On Petition for Review of an Order of the Occupational Safety and Health Review Commission OSHRC, Docket No. 88-2078.
Seitz*fn*, Sloviter and Greenberg, Circuit Judges.
D. Harris Masonry Contracting, Inc., a masonry subcontractor, has filed a petition for review of an order of the Occupational Safety and Health Review Commission finding it guilty of an other than serious violation of 29 C.F.R. § 1926.500(b)(8).
The facts adduced before the Administrative Law Judge are quite simple. During the inspection of a construction site, an Occupational Safety and Health Administration compliance officer observed a pallet on the second floor covering a ventilation shaft. He noticed that, although the pallet protected employees against the danger of falling into the shaft, the pallet itself contained 15 openings, each measuring 3 by 15 inches. The holes were neither covered nor guarded by a railing and thus they exposed employees to a tripping hazard. The pallet was in plain view and was readily accessible to all employees using the second floor. Several of petitioner's employees were working near it at the time of the inspection. The pallet had been placed by the general contractor.*fn1 After viewing the pallet, the compliance officer issued a citation to the masonry subcontractor who now petitions this Court.
The ALJ affirmed the citation. He found that the floor holes in the pallet were not guarded or covered and posed a tripping and falling hazard to the petitioner's employees. He also found that while petitioner was not responsible for the placing of the pallet, it was aware of the condition and its employees exposure thereto.
We review the Commission's factual finding under the "substantial evidence on the record as a whole" standard. Its legal conclusions are examined to determine whether they are in accordance with law.
The citation issued to the petitioner reads:
29 C.F.R. 1926.500(b)(8): Floor holes were not guarded by a standard railing and toeboard or a floor hole cover of standard strength and construction secured against accidental displacement:
(a) Second Floor Ventilation shaft with fifteen (15) openings, three (3) inches by fifteen (15) inches, on or about November 13, 1987.
The regulation, 29 C.F.R. 1926.500(b)(8), and the definitional regulation, 29 C.F.R. 1926.502(a), read as follows:
29 C.F.R. § 1926.500(b)(8): Floor holes, into which persons can accidentally walk, shall be guarded by either a standard railing with standard toeboard on all exposed sides, or a floor hole cover of standard strength and construction that is secured against accidental displacement. While the cover is not in place, the floor hole shall be protected by a standard railing.
29 C.F.R. § 1926.502(a): "Floor hole" -- An opening measuring less than 12 inches but more than 1 inch in its least dimension in any floor, roof, or platform through ...