Ocean Concrete Contractors, Inc. (ALJ decision, August 2, 1993)

Plain-English summary

Ocean Concrete was a subcontractor constructing a building at the Naval Submarine Base at Kings Bay, Georgia. Employees worked at the edges of an unguarded five-by-eight-foot stairwell opening and an unguarded open-sided platform about eight feet above the ground. They also worked near uncapped reinforcing bars that projected up to three feet and were positioned below the floor edge. Ocean did not dispute the missing railings and acknowledged that rails were likely removed during its forming and scaffold-dismantling process and not replaced. Its contract obligations and the cost of rebar caps did not excuse the unguarded conditions. The ALJ affirmed all three items as serious and assessed penalties of $1,500, $1,500, and $1,200, totaling $4,200.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.500(b)(1), 1926.500(d)(1), and 1926.701(b)
• Outcome: All three serious floor-opening, open-platform, and exposed-rebar items were affirmed with $4,200 in total penalties.
• Key point: A construction sequence that requires temporary removal of protection does not excuse an employer from restoring guardrails or guarding exposed rebar.

Full text (OSHRC public release)

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-341 I

. zi (202) 6o64050
RS (202) 606-5050

SECRETARY
OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 9 1-3449
OCEAN CONCRETE CONTRACTORS,
INC.
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Re ort in the above referenced case was docketed with the Commission on July P 1993. The decision of the Judge will become a final order of the Commikion on August 2, 1993 unless a Commission member directs review of the decision on or before that date. ANY PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW. Any such etition should be received by the Executive Secret on or before ” July 21, 1B93 in order to ermit sufficient time for its review. T ee Commission Rule 9 1, 29 8 .F.R. 2200.91.

All further pleadings or communications
regarding this case shall be
addressed to:

Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-34 19
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOf
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for Regional Trial Litigation will represent the Department of Labor. Any party havmg questions about review rights may contact the Commission’s Executive Secretary or call (202) 606-5400.
FOR THE COWSIOY
I

Date: July 1, 1993
DOCKET NO. 91-3449

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Ms. Bobbye D. Spears
Re ional Solicitor
Of&e of the Solicitor, U.S. DOL
Suite 339
1371 Peachtree Street, N.E.
Atlanta, GA 30309

Mr. Bill Davis
Ocean Concrete Contractors, Inc.
1074 Tenth Avenue South
Post Office Box 51447
Jacksonville Beach, FL 32240

Mr. Greg A. Schwartzenberger
East Coast Concrete Contractors
1153 Beach Boulevard
Jacksonville Beach, FL 32250

Paul L. Brady
Administrative Law Jud e
Occupational Safety an f Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119

00106443898 :04
 UWED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1365 PEACHTREE STREET, N E , SUITE 240 ATLANTA GEORGIA 30309-3119

FAX
Cow4oa) 347-0113 ns (404) 3474113

.
.
SECRETARY OF LABOR, ..

Complainant,

v. OSHRC Docket No. 91-3449
.
OCEAN CONCRETE CONTRACTORS, ;
INC.,
..

Respondent.

Appearances:

Stanley E. Keen, Esq.
Greg A Schwartzenberger, Esq.
Office of the Solicitor
Ocean Concrete Contractors, Inc.
U. S. Department of Labor
Jacksonville Beach, Florida
Atlanta, Georgia
For Respondent
For Complainant

Before: Administrative Law Judge Paul L. Brady

DECISION AND ORDER

This proceeding is brought pursuant to Section 10 of the Occupational Safety and
Health Act of 1970 (Act) to contest a citation and proposed penalty issued by the Secretary of Labor (Secretary) pursuant to Section 9(a) of the Act. Respondent, Ocean Concrete Contractors, Inc. (Ocean), was engaged as a subcontractor in the construction of a building at the United States Naval Submarine base at Kings Bay, Georgia. Ms. Linda Campbell, a compliance safety and health officer, conducted an inspection of the worksite that gave rise to the issuance of the citation.

Alleged Violation of 29 C.F.R. 5 1926SOO(b)(l]

The standard states, in pertinent part, as follows:
(b) Gunrdiug of floor opeuiugs nnd floor /roles. (1) Floor openings shall be guarded by a standard railing and toeboards or cover. . . .
The citation alleges that in Building B-2 there were no standard railings at number 3 stainvell.
There is no dispute that at the time of the inspection there was a 5 x 8 foot floor
opening in Building B-2. The opening which was intended to accommodate the number 3 staiNvel1 was approximately 8 feet above the ground level. There were no guardrails around the opening (Exh. C-4, Tr. 12, 13, 36). Ms. Campbell testified that she observed employees at the edges of the floor opening (Tr. 29). bb
Mr. John Lewis, a construction representative for the Navy, accompanied Ms.
Campbell during the inspection. He also testified there were no guardrails around the opening (Tr. 53). Mr. Greg Schwartzenberger appeared on behalf of Ocean. He did not refute the allegations, but explained the nature of the forming system Ocean used. He stated that starting on one end of the building, there is a continued process of dismantling forming and pouring. In regard to this process, he acknowledged that, ‘[D]id we take handrails down and not put them up? More than likely, yes.”
The evidence shows the violation occurred as alleged.

Alleged Violation of 29 C.F.R. S 1926SOO(d)(Q

The standard requires, in pertinent part, as follows:
(d) Guarding of open-sided jloors, plaqoms, and mnways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing.

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 The citation alleges that there were no standard railings on open sides and ends of the platform in Building B-2. The parties stipulated that there were no railings on the open- sided platform and that employees worked to tht: ttdges (Exhs. C-2, C-3, C-5; Tr. 1243).
Mr. Schwartzenberger again did not deny the allegations but explained the problems associated with the dismantling of the scaffold system. He stated that in the area of the open-sided platform, the scaffold is taken down piece by piece. In this process, he believed the rails were more than likely taken down and not replaced (Tr. 77-78).
The standard was violated as alleged.

Alleged Violation of 29 C.F.R. 5 1926.70l(bl

The standard requires as follows:
. All protruding reinforcing steel, onto and into which employees could fall, shall be guarded to eliminate the hazard of impalement.
The citation alleges that protruding reinforcing steel near the number 3 stairwell in
Building B-2 was not capped. The parties stipulated that steel rebars protruded at lengt& of up to 3 feet near the number 3 stairwell. They were not capped or otherwise guarded to eliminate the hazard of impalement. Employees worked at or near the rebars. Ms. Campbell testified that employees worked at the edge of the platform and floor opening with rebars 8 feet below (Exhs. C-l, C-3; Tr. 28-30).
Mr. Schwartzenberger indicated that Ocean was bound by contract to work near the uncapped rebar. He stated that he had complained to the general contractor about the problem. He also stated that it was too expensive for Ocean to purchase caps (Tr. 81-82).
Ocean violated the standard as alleged.
The violations are alleged to be of a serious nature. For a violation to be determined
serious under 6 17(k) of the Act, there must be a substantial probability that death or serious physical harm could result therefrom. The violations under 29 C.F.R. 0 1926.500 could result in serious injury or death from a fall of 8 feet to a concrete floor or impalement on steel reinforcement rods. The violations of 29 C.F.R. 0 1926.701(b) could also result in serious injury or death if an employee tripped or fell on the rebars protruding 2 % to 3 feet.

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 The Commission, in all contested cases, has the authority to assess civil penalties for violations of the Act. Section 17(k) of the Act provides:
The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the eravity of the violation, the good faith of the employer, and the history of Grevious violations.
The determination of what constitutes an appropriate penalty is within the discretion
of the Commission, and the foregoing factors do not necessarily accord equal weight. Generally speaking, the gravity of the violation is the primary element in the penalty assessment. Ttinity Indrcstry, Inc., 15 BNA OSHC 1481, 1483, 1992 CCH OSHD II 29,582, p. 40,033 (No. 88-2691, 1992); Astra Phamzaceutical Prod& Inc., 10 BNA OSHC 2070, 1982 CCH OSHD II 26,251 (No. 78-6247, 1982). The gravity of a particular violation, moreover, depends upon such matters as the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood that any injury would result. KU-Turn Builders, Inc., 10 BNA OSHC 1128, 1981 CCH OSHD II 25,738 (No. 76 2644, 1981).
Having considered the foregoing factors and that at least five employees were
exposed, it is determined that appropriate penalties for violation of 5 1926.500(b)(l) is
$1,500.00, for violation of 8 1926.500(d)(l) is $1,500.00, and for violation of 3 1926.701(b) is $1,200.00.

FINDINGS OF FACT AND CONCLUSIONS
OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Federal Rules of Civil Procedure 52(a).

ORDER

Based upon the foregoing decision, it is ORDERED:

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 (1) The citation alleging violation of 29 C.F.R. 5 1926SOO(b)( 1) is affirmed and a penalty 4 in the ;imwnt of $~,500.00 is twrebv ~s~ssed:
(2) The citation alleging violation of 29 C.F.R. $ 1926SOO(d)( 1) IS ’ affirmed and a penalty in the amount of $1,500.00 is hereby assessed; and
(3) The citation alleging violation of 29 C.F.R. 5 1926.701(b) is affirmed and a penalty in the amount of $1,200.00 is hereby assessed.

/s/ Paul L. Brady
PAUL L. BRADY
Judge

Date: June 22, 1993