Carpenter Contracting Corporation

Plain-English summary

Carpenter Contracting installed large precast concrete sections while building a multilevel parking garage. OSHA cited unguarded deck perimeters adjacent to the bay under construction, where falls could range from 10 to 40 feet. The Commission accepted the judge's unchallenged finding that guardrails at the moving erection edge would create a greater hazard. For completed adjacent decks, it held that the evidence was too ambiguous to show Carpenter employees worked near or predictably accessed the unguarded edges. It therefore affirmed the citation's vacation. Commissioner Cleary dissented, arguing that employee movement on a changing construction site made access to the adjacent unguarded perimeters reasonably foreseeable.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.500(d)(1)
• Outcome: Open-sided floor citation vacated.
• Key point: The Secretary must present concrete evidence that employees predictably entered the hazard zone, not merely show that unguarded edges existed somewhere on the worksite.

Full text (OSHRC public release)

Docket No. 81-0838

SECRETARY OF LABOR,

Complainant,

v.

CARPENTER CONTRACTING CORPORATION,

Respondent.

OSHRC Docket No. 81-0838

DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. � 661(i), section 12(j) of the Occupational Safety and Health Act of
1970, 29 U.S.C. �� 651-678 ("the Act").  The Commission is an
adjudicatory agency, independent of the Department of Labor and the Occupational Safety
and Health Administration.  It was established to resolve disputes arising out of
enforcement actions brought by the Secretary of Labor under the Act and has no regulatory
functions.  See section 10(c) of the Act, 29 U.S.C. � 659(c).

The Secretary of Labor alleges that Carpenter Contracting Corporation
("Carpenter") committed a serious violation of the standard at 29 C.F.R. �
1926.500(d)(1) [[1]] in that it failed to guard the perimeters of certain open-sided
floors of a parking garage under construction.  Administrative Law Judge David G.
Oringer concluded that there was no violation and vacated the citation item.  We
agree with that conclusion and affirm the judge's decision.

I

Employees of Carpenter were working on a large four-level parking garage in Morristown,
New Jersey, when that site was inspected by a compliance officer from the Occupational
Safety and Health Administration.  The parking garage was being constructed between
two streets that differed some 40 feet in elevation.  The highest deck of the garage
was, on one side, level with the high street, and the lowest deck was, on the other side
of the garage, level with the lower street.  The general contractor on the site had
contracted with Kurtz Precast Corporation ("Kurtz Precast") to construct the
garage.  Kurtz Precast, the manufacturer of the precast concrete pieces of which the
garage would be built, then contracted with Carpenter to set the pieces in place.
  Carpenter provided its own tools and work force, the latter consisting of
approximately 15 employees who were ironworkers, masons, laborers, and crane and backhoe
operators.

The garage was constructed entirely of concrete members and was built one
vertical bay at a time starting with the lowest level and working up.  Starting from
a fixed point, the deck in each bay was constructed by placing rough-surfaced concrete
sections in the shape of "double T's" that were 8-1/2 to 11 feet wide and 58 to
60 feet long onto the support concrete framework of columns and beams.  At each
level, four double T's normally would combine to form the deck of a single bay.
  Therefore, as each double T was put into place, the perimeter of that deck
expanded.

When each double T arrived at the worksite by truck, three employees of
Carpenter attached tag lines, and the crane then lifted the double T and lowered it into
position in the bay under construction.  Five Carpenter employees worked on whichever
deck was being laid at the time:  one signaled the crane; two guided the section into
place by pulling the tag lines; and two minimally welded the pieces together so that they
would stay until the permanent welding could be done when all the pieces of the deck had
been laid and balanced.  As each double T was set in place, the five employees would
work from the expanding perimeter.

In the citation, the Secretary alleged that Carpenter's failure to guard the
open-sided floors in " areas adjacent to decks being erected" was a violation of
section 1926.500(d)(1).  It was undisputed that a number of the decks within one,
two, or three bays of the deck area under construction lacked perimeter guarding.

The compliance officer who conducted the inspection was the Secretary's only
witness.  According to his testimony, the failure to guard the perimeters posed the
hazard of employees falling 10 to 40 feet to the frozen ground or to a lower level's
concrete deck. When asked if he had seen any employees "in an area around these
unguarded open-sided floors," the compliance officer responded that he had observed
employees of Carpenter there "performing functions of erection" and that he saw
Carpenter's employees come "[w]ithin inches" of the unprotected edge
"numerous times" while they were "doing fitting up, as well as welding and
cutting off the hoisting groups on these pre-cast forms."  With reference to an
unguarded deck that was pictured in Exhibit C-14,[[2]] the compliance officer stated that
he observed employees of Carpenter "traversing [that deck] when they were putting the
extension cord and electrical weld lines across the space," and that he saw employees
of Carpenter come "within inches" of that deck's unguarded perimeter "on
numerous occasions."

William Weber, Carpenter's superintendent at the worksite, was Carpenter's
only witness.  He testified that Carpenter's employees were not required to work near
the edge of the decks adjacent to the bay under construction and had "no need to
traverse that area." He noted that the parking garage was "perhaps 300 feet
wide" with "ample protection" against falls provided by "stone or
pre-cast pieces that stood almost four feet high."  He also observed that the
structure was wide enough so that employees could avoid any fall hazard.  When asked
if any Carpenter employees went within 32 feet of the advancing perimeter, Weber testified
that the erection crew did come closer while putting the double T's in place, but that no
other employees came closer to any perimeters at any time since they "were not
allowed to" based on direct instructions in Carpenter's contract forbidding any
finishing work on the concrete pieces until Kurtz Precast determined that the deck was
properly balanced.  Weber testified that the welders in the erection crew performed
the permanent welding after the deck had been set in place and certified as balanced.
  Weber stated that employees were "instructed to stay away from the open
edges" and "had no business there."  He admitted the possibility that
they might on occasion, such as "if a pretty girl walked by," go near the
unguarded perimeters of the decks adjacent to the bay under construction.

II

In his decision, Judge Oringer found that certain bays in the erection area had no
perimeter guarding.  The judge concluded, however, that there was no violation of
section 1926.500(d)(1) because the constant installation and removal of guarding at the
advancing perimeter while the huge, heavy double T's were swung in by crane would pose a
greater hazard than the lack of such guarding.

III

On review the Secretary argues that Judge Oringer did not consider that the violation as
alleged in the citation and presented by the Secretary at the hearing dealt with
"areas adjacent to decks being erected."  According to the Secretary,
"[a]ny evidence or holding relating to guardrails at the advancing perimeter is
wholly irrelevant."

The Secretary notes on review that the Commission stated in Gilles &
Cotting, Inc. , 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 2003, 1975-76 CCH OSHD � 20,448 at
p. 24,425 (No. 504, 1976) that, as an element of a violation, the Secretary must prove
that "employees either while in the course of their assigned working duties, their
personal comfort activities while on the job, or their normal means of ingress-egress to
their assigned workplaces, will be, are, or have been in a zone of danger."  The
Secretary contends that the evidence of record establishes that Carpenter's employees had
access to and actually were at the unguarded outside perimeters of the adjacent decks.
  He notes that it was undisputed that no perimeter guarding was present on many
adjacent decks. He contends that the evidence proves that Carpenter's employees passed by
the unguarded edges of the adjacent decks while traveling to and from their assigned tasks
and were therefore exposed to the hazard of falling 10 to 40 feet.  To support this
contention, the Secretary relies on Exhibit C-14, see note 2 supra , showing a
person on the ladder leaning against the outside edge of the adjacent deck.  The
Secretary also notes the compliance officer's testimony that he saw the welders laying
welding cables at the unguarded outer perimeter while they were working on the deck shown
in Exhibit C-14.  Furthermore, the Secretary argues that it was established that some
of the masons employed by Carpenter did finishing work on completed adjacent decks.
  The Secretary urges the Commission to reverse the judge and assess a $700 penalty.

Carpenter contends on review that Judge Oringer properly concluded that there
was no violation of section 1926.500(d)(1) because guarding the advancing perimeter would
pose a greater hazard than the lack of such guarding.  Carpenter asserts that the
Secretary does not take issue with the judge's conclusion regarding the advancing
perimeter, the issue on which the parties focused at the hearing.  Rather, the
Secretary seeks review of an issue not presented at the hearing -- the perimeter guarding
of the adjacent decks. Carpenter argues that, even assuming the adjacent decks were in
issue, the Secretary failed to establish that Carpenter's employees performed assigned
work on the adjacent decks or had any other reason to be near the perimeter of those
decks.  According to Carpenter, the adjacent decks referred to by the Secretary are
the same "construction" or "erection" areas that Judge Oringer
addressed.  Carpenter notes that the compliance officer identified the adjacent decks
as the "Erection Area" in his written descriptions that accompany the
photographic exhibits, including Exhibit C-14, which the Secretary used to show the
adjacent decks on which the violations allegedly occurred.  Also, according to
Carpenter, there was uncontroverted evidence that its employees were not assigned tasks
near the outer perimeter of the adjacent decks and that, in fact, they were given specific
instructions to stay away from it.  Carpenter additionally cites superintendent
Weber's testimony that the garage levels were perhaps 300 feet wide with ample natural
protection on one side and that no employees except those on the erection crew went closer
than 32 feet from the perimeter.

IV

In applying Gilles & Cotting, Inc ., supra , to this case, the advancing
perimeter of the bay under construction must be distinguished from the perimeter of the
completed decks in adjacent bays.  The judge found that it would have been more
hazardous to constantly erect and remove guardrails at each point along the advancing
perimeter than to perform the work without guarding those edges. The Secretary does not
take exception to that finding.  Thus, we look only to the evidence which would prove
exposure of Carpenter's employees to the hazard presented by unguarded decks in the areas
adjacent to those under erection.[[3]]

The evidence relied upon by the Secretary is at best ambiguous as to the
location of the violation, and we therefore conclude that it is insufficient to prove a
violation with reference to the decks adjacent to the area under erection.  When
asked if he had observed any employees of Carpenter "in an area around these
unguarded open-sided floors," the compliance officer testified that he had seen
employees of Carpenter "performing functions of erection" there.  However,
erection work was performed at the advancing perimeter, and therefore this testimony does
not establish exposure at the adjacent decks.  The compliance officer also testified
that he saw employees come "[w]ithin inches" of the unprotected edge
"numerous times" while they were "doing fitting up, as well as welding and
cutting off the hoisting groups on these pre-case forms."  The functions
described in that statement also were those done when the double T's were put in place, so
the perimeter at which he observed those employees was the advancing perimeter, not the
adjacent decks.  The compliance officer further stated that he saw employees of
Carpenter "traversing [the unguarded deck pictured in Exhibit C-14] when they were
putting the extension cord and electrical weld lines across the space" and coming
"[w]ithin inches" of that deck's unguarded perimeter "on numerous
occasions."  We can not determine from that testimony whether the employees of
Carpenter that he observed near the edge were making the minimum welds while the deck was
being laid or whether they were performing the permanent welding on the completed deck.
  Moreover, Carpenter's superintendent testified that the perimeter shown in Exhibit
C-14 could have been an area under construction.

In addition, other portions of the record that the Secretary relies upon are
insufficient to satisfy his burden of proof under Gilles & Cotting, Inc .,
supra .  The Secretary contends in his brief on review that the compliance
officer identified the person on the ladder in Exhibit C-14 as an employee of Carpenter.
  We note that the judge, consistent with the compliance officer's testimony that he
had not observed any Carpenter employees on the ladder in question, found that the person
shown on the ladder in Exhibit C-14 did not work for Carpenter.  See supra
note 2.  The Secretary also asserts in his brief on review that masons employed by
Carpenter performed finishing work on the completed decks.  No evidence of record
supports that assertion.  The Secretary quotes the testimony of Weber, Carpenter's
superintendent, that Carpenter's employees might go to the perimeter on occasion, such as
"if a pretty girl walked by."  We consider that testimony to be purely
speculative and accord it little weight.

The evidence relied upon by the Secretary is too ambiguous or otherwise
insufficient to prove that Carpenter's employees were exposed during the course of their
assigned job duties, their personal comfort activities while working, or their normal way
of ingress into or egress from their assigned workplaces to the hazard of the unguarded
perimeters on the decks adjacent to the bay under construction.  Carpenter therefore
cannot be found in violation of section 1926.500(d)(1) for failing to guard those edges.
  We therefore vacate the citation item and proposed penalty.[[4]]

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED:  JUN 26 1984

CLEARY, Commissioner, dissenting:

I agree with the majority that the focus of the citation in this case is not
exposure of Carpenter's employees when working in proximity to the expanding perimeter,
but rather it is exposure of the employees to falls from the unguarded decks adjacent to
the bays under construction.  However, I disagree with the majority's conclusion that
Carpenter's employees were not subject to the hazard of falls from those completed
adjacent decks.

Although I concur with the majority that an access test, rather than an
actual exposure test, is appropriate in determining whether employees are exposed to a
hazard, I have never adopted the narrow access test announced in Gilles & Cotting,
Inc ., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD � 20,448 (No. 504, 1976).
  The test in Gilles & Cotting , as applied by the majority to the instant
case, would require the Secretary to prove that employees had reason to go near the
unguarded perimeters of the adjacent decks during the course of their assigned job
activities, their personal comfort activities while working, or their normal way of
ingress or egress from their assigned workplaces.

Nevertheless, while I do not adhere to the majority's test, I believe that
test was met in this case because the Secretary's evidence demonstrates that employees
were necessarily in close proximity to the unguarded perimeters of the adjacent decks in
the performance of their assigned job activities.  The compliance officer observed
Carpenter's employees when they were placing an extension cord and electrical weld lines
on the deck pictured in Exhibit C-14.  That photograph shows that the cord and lines
were near the unguarded edge.  It appears from the evidence that Carpenter's
employees were the ones who performed the welding. Therefore, they were exposed during the
course of their assigned duties.

My more fundamental disagreement with the majority is that their test is not an adequate
measure of employee exposure because it ignores the reality of a construction worksite.
  Employee movement around a worksite cannot be so neatly traced or predicted as the
majority test assumes.  See Novak & Co ., 84 OSAHRC, 11 BNA OSHC
1783, 1784, 1984 CCH OSHD � 26,779 at p. 34,250 (No. 80-2946-S, 1984) (construction
worksite was constantly changing, and route employees used to get to their work areas
changed from day to day and even from hour to hour).  As I stated in my concurring
opinion in Gilles & Cotting , the Secretary should not have to show that
employees actually risked injury and possible death before the Secretary can require
abatement of hazardous conditions.

This case is similar to Otis Elevator Co ., 78 OSAHRC 88/E5, 6 BNA OSHC
2048, 1978 CCH OSHD � 23,135 (No. 16057, 1978), in which the employer was cited for
failure to guard several areas, including a floor opening.  In that case, the
employer argued that its employees would have to take a circuitous route in order to
expose themselves to the hazard of falling through the floor opening.  The Commission
declared that to accept the employer's argument it would have to conclude that employees
would travel precisely the same path at all times without deviation in order to find a
violation.  The Commission said:

We do not make such an assumption, and are unwilling to speculate as to what
might motivate an employee to approach an unguarded area.  During the life of a
construction project it is not unreasonable to assume, as the standard does, that an
employee might, at some point in time, move to an area not immediately proximate to his
place of work.  Further, neither the standard as applied nor the Act requires the
Secretary to prove that during the inspection, an employee actually approached a
demonstrated hazard, or that the compliance officer witnessed a near accident.

6 BNA OSHC at 2050; 1978 CCH OSHD at p. 27,952.

In Special Metals Corp ., 80 OSAHRC 122/B8, 9 BNA OSHC 1132, 1134, 1981
CCH OSHD � 25,018 at p. 30,908 (No. 76-4940, 1980), the Commission stated:

The Commission's access test is predicated on the recognition that employees
may not be restricted to specific paths or movements about their workplace.  Given
the random nature of employee movement, it is inappropriate to rely on employees to avoid
a hazardous condition as the primary means of protecting employees from that condition.

In this case, Carpenter's superintendent, Weber, testified that it was
certainly possible that Carpenter's employees would go near the edge of the adjacent
decks, albeit not in the performance of their assigned duties.  That testimony
acknowledges the randomness of employee movement, which the Commission has recognized in
other cases, at Carpenter's worksite.  It is hardly speculative, as the majority
states.

Carpenter notes that it gave its employees instructions to avoid the
unguarded edges of the adjacent decks.  However, the standard cited in this case does
not permit warnings to substitute for the physical protection mandated by the standard.
  The Commission has held that even when an employer goes so far as to have an
employee watch an unbarricaded area in order to prevent any employee from entering it
there was employee access to a hazard.  Concrete Construction Co ., 76 OSAHRC
139/A2, 4 BNA OSHC 1828, 1976-77 CCH OSHD � 21,269 (No. 5692, 1976), aff'd , 598
F.2d 1031 (6th Cir. 1979).  The Commission found that it was reasonably foreseeable
that employees could be in the zone of danger simply because employees were moving about
the site in carrying out their duties and access to the zone of danger was not blocked.

In sum, I do not believe that the Act requires the Secretary to show that an
employer assigned employees work in a hazardous area or to trace customary routes of
employees over a period of time.  The standard involved here is an unambiguous and
readily comprehensible standard:  an open-sided floor or platform that is six feet or
more above an adjacent floor or ground level must be guarded.  The reasons for such
guarding are obvious.  I consider a test requiring inquiries as to what might
motivate an employee to approach the unguarded perimeter of an adjacent deck or
documentation of the fact that any employee did so to unnecessarily complicate the
straightforward requirement established by the language of the standard.

The Administrative Law Judge decision in this matter is unavailable in this
format.  To obtain a copy of this document, please request one from our Public
Information Office by e-mail ( [email protected]
), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] The standard provides:

Every open-sided 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)(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,

[[2]] The photograph designated as Exhibit C-14 shows welding cable lying on
the deck, a ladder leaning against the outside edge of the deck, and a person standing on
the ladder.  The compliance officer testified that he had not seen any of Carpenter's
employees going up or down that ladder.  Carpenter's superintendent testified and
Judge Oringer found that the person on the ladder in the photograph was not an employee of
Carpenter.

[[3]] In Gilles & Cotting, Inc. , supra , a Commission
majority agreed that to establish a section 5(a)(2) violation in multi-employer
construction cases the Secretary would not have to prove that employees were actually
exposed to a hazard because of the alleged noncompliance.  Former Commissioner
Barnako stated that the Secretary must, however, adduce evidence to show employee activity
that, with "reasonable predictability," would bring the employee into "the
zone of danger" created by the violation. Commissioner Cleary concurred stating that,
rather than evaluating the danger to employees in spatial terms, he would consider
"the risks to employees that may be reasonably anticipated when a standard is
breached" (footnote omitted).  3 BNA OSHC at 2005, 1975-76 CCH OSHD at p.
24,427.  Whether couched in terms of "reasonable anticipation" or
"reasonable predictability," we will interpret Gilles to require the
Secretary to present evidence sufficient to support a finding that it is reasonable to
predict or anticipate that employees will be, are or have been at risk as a result of a
violation.  See Concrete Construction Corp ., 76 OSAHRC 139/A2, 4 BNA
OSHC 1828, 1830, 1976-77 CCH OSHD � 21,269 at p. 25,568 (No. 5692, 1976), aff'd ,
598 F.2d 1031 (6th Cir. 1979) (Secretary must establish that it was "reasonably
foreseeable that employees could be in the zone of danger because of the nature of their
duties and activities on the site").

[[4]] The Commission has received a motion from Carpenter's counsel to
dismiss the appeal as moot because Carpenter has ceased doing business.  In light of
our decision to vacate the citation item on the merits, we need not rule on that motion.