Petition and cross-petition to review order of Occupational Safety and Health Review Commission regarding safety conditions in high-rise building project. Held, employer who creates and controls safety hazard violates 29 U.S.C. § 654(a)(2) so that court upholds Secretary of Labor's citation of violations of 29 C.F.R. § 1926.500(d)(1) regarding perimeter railing and 29 C.F.R. § 1926.250(b)(1) regarding material stored near and overhanging outer edges of building under construction. Petition of Secretary to review granted; cross-petition denied.
Medina, Oakes and Gurfein, Circuit Judges.
This case involves important questions relating to occupational safety in the construction industry. Dic-Underhill, a joint enterprise made up of Underhill Construction Corp. and Dic Concrete Corp., was engaged as a subcontractor*fn1 in the construction of a high-rise housing project in the Bronx, New York. On November 22 and November 27, 1972, a compliance officer or inspector under the Occupational Safety and Health Act*fn2 (the Act), Mr. Grudzwick, inspected the partially completed structure and issued certain citations for "serious" and "nonserious"*fn3 violations of rules setting forth safety standards (29 C.F.R. § 1926.250(b)(1) and § 1926.500(d)(1)) promulgated under § 655 of the Act by the Secretary of Labor. The Occupational Safety and Health Review Commission (OSHRC) upheld findings by the administrative law judge first of no violation of the nonserious charges based on the inapplicability of 29 C.F.R. § 1926.250(b)(1), which the Secretary petitions us to review, and second of a violation of the serious charge, under § 1926.500(d)(1), which Dic-Underhill petitions us to review. Jurisdiction here lies under 29 U.S.C. § 660.
The charge of a "nonserious" violation related to 29 C.F.R. § 1926.250(b)(1), which states that
Material stored inside buildings under construction shall not be placed within 6 feet of any hoistway or inside floor openings, nor within 10 feet of an exterior wall which does not extend above the top of the material stored.
Two separate incidents were involved in this citation. The first was on the eleventh floor of Building C in the housing project, where shoring material consisting of "four by fours," 4 inch x 4 inch x 8 feets, was being stored. That floor in the partially completed structure had neither an exterior wall nor any temporary perimeter guard. The material was stacked in a pile four feet wide and four and one-half feet high, and it extended approximately a foot into space over the edge of the floor. Bricklayers, apparently not employees of Dic-Underhill, were observed several floors below, working on a scaffold directly beneath the overhanging materials.
On the fourteenth floor of another building in the project, the OSHA inspector observed a similar situation. There, in a building which was likewise partially completed with no exterior walls or perimeter guards on the upper floors, steel braces were being stored at the edge of the structure. The braces, used to tie in concrete forms, were in stacks of eight about three feet wide and three feet high, and like the shoring material in the other building they extended approximately a foot over the edge. A number of workers were directly below the overhanging braces, but there was no proof that any of these workers were employees of Dic-Underhill. In each instance the materials were purposely stored overhanging the edge in order to facilitate their being hoisted by crane for reuse on other floors.
The nonserious violation, which carried with it a proposed $35 penalty, was contested by Dic-Underhill. After hearing, the citation was vacated by the administrative law judge on two grounds. First, he quite remarkably read the standard, 29 C.F.R. § 1926.250(b)(1), as prohibiting only the storing of material within six feet of any hoistway or inside floor openings (emphasis in his original). He thus viewed the standard as intended only "to prevent material from falling into openings in the floors, and not to protect material from falling off the floors and outside the building." Secondly, he found no evidence to demonstrate that Dic-Underhill employees were directly exposed to the hazard contemplated by 29 C.F.R. § 1926.250(b)(1), that is, being injured by falling material.
OSHRC review upheld this decision. The petitioning Secretary of Labor argues (1) that the plain language of 29 C.F.R. § 1926.250(b)(1) makes it applicable to the present case, (2) that proof of direct employee exposure to a hazard is not necessary to prove a violation of the Act, and (3) that even if direct exposure was necessary, it was proved here since all employees who must move around a construction site can be said to be directly exposed to a hazard such as the one here involved.
The second citation issued to Dic-Underhill concerned a serious violation of 29 C.F.R. § 1926.500(d)(1), which provides
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, 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 toe-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.*fn4
Three separate incidents involving a violation of this regulation were noted by the compliance officer. On November 22, 1972, inspection on the fifteenth floor of Building D in the housing complex 150 feet above ground found two field engineers, wearing no safety equipment whatsoever, "checking targets"*fn5 located at the edge of a floor with no perimeter guarding. There was some dispute as to whether the men could have done their work had the perimeter protection been in place,*fn6 but since this was at most an affirmative defense, under 29 U.S.C. § 661(f) and Fed. R. Civ. P. 8(c), the burden was on the employer to prove that this was not the case, a burden unsatisfied below or here. See NLRB v. Mastro Plastics Corp., 354 F.2d 170, 176-77 (2d Cir. 1965), cert. denied, 384 U.S. 972, 16 L. Ed. 2d 682, 86 S. Ct. 1862 (1966).
On November 27, 1972, while inspecting the seventeenth floor of Building B, 170 feet above ground, Mr. Grudzwick again found no perimeter protection. He also observed a man standing some 15 feet from the edge of the floor who identified himself as a Dic-Underhill employee. There was no conclusive evidence that the man was actually ...