Tr. 13-33, 37-51, 55, 56, 57.)
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 Upon reinspection on October 23, 1975, permanent guardrails had been installed around the perimeter of the tops of these silos (Tr. 49).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Compliance Officer Jack testified that Respondent's newly appointed Safety Coordinator, Mr. Shearer, advised him that the conditions observed by the Compliance officer, ". . . were basically the same conditions he observed in his own inspection earlier in the week." (Tr. 32.) When called as a witness, Mr. Shearer in no way repudiated this statement (Tr. 59-64).
This case was tried, essentially, upon the issue of whether [*10] this Respondent may be held in violation of 29 C.F.R. 1926.500(d)(1), as originally charged in the Citation for Serious Violation, in light of the holding of the U.S. Court of Appeals for the Seventh Circuit in Langer Roofing & Sheet Metal, Inc. v. Secretary of Labor, 524 F2d 1337 (C.A 7, 1975). In that case, the court held, in substance, that the cited standard does not apply to "flat roofs."
One week after the trial herein, on March 15, 1976, the U.S. Court of appeals for the Fifth Circuit handed down its decision in Diamond Roofing Company, Inc. v. OSHRC, et al., S.D. Mullins Company, Inc. v. OSHRC, et al., and Lance Roofing Company, Inc. v. OSHRC, et al., F2d , (C.A. 5, 1976), Nos. 73-3704, 73-3705 and 74-1343, March 15, 1976, which also overturned bhe Review Commission precedent that 29 C.F.R. 1926.500(d)(1) does apply to "flat roofs," following the Seventh Circuit's rationale in the Langer Roofing case, supra.
Thus, the cases relied upon by the Review Commission in subsequent decisions, i.e., the Mullins and Diamond Roofing cases, originally decided by the Commission on October 24, 1973 (4 OSAHRC 1415), have been expressly [*11] overruled. Therefore, in my view, the expressions of the Fifth and Seventh Courts of Appeal in Langer, Diamond, Mullins and Lance, supra, to the effect that the Standard set forth at 29 C.F.R. 1926.500(d)(1) does not apply to "flat roofs" is determinative of the basic issue tried in this case. Therefore, the allegation set forth in the original Citation for Serious Violation herein, that this Respondent violated 29 C.F.R. 1926.500(d)(1) in that it did not erect any type of guardrails around the perimeter of the top of the silos in question, must be vacated. Although the Compliance officer carefully, perhaps prophetically, did not call the tops of there silos a "flat roof," referring to them as "caps" (Tr. 38, 39), the evidence clearly establishes that Respondent's employees were engaged in installing the concrete flat roofs to these structures on the day of the inspection.
There remains for determination the question of whether Respondent violated the Standard set forth at 29 C.F.R. 1926.28(a), added by way of amendment of the Citation herein. n3
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 Although the amendment (R. p. 7) did not mention the Standard set forth at 29 C.F.R. 1926.105(a) by number, the wording of this amendment can fairly be taken to refer thereto. It read, "Item No. 1 of Citation No. 2 is further amended to plead in the alternative that employees were working on top of the concrete silos without being provided with safety nets, where the work place was approximately 75 feet above the ground." The Complainant's pretrial submission did make reference, inter alia, to the 1926.105(a) Standard, and both parties in their post-trial briefs submit arguments as to this Standard. Thus, it is concluded that Respondent was neither surprised nor prejudiced by adding the 1926.105(a) allegation to the Citation herein.
[*12]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Commission precedent, as well as the opinion of the Fifth Circuit Court of Appeals, appears to be that the Standard set forth at 29 C.F.R. 1926.28(a) is not fatally vague, and that it requires the use of life belts and lifelines for employees working 25 feet or more above ground in a hazardous situation. Secretary of Labor v. Hoffman Construction Company, 15 OSAHRC 327 (January 31, 1975); Secretary of Labor v. Carpenter Rigging and Contracting Corp., 15 OSAHRC 400 (February 4, 1975); Secretary of Labor v. Eichleay Corp., 15 OSAHRC 635 (February 20, 1975); Secretary of Labor v. Underhill Construction Company, Etc., 15 OSAHRC 695 (February 21, 1975); Secretary of Labor v. Warnel Corp., OSAHRC , Docket No. 4537 (March 31, 1976); Secretary of Labor v. Southern Contractors Service & OSHRC, 492 F2d 498 (C.A. 5, 1974).
The evidence in this case is unrebutted that three employees of Respondent were observed on the day of the inspection, working atop two of the concrete ailos under construction, 75 feet above the ground. One of these employees, Mr. Watson, [*13] came down from the top of the silos, participated in the opening conference as the President of one of the local unions, and at its conclusion returned to his duties atop the silo. Respondent's job superintendent also participated in this opening conference, during which the Compliance Officer pointed out his observations concerning the men working atop the silos. No life belts or lifelines were used by these employees, nor were any other means utilized to protect these employees from the hazards of a 75-foot fall to the ground. The testimony of the Compliance Officer that he observed Respondent's employees standing within two or three feet of the edge of the top of these silos, ". . . particularly when they were bringing the concrete bucket on" is unrebutted (Tr. 50, 51). This observation was confirmed by one of the employees involved (Tr. 55).
Upon the facts of record, it would appear that a lifeline, to which life belts could have been attached, could have been easily installed on the permanent guardrail stanchions which were already in place on the day of inspection. Further, there is no question that a fall of 75 feet to ground level most probably would result in death [*14] or serious physical harm and that Respondent, through its job superintendent, knew or should have known of the presence of this hazardous situation.
It is therefore concluded that Respondent was in serious violation of Section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2) for failure to comply with the Standards set forth at 29 C.F.R. 1926.28(a) and 1926.105(a), as charged in the amended Citation herein.
With an average of 350 daily employees and total sales for 1974 of 23 million dollars, Respondent must be considered a medium-sized employer. The gravity of the violation, because of the height of the specific work place and total absence of any fall protection, is considered high. However, only three of Respondent's employees were exposed to this hazardous condition. Little or no evidence was introduced by which an accurate assessment of Respondent's good faith can be made. Respondent did have a history of prior violations of the Act, detailed supra.
After an independent consideration of the factors mandated by Section 17(j) of the Act, 29 U.S.C. 666(i), it is concluded that the proposed penalty of $600, based upon the Serious Violation herein found to have existed, is appropriate. [*15]
Based upon the foregoing findings and conclusions and pursuant to the provisions of Sections 10(c) and 12(j) of the Act, 29 U.S.C. 549(c) and 661(i), it is hereby,
ORDERED:
1. That the Citation for Serious Violation of Section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2) for failure to comply with the Occupational Safety and Health Standards set forth at 29 C.F.R. 1926.28(a) and 1926.105(a), and the proposed penalty based thereon are AFFIRMED.
2. A civil penalty in the total amount of $600 is ASSESSED.
WILLIAM E. BRENNAN, Judge, OSAHRC
Dated: May 18, 1976
Hyattsville, Maryland