S & F Concrete Contractors

Plain-English summary

S & F Concrete Contractors was placing concrete at a multistory hospital construction project in Boston. The judge affirmed an electrical-cord violation but reclassified it as other-than-serious because the exposed color-coded conductors were not cut, frayed, or a shock hazard in the condition observed. She also affirmed a serious guardrail violation where employees worked near a shaft with rails sagging to about 31 inches and a fall distance of 12 to 14 feet. S & F did not create or control the guardrail, but it failed to inspect the area or take reasonable alternative measures to protect its employees. The final order assessed $1,850 for the guardrail item and no penalty for the cord item.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.416(e)(1) and 1926.502(b)(1)
• Outcome: The cord item was affirmed as other-than-serious with no penalty; the guardrail item was affirmed as serious with a $1,850 penalty.
• Key point: An exposing contractor cannot rely on another contractor's responsibility for a guardrail when it fails to inspect the area or otherwise protect its employees.

Full text (OSHRC public release)

                  OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                    1120 20 th Street, NW, Ninth Floor

                                        Washington, DC 20036-3457

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC DOCKET NO. 03-1816
:
S & F CONCRETE CONTRACTORS, :
:
Respondent. :

Appearances: Christine T. Eskilson, Esq. James F. Grosso, Esq.
U.S. Department of Labor O’Reilly Grosso & Gross, P.C.
Office of the Solicitor Framingham, Massachusetts
New York, New York For the Respondent.
For the Complainant.

Before: COVETTE ROONEY
Administrative Law Judge

                                DECISION AND ORDER

      This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq. (“the Act”). Respondent, S & F Concrete Contractors, Inc.(“S & F”), at all
times relevant to this case maintained a work site at 32 Fruit Street in Boston, Massachusetts. The
parties have agreed that S & F is an employer engaged in a business affecting commerce within the
meaning of section 3(5) of the Act and that it is subject to the requirements of the Act. Accordingly,
the Commission has jurisdiction over this proceeding.
On April 28, 2002, Compliance Officer (“CO”) James Mulligan of the Occupational Safety
and Health Administration (“OSHA”) conducted a programmed planned inspection of S & F’s work
site. As a result, S & F was issued one citation alleging two serious violations of the Act. The total
proposed penalty for the citation was $2,750.00. By filing a timely notice of contest, S & F brought
this proceeding before the Commission. This matter was designated for E-Z Trial pursuant to
Commission Rule 203, and, on February 24, 2004, a hearing was held in Boston, Massachusetts.
Counsel for the parties have briefed the issues, and this matter is ready for disposition.
Background
The subject job site involved the construction of a clinical outpatient building for
Massachusetts General Hospital; the building was an eight-to-twelve-story steel and concrete
structure with five or six parking levels beneath it. S & F was the concrete contractor on site and was
responsible for placing the concrete on the steel decks as the building went up and on the parking
levels as they were dug down. Upon his arrival at the site, CO Mulligan introduced himself to the
general contractor, Walsh Brothers Construction, and he then conducted an opening conference with
all of the contractors on site. S & F’s site superintendent, Joe Pacheco, attended the opening
conference and accompanied CO Mulligan during the walk-around. At the time of the inspection,
S & F had 30 to 40 employees on the site; the employees were working on a column in the parking
garage, and they were also pouring concrete on the seventh floor. (Tr. 10, 13-17).
Burden of Proof
To establish a violation of a standard, the Secretary must show (a) the applicability of the
cited standard, (b) the employer’s noncompliance with the standard’s terms, (c) employee access to
the violative conditions, and (d) the employer’s actual or constructive knowledge of the violation
(i.e., the employer either knew, or with the exercise of reasonable diligence could have known, of
the violative conditions).1 Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
Citation 1 Item 1 - 29 C.F.R. § 1926.416(e)(1)

   1
     “Reasonable diligence” includes more than the actual knowledge possessed by the

employer; it also encompasses “the obligation to inspect the work area, to anticipate hazards to
which employees may be exposed, and to take measures to prevent the occurrence.” Frank
Swidzinski Co., 9 BNA OSHC 1230, 1233 (No. 76-4627, 1981). An employer has a duty to
inspect its work area for hazards, and an employer who lacks actual knowledge can nevertheless
be charged with constructive knowledge of conditions that could be detected through inspection
or examination of the work site. Texas A.C.A., Inc., 17 BNA OSHC 1048, 1050 (No. 93-3467,
1995). An employer “must make a reasonable effort to anticipate the particular hazards to which
its employees may be exposed in the course of their scheduled work.” Automatic Sprinkler Corp.
of America, 8 BNA OSHC 1384, 1387 (No. 76-5089, 1980). See also Pace Constr. Corp., 14
BNA OSHC 2216, 2221 (No. 86-758, 1991).

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This item alleges a violation of 29 C.F.R. 1926.416(e)(1), which provides as follows:
Worn or frayed electric cords or cables shall not be used.
In her citation, the Secretary alleges that on the ramp to the P-4 parking garage, an extension
cord being used to power a reciprocating saw was damaged.
CO Mulligan testified that during his walk-around in the parking garage he observed S & F
employee Luis Cabral working with a power tool, a Saws-All, in connection with his work on a
column. The Saws-All was plugged into an extension cord which he had picked up from the gang
box that morning. The CO observed that the strain relief for the cord had pulled away from the cord
cap, which exposed the color-coded conductors. He was concerned that the conductors could become
loose and potentially expose the employee to a shock hazard during use. At the hearing, the CO
acknowledged that the conductors were not cut, frayed or exposed; thus, no shock hazard was present
if someone had touched one of these wires. ( Tr. 17-21, 38-41, 60; Exh. C-1 and C-2).
S & F does not dispute the applicability of the cited standard or the fact that one of its
employees was observed using the cited extension cord; rather, S & F contends that it had no
knowledge of the hazard. S & F presented testimony that employees had been instructed to inspect
their equipment prior to use and to remove damaged electrical cords from service. S & F also
contends that the extension cord could have been in perfectly good condition at the beginning of the
day and become damaged while in use. (Tr. 68-69, 83-85). I find that the damaged extension cord
was in use and in plain view of the CO during the inspection. Where a cited condition is “readily
apparent to anyone who looked,” employers have been found to have constructive knowledge. A.L.
Baumgartner Constr., Inc., 16 BNA OSHC 1995, 1998 (No. 92-1022, 1994), citing Hamilton
Fixture, 16 BNA OSHC 1073, 1091 (No. 88-1720, 1993), aff'd on other grounds, 28 F.3d 1213 (6th
Cir.1994). Furthermore, with respect to S & F’s work rule for inspecting cords before use, the record
lacks evidence that the rule was adequately communicated to employees, that S & F took steps to
discover violations of the rule, and that S & F effectively enforced the rule. See Hackney, Inc.,16
OSHC BNA 1806,1810 (No. 91-2490, 1994). The Secretary has shown noncompliance with the
standard’s terms, and she has also shown employee exposure and employer knowledge. This citation
item is therefore affirmed.

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In view of the fact that the damaged extension cord presented no shock hazard in the
condition in which the CO found it, I find that the record demonstrates that the cited condition was
other-than-serious; that is, there was a direct and immediate relationship between the violative
condition and occupational safety and health, but not a relationship such that a resultant injury or
illness was death or serious physical harm. This item is accordingly affirmed as an other-than-serious
violation, and no penalty is assessed.
Citation 1 Item 2 - 29 C.F.R. § 1926.502(b)(1)
This item alleges a violation of 29 C.F.R. 1926.502(b)(1), which provides as follows:
Top edge height of top rails, or equivalent guardrail system members, shall be 42
inches (1.1 m) plus or minus 3 inches (8 cm) above the walking/working level. When
conditions warrant, the height of the top edge may exceed the 45-inch height,
provided the guardrail system meets all other criteria of this paragraph.
In her citation, the Secretary alleges that on the seventh floor, shaft C, the guardrails at the
shaft were 31 inches high.
CO Mulligan testified that on the day of his inspection, S & F was placing concrete on the
steel decking of the seventh floor. Upon arriving at that floor, the CO observed that compressor
hoses, along with a piece of pipe used to blow debris off the deck, had been placed next to a shaft
where the guardrails were sagging and were approximately 31 inches high. During the course of his
inspection, laborers informed him that in preparation for the pouring of concrete that morning, the
foreman had instructed them to go to the seventh floor and blow off debris to make sure the deck was
clean for the concrete placement. They were further instructed to wrap up everything afterwards, and
the employees told the CO that they had placed the hoses in the cited area. The CO also observed
plywood next to the shaft, which laborers and carpenters had loaded onto the seventh floor that
morning. He spoke to the carpenter foreman, Joe Londre, who told him that he had not gone up onto
the floor that morning prior to assigning employees to work there. The fall hazard was 12 to 14 feet.
CO Mulligan acknowledged that S & F did not install the guardrail and that he did not cite any other
contractor for this violation. (Tr. 22-29, 48-50; Exh. C-3, C-4, and C-5).
S & H does not dispute the applicability of the cited standard; instead, S & H argues that
because the CO never actually saw S & F employees working in the cited area, he could not have
known how far from the shaft employees were when they placed the materials in that area. S & F

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also relies upon the multi-employer work site defense and contends that in light of the fact that it did
not install the guardrails and was not responsible for maintaining them, it should not be found in
violation of the cited standard.2 I find that the unrebutted statements by the laborers to the CO in
regard to their duties that morning, together with the photographic evidence entered into evidence,
prove that S & F employees were exposed to the inadequate guardrails during the course of their
assigned duties.3 It is clear that S & F did not create the cited condition, however, the record is also
clear that S & F did not take any steps to protect its employees from the cited condition. (Tr. 45-47,
53). I find that the record establishes that the violative condition was in plain view, and had the
employer exercised reasonable diligence, i.e., had it inspected the area prior to the assignment of
work that morning, the violative condition would have been discovered. The Secretary has
established noncompliance with the standard’s terms, and she has also established employee
exposure and employer knowledge. This citation item is therefore affirmed.
Section 17(k) of the Act, 29 U.S.C. § 666(k), provides that a violation is “serious” if there
is “a substantial probability that death or serious physical harm could result” from the violation. To
demonstrate that a violation was serious, the Secretary need not establish that an accident was likely
to occur, but, rather, that an accident was possible and that it was probable that death or serious
physical harm could have occurred. Flintco, Inc., 16 BNA OSHC 1404, 1405 (No. 92-1396, 1993).
In the particular circumstances of this case, I find that the violation was serious. The Secretary
appropriately classified the violation in this case as serious because the violative condition was one
that could have resulted in death or serious physical harm.

   2
      To establish this defense, an employer must prove that (1) it did not create the violative

condition to which its employees were exposed, (2) it did not control the violative condition, so
that it could not itself have performed the action necessary to abate the condition as required by
the standard, and (3) it took all reasonable alternative measures to protect its employees from the
violative condition. Capform, Inc., 16 BNA OSHC 2040, 2041 (No. 91-1613, 1994).
3
The Secretary may prove employee exposure to a hazard by showing that during the
course of their assigned duties, their personal comfort activities on the job, or their normal
ingress-egress to and from their assigned workplaces, employees have been in a zone of danger
or it is reasonably predictable that they will be a zone of danger. RGM Constr. Co., 17 BNA
OSHC 1229, 1234 (No. 91-2107, 1995); Kaspar Electroplating Corp., 16 BNA OSHC 1517,
1521 (No. 90-2866, 1993); Armour Food Co., 14 BNA OSHC 1817, 1824 (No. 86-247, 1990).

                                               5

The Commission, as the final arbiter of penalties, must give due consideration to the gravity
of the violation and to the employer’s size, history and good faith. J.A. Jones Constr. Co., 15 BNA
OSHC 2201, 2213-14 (No. 87-2059, 1993). These factors are not necessarily accorded equal weight,
and gravity is generally the most important factor. Trinity Indus., Inc., 15 BNA OSHC 1481, 1483
(No. 88-2691, 1992). The gravity of a violation depends upon such matters as the number of
employees exposed, duration of exposure, precautions taken against injury, and the likelihood that
an injury would result. J.A. Jones, 15 BNA OSHC at 2213-14. As to the gravity of this item, I find
the severity high, due to the fact that falling 12 to 14 feet could cause death or serious injury, and the
probability of an injury occurring as lesser, due to the short time of exposure and the limited number
of employees exposed.4 The record indicates that no adjustment for size or history is appropriate;
however, an adjustment for good faith is warranted in light of S & F’s good safety and health
program. (Tr. 31-34, 55). A penalty of $1,875.00 is accordingly assessed for this citation item.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes my findings of fact and conclusions of law in accordance
with Federal Rule of Civil Procedure 52(a).
ORDER
Based upon the foregoing, it is hereby ORDERED that:
1. Citation 1, Item 1, alleging a violation of 29 C.F.R. § 1926.416(e)(1), is
AFFIRMED as an other-than-serious violation, and no penalty is assessed.
2. Citation 1, Item 2, alleging a violation of 29 C.F.R. § 1926.502(b)(1), is
AFFIRMED as a serious violation, and a penalty of $1,850.00 assessed.

                                                     /s/
                                                           Covette Rooney
                                                           Judge, OSHRC
    Dated: April 26, 2004
           Washington, D.C.



    4
        The CO’s recommended penalty was based upon medium severity and lesser probability.

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