North Berry Concrete Corporation

Plain-English summary

North Berry employees passed within one or two feet of a floor opening while traveling to work areas in a 68-story building. Unprotected reinforcing bars rose from the floor below, creating an impalement hazard if an employee fell through the opening. The judge vacated the item because the employees were walking to and from their stations rather than performing assigned work at the opening. The Commission reversed, holding that work under the reinforcing-steel standard includes necessary travel to a work station. It affirmed the item as serious and assessed $100 instead of the Secretary's proposed $630.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.700(b)(2)
• Outcome: Serious reinforcing-steel item affirmed; $100 penalty assessed.
• Key point: Required travel to and from a work station counts as work, so employees passing an opening above exposed rebar are protected by the standard.

Full text (OSHRC public release)

Docket No. 86-0163

SECRETARY OF LABOR,

Complainant,

v.

NORTH BERRY CONCRETE CORPORATION,

Respondent.

OSHRC Docket No. 86-0163

DECISION

Before: BUCKLEY, Chairman; AREY, Commissioner.

BY THE COMMISSION:

At issue is whether the judge erred in vacating a citation item alleging a serious
violation of the construction standard previously published at 29 C.F.R. �
1926.700(b)(2).[[1/]] Specifically, the item charged that North Berry Concrete Corporation
had exposed its employees to the danger of falling and becoming impaled on reinforcing
steel bars ("rebars") during concrete construction. The major issue is whether
the standard applies to employees who were not at their work stations, but were walking to
and from them. For the reasons that follow, we reverse the judge's decision, find a
serious violation and assess a $100 penalty.

North Berry was the concrete subcontractor for a
68-story building under construction at 146 West 57th Street, New York, New York. Its
employees walked near a floor opening that was about six feet across (though irregularly
shaped) on the 61st floor. About ten vertical rebars, arranged in a semicircle, rose about
three feet from the concrete 60th floor, below the floor opening. Two OSHA inspectors
testified that an employee could have fallen on a rebar if he fell through the opening.
The rebars, which had been installed by North Berry, were not covered with plywood or
otherwise protected to prevent impalement. North Berry's employees had no assigned jobs
near the floor opening. However, they passed it to reach a central stairway which was
their only access to work stations on higher floors.

The judge concluded that the standard does not cover
employees in transit because it applies only to "work" above
rebars. However, the Commission has held that the standard covers employees traveling to
and from their work stations. Gelco Builders, Inc. , 77 OSAHRC 203/B14, 6 BNA OSHC
1104, 1977-78 CCH OSHD � 22,353 (No. 14505, 1977). We adhere to the reasoning of Gelco .
There, the employees were exposed to an impalement hazard when they climbed an access
ladder above rebars. The commission stated:

[W]e conclude that the use of the ladder constituted "work" within the
meaning of Section 1926.700(b)(2). In our opinion, "work" includes the necessary
activity of gaining access to the work station. . . .

6 BNA OSHC at 1106, 1977-78 CCH OSHD at p. 26,941 (footnote and case citations
omitted). Cf . Gilles & Cotting, Inc. , 76 OSAHRC 30/D9, 3 BNA OSHC 2002,
2003, 1975-76 CCH OSHD � 20,448, p. 24,425 (No. 504, 1976) (Secretary may establish
employee access to a hazard by showing that employees while in the course of "their
normal means of ingress-egress to their assigned workplaces, will be, are or have been in
a zone of danger").

North Berry attempts to distinguish Gelco on
the grounds that the decision was narrowly limited to the use of a ladder, and that the
employees' travel there was more precarious. However, Gelco's reasoning applies
here because, as noted above, it indicated that "work" under the standard
includes "the necessary activity of gaining access to the work station"
generally. The opinion does not distinguish between methods of travel, and we see no
reason to make such a distinction. See also J.M. Martinac Shipbuilding,
Inc. , 76 OSAHRC 46/A2, 6 BNA OSHC 1645, 1978 CCH OSHD � 22,792 (No. 14767, 1978)
(standard requiring guarding if deck openings and edges during shipbuilding to protect
employees "working around open hatches" applies to employees merely climbing in
and out of hatch and walking close to it), aff'd , 614 F.2d 776 (9th Cir. 1980)
(unpubl.).

North Berry also argues that even if the standard
reasonably may be applied here, the pleadings did not inform it that this particular
citation was directed at employees who merely walked by the opening. Thus, it argues that
it was unable to defend itself properly.

We disagree. The Secretary's answers to North Berry's
interrogatories provided notice that employees "passing" the floor opening was
the basis of the citation.[[2/]] Also, inspector Richardson made clear at the hearing that
the basis for the citation was employee exposure while walking to and from work stations
past the opening. North Berry's counsel did not object at any time to the introduction of
evidence concerning employees walking past the opening. North Berry had adequate notice
that the citation was based on employees walking past the opening.

Thus, the standard properly may be applied in this
case. To establish a violation, the Secretary also must show that the standard's terms
were violated, that an employee had access to the hazards, and that the employer know or
with the exercise of reasonable diligence could have known of the violative conditions. E.g. ,
Dun-Par Engineered Form Co. , 12 BNA OSHC 1962, 1965, 1986-87 CCH OSHD � 27,651, p.
36,033 (No. 82-928, 1986).

To resolve whether the standard's terms were
violated, we must determine whether North Berry's employees were working (as defined
herein) "above" the rebars.[[3/]] The judge essentially found that employees
were not "above" the rebars for two reasons. First, he found that no hazard was
proven because "there was sufficient room for the employees (1-2 feet or more) to
walk along the 61st floor . . . without being in a zone of danger." Second, he found
the evidence insufficient that an employee would be impaled on a rebar if he fell through
the opening. We disagree with these findings.

As to the first finding, the walking surface was at
least 10 feet wide in that area. However, the testimony indicates that North Berry
employees routinely walked within one to two feet of the floor opening when they went to
work, went for coffee, went for lunch, and went home.[[4/]] Thus, employees walked close
enough to the floor opening that they could have fallen through. See, e.g., Dun-Par, 12
BNA OSHC at 1965-66, 1986-87 CCH OSHD at pp. 36,033-34 (employee who came within two to
three feet from unguarded edge of upper floor during his assigned work was exposed to
fall). See also Brennan v. Underhill Construction Corp. , 513 F.2d
1032, 1039 (2d Cir. 1975) (to establish access to hazard, inspector need not see employee
teetering on edge of floor).[[5/]]

As to the judge's second finding, he dismissed as
conjecture inspector Richardson's testimony about the chances of an employee being
impaled. However, inspector Toale gave testimony that there was a 75 to 80 percent chance
that an employee would hit a rebar if he fell. That estimate was not rebutted. The rebars
were almost directly below the opening, as a photograph in evidence illustrates.[[6/]]

Access to a hazard exists if it is reasonably
predictable that employees will be, are, or have been in a zone of danger in the course of
their duties. In Gilles & Cotting, Inc. , supra , we defined the course of
employees' duties as including their assigned working duties, their personal comfort
activities while on the job, or their normal means of ingress-egress to their assigned
work places. See also , Clement Food Co. , 84 OSAHRC 26/A2, 11 BNA OSHC 2120,
2123, 1984-85 CCH OSHD � 26,972, p. 34,633 (No. 80-607, 1984); Carpenter Contracting
Corp. , 84 OSAHRC 22/B10, 11 BNA OSHC 2027, 2029, 1984-85 CCH OSHD � 26,950, p. 34,563
(No. 81-838, 1984). As stated above, North Berry employees routinely walked within one to
two feet of the floor opening in the course of their duties, and thereby were
"above" the rebars, which presented a hazard of impalement. We find, therefore,
that the employees had access to the hazard of impalement.

The next question is whether North Berry had the
requisite knowledge of the violative conditions. Its foreman, like its other employees,
had to pass the floor opening several times daily. The violative conditions were in plain
view. An OSHA inspector testified without contradiction that the impalement hazard was
where the foreman "has to see it." That inspector also estimated that the
condition had existed for at least a week, because the pouring of concrete had proceeded
to the 67th floor (six stories above the floor opening) by the time of the inspection.
This testimony shows that North Berry, through its foreman, knew, or with the exercise of
reasonable diligence could have known, of the hazardous exposure. See Dun-Par ,
12 BNA OSHC at 1965-66 and n. 2, 1986-87 CCH OSHD at pp. 36,033-34 and n. 2.[[7/]]

Thus, the Secretary has proven all the elements of a
violation. The remaining issues are whether the violation was serious, as alleged, and
whether the Secretary's proposed penalty was appropriate. We conclude that the violation
was serious under 29 U.S.C. � 666(k). Inspector Richardson testified without
contradiction that an employee could have been killed if he fell on the rebars. Thus,
death or serious physical harm likely could have resulted from the impalement hazard.

The Secretary proposed a $630 penalty. We disagree.
Penalties are to take into consideration the employer's degree of good faith, as well as
the gravity of the violation, the employer's size and its history of violations. 29 U.S.C.
� 666(j). On the one hand, the violation could have caused death or serious physical
harm. Also, North Berry was a large employer, with over 100 employees, and it had previous
violations of other construction standards on record.

On the other hand, so far as the record shows, this
was a unique and transient violation on a fast-changing high-rise construction site, and
was not flagrant.[[8/]] There is no evidence that the foreman consciously realized the
extent of the impalement hazards. Although there was some danger that employees could fall
onto the unprotected rebars while walking past the floor opening, the relatively wide
ten-foot corridor alongside the opening made such a fall relatively unlikely. Also, North
Berry's president testified without contradiction that it had an active safety program,
including a weekly job safety program for its employees. On balance, a penalty of $100 is
appropriate.

Thus, the citation item for violation of the former
� 1926.700(b)(2) is affirmed, and a penalty of $100 is assessed. In all other respects,
the judge's decision is affirmed.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: 27 FEB 1989

WILLIAM E. BROCK, SECRETARY OF LABOR,

United States Department of Labor

CompIainant,

v.

NORTH BERRY CONCRETE CORPORATION

Respondent.

OSHRC DOCKET NO. 86-0163

APPEARANCES:

BARNETT SILVERSTEIN, Esquire

U.S. Department of Labor

Office of the Solicitor

New York, New York

For the Complainant

McDONOUGH MARCUS COHN & TRETTER, P.C.

By JUDAH D. GREENBLATT, Esquire

For the Respondent

DECISION AND ORDER

SOMMER, JUDGE:

This is a proceeding under section 10(c) of the Occupational Safety and Health Act of
1970, 29 U.S.C. � 651, et seq . (hereinafter sometimes referred to as
"the Act"), to review citations issued by the Secretary of Labor (hereinafter
sometimes referred to as "Complainant"), pursuant to section 9(a) of the Act,
and the proposed assessment of penalties therein issued, pursuant to section 10(a) of the
Act.

On December 18, 1985, respondent was issued serious
citation No. 1 alleging violations of 29 C.F.R. � 1926.28(a) (Amended to include 29
C.F.R. � 1926.105(a)), 29 C.F.R. � 1926.700(b)(2), 29 C.F.R. � 1926.304(d), 29 C.F.R.
� 1926.401(f) and 29 C.F.R. � 1926.500(b)(7). The respondent was also issued repeat
citation No. 2 alleging a violation of 29 C.F.R. � 1926.100(a) and other than serious
citation No. 3 alleging violations of 29 C.F.R. � 1926.450(a)(9) and 29 C.F.R. �
1926.500(b)(8). Penalties of $2,790 were proposed for the serious violations and $1,080 -
for the repeat violation. A hearing was held in New York, New York. All parties were
represented by Counsel. Counsel for the respondent filed a post-hearing brief. No
jurisdictional issues are in dispute, the parties having pleaded sufficient facts to
establish the respondent is subject to the Act and the Commission has jurisdiction of the
parties and of the subject matter.

Background

North Berry Concrete Corporation is a corporation
organized under the laws of the State of New York with an office and place of business in
Brooklyn, New York. The corporation is engaged in the construction business as a
contractor doing reinforced concrete work and similar construction assignments. The
corporation was a subcontractor doing concrete work at 146 West 57th Street, New York, New
York where a building was being constructed and where the violations alleged herein
occurred.

Discussion

Alleged violation of 29 C.F.R. � 1926.28(a)
and/or 29 C.F.R. � 1926.105(a) -- item 1 of serious citation No. 1 .

Citation item 1 alleges that North Berry violated section 1926.28(a)[[1]] and/or
1926.105(a)[[2]] in that an employee was not wearing a safety belt and/or safety nets were
not provided where the workplace was more than 25 feet above the ground The compliance
officers testified that during the inspection they observed one of North Berry's employees
working near the unguarded edge of the building on the 67th floor; a distance of
approximately 700 feet above the ground.

Mr. Toale, one of the compliance officers estimates
the distance the employee was working from the edge as 1 to 1� feet. The employee was not
wearing a safety belt nor were there safety nets in this area. The compliance officers
indicated that while there was perimeter guarding around the building edges, in the area
directly behind where the employee was working attempting to straighten out a bent rebar
there was none to prevent a fall. They found that there was a hazard present that the
employee working near the edge without any protection could fall 67 stories to his death
or with serious consequences.

To establish a violation of the Act, the Secretary
must prove, among other things, that the employer either knew or could, with the exercise
of reasonable diligence, have known of the presence of the violative conditions. Daniel
International Corp., Wansley Project , 81 OSAHRC 71/D6, 9 BNA OSHC 2027, 1981 CCH OSHD
� 25,813 (No. 76-181, 1981).

The facts amply demonstrate that the employee was
exposed to the hazard of a fall from 67 stories warranting the need for and use of safety
belts. The record further reveals that at least one of the respondent's foremen
(Bonecore)[[3]] knew or could with the exercise of reasonable diligence have known of this
hazardous condition since he was standing on the desk near the compliance officers and
observed or should have observed his employee working in plain view near the roof edge
without protective equipment. The knowledge of the supervisor is imputed to North Berry,
who is responsible for the violation herein. Accordingly, the Secretary established a
prima facie showing of respondent's knowledge of the existence of the hazard to its
employee and the violation of the standard. The record further shows that the respondent
failed to produce any evidence which would rebut this showing. Citation No. 1, item No. 1,
alleging a violation of 29 C.F.R. � 1926.29(a) is affirmed. A penalty of $500 for the
violation is consistent with the criteria set forth in section 17(j) of the Act under the
circumstances of this case.

Alleged violation of 29 C.F.R. � 1926.700(b)(2)
-- item 2 of serious citation No. 1 .

Citation item 2 alleges that North Berry violated
section 1926.700(b)(2)[[4/]] in that employees were exposed to the hazard of falling one
floor through an opening and onto unprotected steel rebars while walking past the opening
on the way to their jobs.

Compliance Officer Richardson testified that in order
for the employees of North Berry to get to the work stations on the 65-67th floors of the
building, they would board a hoist which took them to the 61st floor, and from there they
crossed over to a ladder or staircase where they walked up. However, in leaving the hoist
they allegedly walked within 1-2 feet of a 6' x 6' floor opening exposing themselves to a
possible fall on vertical steel rebars below which were unprotected.

The evidence of record fails to establish the
presence of a hazard or that the respondent had actual or constructive knowledge of its
existence. The respondent had no reason to question the plain meaning of the standard
which enjoins employees from working above vertically protruding steel bars which
have not been protected. The employees cited for this alleged violation were walking by
the opening. An agency is bound by what its regulation plainly means, not what is
intended. See Diamond Roofing Co. , 528 F.2d 645 (5th Cir. 1976).

The hazard present is the possibility of a fall upon
the unprotected steel rebars. However, the compliance officer made no measurements nor
could accurately state if a fall occurred whether it would be onto a rebar since the
distance from the edge to where the rebars were below was undetermined. His conjecture
that one falling would be impaled on a rebar is insufficient to prove a violation. The
proof cannot be based on speculation, nor presumed. See Ellison Electric , 1
OSAHRC 247, 1 BNA OSHC 3034, 1971-73 CCH OSHD � 15,133 (No. 412, 1972); Edison
Lampworks , 7 BNA OSHC 1818, 1979 CCH OSHD � 23,913 (No. 76-484, 1979).

Additionally both the testimony and photograph reveal
that there was sufficient room for the employees (1-2 feet or more) to walk along the 61st
floor to the other staircase or ladder without being in a zone of danger. They were
sufficiently distant from the opening that just walking by could by no stretch of the
imagination be called a hazard.

The evidence is totally insufficient to sustain the
Secretary's burden of proof that a hazard was present, or the respondent was aware of it.
Item No. 2 alleging a violation of 29 C.F.R. � 1926.700(b)(2) is vacated.

Alleged violation of 29 C.F.R. � 1926.304(d)5
item No. 3 of serious citation No. 1 .

Citation item 3 alleges that North Berry violated 29
C.F.R. � 1926.304(d) because the lower guard had not automatically returned to the
covering position when not functioning. The compliance officer testified he saw one man an
the first floor of the building using a circular saw to cut a 4 x 4 resting across his
knee; the guard on the saw was not functioning and not protecting the lower blade as
required; this created a hazard in that the employee could have cut his leg. The
compliance officer states he could not ascertain the name of the employee but was told at
the closing conference by Mr. Roscigno that the man using the saw was an employee of North
Berry. The respondent in effect questions whether the evidence is sufficient to show that
a North Berry employee was operating the saw. I agree there is a question as to identity.
Firstly, this occurred on the first floor while admittedly the evidence shows all
employees of North Berry were working on the 65th-67th floors; additionally, Mr. Roscigno
who allegedly said it was a North employee a few days after the incident did not furnish
said employee's name and did not actually see this man while at work. Moreover, respondent
has denied that Roscigno is a foreman. In short, the evidence as to the identity of this
man is scanty and his employment by North Berry conjectural. Additionally, the defect in
the saw was not one readily apparent and there is no evidence that North Berry actually
knew that the violative condition was present or should have known it existed with
reasonable diligence. Accordingly, the citation for violation of 29 C.F.R. � 1926.304(d)
is vacated.

Alleged violation of 29 C.F.R. � 1926.401(f)[[6]]
-- item No. 4 of serious citation No. 1 .

Citation item 4 alleges that an employee was using a
drill whose power was being supplied through an extension cord absent a grounding plug
which created a hazard of electrical shock to the user. The testimony of the two
compliance officers as to where the fault was located differed. Richardson testified that
a prong on the extension cord plug was broken off at the end where it connected to the
tool while compliance officer Toale testified the plug was defective at the end connected
to the socket. Another problem concerning this alleged violation is that neither
compliance officer gave any evidence nor indicated they sought to ascertain how long this
condition had existed. Since such vital information is missing from the record, there is a
serious question as to whether the respondent had knowledge of the violative condition.
Considering the discrepancies in testimony as to location of the hazard, and no proof
whether the respondent had actual or constructive notice of the alleged violation, the
Secretary has not sustained his burden of proof as to the existence of a violation.
Accordingly, item No. 4 alleging a violation of 29 C.F.R. � 1926.401(f) is vacated.

Alleged violation of 29 C.F.R. �
1926.500(b)(7)[[7]] -- item 5 of serious citation No. 1 .

Citation item 4 alleges a violation of 1926.500(b)(7)
because of a failure by respondent to guard floor openings on both the 65th and 66th floor
of the building. The compliance officer testified that employees working in these areas
passed within a foot of the unguarded openings and could fall therein causing serious
injuries. The respondent's president Martinelli testified these openings were necessary so
that materials could be passed through while the job was in progress, and that this is
safer than passing the materials on the outside perimeter of the building. The unproven
and self supporting statement of the respondent president that it is safer to proceed with
allowing the opening hazards to exist is unacceptable herein. The unguarded openings are
an obvious hazard which the respondent knew existed and nothing was done to ameliorate the
violative condition. Even if his statement that the opening is used to pass material
raises the defense of impossibility of performance, such defense can be entertained if the
employer shows 1) compliance with the standard would prevent performance of the work
activity and 2) alternative means of employee protection are not available. M.J. Lee
Construction Co. ,79 OSAHRC 12 A/2, 7 BNA OSHC 1140, 1979 CCH OSHD � 23,330 (No.
15094, 1979). Neither element has been substantiated. Accordingly, the existent unguarded
floor openings are a violation of the standard, and the citation is affirmed. The penalty
assessed of $560 is reasonable and appropriate under section 17(j) of the Act.

Alleged violation of 29 C.F.R. �
1926.100(a)[[8]]--item No. 1 of repeat citation No. 2 .

This citation alleges that North Berry failed to
comply with the standard at 29 C.F.R. � 1926.100(a) in that employees were not required
to wear hard hats while working in an area where they were exposed to head injury from
impact. The compliance officers observed five North Berry workmen on their knees doing
finishing work (smoothing out concrete) while another activity was going on above them,
i.e., a crane was swinging a bucket full of concrete to another job going on and the the
bucket was about 5' above the men as it passed. The men were in danger of being hit by the
bucket if they suddenly stood up for any reason or if in some way the bucket accidentally
swayed or became detached due to any irregularity. Two foremen were present, one of whom
was wearing a hard hat. One of North Berry's arguments is that hard hats are purchased and
made available to the men but they cannot require or make them put them on since any
penalty may sought to impose would cause union difficulties, etc. This response is
untenable. The standard requires that employees be provided hats and made to use them
where there is possibility of head injury exists. See Franklin R. Lacy, (Acqua
View Apartments) , 81 OSAHRC 7 A/2, 9 BNA OSHC 1253, 1254, 1981 CCH OSHD � 25,171, p.
31,073 (No. 3701, 1981). The respondent cannot abrogate his responsibility under the Act
by shifting the responsibility to his employees as to whether there will be compliance.
The contention of North Berry that merely making the hard hats available constitutes
compliance is rejected. Accordingly, I conclude that North Berry violated the standard at
29 C.F.R. � 1926.100(a).

The record further demonstrates that the respondent
was previously cited for similar violations of 29 C.F.R. � 1926.100(a) on two occasions
for which final orders of the Commission were issued. Accordingly, this violation was
correctly issued as a repeat violation. See Potlatch Corp. , 79 OSAHRC 6 A/2,
7 BNA 1061, 1063, 1979 CCH OSHD � 23,294, p. 28,171 (No. 16183, 1979). The penalty
assessed of $1,080 -- is appropriate under the criteria set forth in 17(j) of the act.

Alleged violation of 29 C.F.R. �
1926.450(a)(9)[[9]] -- item No. 1 - other than serious citation No. 3 .

The Secretary alleges that the respondent violated
the standard at � 1926.450(a)(9) in that the ladder extending from the 66th to the 67th
floor of the building being contracted had side rails which did not extend more than 36
inches above the landing. The compliance officer during his inspection personally observed
employees using this ladder to ascend to the other floor with the violative condition
present. He testified that the employees and the foremen used this ladder to get to the
worksite. The respondent presented no evidence that disputes this finding except stating
it was an isolated incident. This defense lacks merit. The ladder was being used by the
foremen who were well aware of its condition. Moreover, the respondent has not met its
burden of proving this affirmative defense. The employer failed to establish that it had a
work rule which addressed the cited violative condition or that it effectively
communicated or enforced the rules. Accordingly, the citation for violation of 29 C.F.R.
� 1926.450(a)(9) is affirmed. No penalty is assessed.

Alleged violation of 29 C.F.R. �
1926.500(b)(8)[[10]]--item No. 2--other than serious citation No. 3 .

The respondent was cited for an other than serious
violation of 29 C.F.R. � 1926.500(b)(8) for failure to guard floor holes on the 62nd,
65th and 66th floors by a standard railing and toeboard or by a floor hole cover. The
compliance officer observed numerous floor holes on the floors listed in the area where
respondent's employees were working. The holes represented a tripping hazard for the men
and the compliance officer stated that they should be provided with floor hole covers. The
respondent offered no evidence to contradict the obvious violation other than they were
not responsible for the 62nd floor problem. However, the compliance officer identified men
working on the 62nd as well as the 65th and 66th floors as employees of respondent who
were subject to the tripping and failing hazard. Accordingly, this violation is affirmed.
No penalty is assessed.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The findings of fact and conclusions of law in this
opinion are incorporated herein in accordance with Rule 52 of the Federal Rules of Civil
Procedure.[[11]]

ORDER

1 - The allegation of a serious violation of the
standard set forth at 29 C.F.R. � 1926.28(a) is affirmed and a penalty of $500 is
assessed therefor.

2 - The allegations of serious violations of the
standards set forth at 29 C.F.R. � 1926.700(b)(2), 29 C.F.R. � 1926.304(d) and 29 C.F.R.
� 1926.401(f) are vacated.

3 - The allegation of a serious violation of the
standard set forth at 29 C.F.R. � 1926.500(b)(7) is affirmed and a penalty of $560 is
assessed therefor.

4 - The allegation of a repeat violation of the
standard set forth at 29 C.F.R. � 1926.100(a) is affirmed and a penalty of $1,080 is
assessed.

5 - The allegations of other than serious violations
of the standards set forth at 29 C.F.R. � 1926.450(a)(9) and 29 C.F.R. � 1926.500(b)(8)
are affirmed with no penalty assessed.

SO ORDERED.

IRVING SOMMER

Judge

DATED: February 6, 1987

Washington, D.C.

FOOTNOTES:

[[1/]] That standard provided:

Subpart 0 -- Concrete, Concrete Forms, and Shoring

1926 700 General provisions .

*             *
             *

(b) Reinforcing steel .

*             *
             *

(2) Employees shall not be permitted to work above vertically protruding reinforcing steel
unless it has been protected to eliminate the hazard of impalement.

Since this alleged violation occurred, the standard
was amended as part of a general revision of the Subpart Q standards. 53 Fed. Reg. 22643
(June 16, 1988). The revised version of the cited standard is now published at 29 C.F.R.
� 1926.701(b).

[[2/]]North Berry asked the Secretary to
["s]tate the name of each employee . . . alleged to have violated the standard . . .
." The Secretary responded in part, "all employees passing to and from personnel
hoist." That hoist carried employees as high as the 61st floor. Employees had to pass
the floor opening between that point and their work stations on higher floors.

[[3/]] It is undisputed that the rebars were not
protected to prevent impalement, and that North Berry permitted the employees to walk
where they did.

[[4/]] There is no question that the employees who
walked by the opening included a large number of North Berry employees. One OSHA inspector
testified that at least 50 of North Berry's employees would pass by the floor opening. He
identified them as North Berry employees because they were doing carpentry work and North
Berry "really was the only one up there doing carpentry." The other OSHA
inspector testified that North Berry's foreman identified the employees walking by the
opening as its own, and that only North Berry employees were working above the 61st floor.

North Berry's president testified that if a previous
witness had stated that employees walked within a foot of the opening, "I think he
was wrong." However, the president did not explain the basis for his opinion, and was
not present during the inspection. Even if, as the president said, the employees were not
within one foot of the opening, they were close enough to be endangered.

[[5/]] There was a guardrail across part of the floor
opening, but it was clearly inadequate. One OSHA inspector testified that it "wasn't
any good" because it was "bent, broken" and "[i]t couldn't really hold
up if a guy fell against it." Also, he testified that there was no guarding along a
portion of the floor opening past which employees walked. There was no contrary evidence.

[[6/]] North Berry cites a Commission case which held
that employees are not working "above" rebars if they work "on the same
level as and next to the rebars." Berglund-Cherne General Contractors , 82
OSAHRC 25/D9, 10 BNA OSHC 1644, 1646, 1982 CCH OSHD � 26,039, p. 32,696 (No. 79-4347,
1982), aff'd , No. 82-1768 (10th Cir. October 24, 1983)(unpubl.). However, here the
employees were not on the same level as the rebars. This employer violated the terms of
the standard.

[[7/]] The judge stated that there was Insufficient
evidence that North Berry had actual or constructive knowledge of the violation. That
finding, however, was based on his ruling that the standard did not give North Berry fair
notice that it applies to employees merely walking above rebars. We have rejected that
ruling above. The judge did not address whether North Berry knew or with the exercise of
reasonable diligence could have known of the violative conditions.

[[8/]] The testimony, noted above, indicating that
the construction could advance several stories in a week illustrates the rapid pace of
change that characterizes high-rise construction.

[[1]] The standard provides:

� 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.

[[2]] The standard provides:

� 1926.105 Safety nets

a) Safety nets shall be provided when workplaces more than 25 feet above the ground or
water surface or other surfaces where the use of ladders, scaffolds, catch platforms,
temporary floors, safety lines, or safety belts is impractical.

[[3]] The compliance officers testified that two
individuals, Bonecore and Roscigno identified themselves as foremen and accompanied them
during the course of the inspection. Joseph Martinelli, the president of North Berry
admitted Bonecare is a foreman; he stated Roscigno was not a foreman, but "it's quite
possible" that he worked for North Berry.

[[4/]] The standard provides:

� 1926.700(b) Reinforcing steel

*             *
             *

(2) Employees shall not be permitted to work above vertically protruding steel unless it
has been protected to eliminate the hazard of impalement.

[[5]] The standard provides:

� 1926.304 Woodworking tools

*             *
             *

(d) Guarding . All portable, power driven circular saws shall be equipped with
guards above and below the base plate or shoe . . . . When the tool is withdrawn from the
work, the lower guard shall automatically and instantly return to the covering position.

[[6]] The standard provides:

� 1926.401 Grounding and bonding

*             *
             *

(f) Extension cords . Extension cords used with portable electric tools shall be of
the three-wire type.

[[7]] The standard provides:

� 1926.500(b) Guarding of floor openings and floor holes

*             *
             *

(7) Temporary floor openings shall have standard railings.

[[8]] The standard provides:

� 1926.100 Head Protection

a) Employees Working in areas where there is a possible danger of head injury from impact,
or from falling or flying objects, or from electrical shock and burns shall be protected
by protective helmets.

[[9]] The standard provides:

� 1926.450 Ladders

(a)(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.

[[10]] The standard provides:

� 1926.500 Guardrails, handrails, and covers

(b)(8) Floor holes, into which persons can accidentally walk, shall be guarded by either a
standard railing with standard toeboard on all exposed sides, or a floor hole cover of
standard strength and construction that is secured against accidental displacement. While
the cover is not in place, the floor hole shall be protected by a standard railing.

[[11]] Rule 52. Findings by Court

a) Effect . In all actions tried upon the facts without a jury . . . the courts
shall find the facts specially and state separately its conclusions of law therein, . . .
. If an opinion or memorandum of decision is filed, it will be sufficient if the
findings of fact and conclusions of law appear therein (Emphasis supplied)