UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-4371
GALLO MECHANICAL CONTRACTORS, INC.,
Respondent.

December 16, 1980

DECISION

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

BY THE COMMISSION:

This is a case arising under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). The Secretary of Labor (‘the Secretary’) issued to Gallo Mechanical Contractors, Inc. (‘Gallo’) a citation charging that Gallo violated section 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2), by failing to keep debris cleared from two areas of a construction worksite at which Gallo employees were working. The citation alleged that Gallo failed to comply with the construction standard pertaining to housekeeping at 29 C.F.R. § 1926.25(a).[1] The Secretary characterized the violation as other than serious. Administrative Law Judge J. Paul Brenton affirmed the citation but determined that the violation was de minimis. The Secretary filed a petition for review of this determination. Pursuant to section 12(j) of the Act, 29 U.S.C. § 661(i), Chairman Cleary directed review on the issue of ‘[w]hether the administrative law judge erred in concluding that Respondent’s failure to comply with the standard at 29 C.F.R. § 1926.25(a) is a de minimis violation.’

I

On September 9, 1976, a compliance officer of the United States Department of Labor’s Occupational Safety and Health Administration inspected the Michoud Assembly Facility in New Orleans, Louisiana. There, a building used for the vertical assembly of spacecraft was being modified for use in the space shuttle program. Gallo was the subcontractor installing plumbing, heating, air conditioning, and industrial pipe.

At two locations in the vertical assembly building—on the first elevation (southeast side) and on the 76-foot elevation (northeast side)—the compliance officer observed Gallo employees walking through work areas from which certain matter had not been cleared. On the first elevation, the compliance officer saw ‘dunnage, . . . pieces of wood used for chocking, putting material off the floor, excess material to be used, and material being removed from the location’ and ‘a combination of material and equipment to be removed, material and equipment to be installed, some pieces of structural steel, small pieces of channel, a few pieces of . . . dunnage; one by fours, two by fours. . . .’ An employee, Mr. Volpe, who worked at this location testified that there was ‘trash’ consisting of pieces of steel, two by fours, and pipe. According to Mr. Volpe, those pieces of eight-inch diameter pipe measuring twenty feet long would still he used, but not the shorter pieces, which would be discarded. The compliance officer saw employees ‘weaving their way’ through the debris. Mr. Volpe confirmed that he had to step over the debris, often sitting on pieces of it to perform his work.

On the 76-foot elevation, the compliance officer saw ‘a number of pieces of equipment, either to be installed or to be removed.’ The equipment, which was electrical equipment, was near a stairway on the northeast side. The compliance officer testified that the Gallo employee who was working in this area would have to walk over or around this equipment to get from the stairs to his work location.

The compliance officer described the hazards arising from the conditions at both the first elevation and the 76-foot elevation as ‘tripping, falling on the same elevation, busting your shins, twisting your ankles . . ..’

In his decision, Judge Brenton determined that most of the matter scattered at the two locations was not ‘debris’ within the meaning of section 1926.25(a). The judge concluded that debris is ‘the remains of anything broken down or destroyed thereby constituting ruins, fragments, or rubbish.’ He found that only the pieces of steel characterized by the employee, Mr. Volpe, as trash and a small amount of other discarded material constituted debris. Because the testimony did not show ‘the nature and concentration of these items,’ the judge found that the hazards mentioned by the compliance officer—tripping, falling, twisting ankles, ‘busting’ shins—could only arise from contact with the materials and equipment which were not debris. Accordingly, the judge found that Gallo’s failure to comply with section 1926.25(a) did not have any significant relationship to employee safety. Therefore, although he affirmed the citation, the judge characterized the violation as de minimis.[2]

On review, Gallo argues that the judge correctly decided the case. The Secretary argues that the judge too narrowly limited ‘debris’ as used in section 1926.25(a) to matter which will not or cannot be used again. The Secretary also argues that the matter which the judge characterized as debris presented a substantial hazard to Gallo’s employees and that the judge therefore erred in finding the violation de minimis.

II

Section 1926.25(a) requires that ‘form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas . . .’ (emphasis added). There can be no real question that form and scrap lumber with protruding nails can be used again—as form lumber and scrap lumber for chocking equipment or materials, and so forth. ‘[A]ll other debris’ is linked in the standard to form and scrap lumber. This linkage certainly suggests that ‘debris’ is not limited to ruined or fragmented matter, that is, matter not destined for future use, any more than ‘form and scrap lumber with protruding nails’ is so limited. Accordingly we reject the judge’s definition of debris.

Section 1926.25(a) is concerned with housekeeping on construction worksites. It directs employers to keep lumber and debris cleared ‘from work areas, passageways, and stairs, in and around buildings and other structures.’ Hazards of tripping and falling, possibly resulting in sprains, fractures, and even concussions, can occur if matter is scattered about working and walking areas. See Beall Construction Co., 74 OSAHRC 7/C13, 1 BNA OSHC 1559, 1973–74 CCH OSHD ¶17,339 (No. 557, 1974), aff’d, 507 F.2d 1041 (8th Cir. 1974). Accordingly, ‘debris’ within the meaning of section 1926.25(a) includes material that is scattered about working or walking areas. Whether the material has been used in the past or can or will be used in the future is irrelevant.

We conclude, however, that equipment cannot be considered ‘debris’ within section 1926.25(a).[3] The linkage of ‘all other debris’ with ‘form and scrap lumber with protruding nails’ suggests that only material is covered by the standard. Moreover, the nature of construction work would generally preclude keeping work areas and passageways entirely clear of equipment. Accordingly, although the materials consisting of wood, steel pieces, pipes, and other objects on the first elevation constitute debris within section 1926.25(a), the equipment to be installed or removed on both elevations involved in this case is not debris. See Bethlehem Steel Corp., 79 OSAHRC 5/D12, 7 BNA OSHC 1053, 1979 CCH OSHD ¶23,287 (No. 13799, 1979); Marinas of the Future, Inc., 77 OSAHRC 201/B1, 6 BNA OSHC 1120, 1977–78 CCH OSHD ¶22,406 (No. 13507, 1979). The portion of the citation alleging noncompliance with the standard on the first elevation was therefore properly affirmed by the judge, but the portion pertaining to the 76-foot elevation where only electrical equipment was observed in the working area by the compliance officer must be vacated.

III

The number and scattered placement of the materials reveal that there was a possibility of tripping or falling. The resultant injury could be as severe as ‘busting your shins [or] twisting your ankles,’ in the compliance officer’s words, because some of the debris consisted of structural steel and pipes. See also Beall Construction Co., supra. Therefore, the relationship of this violation to employee safety was not negligible. Accordingly, the violation on the first elevation was other than serious rather than de minimis. See Pratt and Whitney Aircraft, Division of United Technologies Corp., 80 OSAHRC ___, 8 BNA OSHC 1329, 1339, 1344, 1980 CCH OSHD ¶24,447 24,447 at pp. 29,829, 29,833 (No. 13591, 1980), pet. for review filed, No. 80–4102 (2d Cir. June 24, 1980); see generally Southwestern Electric Power Co., 80 OSAHRC ___, 8 BNA OSHC 1974, 1980 CCH OSHD ¶24,732 (Nos. 77–3890 and 77–3391, 1980); Fabricraft, Inc., 79 OSAHRC 49/A2, 7 BNA OSHC 1540, 1979 CCH OSHD ¶23, 691 (No. 76–1410, 1979); Continental Oil Co., 79 OSAHRC 42/C3, 7 BNA OSHC 1432, 1979 CCH OSHD ¶23,626 (No. 13750, 1979).

Taking into consideration Gallo’s medium size, good faith, and lack of a prior history of violation, as well as the low gravity of the violation, we assess no penalty.

Accordingly we modify the judge’s decision. We affirm as an other than serious violation that portion of the citation alleging noncompliance with 29 C.F.R. § 1926.25(a) on the first elevation. No penalty is assessed. We vacate that portion of the citation alleging a violation on the 76-foot elevation. SO ORDERED.

BY THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: DEC 16, 1980

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-4371
GALLO MECHANICAL CONTRACTORS, INC.,
Respondent.

June 16, 1977

DECISION AND ORDER

APPEARANCES

Robert E. Luxen, Esquire, Office of the Solicitor, U. S. Department of Labor, Dallas, Texas, on behalf of complainant

Morton H. Katz, Esquire, New Orleans, Louisiana, on behalf of respondent

Brenton, Judge

A subcontractor who neither creates nor controls an existing hazardous condition, to which his employees are exposed, cannot avoid a citation unless he affirmatively shows that his employees were protected by means of realistic measures, taken as an alternative to literal compliance or that he did not have nor with the exercise of reasonable diligence could have had notice that the condition was hazardous. Secretary v. Grossman Steel and Aluminum Corp., 76 OSAHRC 54/D9, BNA 4 OSHC 1185, CCH OSHD ¶20,691 (1976); Secretary v. Anning-Johnson Co., 76 OSAHRC 54/A2, BNA 4 OSHC 1193, CCH OSHD ¶20,690 (1976); and Secretary v. Paramount Plumbing & Heating Co., Inc., OSHRC DOCKET NO. 12652 (RC May 11, 1977).

STATEMENT OF THE CASE

On September 9, 1976, respondent, a sub-contractor while engaged in the installation of plumbing, heating, air conditioning, and industrial pipe within Michoud [Vertical] Assembly Facility in New Orleans, Louisiana, was inspected by complainant.

This activity resulted in the issuance by complainant to respondent on September 17, 1976, of a non-serious and a serious citation alleging violations of § 5(a)(2) of the Occupational Safety and Health Act of 1970 (‘Act’), together with proposed penalties for the violations totaling $785.00.

Respondent filed a notice of contest and after a complaint and an answer were filed by the parties the case came on for hearing in New Orleans, Louisiana, on March 15, 1977.

The complaint alleged that respondent was engaged in a business affecting commerce which remains undenied on the record.

Upon the commencement of the hearing complainant withdrew his $35.00 proposed penalty for non-serious citation 2. Also, complainant moved to amend citation 1 so as to allege a violation of 29 C.F.R. 1926.500(e)(1)(iii) instead of 29 C.F.R. 1926.500(e)(1)(iv). This motion was granted over the objection of respondent because the nature and extent of the charge was not changed. The alleged exposure remained the same under either standard. Respondent was not prejudiced because his defenses were not altered by the shift in the standard allegedly violated.

THE CHARGES

Citations 1 and 2 describe

Item 2–29 CFR 1926.500(e)(1)(iv)

CITATION 1—SERIOUS

Item 1—29 CFR 1926.500(e)(1)(iv)

Stairways more than 44 inches wide but less than 88 inches wide having four or more risers were not provided with one standard stair railing on each open side or one standard handrail on each closed side:

(a) Vertical Assembly Building, C 76 elevation, northeast side on 9/9/76 at 2:20 p.m.

(b) Vertical Assembly Building, one elevation above C 76 elevation, northeast side on 9/9/76 at 2:20 p.m.

(c) Vertical Assembly Building, one elevation below C 76 elevation, northeast side on 9/9/76 at 2:20 p.m.

CITATION 2—NON-SERIOUS

Item 1–29 CRF 1926.25(a)

Debris was not kept cleared from the following areas:

(a) Vertical Assembly Building, 1st elevation, southeast side on 9/9/76 to 1:10 p.m.

(b) Vertical Assembly Building, C 76 elevation, northeast side on 9/9/76 at 2:00 p.m.

THE STANDARDS

The standards allegedly violated provide as follows:

Citation 1–29 CFR 1926.500(e)(1)(iii)

(e) Stairway railings and guards. (1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified below, the width of the stair to be measured clear of all obstructions except handrails:

(iii) On stairways less than 44 inches wide having both sides open, one stair railing on each side.

Citation 2–29 CFR 1926.25(a)

(a) During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures.

NARRATION OF THE FACTS

STAIRWAY

The construction activity at the worksite was performed by a general and several sub-contractors. There was a stairway located at an elevation described as 76. This stairway was less than 44 inches in width. It contained 12 or 14 risers. The floor or landing at the bottom of the stairs was steel checker plate. One side was wide open. At the opposite side was a wall, however, the stairway was not flush against the wall, leaving an open space the width of which was in dispute. Respondent indicated about four inches and complainant up to three feet. The preponderance of the credible evidence suggests that distance did not exceed six inches.

Gurtler-Hebert, another sub-contractor on the jobsite erected the stairway and had the contractual responsibility to provide the stair railings. They had not been installed at the time of the inspection because the railings had not, up to that time, arrived on the jobsite.

Respondent through its foreman on the job, John Hudson, admitted that he and two other employees used the stairs in question to gain access to the next level above to carry a length of hose to make a connection for a test below. The combined exposure was one trip up and one trip down by each of three employees.

Stairways below the 76 level had been installed with guardrails. John Hudson considered the unguarded stairway which they used on the one occasion as a luxury in light of the fact that the only other available means of access was by a long ladder or being hoisted within the bucket of a crane for a considerable height.

The evidence is conflicting as to whether a fourth employee of respondent made use of the unguarded stairway on one occasion. There is no evidence that this stairway was within accessible limits to any other employee on the construction site.

HOUSEKEEPING

It has become exceedingly difficult to generate a positive adjudicatory attitude toward an alleged housekeeping violation, especially on a multi-employer construction site.

Invariably the pattern of the evidence is the same. A little bit of this and a lot of that is quite often the generalized statement of a witness. In most cases it is referred to as trash or debris without a meaningful description. And, more importantly, if a board or any easily removable object obstructs a workman’s path he would rather step over it or go around it than momentarily degrade, corrupt, or undignify his job status by moving the item from his path. Moreover, to this date this tribunal has not been able to focus upon any injury occurring because of the violative conditions as contemplated by 29 CFR 1926.25(a).

In this case counsel for complainant was able to cause his witnesses to specify the items which were considered violative of the standard. They were described by the compliance officer as pieces of wood used for chocking, putting [putty] material, excess material to be used, and material being removed at one location. At another location as a number of pieces of equipment either to be installed or removed. One employee described one of those locations where he was working as containing pipe, wood, and pieces of steel. The pipe was in 20 feet lengths and was there to be used. The wood was two by fours, length unknown. The nature, number, and character of the pieces of steel is also unknown.

The length of time these alleged conditions existed is not made clear on the record in this case. The evidence just shows that exposure to the latter location was to two welders for one work day. And to the other only to employees who might have an occasion to pass by as it was not a work station.

LAW AND OPINION

Respondent relies upon Anning-Johnson Co. v. OSHRC & Secretary of Labor, 516 F.2d 1081 (7th Cir. 1975). This tribunal is in complete agreement with the propositions of law laid down in that case. The Review Commission, however, has chosen to modify the primary rule in that case by requiring the subcontractor, in addition to showing that he did not create or control the hazard, to show that he lacked the expertise or ability to abate the violative conditions, or that he took reasonable steps to protect his employees from the hazardous conditions. Secretary v. Paramount Plumbing & Heating Co., supra. Moreover, this tribunal, as the initial adjudicatory arm of the Review Commission, is charged by the Commission to follow its established precedents unless stricken down by the Supreme Court of the United States.

In this case, respondent established that it neither created nor controlled the violative circumstances surrounding the stairway. Speculation would tend to indicate that respondent neither had the expertise nor the ability to abate the hazard. Nevertheless, respondent did not affirmatively offer, by its evidence, a hint that it was in no position to abate by some protective means. Moreover, there is no evidence that it took any reasonable steps to protect its employees from the hazard of the open-sided stairway, such as requesting or cajoling the sub-contractor, responsible for making the stairway safe, to install temporary equivalent protection to guard the sides of the stairway including grab rails. Further, there is no evidence that respondent was duty bound by contract or otherwise to make the test prior to the time the awaited guard rails would be installed.

Respondent also contends that its use of the stairway was de minimis, that it had no knowledge of the alleged condition, and that the alleged amended standard, 29 CFR 1926.500(e)(1)(iii), is not applicable.

None of those defenses are meritorious. John Hudson, respondent’s foreman was well aware that the stairway was open-sided with no railings. His knowledge is imputed to respondent. Admirably he chose the least way to gain access to the next higher level. Even so respondent cannot avoid the citation on that proposition because Hudson and the other two employees were in fact exposed to the hazard by ascending and descending the stairway.

Although the opening between the one side of the stairs and the wall may well have precluded a fall off that side, the opening still constituted an open side to the stairway. This factor would go to the gravity of the violation.

The preponderance of the evidence and the present rulings of the Commission in this kind of case compels a finding that respondent violated the standard as charged by the amendment of citation 1.

Respondent also maintains that its activity in using the unguarded stairway did not constitute a serious violation. Respondent has misconstrued the application of section 17(j) of the Act. Comparison with death cases as a result of an unguarded trench cited as serious and a flight of open-sided stairs cited as non-serious is commendable. But the sole issue under a given factual situation is whether there is a substantial probability that death or serious physical harm could result because of the hazard alleged

Otherwise stated, is there a possibility that death or serious physical harm could result if an employee tripped or slipped on the stairway in question and for lack of guardrails fell over the open-side, fell into the narrow opening on the other open side, or tumbled 12 or 14 risers to the steel checker plate below. The evidence is clear that it is possible that a disabling or permanent injury could result because of the existing hazard. Moreover, although not likely, it would appear that an employee could be just as dead from a fall from top to bottom as he would be if buried in a trench cave-in.

Respondent seeks to avoid the housekeeping violation on the grounds that it has shown that it neither created nor controlled any one of the situations alleged.

The housekeeping standard commands that form or scrap lumber with protruding rails be kept cleared from work areas, passageways, and stairs, together with all other debris. Thus, the fashioners of the standard have declared that form and scrap lumber with protruding rails is debris. They fail to define debris or otherwise classify items which constitute debris. Apparently debris means the remains of anything broken down or destroyed thereby constituting ruins, fragments, or rubbish.

Pipe in 20 feet lengths is clearly not debris. Also materials to be used and equipment are not debris. A piece of wood which does not contain protruding nails is not debris unless it is fragmented or clearly rubbish. It is difficult to ascertain from the dearth of the evidence what the pieces of steel represented. Inasmuch as the witness concluded they were trash they are accepted as debris. And apparently the putty material was the ruins of its use.

Thus, it would appear that the only items constituting debris under the standard alleged are putty and pieces of steel. The nature and concentration of these items is not made known on the record.

The hazard presented because of this alleged violation is tripping and perhaps a resulting fall. Here complainant extended it to busting shins apparently because of the possibility of contact with stacked materials or equipment. But that kind of material and equipment is not debris.

In this situation as with the stairway violation respondent failed to affirmatively show that it took any steps to protect its employees. Obviously if there existed debris which presented a hazard to its employees respondent had the ability to abate it.

In this tribunal’s judgment the complainant’s evidence together with all the evidence for violation of 29 CFR 1926.25(a) falls short of making a case for a finding that the debris, putty, pieces of steel, and including the wood, if any, to which respondent’s employees were exposed had a direct or immediate relationship to safety or health.

Accordingly the violation should be considered de minimis.

PENALTY CONSIDERATION

Complainant proposed that respondent be assessed a penalty of $750 for the violation of 29 CFR 1926.500(e)(1)(iii). Complainant’s evidence misses this mark. In fact he only referred to the size of respondent’s business and history by evidence that it employed 20 to 29 people and that it had no history of previous violations. Apparently respondent’s good faith was not questionable.

Complainant did not explore the gravity of the violation by argument. The record clearly indicates that the duration of exposure was very slight, involving three employees, thus the degree of probability of an injury occurring because of the violation was remote, in fact almost non-existent. Accordingly, a penalty assessed in the amount of $50 is deemed appropriate for the violation.

CONCLUSIONS OF LAW

1. The Review Commission has jurisdiction to hear and decide this case.

2. Respondent, a sub-contractor on a multi-employer construction site, is liable for exposing its employees to a hazard of which it has knowledge, which it neither created or controlled, unless it takes realistic steps to protect its employees from that hazardous condition.

3. Respondent’s violation of 29 CFR 1926.500(e)(11)(iii) was a serious violation as charged in amended citation 1.

4. Respondent’s violation of 29 CFR 1926.2 § (a) had no direct or immediate relationship to safety or health and therefore is a de minimis violation as opposed to a non-serious violation as charged by citation 2.

5. Failure of complainant to support his proposed $750 penalty for the serious violation by any compelling evidence warrants a reduction to $50.

ORDER

It is ordered that:

Citation 1 be and it hereby is, affirmed.

Citation 2 be and it hereby is, vacated.

A penalty of $50 be and it hereby is assessed for violation of 29 CFR 1926.500(e)(1)(iii).

So ordered.

J. PAUL BRENTON

Judge

Date: June 16, 1977

Atlanta, Georgia

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[1] The standard provides that ‘[d]uring the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures.’

[2] Violations of the Act that are so remotely related to employee safety and health as not to warrant imposition of an abatement requirement or the assessment of a penalty are characterized by the Commission as de minimis. See Southwestern Elec. Power Co., 80 OSAHRC ___, 8 BNA OSHC 1974, 1980 CCH OSHD ¶ 24,732 (Nos. 77–3890 and 77–3391, 1980) (lead and separate opinions) and cases cited therein.

[3] In Bechtel Power Co., 79 OSAHRC 34/A2, 7 BNA OSHC 1361, 1979 CCH OSHD ¶ 23,575 (No. 13832, 1979), the Commission adopted Administrative Law Judge Erwin L. Stuller’s conclusion that certain materials and equipment constituted ‘debris’ within the meaning of section 1926.25(a). As well as ‘scattered hoses, chains, cables, pipes, . . . combustible materials . . . and various other excess materials,’ there were at the worksite involved in that case ‘odd pieces of equipment’ consisting of an unused ladder, clothing, and a water jug. Rejecting Bechtel Power Co.’s argument that ‘debris’ consists only of broken down or destroyed items, Judge Stuller held that the term ‘includes within its meaning those cast off, unused, and temporarily abandoned items found . . . littering the work area and employee passageways [in this case].’ In finding a violation of the standard, Judge Stuller did not distinguish between the materials that were scattered about and the ‘odd pieces of equipment’ that allegedly also constituted part of the violative condition.

The primary issue decided in Bechtel Power Co.—that ‘debris’ within the meaning of section 1926.25(a) does not consist solely of broken down or destroyed items—is consistent with our interpretation of the standard in this case. However, Bechtel Power Co. can also be read as including certain types of equipment within the items which must be kept clear of work areas and passageways under the standard. To the extent that Bechtel Power Co. can be so read, we disapprove such an interpretation.