Spancrete Northeast, Inc. v. Occupational Safety and Health Review Com'n, 722

Citation905 F.2d 589
Decision Date22 May 1990
Docket NumberD,No. 722,722
Parties14 O.S.H. Cas.(BNA) 1585, 1990 O.S.H.D. (CCH) P 28,946 SPANCRETE NORTHEAST, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent. ocket 89-4111.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Harry R. Hayes, III, Albany, N.Y. (Hayes & Hayes, Albany, N.Y., of counsel), for petitioner.

Charles F. James, Atty., U.S. Dept. of Labor Office of the Sol. Washington, D.C. (Robert P. Davis, Sol. of Labor, Cynthia L. Attwood, Associate Sol. for Occupational Safety and Health, Ann Rosenthal, Counsel for Appellate Litigation, Washington, D.C., of counsel), for respondent U.S. Dept. of Labor.

Before VAN GRAAFEILAND, MINER and WALKER, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

Spancrete Northeast, Inc. petitions for review of that part of an Occupational Safety and Health Review Commission order which held that Spancrete's failure to require its employees to use safety belts while grouting the second floor of a building under construction violated section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. Sec. 654(a)(2), and more specifically a construction standard promulgated pursuant thereto, 29 C.F.R. Sec. 1926.500(d)(1). For the reasons that follow, we vacate that portion of the Commission's order.

At the time the alleged violation occurred, Spancrete, a manufacturer and erector of precast concrete, was installing precast concrete slabs to form the second floor of the Heritage of Norwood health care facility in Norwood, New Jersey. The company installed the slabs in a two-stage process. In the first stage, a crew of five or six men, with the help of a crane, placed the slabs on masonry walls and steel beams so as to form the floor. The second stage involved the grouting with cement of the narrow gaps, or "keyways", between the slabs after they were set in place. This process also required a five-man crew. One worker transported the cement from a ready-mix truck to the work area in a wheelbarrow. Two men, using buckets, poured the grout into the keyways. Two others smoothed the joint areas with squeegees attached to wooden handles some five to six feet in length. Of necessity and pursuant to specific instructions, the workers who poured the grout near the outer edges of the slabs did so from a crouched position in which they faced towards the edge of the platform. The men who smoothed the grout near the outer edges of the slab also faced the platform edge as they manipulated their squeegees.

Section 1926.500(d)(1) reads as follows:

(d) Guarding of open-sided floors, platforms, and runways. (1) 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)(1)(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 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.

Section 1926.500(f) contains the specifications for a "standard railing." Paragraph f(1)(i) simply states the minimum requirements for standard railings made of wood. Safety belts are not the "equivalent" of standard railings within the meaning of section 1926.500(d)(1). Warnel Corp., 1975-76 O.S.H.D. p 22,576 (March 31, 1976).

On October 18, 1988, Leonard Drew, an OSHA inspector, issued the following citation with respect to Spancrete's grouting procedures:

                -------------------------------------------------------------------------------
                Standard,            Description                           Date by      Penalty
                  Regulation or                                              Which
                  Section of the                                             Violation
                  Act Violated                                               Must Be
                                                                             Abated
                -------------------------------------------------------------------------------
                                     Immediately                           200.00
                29 CFR 1926.500(d)(1): Open-sided floors or platforms, 6   Upon
                  feet or more above adjacent floor or ground level, were    Receipt
                  not guarded by a standard railing or the equivalent on
                  all open sides
                 a)                  The heritage of Norwood.  First floor
                                       was not provided with guard rails
                                       to prevent employee(s) falling
                                       11'4" to the ground below while
                                       grouting pre-cast slabs on
                                       10/14/88
                -------------------------------------------------------------------------------
                

---------- When Spancrete contested this citation, the Secretary of Labor issued a complaint based thereon. The complaint alleged in pertinent part that Spancrete had committed a serious section 17(k) (29 U.S.C. Sec. 666(k)) violation of 29 C.F.R. Sec. 1926.500(d)(1) in that the floor on which Spancrete's employees were grouting "was open-sided and was not provided with guardrails on the open sides" and the employees engaged in the grouting worked near the open unguarded sides and could have fallen 11 feet, 4 inches to the ground.

During the hearing that followed service of Spancrete's answer, the Secretary produced only one witness, Inspector Drew. Drew proved to have a very limited knowledge of general grouting procedures. He had no prior experience with precast concrete and had only inspected one precast construction job prior to Spancrete's. He did not observe Spancrete's employees while they were grouting, and his testimony concerning the grouting and the construction environment in which it was performed was sparse and in some respects erroneous. The exhibits and testimony introduced by Spancrete, none of which is contradicted, illustrate this very well.

The Heritage of Norwood building under construction was octagonal in shape. It was the core building of a larger structure with six wings extending out from the core. Spancrete's job was to lay the second floor of only the core building and about 1,600 square feet of one wing, "Wing C." The outside walls of the core building were of solid masonry construction, and the outer edge of Spancrete's precast slabs rested directly on the masonry. In the core building, the interior edges of the slabs rested on steel girders that were supported by steel posts spaced around the interior of the floor area. Some forty of these posts extended above the floor area to furnish support for the roof and the interior walls. Because of the building's unusual shape, the distances between the outer masonry walls and the nearest upright posts varied between eight feet and sixteen feet. In Wing C, both ends of the concrete slabs rested on bearing walls, and there were no upright projecting posts.

Richard Thornburg, Spancrete's vice president, testified that there were about 100 outer keyway edges that required grouting and that "it would be a matter of just a few seconds" for the grouting on each outer edge to be performed. He testified further that the total time for grouting all outer edges was probably no more than fifteen minutes. Thornburg, who had twenty-four years of experience in precast operations, also testified that he knew of no precast erector in the United States who installed guardrails for the protection of its Spancrete's other witness, Morgan Wildey, was Spancrete's erection foreman. Wildey testified that he had been employed by Spancrete for twenty-two years, that he had not erected a perimeter guard in all that time, and that no one ever had fallen off a building. In his opinion, there was no danger of this occurring.

workmen and that it was not standard industry practice to install them.

In the face of this testimony, Drew's recommendations for safety measures were anything but persuasive. One of these, that Spancrete build a two-story scaffold around the entire 400-foot perimeter of the building, seemed almost like a throw-away recommendation. There was no testimony as to the time, expense and danger involved in erecting and dismantling such a scaffold, except Thornburg's categorical statement that it would not have been economically feasible to construct it. The ALJ mentioned scaffolding only in passing and obviously did not give it serious consideration. In view of the fact that Spancrete's workmen could grout the entire floor in approximately four hours and would spend only about fifteen minutes of this time near the unguarded perimeters, the ALJ's adverse reaction to the scaffold suggestion was to be expected.

Equally without merit was Inspector Drew's suggestion that a wooden railing could be constructed by stringing two-by-fours between "Adjustable Safety Rail Brackets," four foot uprights with a clamping device on the bottom. According to a brochure that Drew offered in evidence, these brackets fasten like a vice on the edges of floor slabs and the steel beams upon which the slabs rest. One lip of the clamp, approximately six to eight inches long, is inserted underneath the steel beam, and the other lip, apparently the same length, is clamped to the top of the slab. Because the floor slabs in the Heritage of Norwood building rested on solid masonry walls, there were no steel beams under which the lower lip of the bracket could be inserted. Moreover, the uprights to which the two-by-fours would be attached are fastened to the inner end of the bracket's upper lip and thus are at least six to eight inches in from the edges of the concrete slabs. The toeboards required by section 1926.500(d)(1) are attached at the bottom of these uprights. It is quite apparent that it would be impossible for workmen to grout the keyways behind the toeboards and beneath the clamps. The ALJ also recognized that the hazard of setting the...

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