Julius Nasso Concrete Corp.

Plain-English summary

Julius Nasso Concrete Corporation performed concrete work on a 17-story building where OSHA cited unguarded floor perimeters and open shaftways. The judge affirmed serious violations involving open-sided floors from the 13th through 16th floors and unguarded openings on the 13th floor, assessing $500 for each violation. He vacated the perimeter allegation for the 17th floor because he considered that level a roof outside the standard. The Commission held that 29 C.F.R. § 1926.500(d)(1) applies to flat roofs and reversed that portion of the judge's decision. Because witnesses disagreed about whether decking reached the roof perimeter and exposed employees, the Commission remanded the 17th-floor allegation for credibility findings. The remaining findings and the two $500 penalties were affirmed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.500(b)(1); 29 C.F.R. § 1926.500(d)(1)
• Outcome: The open-shaftway violation, the perimeter violations on floors 13 through 16, and $1,000 in penalties were affirmed; the 17th-floor perimeter allegation was reversed and remanded for factual findings.
• Key point: The open-sided-floor standard applies to flat roofs, but the Secretary still must prove that employees were exposed to the unguarded perimeter.

Full text (OSHRC public release)

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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC DOCKET NO. 673

JULIUS NASSO CONCRETE CORP.,

���������������������������������������������
Respondent.

July 29, 1974

Van Namee,
Commissioner:

����������� This matter is before the Commission
on my order directing review of a decision made by Judge David G. Oringer. � The judge concluded that Respondent was in
serious violation of the Occupational Safety and Health Act of 1970 (29 U.S.C.
651 et. seq. ) for having failed to guard the open sides of floors,
contrary to the requirements of 29 C.F.R. 1926.500(d)(1). [1]
He assessed a penalty of $500. � However,
he vacated a portion of the citation on the basis that the 17 th
floor being the highest level of a building under construction was a roof and
therefore was outside the scope of the standard.

����������� We have reviewed the record and
affirm except to the extent that the judge vacated the portion of the citation
relating to the 17 th floor. �
As to that portion, we reverse and remand. �

����������� Subsequent to his decision herein we
concluded that 29 C.F.R. 1926.500(d)(1) [2]
apples to all flat roofs. � S.D.
Mullins Co. and Diamond Roofing � OSHRC Docket Nos. 364 and 459, BNA 1 OSHC
1364, CCH Employ. S. & H. Guide para. 16,803 (Rev. Com�n., 1973). � Accordingly, it was error to vacate that
portion of the citation which related to the 17 th floor. �

����������� Unfortunately, we are unable to conclude
this case. � Judge Oringer did not reach
the factual issues since he resolved the case as a matter of law. � The evidence regarding the 17 th
floor is in direct conflict. �
Complainant�s witnesses testified that plywood decking had been carried
to 75 per cent of the floor�s outside perimeter. � If his testimony is to be believed, then
Respondent�s employees were exposed to the unguarded perimeter. � On the other hand, Respondent�s witnesses
testified that the decking was only in the center are of the floor and none
extended to the perimeter. � It therefore
appears that the issue must be resolved on a credibility finding, and that is a
matter for the trial judge to decide. �

����������� Accordingly, the judge�s order is
affirmed except to the extent that it vacates the citation for violation of 29
C.F.R. 1926.500(d)(1). � To such an extent
this matter is remanded for such further proceedings as are necessary and
consistent with this decision.

MORAN, Chairman,
dissenting:

����������� This case arises out of allegations
that employees of respondent were exposed to safety hazards while they were
engaged in the construction of a building on February 15, 1972. � By my calculations that�s almost two and
one-hale years ago! Presumably the building is now complete and the employees
are no longer at work there. � To remand
at this point is, in my opinion, worthless. �
The record in this case has been sitting around a long time. � Errors or deficiencies on job-safety
decisions ought to be identified and attended to in a timely fashion. � The very nature of the problems which this
law was enacted to solve seems to me to require that this Commission act on
disputed issues as expeditiously as possible. �
To remand at this point will surely mean that it will be more than three
years after the inspection before this tribunal can resolve the rather simple
questions which arose as a result thereof.

����������� In my opinion, we have a complete
record before us and can quickly resolve the issues in dispute without this
belated remand.

����������� The Judge bases his decision simply
on the fact that certain open-sided floors of the building were absent the
perimeter protection specified in the safety regulations. � We have held consistently that it is not
enough to establish that the Act gas been violated. � There must be evidence that employees of the
Respondent have been exposed to a hazard as a result of noncompliance with the
regulations Secretary v. Hawkins Construction Company , OSAHRC Docket No.
949 [1 OSHC 1761] (May 20, 1974); Seretary v. Gilles and Cotting , OSAHRC
Docket No. 504 [1 OSHC 1388] (October 9,1973); Secretary v. City Wide
Tuckpointing Service , OSAHRC Docket No. 247[1 OSHC 1232] (May 24, 1973).

����������� Evidence that respondent had
employees working on a 14,00 square foot surface with open sides and was 13 or
more stories about the ground does not show that those employees were exposed
to the hazard of falling over the side of the building. � Nor does the mere existence of several
unguarded openings in the said surface prove that employees were exposed to the
danger of falling through those openings.

����������� There must be proof of employee exposure to hazard. � It must be clear and convincing. � And the burden of proving is upon the
complainant. � Secretary v. Ellison
Electric , 1 OSAHRC 547, 553 [1 OSHC 3034] (1972).

����������� It�s clear to me from an examination
of the record that this case that complainant has not sustained its burden of
proof as indicated above. I therefor would dismiss the citation at this point
without the need for further action on remand.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC DOCKET NO. 673

JULIUS NASSO CONCRETE CORP.,

���������������������������������������������
Respondent.

July 23, 1973

Oringer,
Judge: � This is a proceeding under
section 10(c0 of the Occupational Safety and Health Act of 1970, 29 U.S.C. et
seq. (hereinafter referred to as �the Act�) to review Citations issued by the
Secretary of Labor (hereinafter referred to as �Complainant�) pursuant to
section 9(a), and a proposed assessment of penalties thereon issued pursuant to
section 10(a) of the Act.

����������� The Citations issued on February 29,
1972, and Compliant filed on March 31, 1972, alleges that Julius Nasso Concrete
Corp., the employer (hereinafter referred to as �Respondent�), on or about
February 15, 1972, at a workplace under its ownership, operation and control,
violated two occupational safety and health standards promulgated pursuant to
section 6 of the Act, which were deemed �Serious� by Complainant and which read
as follows:

Citation No. 1

29 C.F.R.
1926.500(d)(1)-(d) Guarding of open-sided floors, platforms and runways. � (1) Every open-sided flor 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)(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 tow-board 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.

Citation No. 2

29 C.F.R. 1926.500(b)(1)-(b)
Guarding of floor openings and floor holes. �
(10 Floor openings shall be guarded by a standard railing and toe boards
or cover, as specified in paragraph (f) of this section. � In general, the railing shall be provided on
all exposed sides, except at entrances to stairways.

����������� The
violations as alleged by the Complainant are described as follows:

Citation No. 1

29 CFR Sec.
1926.500(d)(1) as adopted by 29 CFR sec. 1910.

Failure to guard
open-sided floors, with a standard railing-(see (f)(i) of the sec.) or
equivalent- 13 th -17 th floors.

Citation No. 2

29 CFR Sec.
1925.500(b)(1) ad adopted by 29 CFR Sec. 1910.

Failure to guard
floor openings (4 open shafts on the 13 th floor) with a standard
railing-see sec (f)(i) of this sec.)and toe boards to cover.

����������� Notification of Proposed Penalties
were issued by the Complainant, on even date,, to wit, February 29, 1972,
proposing to assess a penalty of $700 for each of the alleged serious
violations described above, aggregating total penalties of $1400. � Respondent filed notice of intention to
contest Citations and proposed penalties with Complainant on March 22,1972.

����������� This cause was referred to the
Occupational Safety and Health Review Commission for hearing pursuant to
section 10(c) of the Act on June 23, 1972, the undersigned was appointed, and
the within case was assigned to him for hearing pursuant to section 12(e) of
the Act.

����������� Pursuant to notice, the hearing was
held on July 13 and July 19, 1972 in New York, New York.

����������� Having heard the testimony and
observed the demeanor of the witnesses, and having considered the same,
together with the Citations, Notification of Proposed Penalties, Notice of
Contest, pleadings, representations, stipulations and admissions of the
parties, it is concluded that substantial evidence, on the record considered as
a whole, supports the following

FINDINGS
OF FACT

����������� 1. �
The Respondent, Julius Nasso Concrete Corporation, is a New York
Corporation engaged in performing concrete work, with its principal office
located at 142 East 39 th Street, New York, New York. � The Respondent was engaged in a business that
was affecting commerce at the time of the violation (T. 3 & 4).

����������� 2. �
At the time of the inspections of the premises of the Respondent�s
worksite, the Respondent employed approximately one hundred and two (102)
employees at the job site (t. 31).

����������� 3. �
The Respondent�s net worth for the year in which the violation took
place as $4,000,000 (T. 4).

����������� 4. �
The prior Citation for a serious violation of 29 CFR 1926.500(b)(1),
referred to by the Complainant, during the trial of this action, may not be
considered in assessing the penalty or in weighing the evidence, in any manner,
inasmuch as the Notification of Proposed Penalty was never served upon the
Respondent, and therefore did not give the Respondent an opportunity to file a
Notice of Contest. � All it amounted to
was an incomplete allegation which was never completed nor prosecuted (t. 149,
150, 151, 152, 153).

����������� 5. �
As a result of inspections conducted at the Respondent�s worksite on
February 14 and 15, 1972, the Respondent was issued two (2) Citations for
serious violations and in addition thereto received Notification of Proposed
Penalties of $700 for each violation, aggregating � $1,400 in total penalties (Citations and
Notification of Proposed Penalty) (Complaint and Answer).

����������� 6. �
On February 15, 1972, the 17 th floor of the job site in
question herein was not guarded by a standard railing insofar as the open-sided
floor was concerned, however that constituted the roof of the building. � The Respondent had approximately twenty (20)
carpenters and laborers working on that floor (T. 17 & 18).

����������� 7. �
On February 15, 1972, the 16 th floor of the Respondent�s job
site had an open-sided floor not guarded by standard railings or any other
means. � Seven (7) employees of the
Respondent were working thereon (T. 18 & 19).

����������� 8. �
On February 15, 1972, the 16ht floor of the Respondent�s job site was an
open-sided floor not guarded by standard railings. � The Respondent had two (2) or three (3)
workers on that floor (T. 20, 21, 58, 59).

����������� 9. �
On February 15, 1972, the 14 th floor of the Respondent�s
jobsite herein in question did not have its open sides guarded by a standard
railing. � There were approximately
fifteen (15) employees of the Respondent working on this flor on February 15,
1972.

����������� 10. �
On February 15, 1972, the Respondent had approximately two (2) employees
on the 13 th floor exposed to unguarded open shaftways and the
open-sided floor that was not guarded by standard railings (T. � 22 & 23).

����������� 11. �
On the 15 th floor, the respondent had canvas around the edge
of the floor for about 75% of the area on February 15, 1972 (T. 110, 113).

����������� 12. �
On February 15, 1972, the Respondent had a little better than half the
floor protected by canvas in order to maintain the heat on the floor (T. 79,
114, 115).

����������� 13. �
There is a substantial probability that death or serious physical harm
could result from a lack of perimeter protection and in particular from the
lack of standard railing at the perimeter of an open-sided floor, particularly
at the height of the 13 th floor and above, as well as from open and
unguarded shaftways or floor holes at a height of 13 floors (T. 25).

����������� 14. �
On the 15 th day of February, 1972, there were two (2)
employees of the Respondent working on the 13 th floor of the
worksite, which floor had four (4) open shaftways which were floor openings
that had no cover, nor were they protected by a standard railing with a toe
board (T. 23 & 24).

����������� 15. �
The Respondent could have, with reasonable diligence, know of the
existence of the lack of standard railings at the perimeters of their
open-sided floors and of the floor openings that lacked covers or standard
railings and toe boards (T. 27, 28, 29).

����������� 16. �
The penalties proposed to be assessed to the Respondent by the
Complainant were inappropriate in the instant case.

DISCUSSION

����������� The testimony clearly reveals that
insofar as the 16 th floor is concerned, the Respondent violated the
standard found at 29 CFR 1926.500(d)(1), in that it had no perimeter protection
on that floor. � Insofar as the flor that
was 75% to 80% surrounded by canvas, while it did not measure up to the
standard, at least 75% of the floor had a lesser chance of exposure that had
there been nothing at all, �
Unquestionably the canvases put around the floor were not for safety
purposes but for keeping the heat in, nevertheless, were of some value and
better than a total exposure, however, approximately 25% of this floor was
exposed with no perimeter defense at all, an taking the Respondent�s
testimony., approximately 50% of the 14 th floor. � Insofar as the 17 th floor was
concerned, this in fact, was the roof of the building. � In the case of Secretary of Labor v.
Hawkins Construction Company , OSAHRC Docket Nos. 503 and 598, Judge Weinman
held that the omission of the term �roof� in the standard herein in question,
disclosed a specific intent of the framers of a standard to exclude roofs from
the scope of such standard. � I
agree. � It is an ancient axiom of the law
that ambiguities in a document are held against the writer thereof. � The decision of Judge Weinman became a final
order of the Commission on March 1, 1973. �
There are other conflicting decisions on this point, however, this Judge
agrees with the holding in the above referred to and accordingly, insofar as
the 17 th floor is concerned, the Secretary failed to sustain the
burden of proof of violation inasmuch as this was a roof and was not included
in such a standard. �

����������� Insofar as the 13 th floor
is concerned, the Judge is of the opinion that the most credible testimony
concerning employees on that floor was that of the Compliance Officer. � The Respondent vehemently argues that the
OSHA Form 1A is a self-serving declaration. �
If that is so, any report kept in the ordinary course of business would
be similarly self-serving. � This document
was not introduced to prove the verity of the allegations of the violation, but
to show what the Compliance Officer found on the date in question. � In my opinion while the Compliance Officer
was not as properly prepared as a witness should be in a case containing the
seriousness of this one, nevertheless, I found his testimony to be credible,
insofar as the number of employees located on the 13 th floor on the
15 th of February 1972.

����������� Insofar as the penalties are
concerned, I find that those penalties proposed to be assessed against this
Respondent are inappropriate. � Insofar as
failure to guard the perimeters are concerned, there is an inference that the
Secretary considered prior Citations that never became effective because of his
error, in arriving at a penalty of $700. �
In addition thereto, having found that the 17 th floor was not
a violation, and that the canvas lowered the exposure on most of the one floor
and part of another, an appropriate penalty would be $500. � Insofar as the penalty for the unguarded
shaftways or floor openings are concerned, similarly it is my opinion that a
penalty of $500 is appropriate, given all the circumstances found herein. � The Judge finds, however, that even if the
only violation of 29 CFR 1926.500(d)(1) found proven, ws that of the 16 th
floor, which appears clear and unequivocal in this record, then, and in such
case, the penalty herewith assessed at $500 would be moderate and appropriate
in the premises. � Based on the foregoing
considerations, the Judge makes the following

CONCLUSIONS
OF LAW

����������� 1. �
At all times herein mentioned, the Respondent was engaged a business
affecting commerce within the meaning of section 3(5) of the Occupational
Safety and Health Act of 1970.

����������� 2. �
The Respondent was, on the date of the inspection at its worksite herein
concerned, and at all other times mentioned herein, an employer subject to the
safety and health regulations promulgated by the Secretary of Labor. �

����������� 3. �
The Respondent did not violate that standard found at 29 CFR
1926.500(d)(1) insofar as the 17 th floor of the worksite is
concerned, as this floor constitutes the roof and does not come within the
purview of the aforementioned standard.

����������� 4. �
On the day of the inspection herein concerned, the Respondent violated
29 CFR 1925.500(d)(1), insofar as floors thirteen to sixteen are concerned,
however, the exposure on the 14 th and 15 th floors was
limited, as a result of the canvas utilized.

����������� 5. �
On the day of the inspection the Respondent violated 29 CFR 1926.500(b)(1),
in that certain of its employees were exposed to open shaftways that
constituted floor holes, on the 13 th floor. �

����������� 6. �
The violations of 29 CFR 1926.500(d)(1) and 29 CFR 1926.500(b)(1), are
�serious� violations within the purview of the Act.

����������� 7. � The penalties proposed in the instant case
were inappropriate and are modified to $500 for each violation, totaling in the
aggregate, penalties of $1,000.

����������� In view of the foregoing; having due
deliberation to the gravity of the violations, the size of Respondent�s
business, the presence or absence of good faith of the Respondent, and its
history; and good cause appearing therefore, it is

ORDERED that

����������� 1. �
The citation alleging violation of 29 CFR 1926.500(d)(1) is affirmed
insofar as the 16 th , 15 th , 14 th and 13 th
floors are concerned.

����������� 2. �
The Citation for that standard found at 29 CFR 1926.500(b)(1) is
concerned is hereby affirmed.

����������� 3. �
The Citation for serious violation insofar as that standard found at 29
CFR 1926.500(b)(1) is concerned is hereby affirmed.

����������� 4. �
The penalties proposed for serious violation of the standards above
referenced to are herewith modified as follows:

����������� (a) The penalty, assessed for the
violation of those parts of Citation No. 1 that were affirmed, is hereby
assessed at $500.

����������� (b) The penalty assessed in
violation of Citation No. 2, is herewith assessed at $500.

����������� The total penalties, assessed in the
aggregate, amount to $1,000.

����������� So Ordered.

[1] The judge also found Respondent in serious violation
of 29 C.F.R. 1926.500(b)(1) for having failed to guard open shaftways. � He assessed $500. � Review was not directed on this issue, and
the judge�s findings were based on the credibility fo the witnesses. Accordingly,
we affirm.

[2] The standard provides in pertinent part as follows:

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�open on all sides�.