Julius Nasso Concrete Corp., S & A Concrete Co., Inc., a Joint Venture

Plain-English summary

The joint venture was a concrete subcontractor on a multistory project in New York City. Five employees installed long reinforcing bars within 10 feet of an unguarded third-floor edge about 30 feet above the ground. The company argued that its mobile barriers had to be removed to handle the 33-foot bars. The Commission found that the record did not prove guarding was functionally impossible, and an expert identified a barrier cable as an available alternative. Because the company also failed to show that alternative protection was unavailable, its impossibility defense failed. The serious violation and $375 penalty were affirmed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.500(d)(1)
• Outcome: The third-floor perimeter-guarding violation and $375 penalty were affirmed.
• Key point: An impossibility defense failed when the employer did not prove that guardrails prevented the work or that alternative protection was unavailable.

Full text (OSHRC public release)

Docket No. 16012

JULIUS NASSO CONCRETE CORP., S & A CONCRETE CO., INC., A JOINT VENTURE

OSHRC Docket No. 16012

Occupational Safety and Health Review Commission

December 6, 1977

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Before: CLEARY, Chairman; and BARNAKO, Commissioner.
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COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Charles H. Reinhardt, Julius Nasso Concrete Corp. and S. & A. Concrete Co., Inc., A Joint Venture, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge Edward V. Alfieri, dated May 25, 1976, is before this Commission for review pursuant to 29 U.S.C. �
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661(i).
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That decision affirmed a portion of a serious citation which alleged that the respondent violated 29 C.F.R. �
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1926.500(d)(1) by failing to install perimeter guarding on the third level of a high rise structure. n1 The Judge assessed a penalty of $375, half of the amount that was originally proposed by the complainant.

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n1 The Judge vacated so much of the citation as pertained to a failure to install perimeter guarding along the concourse level.
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Since neither party has taken issue with that disposition, it shall not be considered on review.
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Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976).
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That holding is therefore accorded the significance of an unreviewed Judge's decision.
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Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

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The respondent contends on review that the Judge erred in rejecting the defense that it was impossible to comply with the requirements of �
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1926.500(d)(1). n2 For the reasons that follow, the Judge's decision is affirmed.

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n2 That standard provides in pertinent part:

Every opensided 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. . . .

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The respondent, a concrete subcontractor, was engaged in the construction of a large multi-storied structure in New York City at the time of the alleged violation.
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A number of the respondent's employees were installing rebars on the third level of the structure, 30 feet above ground.
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Five of the employees were observed within 10 feet of the unguarded edge of the floor, which was located along the north foundation wall.
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No perimeter guarding was provided [*3]
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for a distance of about 29 feet.

Prior to the start of the rebar installation process, the floor perimeter had been guarded by a mobile self-standing barrier system.
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However, the respondent's lather foreman testified that it was standard operating procedure to remove the railings to facilitate the installation of the rebars. Each rebar was 33 feet long.
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In the foreman's opinion, the length of the rebars necessitated the removal of the barriers to prevent jamming the railings or knocking them over.

An expert in construction practices, testifying on behalf of the complainant, expressed a contrary view.
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He indicated that, while the mobile barrier was not the most suitable guarding, it could have been kept in position during the rebar installation. n3 He also outlined a number of ways in which a cable could have been installed to serve as an alternate mode of perimeter protection.
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This unrefuted testimony was corroborated by the lather foreman's concession that the work could have been performed with a cable in place.

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n3 On review, the respondent asserts that the complainant's witnesses believed that the work could not have been done with the self-standing barrier system in place.
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Neither the transcript passages cited by the respondent nor the remainder of the record support that position.

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It is well settled that impossibility of compliance is an affirmative defense.
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To establish the defense, the employer must prove that compliance with the requirements of the cited standard was functionally impossible and that alternative means of employee protection were unavailable. n4 Taylor Building Associates, Inc., 77 OSAHRC 27/A10, 5 BNA OSHC 1083, 1977-78 CCH OSHD para. 21,592 (No. 3735, 1977).

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n4 Chairman Cleary is of the view that to sustain the defense an employer must additionally exhaust the Act's variance procedures where they are appropriate.
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See 29 C.F.R. Part 1905.

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Although the foreman opined that it was impossible to install the rebars with the barriers in place, the record is devoid of any evidence to support that conclusion.
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There is a paucity of evidence with respect to the manner in which the rebars were being installed. Moreover, there is no indication of the distance between the areas of installation and [*5]
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the location of the barriers. In view of the equivocal nature of this evidence and the contrary opinion of the complainant's expert, the respondent has not established that it was impossible to comply with the perimeter guarding standard.

Furthermore, the respondent made no attempt to prove that alternative means of protecting its employees were unavailable. The respondent contends, on review, that the expert's testimony with respect to the barrier cable should be discredited because of his lack of familiarity with the columns to which the cable would be attached.
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However, that witness indicated that the cable was readily adaptable to the type of structure involved, regardless of the specific configuration of the exterior columns. It is therefore apparent that alternative measures of employee protection, such as a barrier cable, were in fact available to the respondent.

The Commission therefore concludes that Judge Alfieri properly rejected the respondent's impossibility defense.
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Accordingly, the Judge's decision is affirmed.
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