OSHRC Docket No. 14152

Occupational Safety and Health Review Commission

November 28, 1977


Before: CLEARY, Chairman; and BARNAKO, Commissioner.


Baruch A. Fellner, Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor

Michael J. Michaels, for the employer



BY THE COMMISSION: A decision of Review Commission Judge Abraham Gold is before this Commission for review pursuant to 29 U.S.C. 661(i). Judge Gold affirmed a nonserious violation of 29 C.F.R. 1926.701(a)(3) and assessed a $50 penalty for that violation. n1 He also affirmed a repeated violation of 29 C.F.R. 1926.500(d)(1) for the respondent's failure to install standard railings on several floors of one building. He assessed a $950 penalty for that violation.

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n1 Since the parties have not taken issue with the Judge's disposition of this violation, the Commission will not review it. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD para. 20,780 (No. 4136, 1976): Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976).

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The violations [*2] were detected during an inspection in June, 1975, of one building in a construction project on Greenwood Street in Worcester, Massachusetts. The respondent, the general contractor on the construction project, does not contend that a violation of 29 C.F.R. 1926.500(d)(1) was not established. The evidence clearly shows that the perimeters of three floors were protected only by a top rail or single strand of wire rope, whereas a standard railing includes not only a top rail but also, among other things, an intermediate rail. 29 C.F.R. 1926.500(f)(1). The respondent does contend, however, that the violation should not be characterized as a repeated one and that the assessed penalty is excessive. The Commission disagrees and affirms the Judge's disposition.

The evidence establishes that the respondent had been issued four prior citations for violations of 29 C.F.R. 1926.500(d)(1) which had become final orders because of the respondent's failure to contest them. See 29 U.S.C. 659(a). Although the violations occurred at other worksites n2 and not under the immediate supervisor of the instant worksite, the evidence shows that the failure to use standard railings in this [*3] case resulted from a deliberate decision by the respondent's top management officials, who were aware of the prior citations.

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n2 The first of the four previous citations, dated May 31, 1973, was for a nonserious violation and involved a worksite on Belmont Street in Worcester. The second, a citation for a nonserious violation, dated March 15, 1974, pertained to a worksite in Southbridge, Massachusetts. The third and fourth, citations for repeated violations, also pertained to the Southbridge worksite and were issued July 31, and October 4, 1974.

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The respondent's safety director, Steven Mirick, was present at the worksites when the present violation and two of the previous violations occurred. His duties included the correction of safety hazards. He inspected the respondent's worksites at least once a week. When he found anything wrong, he notified the president of the company and the president's brother, the respondent's general supervisor. The president admitted that no disciplinary action was taken against [*4] the supervisors on the other worksites even though three of those sites had the same superintendent.

Mr. Mirick testified that the subcontractors on the worksite frequently removed the railings and then neglected to replace them. He also testified that it was decided that "it was best just to put up the single rail" because the subcontractors often removed them anyway, because placement of equipment sometimes necessitated removal of the rails, and "because of the amount of time and exposure of the Granger Contracting employees replacing these guard rails."

In George Hyman Construction Company, 77 OSAHRC 67/C7, 5 BNA OSHC 1318, 1977-78 CCH OSHD para. 21,774 (No. 13559, 1977), Chairman Cleary and Commissioner Barnako expressed different views as to what was required to establish a repeated violation. They agree, however, that a repeated violation is established in this case under the tests adopted by each of them.

In Commissioner Barnako's opinion, the question of whether a violation is repeated turns on whether the employer disregarded the requirements of the standard. In this case, there is evidence that the respondent, although it knew of the standard, deliberately decided [*5] to install single railings rather than standard guardrails. Furthermore, although the violation in this case occurred under a different first-line supervisor than the previous violations, higher level supervisors with authority over the worksite knew of the situation and disregarded the standard's requirement. Accordingly, Commissioner Barnako concludes that the violation is properly found to be repeated. FMC Corporation, 77 OSAHRC 153/D4, 5 BNA OSHC 1707, 1977-78 CCH OSHD para. 22,060 (No. 13155, 1977).

The respondent requests the Commission to clarify its interpretation of repeated violations at fixed and nonfixed worksites. This request is related to the following policy in paragraph B5e, Chapter VIII, of the Secretary of Labor's Field Operations Manual:

For purposes of considering whether a violation is repeated, citations issued to employers having fixed establishments (e.g., factories, terminals, stores) will be limited to the cited establishment. For employers engaged in businesses having no fixed establishments (construction, painting, excavation) repeated violations will be alleged based on prior violations occurring anywhere within the same State.

In George [*6] Hyman Construction Co., supra, Chairman Cleary indicated agreement with the application of the Secretary's policy there and Commissioner Barnako rejected it. No further clarification is possible until a third member is appointed to the Commission. However, since both Commission members agree that a repeated violation has been established under the tests adopted by each of them, clarification of that matter is not essential to the resolution of this case.

The respondent contends that consistency requires vacation of the "repeated" characterization. The respondent argues that the prior citations demonstrate a pattern of issuing a nonserious citation for the first violation at a worksite. n3 The Commission rejects this contention.

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n3 See footnote 2, supra.

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The complainant might not have cited the respondent for a repeated violation in March, 1974, for a number of reasons. The characterization of a violation in a citation is initially a matter within the discretion of the Secretary. When a citation is [*7] contested, the Commission must review the exercise of that discretion and make an independent legal determination as to the propriety of the Secretary's characterization. In this case, after considering all the facts, the Commission has found a repeated violation.

The respondent also contends that the Secretary's failure "to uniformly apply the Act by failing to cite subcontractors jointly responsible for the alleged violation . . . is antithetic to the asserted gravity of the violation" and that "such discrimination against the general contractor in favor of subcontractors vitiates the Secretary's enforcement of the Act." This contention has no merit.

The respondent has not contended that it was not its responsibility to install the railings. Although the testimony indicates that the subcontractors had removed the railings on prior occasions, there is no evidence that they removed them in this instance. To the contrary, the evidence shows that the midrails had never been installed because it was felt that "it was best just to put up the single rail." Furthermore, the inspecting officer testified that he did not cite the subcontractor because he found no employee of a subcontractor [*8] exposed to the hazard. Under these circumstances, the Commission agrees with the Judge's conclusion that the complainant's failure to cite the subcontractors "would not lessen Respondent's responsibility under the Act." See Jackson Construction Co., 77 OSAHRC 137/C14, 5 BNA OSHC 1608, 1977-78 CCH OSHD para. 21,981 (No. 13843, 1977), and the cases cited therein, for the Commission's rules on contractor-subcontractor liability on multi-employer worksites.

The respondent further contends that the Judge erroneously ignored its motion to correct the transcription of Mr. Mirick's testimony and that he erred in depending on the incorrect transcription of that testimony. The testimony in question is transcribed as follows in the record;

Q. Did you hear Mr. Grady's [the inspecting officer's] testimony that it would have taken two thousand or three thousand extra feet [of railing] to do this?

A. Yes, sir, I did.

Q. Did you make that statement?

A. Yes, sir, I did, in conversation, as a defense. (Emphasis added.)

The Judge comments with respect to that evidence as follows in his decision:

The inspecting officer testified that Respondent's Safety Director told him at the closing [*9] conference after the inspection that over 3,000 feet of two-by-fours would be needed to install standard railings. . . . The Safety Director admitted making this statement "as a defense". . . .

This record establishes that Respondent failed to comply with the cited standard, and it is so found. I am convinced that Respondent had no intention of complying with the standard, and that the reason for noncompliance was the cost of the two-by-fours.

The respondent contends that the transcript should read "not as a defense."

The Judge erred in not ruling on the respondent's motion to correct the transcript. However, the Commission finds no prejudice in his failure to do so. Whether or not the statement was made as a defense or not is irrelevant. Regardless, the testimony establishes one reason why the respondent did not use standard railings. n4

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n4 The Commission notes parenthetically that 29 C.F.R. 1926.500(d)(1), the standard in issue, does not categorically require the use of a "standard railing." It also permits the use of an "equivalent" means of protection. This option afforded by the standard is something that the respondent may wish to consider in light of the asserted hardship in providing a "standard railing."


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Finally, the respondent asserts that evidence of its good faith demonstrates that the respondent had not "flaunted the requirements of the Act" and, at the very least, warrants reduction of the assessed penalty. The respondent points to a general safety program designed to achieve compliance with the Act. The inspector testified that he received "general cooperation" from the respondent. There is also evidence that the respondent had obtained favorable ratings from its insurer.

The Commission rejects the respondent's assertions. It agrees with the Judge's conclusion that "[t]he safety program of Respondent leaves something to be desired, in light of the frequent failure to comply with this standard." Even if the respondent's overall program was good, it is clear that it was not effective as to perimeter guardrails.

After considering the statutory criteria in 29 U.S.C. 666(i) in conjunction with the facts of this case, the Commission finds that the penalty assessment of $950 is appropriate, particularly in view of the gravity of the violation and the respondent's failure to comply with the standard [*11] on four prior occasions.

The Judge's decision is therefore affirmed.