Orion Construction, Inc.

Plain-English summary

Orion employees installed metal studs at an 11-foot edge where the guardrail midrail had been lowered, and other employees passed within a few feet of a partially covered stairwell opening protected only by caution tape. The Commission agreed that both conditions were serious violations but found their gravity low. The installed studs and top rail substantially reduced the probability of a fall at the edge, while plywood and highly visible caution tape reduced exposure at the stairwell. Orion also had a good written safety program, and the record contained little detail about its prior violations. The Commission upheld the judge's assessment of $100 for each item rather than OSHA's proposed $1,800 total.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.502(b)(2); 29 C.F.R. § 1926.502(b)(12); 29 C.F.R. § 1926.25(a).
• Outcome: Two serious fall-protection items affirmed with penalties of $100 each; an unrelated housekeeping item remained vacated.
• Key point: Even a serious fall violation may warrant a small penalty when the probability and duration of exposure are very low and partial protections substantially reduce risk.

Full text (OSHRC public release)

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : Docket No. 98-2014
:
ORION CONSTRUCTION, INC., :
:
Respondent. :

                                       DECISION

Before: ROGERS, Chairman; VISSCHER, Commissioner.
BY THE COMMISSION
The only issue on review is whether Administrative Law Judge James H. Barkley
erred in assessing a penalty of $100 each for two serious violations of fall protection
standards, for which the Secretary had proposed penalties of $1125 and $675. For the
reasons stated below, we find that the penalties assessed by the judge were appropriate.
Section 17(j) of the Occupational Safety and Health Act of 1970 (“the Act”), 29
U.S.C. § 666(j), requires that in assessing penalties the Commission must give “due
consideration to the appropriateness of the penalty with respect to the size of the business
of the employer being charged, the gravity of the violation, the good faith of the employer,
and the history of previous violations.” These penalty factors need not be accorded equal
weight; gravity is generally the primary element. E.g., Hern Iron Works, Inc., 16 BNA
OSHC 1619, 1624, 1993-95 CCH OSHD ¶ 30,363, p. 41,882 (No. 88-1962, 1994). The
Commission has wide discretion in penalty assessment. Id. at 1622-23, 1993-95 CCH OSHD
at pp. 41,881-82.
The Secretary argues in her petition for discretionary review1 that the judge erred in
his consideration of gravity, history of violations, and size with regard to each of the two

1
We have determined that no briefs on review are necessary to decide this issue.
 2

violations. The Secretary does not challenge the judge’s reduction of the penalty based on
evidence of good faith.2
The Violations
The judge affirmed Citation 1, Item 1, which (as amended) alleged a serious violation
of 29 C.F.R. § 1926.502(b)(2) because Orion Construction, Inc. (“Orion”) failed to provide
a midrail as part of its guardrail system to protect employees installing metal studs at the
edge of the second level of a boat house under construction in Harbor, Oregon. Because
employees were exposed to an 11-foot fall, the judge found that the violation was “serious,”
that is, there was a “substantial probability that death or serious physical harm could result”
from the condition. See section 17(k) of the Act, 29 U.S.C. § 666(k). The Secretary, through
the Occupational Safety and Health Administration (“OSHA”), had proposed a penalty of
$1125. The judge assessed $100 after discussing evidence relating to the four statutory
factors.
The judge affirmed Citation 1, Item 2, which alleged a violation of 29 C.F.R.
§ 1926.502(b)(12) because a stairwell opening used to pass building materials through was
not completely covered or protected by a guardrail system when it was not in use. The hole
was partially covered by plywood, and yellow caution tape was put around the perimeter of
the hole. Because the violation presented the hazard of an 11-foot fall to employees, the
judge found that the violation was serious. OSHA had proposed a penalty of $675; the
judge assessed a penalty of $100 after discussing the penalty factors.

2
The judge noted that, as the compliance officer testified, Orion had a good written safety
and health program, compared to the other employers the compliance officer had inspected.
 3

                                History of Violations
   The judge stated in his decision that “[t]hough Orion had a history of prior OSHA

violations, none of those violations were for the cited standards,” therefore suggesting a
reduction based on that fact. We agree with the Secretary that this penalty factor
encompasses all of an employer’s prior violations, not just those of the same standard.
The compliance officer testified that OSHA did not give Orion any credit for this
factor because it had four previous serious violations. According to him, more information
on these violations “should be in the file.” However, we have not found in the record of this
case any further information from the Secretary on Orion’s previous violations. While the
history of violations is a factor to consider, we accord it little weight in this particular case.
We do so consistent with the lack of specific information in the record from the Secretary.
Employer’s Size
The judge’s only mention of size was when he noted that the compliance officer
“testified that Orion qualified for a 40% reduction in the penalty based on [its] size.” The
compliance officer did not testify as to the number of Orion’s employees. Later in the
hearing, Orion’s president stated that the company (which has its principal office in
Pasadena, Texas) had 480 employees. The Secretary asserts that until that statement from
Orion’s president, it thought Orion had between 26 and 100 employees, thus qualifying for
the 40 percent reduction specified in OSHA’s Field Inspection Reference Manual (“FIRM”).
The Secretary contends that Orion’s larger size, which it argues it could have learned of
through discovery had this not been an E-Z Trial proceeding, thus disqualified Orion from
a reduced penalty under the FIRM.
We note that, following the statement of Orion’s president that the company had 480
employees, no one testifying or representing the Secretary informed the judge that OSHA
had based its calculations on a different number. We also note that the cited employer’s size
can be established at the pre-hearing conference, if not earlier, in E-Z Trial cases. Those
matters aside, we find that size is not the primary factor in penalty assessment in this case.
 4

Even when an employer was “relatively large” with approximately 600 employees, the
Commission assessed a penalty of $100 for a serious violation of a fall protection standard
where the overriding factor was the low gravity. See Flintco, Inc., 16 BNA OSHC 1404,
1406, 1993-95 CCH OSHD ¶ 30,227, pp. 41,611-12 (No. 92-1396, 1993).
Gravity of Midrail Violation
Because the gravity of the offense is the only one of the four penalty factors
addressing the particulars of a violation under consideration in a case, it is usually the factor
of greatest significance in penalty assessment. Flintco, Inc., 16 BNA OSHC at 1406, 1993-
95 CCH OSHD at p. 41,611; Natkin & Co., 1 BNA OSHC 1204, 1205 n.3, 1971-73 CCH
OSHD ¶ 15,679, p. 20,968 n.3 (No. 401, 1973). The judge identified the gravity of the
violation as the most significant factor in assessing the penalty.
The judge concluded that the gravity of the midrail violation was low. He found that
“[t]he only employees working in the area without a midrail were protected from falling by
the metal studs they worked behind. Employees accessing their work areas were partially
protected by the guard railing’s most important rail, the top rail, which was adequately
installed.”
We agree with the judge that gravity is the most important factor here. The gravity
of a violation involves such considerations as the number of employees exposed, the
duration of exposure, the degree of probability of an accident, and any precautions taken
against it. E.g., Caterpillar, Inc., 15 BNA OSHC 2153, 2178, 1991-93 CCH OSHD ¶
29,962, p. 41,011 (No. 87-922, 1993). As the judge noted, the compliance officer testified
that he observed one exposed employee. The evidence is not specific as to the exact number
of exposed employees and the duration of their exposure. However, we find that the
probability of injury was extremely low in light of the facts (noted by the judge) that the
 5

employees installing the studs were protected by them and the employees going by the area
to reach their work were protected by the top rail.3
Gravity of Inadequately Guarded Hole Violation
In his discussion of the gravity of this violation, the judge considered the elements
noted above and found that at least two employees were exposed to the hazard as they
passed by the hole. He stated that the gravity was lowered by the presence of warning tape
around the opening as a “reminder barrier.”
The Secretary argues that the hole was in close proximity to where several employees
were working. However, the testimony at the transcript page she cites does not establish that
fact. On later pages, the testimony establishes that, as the judge found, two employees came
within two or three feet of the area as they passed by on their way to work on the other side
of the room. The Secretary also contends that the judge erred in not considering the tripping
hazard in his gravity evaluation. We note that in his discussion of the facts, the judge
mentioned the compliance officer’s testimony that construction materials and extension

3
The Secretary asserts that, based on the FIRM, the violation was of “moderate” gravity
because, although there was a lesser probability of a fall, the severity of any injury that
would result would be high. This assertion suggests that a serious violation cannot have low
gravity for penalty purposes, but that is not the case. See, e.g., Flintco, 16 BNA OSHC at
1406, 1993-95 CCH OSHD pp. 41,611-212 (serious violation for not protecting employees
from falling onto unprotected rebar, but gravity was low because probability of accident
was not great). We note that the penalty formulas in OSHA’s FIRM are not binding on the
Commission. See, e.g., Roberts Pipeline Constr., Inc., 16 BNA OSHC 2029, 2030, 1993-95
CCH OSHD ¶ 30,576, pp. 42,331-32 (No. 91-2051, 1994), aff’d without published opinion,
85 F.3d 632 (7th Cir. 1996); Hern, 16 BNA OSHC at 1622, 1993-95 CCH OSHD at p.
41,882; Nacirema Operating Co., 1 BNA OSHC 1001, 1003, 1971-73 CCH OSHD ¶
15,032, pp. 20,043-44 (No. 4, 1972). It is well-settled that the Commission has the
exclusive authority to assess penalties for items that have been contested, and the Secretary’s
proposed penalties are no more than proposals. E.g., Secretary v. Arcadian Corp., 110 F.3d
1192, 1199 & n.8 (5th Cir. 1997); California Stevedore & Ballast Co. v. OSHRC, 517 F.2d
986, 988 (9th Cir. 1975); Hern, 16 BNA OSHC at 1621-23, 1993-95 CCH OSHD at pp.
41,881-83.
 6

cords presented a tripping hazard in the area. We agree with the Secretary that this should
be considered in evaluating the probability of an accident in the gravity determination.
We conclude that the gravity is low based on: the small number of exposed
employees; the fact that employees were primarily working on the other side of the room and
so were exposed when passing by on their way to work elsewhere; although there were some
materials that could present tripping hazards near the hole, the exposed employees got no
closer than two to three feet from the hole; plywood covered part of the hole; and the caution
tape went around the perimeter, attached to the top of stanchions at the corners of the hole
at a height easily visible to an employee walking within two or three feet, as shown on the
photographic Exhibit S-1. As with the item above, we find that gravity is the most
significant penalty factor here.
Penalties
Based on the gravity, history, and size discussions above, and on Orion’s good faith
demonstrated by its good written safety program, we determine that the judge’s assessment
of a penalty of $100 each for these two low-gravity violations is appropriate.
Order
In light of the above, we assess a penalty of $100 for the violation of section
1926.502(b)(2), and a penalty of $100 for the violation of section 1926.502(b)(12).

                                                     /s/
                                                     Thomasina V. Rogers
                                                     Chairman


                                                     /s/
                                                     Gary L. Visscher
                                                     Commissioner

Date: August 12, 1999
 SECRETARY OF LABOR,
Complainant,

                          v.                                OSHRC DOCKET NO. 98-2014

ORION CONSTRUCTION, INC., and its
successors,
Respondent.

APPEARANCES:

      For the Complainant:
               Stephen E. Irving, Office of the Solicitor, U.S. Department of Labor, Dallas, Texas

      For the Respondent:
               Russell B. Inserra, Orion Construction, Inc., Pasadena, Texas

Before: Administrative Law Judge: James H. Barkley

                                          DECISION AND ORDER

      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section

651 et seq.; hereafter called the “Act”).
Respondent, Orion Construction, Inc., and its successors (Orion), at all times relevant to this action
maintained a place of business at 16133 Lower Harbor Road, Harbor, Oregon, where it was engaged in
construction. Respondent admits it is an employer engaged in a business affecting commerce and is
subject to the requirements of the Act.
On October 20-21, 1998 the Occupational Safety and Health Administration (OSHA) conducted
an inspection of Orion’s Harbor, Oregon work site. As a result of that inspection, Orion was issued
citations alleging violations of the Act together with proposed penalties. By filing a timely notice of
contest, Orion brought this proceeding before the Occupational Safety and Health Review Commission
(Commission).
On April 27, 1999, an E-Z hearing was held in Houston, Texas. No briefs are required under E-Z
proceedings, and this matter is ready for disposition.
 Alleged Violation of §1926.502(b)(1)
Serious citation 1, item 1 alleges:
29 CFR 1926.502(b)(1): Each employee on a walking/working surface with an unprotected side or edge
which is 6 feet or more above a lower level was not protected from falling by the use of guardrail systems,
safety net systems, or personal fall arrest systems:

    (A) Employees were installing metal studs to the edge of the second level of the boathouse and
    were exposed to a fall of 11 feet to concrete below. The midrail of the guardrail system was
    removed to accommodate the work, and there was no safety net system nor personal fall arrest
    system used.

Facts
The OSHA Compliance Officer, Alex Bedard, testified that he conducted the inspection of a Coast
Guard boat house being constructed by Orion in Harbor, Oregon (Tr. 8-9). Bedard testified that he
observed employees working, installing metal studs, at the edge of the second level of the boat house (Tr.
9, 11). Bedard testified that the edge was inadequately guarded; though there was a top rail of 1/4 inch
cable in place, there was no midrail (Tr. 10; Exh. S-5, S-7). Bedard stated that he observed one employee
exposed (Tr. 9; Exh. S-4). Bedard also stated that employees accessed the second floor by means of a job
ladder in the inadequately guarded area (Tr. 12-13; Exh. S-6).
Elliott Kennedy, Respondent’s agent, testified that there was a second cable attached to the
stanchions in the midrail position; however, the tension on the cable had been released for easier
installation of the metal studs (Tr. 14; Exh. S-8). The cable was hanging below the second floor level at
the time of the inspection (Tr. 14; Exh. S-8). Kennedy testified that with the midrail in place, the installer
could not reach through the metal studs, which were spaced 14 ½ inches apart, to install the outside screw
into the metal plate at the base of the stud (Tr. 16). Orion’s, president, Russell Inserra, stated that when
installing the outside screws, the installers were protected by the studs themselves (Tr. 21).
CO Bedard stated that his concern was for the employees accessing the area by means of the job
ladder, walking along the inadequately guarded edge, where no studs had yet been installed (Tr. 16; Exh.
S-4, S-6).
Discussion
The cited standard provides:
Guardrail systems. Guardrail systems and their use shall comply with the following provisions:

       (1) Top edge height of top rails, or equivalent guardrail system members, shall be 42 inches
    (1.1m) plus or minus 3 inches (8 cm) above the walking/working level. . ..


                                                  8

At the hearing, Complainant moved to amend the citation to conform to the evidence (Tr. 35), and
to allege a violation of paragraph (b)(2), which states:

      (2) Midrails, screens, mesh, intermediate vertical members, or equivalent intermediate structural
     members shall be installed between the top edge of the guardrail system and the walking/working
     surface when there is no wall or parapet wall at least 21 inches (53 cm) high.

       (i) Midrails, when used, shall be installed at a height midway between the top edge of the
     guardrail system and the walking/working level.

     Pursuant to Rule 15(b) of the Federal Rules of Civil Procedure, made applicable to Commission

proceedings by 29 CFR §2200.2(b), post-trial amendment of the pleadings is proper “[w]hen issues not
raised by the pleadings are tried by the express or implied consent of the parties.” Peavey Co.,16 BNA
OSHC 2022, 1994 CCH OSHD ¶30,572 (No. 89-2836, 1994). Consent may be implied from the parties’
introduction of evidence relevant only to the unpleaded issue. McWilliams Forge Company, Inc., 11 BNA
OSHC 2128, 1984 CCH OSHD ¶26,979 (No. 80-5868, 1984).
It is clear that the parties were both aware that the midrail, rather than the toprail, was at issue at
the hearing. The parties introduced evidence pertaining solely to the condition of the midrail. The citation
is, therefore, amended to allege violation of §1926.502(b)(2).
The violation is established, in that the midrail, though used, was not installed at a height midway
between the top rail and the walking/working level.4
Penalty
The cited violation was “serious”, in that an 11 foot fall could result in serious bodily injury. The
gravity of the violation, which CO Bedard figured as high (Tr. 36), was overstated. The only employees
working in the inadequately guarded area were protected from falling by the metal studs they worked
behind. Employees accessing their work areas were partially protected by the guard railing’s most
important rail, the top rail, which was adequately installed. Though Orion had a history of prior OSHA
violations, none of those violations were for the cited standards (Tr. 37). Orion had a good written safety

4
As noted at the hearing, Orion’s contention that no protection was required where its stud work was ongoing is

without merit (Tr. 22). Orion claims that its construction of a stud wall comprised an exempt “leading edge.” A
“leading edge,” however, is defined at §1926.500(b) as “the edge of a floor, roof or formwork for a floor or other
walking/working surface (such as the deck) which changes location as additional floor, roof, decking, or formwork
sections are placed, formed, or constructed.. . .” Only walking/working surfaces are encompassed in the definition. A
wall is never a leading edge.

                                                        9

and health program, compared to other employers Bedard had inspected (Tr. 37-38). Bedard testified that
Orion qualified for a 40% reduction in the penalty based on their size (Tr. 38).
Taking into account the relevant factors, especially the low gravity of the violation, which is the
principle factor to be considered, see, Nacirema Operating Co., 1 BNA OSHC 1001, 1972 CCH OSHD
¶15,032 (No. 4, 1972), I find that the proposed penalty is excessive. A penalty of $100.00 will be assessed.
Alleged Violation of §1926.502(b)(12)
Serious citation 1, item 2 alleges:
29 CFR 1926.502(b)(12): When guardrail systems are used around holes to pass materials, the hole shall
have not more than two sides provided with removable guardrail sections to allow the passage of materials.
When the hole is not in use, it shall be closed over with a cover, or a guardrail system shall be provided
along all unprotected sides or edges.

     (A) The stairwell opening on the second level of the boat house, which was used in the morning
     of October 20, 1998 as a passage way for building materials, was only partially covered by plywood
     and had a guardrail system that did not meet the requirements of 29 CFR 1926.502(b)(3)5 to protect
     employees against fall hazards when the opening was not in use.

Facts
CO Bedard testified that during his inspection of the site, he observed, and photographed an open
floor hole that was used for passing materials to the second floor (Tr. 22; Exh. S-1). Bedard stated that the
floor hole did not have a standard guardrail, and was guarded solely by yellow caution tape around the
perimeter of the hole (Tr. 23; Exh. S-1). Bedard testified that two employees, Mark Dickey and Robin
Rowl, told him that they had been walking within two or three feet of the stairwell opening (Tr. 25).
Bedard stated that likelihood of an accident occurring was increased by the presence of construction
materials and extension cords that presented a tripping hazard in the area (Tr. 25-26).
Mr. Kennedy testified that Orion employees had been using the hole, which was a future stairway,
to pass materials to the second floor for use in the stud work (Tr. 24). Kennedy admitted that, though
plywood had been installed over a portion of the stairwell, a fall hazard remained in the area of the caution
tape (Tr. 24). Kennedy further admitted that it was possible that employees had passed by the stairwell to
access their work areas, though the actual work areas were across the room from the opening (Tr. 25).
Mr. Inserra testified that the hole had been covered prior to its use as a pass through, and that it
would have been covered at the completion of the day’s work (Tr. 27).

5
Section 1926.502(b)(3) requires that guardrails be capable of withstanding a force of at least 200 pounds in any

outward or downward direction.

                                                        10

Discussion
The cited standard provides:
When guardrail systems are used around holes used for the passage of materials, the hole shall have
not more than two sides provided with removable guardrail sections to allow the passage of
materials. When the hole is not in use, it shall be closed over with a cover, or a guardrail system
shall be provided along all unprotected sides or edges.

   The evidence establishes that Orion violated the cited section, in that 1) the stairwell opening had

been, but was not at the time of the inspection being used for the passage of materials, and 2) the hole had
not been closed over, or provided with standard guardrails. Employees were exposed to the fall hazard
thus created as they accessed their work areas.
Penalty
As noted above, an 11 foot fall to the floor below could result in serious injury; the violation is
properly classified as “serious.” At least two employees were exposed to the cited hazard as they passed
by the area. The gravity of the violation was overstated, however, inasmuch as Respondent had placed
warning tape around the opening as a reminder barrier. Taking into account the gravity of the violation,
as well as the other factors discussed under item 1 above, I find that a penalty of $100.00 is appropriate,
and will be assessed.
Alleged Violation of §1926.25(a)
Other than serious citation 2, item 1 was vacated at the hearing for Complainant’s failure to make
the photographs available to Respondent as required under E-Z trial procedures (Tr. 33).

                                                11

ORDER

1. Serious citation 1, item 1, alleging violation of §1926.502(b)(2) is AFFIRMED, and a penalty of
   $100.00 is ASSESSED.

2. Serious citation 1, item 2, alleging violation of §1926.502(b)(12) is AFFIRMED, and a penalty of
   $100.00 is ASSESSED.

3. Other than serious citation 2, item 1, alleging violation of §1926.25(a) is VACATED.

                                                James H. Barkley
                                                Judge, OSHRC
   

Dated:

                                               12