Abbott-Sommer, Inc.

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Plain-English summary

Abbott-Sommer was a roofing subcontractor working on a flat roof in Totowa, New Jersey. The judge vacated an item alleging inadequate potable water but affirmed items involving head protection during slag hoisting, an enclosed debris chute, perimeter guarding, and fall-protection equipment for an employee pulling slag bags at the roof edge. Review was directed on whether the floor-guarding rule applied to a flat roof and whether multi-employer worksite decisions affected the result. Neither party filed exceptions or briefed those questions. The Commission declined to decide the issues in the absence of a compelling public interest and affirmed the judge's decision. The resulting penalties totaled $925.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.51(a)(1), 1926.100(a), 1926.252(a), 1926.500(d)(1), and 1926.28(a)
• Outcome: The potable-water item was vacated, four other items were affirmed, and $925 in total penalties were assessed.
• Key point: The Commission affirmed without deciding the directed flat-roof and subcontractor-liability questions because the parties neither appealed nor briefed them.

Full text (OSHRC public release)

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EN-US
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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

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

������������������������ v.

OSHRC DOCKET NO. 9507

ABBOTT-SOMMER, INC.,

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

February 17, 1976

�

DECISION

BEFORE BARNAKO,
Chairman; MORAN and CLEARY, Commissioners.

BY THE
COMMISSION:

The
decision of Administrative Law Judge Thomas J. Donegan in this case, dated
September 4, 1975, is before the Commission pursuant to an order issued under
section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. �
651 et seq. [hereinafter the �Act�]. The decision vacated Item Number 1 of
Citation Number One alleging a failure by Abbott-Sommer, Inc., to provide
potable water to its employees working on a flat roof. Items numbered 2 and 3
alleging failure to require employees to wear head protection while hoisting
bags of slag to the roof and failure to provide an enclosed trash chute, were
affirmed. Citation Number Two alleging non-compliance with the guarding
requirements of safety standard 29 CFR � 1926.500(d)(1) was affirmed. Judge
Donegan also affirmed Citation Number 3 alleging non-compliance with safety
standard 29 CFR � 1926.28(a) because an employee was working at the edge of the
roof pulling bags of slag onto the roof without proper personal protective
equipment. Civil penalties in the total amount of $925 were assessed for the
violations.

The
order for review was issued sua sponte by Commissioner Moran on the following
issues:

(1)
Was the occupational safety and health standard codified at 29 C.F.R. � 1926.
500(d)(1) applicable in this case?

(2)
Did the Judge properly follow the rule set forth in Underhill v. Brennan ,
513 F.2d 1032 (2d Cir., 1975) and properly apply the rule set forth in Anning-Johnson
v. OSAHRC , 516 F.2d 1081 (7th Cir., 1975) in deciding this case?

The
parties have filed no exceptions to the Judge�s decision. Hence there is no
appeal to the full Commission. Also, the parties have declined to brief the
issues listed in the order for review issued sua sponte by Commissioner Moran.
This being so, we decline to pass upon these issues or any other aspect of the
Judge�s disposition in the absence of a compelling public interest. See Boring
& Tunneling Co., of America, Inc. , No. 5782, OSHD Para. 20,253, �� OSHC
�� (December 29, 1975). Accordingly, the Judge�s decision is affirmed.

�

So ORDERED.

�

FOR THE
COMMISSION:

�

William S. McLaughlin

Executive Secretary

DATED: FEB 17,
1976

�

MORAN,
Commissioner, Concurring in Part, Dissenting in Part:

The
refusal of the foregoing opinion to address the directed issues leaves
unresolved the Commission�s position on two important issues which have
recently been resolved by Circuit Court decisions that conflict with the
Commission�s action in this case.

Employees
of respondent were engaged in laying tar paper on the flat roof of a building
under construction when its worksite was inspected. Because the perimeter of
this roof was not enclosed with guardrails, respondent was charged with a
failure to comply with the occupational safety standard codified at 29 C.F.R. �
1926.500(d)(1), which provides that:

�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. . . .�

�

In
Secretary v. S. D. Mullins Company, Inc. & Diamond Roofing Company ,
4 OSAHRC 1415 (1973), appeal docketed, Nos. 73�3704 and 73�3705, 5th Cir.,
November 14, 1973, the Commission ruled that the above-cited standard applied
to flat roofs, a decision from which I dissented. The Commission concluded that
this standard was applicable to flat roofs because:

�. . . a flat roof
being constructed by employees and upon which they walk during the course of
their work is a �floor� rather than a roof to such employees.�

This
position has been reaffirmed by a divided Commission in Secretary v. Lance Roofing
Company, Inc. , 6 OSAHRC 95 (1974), appeal docketed, No. 74�1343, 5th Cir.,
February 8, 1974, and several other cases.

Subsequently,
however, in Langer Roofing and Sheet Metal, Inc. v. Secretary of Labor &
OSAHRC , 524 F.2d 1337 (7th Cir. 1975), the Circuit Court ruled that the
interpretation of section 1926.500(d)(1) advocated by the Secretary and adopted
by the Commission did not accord with normal usage and was unreasonable,
particularly in view of that fact that 29 C.F.R. � 1926.451(u)(3), [1]
the only regulation expressly requiring protection for roof edges, does not
apply to flat roofs and even specifically exempts roofs having slopes of less
than 4 inches in 12. [2]

Thus,
the question which should be resolved here is whether the Commission will
adhere to its prior positions or whether it will adopt the view of the Circuit
Court. Cf. Textron, Inc ., 196 NLRB No. 127, 80 LRRM 1099, reversed on
other ground s in National Labor Relations Board v. Bell Aerospace,
Division of Textron, Inc. , 416 U. S. 267, 94 S. Ct. 1757 (1974).

As
I state in my dissent in S. D. Mullins, supra , interpreting the term
�floor� in the cited standard to mean �roof� is contrary to common sense and
fails to provide fair notice of what this standard requires. Accordingly, I
believe that the Commission should adopt the Circuit Court�s viewpoint on this
question.

The
Commission�s failure to address this issue leaves our trial courts uncertain as
to just what position is taken by the Commission. Likewise, the Commission�s
failure to consider the relevance of the Circuit Court�s opinion in Anning-Johnson
Company v. OSAHRC , 516 F.2d 1081 (7th Cir. 1975), for another alleged
violation in this case leaves unsettled the important question of subcontractor
liability for safety infractions on multi-employer worksites.

In
Anning-Johnson it was held that subcontractors working on multi-employer
construction sites were not liable for nonserious violations of standards to
which their employees were exposed, but which the subcontractors neither
created nor were responsible for, pursuant to their contractual duties. This Anning-Johnson
rule conflicts with our rule that subcontractors may be cited for violations to
which their employees are exposed, notwithstanding the fact that violations are
nonserious and were not created by, or the responsibility of, the cited
subcontractor�a position taken by this Commission in a number of cases. [3]

In
this case, respondent, who was a roofing subcontractor, was charged with a
nonserious violation of 29 C.F.R. 1926.252(a) [4]
because there was no enclosed chute from the roof level to the ground for
disposing of debris and an employee of respondent was observed throwing debris
from the roof.

One
of the defenses that respondent posed to this charge was that responsibility
for installing the chute rested with the general contractor and not respondent. [5]
The Judge rejected this defense, giving the following reasons for his ruling:
(1) no showing had been made that respondent�s status as a subcontractor
prevented it from erecting the chute; (2) if the required protection is not
provided by the contractor, a subcontractor must provide it or stop work until
it is supplied; and (3) a subcontractor is not relieved of responsibility for
compliance with the Act by the contractor�s overall responsibility.

Each
of the reasons given by the Judge for rejecting this defense is addressed in
the Circuit Court�s opinion in Anning-Johnson . First, the Court in Anning-Johnson
did not require that the cited subcontractors show that they were prevented from
correcting the alleged violations to escape liability for those violations. In
fact, the subcontractors in that case stipulated that they were not prohibited
from abating the alleged violations. Secondly, the suggestion that
subcontractors stop work until the required protection is provided by the
general contractors was characterized by the Anning-Johnson Court as an
unrealistic and economically unfeasible solution. Lastly, the Court held that a
subcontractor is, under some circumstances, relieved of liability for safety
infractions to which his employees are exposed and, as noted above, defined
those circumstances. Accordingly, I find that the Judge should be reversed on
the basis of the Anning-Johnson decision.

For
the foregoing reasons, I would vacate Citation 2 and Item 3 of Citation 1.

Since
the Commission decision does not address any of the matters covered in Judge
Donegan�s decision, the same is attached hereto as Appendix A.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

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

������������������������ v.

OSHRC DOCKET NO. 9507

ABBOTT-SOMMER, INC.,

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

DECISION AND ORDER

APPEARANCES:

For the
Complainant:

Francis V. La
Ruffa

Regional
Solicitor

U.S. Department
of Labor

by: Louis D.
DeBernardo, Attorney

1515 Broadway

New York, New
York 10036

For the
Respondent:

David Neuwirth,
Attorney

250 West 57th
Street

New York, New York
10019

Donegan,
Judge:

This
is a proceeding pursuant to section 10(c) of the Occupational Safety and Health
Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as
the Act).

The
Respondent, Abbott-Sommer, Inc., a roofing contractor, had a place of
employment at 319 Cumberland Avenue, Totowa, New Jersey when this worksite was
inspected on July 17 and 18, 1974 by a compliance officer (inspector) of the
Occupational Safety and Health Administration, U.S. Department of Labor.

As
a result of this inspection there were issued to the Respondent on August 1,
1974 a citation number one for nonserious violations (3 items), a citation
number two for a serious violation, a citation number three for a serious
violation, and a notification of a total proposed penalty of $1,645 for all of
the alleged violations.

The
Respondent timely contested the three citations and the proposed penalties.

The
contested citations, proposed penalties and the standards allegedly violated
are as follows:

Citation Number
One (Nonserious)�

Item Number 1

St. Joseph�s Home for the Aged,
North wing roof, employees did not have any potable water supplied.

Abatement Date:

Immediately upon receipt of
this citation.

Proposed Penalty:

$35

Standard cited:

29 CFR 1926.51(a)(1)

�

� 1926.51 Sanitation.

�

(a) Potable water.

(1) An adequate supply of
potable water shall be provided in all places of employment

Item Number 2

North wing, yard area.
Employees hoisting bags of slag to the roof did not have any head protection
to protect them from falling materials and debris.

Abatement Date:

Immediately upon receipt of this citation.

Proposed Penalty:

$105

Standard cited:

29 CFR 1926.100(a)

�

� 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.

Item Number 3

�North wing, 4th floor did not have an enclosed chute for
the disposal of materials. Debris and materials were dropped more than
approx. 40 feet to the ground below where a workmen was carrying a ladder.�

Abatement Date:

August 22, 1974

Proposed Penalty:

$105

Standard cited:

29 CFR 1926.292(a)(sic)

�

� 1926.252 Disposal of Waste
Materials.

�

(a) Whenever materials are
dropped more than 20 feet to any point lying outside the exterior walls of
the building, an enclosed chute of wood, or equivalent material, shall be
used. For the purpose of this paragraph, an enclosed chute is a slide, closed
in on all sides, through which material is moved from a high place to a lower
one.

Citation
Number Two (Serious)

Item Number 1

�St. Joseph�s Home for the
Aged, 4th floor roof, North wing. Opensided floor did not have any perimeter
protection whatsoever to protect the employee from falling more than approx.
40 feet to the ground below.

�

Employees roofing the west wing
4th floor were working above and adjacent to the 14 parapet which enclosed
the floor.�

Abatement Date:

Immediately upon receipt of
this citation.

Proposed Penalty:

$700

Standard cited:

29 CFR 1926.500(d)(1)

�

� 1926.500 Guardrails, Handrails, and Covers.

�

(d) Guarding of open-sided floors, platforms, and runways.

(1) 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) 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 toeboard 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
Number Three (Serious)

Item Number 1

�St. Joseph Home for the Aged, north wing 4th floor roof.
Employee holding on to the hoist support leaning from the edge of the
openside of the roof, extending his right arm beyond normal reach to pull
bags of slag on to the roof was not wearing personal protective equipment to
prevent falling more than approx. 40 feet to the ground below.�

Abatement Date:

Immediately upon receipt of this
citation.

Proposed Penalty:

$700

Standard cited:

29 CFR 1926.28(a)

�

� 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.

The
Respondent�s answer does not deny the allegations of the complaint that
Abbott-Sommer, Inc. is a New York corporation that maintains an office and
place of business in New York City and engages in business activities affecting
commerce within the meaning of section 3 of the Act. At the opening of the
hearing the Respondent admitted that the Commission has jurisdiction under
section 10(c) of the Act (T. 12�13).

No
affected employees or representatives of affected employees have appeared or
have elected to participate in this proceeding (T. 11�12).

ISSUES AND FINDINGS

At
the time of the inspection the Respondent was engaged, as a subcontractor, in
installing a roof on the fourth floor level of a building being constructed by
a general contractor. More precisely, four employees of the Respondent were
laying tar paper under the supervision of a Mr. Boloscio, the Respondent�s
foreman, as depicted in exhibit C�1, a photograph taken by the inspector when
he was inspecting the work site on July 17, 1974.

In
this photograph Mr. Boloscio is standing with his back to the parapet at the
edge of the roof while holding a piece of tar paper. One of the four employees
leaning over the edge of the roof at the far side of Mr. Boloscio is indicated
by the letter �D� marked on exhibit C�1. The parapet (marked �P� in exhibit
C�1), around the perimeter of the wing of the roof appearing in exhibit C�1,
was approximately 14 inches in height.

The
Respondent�s employees were also engaged in hoisting bags of slag from the
ground to the roof and pulling the bags on to the roof from the hoist, as
depicted in exhibits C�4, C�5, and C�6.

The
four levels of the wing of the building where the Respondent�s employees were
working at the time of the inspection appear in exhibits C�2, C�4, C�5, and
partially in C�3. The distance from the ground level to the parapet on the roof
level was approximately 40 feet.

There
were six people employed by the Respondent at its temporary work site in
Totowa, New Jersey when the inspection was made on July 17 and 18, 1974 (T. 20,
95). Abbott-Sommer, Inc. is a successor corporation to Abbott Roofing and Sheet
Metal Works which had been in existence for approximately fifty years. Richard
Schlessinger, the president of the Respondent, was also president of the
predecessor corporation, having succeeded his father in that position. The
Respondent is of medium size in comparison with other companies engaged in
similar activities, and the gross business for 1974 averaged approximately
three million dollars (T. 148, 160).

The
inspector testified that he did not give the Respondent any credit for good
faith because abatement of the conditions cited was not implemented while he
was at the work site, and it was apparent to him that the Respondent did not
have a safety program. In evaluating good faith, he said he especially took
into consideration the statements made by foreman Boloscio concerning the
general contractor�s responsibilities for the alleged violations and the
employee�s responsibility to supply potable water for their own use (T. 68,
92�95).

The
statements Mr. Boloscio made to the inspector at the time of the inspection should
be considered in evaluating the Respondent�s good faith. On the other hand, the
credible testimony of Mr. Schlessinger requires that these statements,
particularly concerning the potable water, not be accepted as the sole criteria
in assessing the Respondent�s good faith. The evidence does not sustain a
finding that the Respondent was devoid of good faith.

The
Respondent had no history of previous violation of the Act (T.96).

Citation
Number One (Nonserious)

Item
No. 1�

It
is alleged that the Respondent did not supply any potable water for the four
employees and foreman on the roof as pictured in exhibit C�1. The cited
standard requires that an adequate supply of potable water shall be provided in
all places of employment.

When
the inspector inquired concerning the availability of potable water, he was
informed by Mr. Boloscio that it was the employees� responsibility to provide
their own drinking water. The inspector observed a thermos container on the
roof where the employees were working, but testified that he would not say
whether the thermos belonged to the Respondent or an employee. The foreman had
informed him that the employees brought their own drinking water in a container
to the work site.

Although
the inspector did not ascertain the capacity of this thermos, he estimated it
to be about one or two quarts, and said that it did not provide an adequate
supply of water for the employees working on the roof because the temperature
was in the �90�s� and the work was strenuous (T. 68�74, 92, 102). The inspector
was aware of a five gallon water cooler in the general contractor�s shanty
which he said was not available to the employees at the work site (T. 103,
108).

Mr.
Schlessinger, the president of Abbott-Sommer, Inc. testified that the drinking
water in the general contractor�s shanty was available to the Respondent�s
employees. He stated that the Respondent had also provided a thermos container
of a gallon capacity for the employees which was filled and refilled with
drinking water from the water cooler in the general contractor�s shanty (T.
151�152, 160�161).

It
is concluded that the substantial evidence of record does not sustain a finding
that the Respondent did not supply any potable water to the employees working
on the roof at the time of the inspection or that the amount of drinking water
supplied was not adequate. The cited standard was not violated as alleged in
this item of the citation.

Item
No. 2�

In
this item it is alleged that employees hoisting bags of slag to the roof in the
yard area adjacent to the north wing of the building did not have any head
protection to protect them from falling materials and debris. The cited
standard [29 CFR 1926.100(a)] requires that employees be protected by
protective helmets when working in areas where there is a possible danger of
head injury from falling objects.

Two
of three employees of the Respondent in the area where bags of slag were being
hoisted from the ground to the roof were not wearing hard hats. The two
employees who were not wearing hard hats were exposed to the hazard of the bags
of slag falling (T. 75�82, 108�110, 122; Exhibits C�4, C�5, C�6).

Mr.
Schlessinger testified that the Respondent�s employees at this work site were
supplied with hard hats and foreman Boloscio had been given four or five hard
hats prior to going out on the job site about a week and a half prior to July
17, 1974 (T. 152�153, 162).

It
is concluded that the Respondent was in violation of the cited standard as
alleged in the citation. The time for the abatement of this violation set forth
in the citation was reasonable. The gravity [6]
of this violation was not high and in applying the other criteria of section
17(j) [7]
of the Act it is determined that $50 is an appropriate penalty for this
violation of the cited standard.

Item
No. 3�

It
is alleged in the description of this violation that there was no enclosed
chute from the 4th floor of the north wing of the building to the ground below,
a distance of approximately 40 feet; and that debris and materials were dropped
over the exterior wall of the building from the 4th floor roof to the ground
below where a workman was carrying a ladder (Exhibit C�3). The standard 29 CFR
1926.252(a) [8] alleged to have been
violated requires that an enclosed chute be used whenever materials are dropped
more than 20 feet to any point lying outside the exterior walls of a building.

The
inspector observed an employee throwing debris from the 4th floor roof to the
ground outside the exterior wall of the north wing of the building. At the time
of the inspection there was no enclosed chute at this location for the disposal
of debris. The inspector identified this area of the ground as a passageway
leading into the north wing of the building which was used by workmen including
the Respondent�s employees. A workman, wearing a yellow hard hat and carrying a
ladder, was walking in this ground area at the time the inspector observed the
debris being thrown over the side of the roof. The inspector did not determine
whether this workman was an employee of the Respondent (T. 36�68, 101, 153;
Exhibits C�1, C�2, C�3).

The
Respondent contends that the responsibility for installing the enclosed chute
rested with the general contractor (J. R. Stevenson) and not with the
Respondent who was a subcontractor. The general contractor did install an
enclosed chute at this location subsequent to the inspection (T. 115�116, 120,
123�129, 151).

It
is concluded that the employees of the Respondent had access to the ground area
on which debris was thrown from the roof. This was used as a passageway in
gaining access to the 4th floor roof area where these employees were working
and as a result they were exposed to the hazard of falling debris. Although it
is not known whether the workman carrying the ladder in exhibit C�3 is an
employee of the Respondent, the Complainant need only show that the area of the
hazard was accessible to employees of the Respondent or other employees at the
work site [9] .

The
contention of the Respondent that it is not responsible for the violation is
rejected. There is no showing that its status as a subcontractor prevented it
from erecting an enclosed chute for the disposal of debris. A subcontractor is
not relieved of responsibility for compliance with the Act by the contractor�s
overall responsibility. If the required protection is not provided by the
contractor, then the subcontractor must provide it or stop work until it is
provided by the contractor.

The
Respondent is found to be in violation of the standard as alleged in this item.
The abatement period of the citation is reasonable. It is concluded that $75 is
an appropriate penalty for this violation under the criteria of section 17(j)
of the Act.

Citation
Number Two (Serious)

It
is alleged that the open-sided 4th floor roof on the north wing of the building
did not have any perimeter protection to prevent the employees who were roofing
adjacent to the 14 inch high parapet of the roof from falling more than 40 feet
to the ground below. The standard cited [29 CFR 1926.500(d)(1)] requires that
open-sided floors, platforms, and runways be guarded as set forth in the
standard.

This
standard is applicable to the fourth floor flat roof where four employees of
the Respondent were laying tar paper at the time of the inspection [10] .

The
14 inch high parapet, which is marked with a �P� on exhibit C�1, was the only
enclosure around the perimeter of the fourth floor roof level. One of the
employees was leaning over the edge of the roof while standing with one foot on
the parapet and one foot on the floor of the roof as indicated by the mark �D�
on exhibit C�1. Other employees were working with their backs within one foot
of the edge of the roof. The employees were not wearing safety belts or any
other type of personal protective equipment for the purpose of preventing them
from accidentally falling off the edge of the roof to the ground, which was
approximately 40 feet below. The 14 inch high parapet enclosing the perimeter
of the roof did not afford any protection to the employees for the purpose of
preventing accidental falls over the edge of the roof (T. 22�35, 119�120;
Exhibits C�1, C�2, C�5).

Mr.
Schlessinger testified that there were rail sockets 5 or 6 feet inside the 14
inch parapet enclosure which were intended for the purpose of installing a
fence after the work was completed (Exhibit C�1). He said the fence had not
been installed at the time of the inspection because it was necessary to flash
the parapet walls and bring the roofing out along the perimeter (T. 153�154,
163)

If
a fence had been installed at the location of these rail sockets, it would not
have protected the employees who were flashing the parapet walls and roofing in
the area between these rail sockets and the parapet. There is no showing in
this case that guarding of the perimeter of the fourth floor roof in compliance
with the cited standard would have created a greater hazard for the employees
working on the roof or would have prevented them from continuing their roofing
activities.

It
is concluded that the Respondent was in violation of the cited standard as
alleged in the citation. This was a serious violation within the meaning of
section 17(k) of the Act [11] .
The citation abatement time for this violation was reasonable. In applying the
criteria of section 17(j) of the Act, it is determined that $400 is an
appropriate penalty for this violation.

Citation
Number Three (Serious)

It
is alleged that an employee was not wearing personal protective equipment to
prevent him falling from the fourth floor roof to the ground while leaning over
the edge of the roof to pull bags of slag on to the roof (Exhibit C�6). The
cited standard [29 CFR 1926.28(a)] requires that employees wear appropriate
personal protective equipment where there is an exposure to hazardous
conditions. The employer is charged in the standard with the responsibility of
requiring the employee to wear such equipment.

The
employee appearing in exhibit C�6 was exposed to the hazard of falling to the
ground below while leaning over the edge of the roof for the purpose of pulling
the bag of slag on to the roof. He was not wearing any protective equipment to
prevent him from accidentally falling. The distance from the parapet, on which
the left foot of the employee was resting, to the ground below was
approximately 40 feet; and there was nothing which would have prevented this
employee from falling to the ground if he had lost his left hand grasp on the
vertical upright support of the hoist (T. 83�87, 91, 93, 110�113; Exhibit C�5,
C�6).

There
is credible and substantial evidence in the record to support a finding that
this employee could have been protected from an accidental fall to the ground
if he had been wearing personal protective equipment in the form of a safety
belt with a lanyard about 6 feet long attached to the hoist structure or a
secured post on the roof. This safety belt and lanyard would not create a
tripping hazard or interfere with stability of the hoist if that structure had
been adequately secured to the roof. The safety belt and lanyard would not have
prevented the employee from handling the bags of slag although it would have
slowed him down in his work performance (T. 134�144, 155�160, 163�164).

It
is concluded that the Respondent was in violation of the cited standard, and
that this violation was of a serious nature as provided in section 17(k) of the
Act. The citation abatement time for this violation was reasonable. Considering
the criteria of section 17(j) of the Act, it is determined that $400 is an
appropriate penalty for this violation.

CONCLUSIONS OF LAW

1.
The Respondent, Abbott-Sommer, Inc., was at all times material to this
proceeding an employer engaged in business affecting interstate commerce within
the meaning of section 3 of the Act.

2.
The Occupational Safety and Health Review Commission has jurisdiction over the
parties and the subject matter of this proceeding as provided in section 10 of
the Act.

3.
The place of employment maintained by the Respondent at Totowa, New Jersey was
inspected by an authorized employee of the Secretary of Labor on July 17 and
18, 1974 in accordance with section 8 of the Act.

4.
The Respondent did not violate 29 CFR 1926.51(a)(1) as charged in item No. 1 of
citation number one and consequently was not in violation of section 5(a)(2) of
the Act in this instance.

5.
The Respondent was in violation of section 5(a)(2) of the Act as a result of
not being in compliance with the following standards promulgated by the
Secretary of Labor as charged in the citations issued to the Respondent on
August 1, 1974:

Citation Number
One (Nonserious):

Item
No. 2�29 CFR 1926.100(a)

Item
No. 3�29 CFR 1926.252(a)

Citation Number
Two (Serious):

29
CFR 1926.500(d)(1)

Citation Number
Three (Serious):

29
CFR 1926.28(a)

6.
Appropriate civil penalties pursuant to the provisions of section 17(j) of the
Act are assessed as follows for these violations:

Citation Number
One:

Item
No. 2�$50

����������� Item No. 3�75

�

Citation Number
Two�$400

�

Citation Number
Three�$400

ORDER

Based on the foregoing findings of fact and conclusions of
law, it is ORDER:

1.
That Item No. 1 of Citation Number One be, and is hereby vacated.

2.
That Items Nos. 2 and 3 of Citation Number One be, and are hereby affirmed.

3.
That Citations Numbered Two and Three be, and are hereby affirmed.

4.
That the penalty of $35 proposed for the violation alleged in Item No. 1 of
Citation Number One be, and is hereby vacated.

5.
That the penalties proposed for Items Nos. 2 and 3 of Citation Number One and
for Citations Number Two and Three be, and are hereby vacated; and that civil
penalties for these violations be and are hereby assessed as follows:

Citation Number
One:

Item
No. 2�$50

Item
No. 3�75

�

Citation Number
Two�$400

�

Citation Number
Three�$400

�

� Dated: September 4, 1975

Seattle,
Washington

THOMAS J. DONEGAN

Judge

[1]
That standard provides in pertinent part that:

�A catch platform
shall be installed below the working area of roofs more than 16 feet from the
ground to eaves with a slope greater than 4 inches in 12 inches without a
parapet.�

[2]
The roof in this case would also be exempt under 29 C.F.R. 1926.451(u)(3)
because it had a parapet.

[3]
See, e.g., Secretary v. R. H. Bishop Co ., 8 OSAHRC 930 (1974).

[4]
This standard provides:

�Whenever materials
are dropped more than 20 feet to any point lying outside the exterior walls of
the building, an enclosed chute of wood, or equivalent material, shall be used.
For the purpose of this paragraph, an enclosed chute is a slide, closed in on
all sides, through which material is moved from a high place to a lower one.�

[5]
Respondent also defended against this charge on the grounds that complainant
had failed to show that employees of respondent were exposed to the hazard of
falling debris since the compliance officer had not determined if a workman he
observed in the area of the hazard was an employee of respondent. The Judge
rejected this defense, noting that under the rule of Brennan v. OSAHRC and
Underhill Construction Corporation , 513 F.2d 1032 (2nd Cir. 1975),
complainant need only show that the area of the hazard was accessible to
employees of the cited employer or those of other employers engaged in a common
undertaking�a showing that was made in this case. The ruling in Underhill ,
however, does not appear to be dispositive in this case. In Underhill, the
court limited its holding to situations �where . . . an employer is in control
of an area, and responsible for its maintenance.� Id . at 1038. Underhill
employed over 400 employees at the worksite inspected. Although it was a
subcontractor, the court noted that �it had considerable control over and
responsibility for the work areas at the building site.� Id . at 1033, n.

1. Respondent in this case had only a handful of employees at the worksite
   inspected. Moreover, the only evidence in the record on the issue of
   responsibility for installing a chute for debris indicates that the general
   contractor, and not respondent, was responsible therefor.

[6]
Examples of some of the factors that are considered in determining the degree
of gravity of the violation are: number of employees exposed to risk of injury;
duration of employee exposure; precautions taken against injury, if any; and,
degree of probability of occurrence of an injury.

[7] Section 17(j)
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 gravity of the
violation, the good faith of the employer, and the history of previous
violations.�

[8]
This standard was erroneously identified in item 2 of citation number one as 29
CFR 1926.292(a). The complaint correctly identifies the standard as 29 CFR
1926.252(a). There was no issue raised and there is no showing that the
Respondent was misled or prejudiced by this error (T. 38).

[9]
See: Secretary v. Dic-Underhill, A Joint Venture , 7 OSAHRC 134 (RC
1974), 513 F. 2d 1032 (2nd Cir. 1975).

[10]
See: Secretary v. S.D. Mullins Company, Inc. and Diamond Roofing Company,
Inc. , 4 OSAHRC 1415 (RC 1973).

[11]
Section 17(k) provides:

For purposes of this
section, serious violation shall be deemed to exist in a place of employment if
there is a substantial probability that death or serious physical harm could
result from a condition which exists, or from one or more practices, means,
methods, operations, or processes which have been adopted or are in use, in
such place of employment unless the employer did not, and could not with the
exercise of reasonable diligence, know of the presence of the violation.