J.E. ROUPP & COMPANY, INC. & DENVER DRY WALL COMPANY
OSHRC Docket Nos. 146; 147 (consolidated)
Occupational Safety and Health Review Commission
April 15, 1974
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: MORAN
OPINION:
MORAN, CHAIRMAN: A decision of Review Commission Judge David G. Oringer, dated September 28, 1972, is before this Commission for review pursuant to section 12(j) 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).
Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, the Judge's decision is hereby affirmed in all respects.
CONCURBY: CLEARY (In Part)
DISSENTBY: CLEARY (In Part)
DISSENT:
CLEARY, COMMISSIONER, concurring in part and dissenting in part: I concur in the Commission's affirming of the citations against Denver Dry Wall Co. in No. 147.
I dissent, however, from the Commission's vacating of all but one item against J.E. Roupp & Co., Inc. in No. 146.
Roupp (hereinafter "respondent"), the general contractor for the construction of a building, was cited for two serious and seven "other than serious" violations of the Act by failing to comply with safety and health regulations for construction and for one violation of the Act by failing to comply with reporting regulations promulgated by [*2] the Secretary of Labor pursuant to section 6 of the Act. The alleged serious violations involve the failure to provide railings on both balconies and stairways in contravention of 29 CFR § 1926.500(d) and (e). The alleged "other than serious" violations concern non-conforming ladders, dangerous scaffolding, unguarded floor openings and floor holes, improper electrical installations, unguarded equipment, the failure to maintain a log of occupational injuries, and the failure to provide an adequate number of fire-extinguishers. n1
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n1 The standards in question are found at 29 CFR § § 1926.450(a)(9) and (10), 450(b)(5) and (12), 451(a)(4), 451(b)(11), 500(b)(1) and (8), 400(a), 300(b)(2), 150(c)(1) and 29 CFR § 1904.2(a).
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I.
The subcontractor on the worksite, Denver Dry Wall Co., was also charged with a number of the same violations. n2 In addition to having eight employees of its own on the construction site, Roupp as the general contractor exercised the right of control over Denver Dry Wall's employees. [*3] n3 By virtue of this control, respondent is considered an employer of the subcontractor's employees for the purposes of the Act.
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n2 The Judge's finding of violations against Denver Dry Wall were affirmed by the Commission.
n3 One of Denver Dry Wall's employees was fatally injured when he fell from an unguarded balcony. Other employees were also exposed to this and other hazards as evidenced by the affirming of the violations as to Denver Dry Wall.
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The term "employee" cannot be construed solely according to common law concepts of master and servant. The meaning of the term "employee" as used in other social legislation such as the National Labor Relations Act, the Fair Labor Standards Act, and the Social Security Act has arisen in numerous cases. These cases are virtually unanimous in holding that the definition of employee as used in the respective statutes is not restricted to a technical common law meaning. See e.q., N.L.R.B. v. Hearst Publications, 322 U.S. 111 (1944); Rutherford Food Corporation [*4] v. McComb, 331 U.S. 722 (1947); Walling v. Portland Terminal Co., 330 U.S. 148 (1947); Goldberg v. Whitaker House Cooperative, 366 U.S. 28 (1961).
It is well settled that the meaning of the statutory term "employee" is to be determined on the basis of the purpose and policy of the legislation in question. United States v. Silk, 331 U.S. 704 (1947). Section 2(b) of this Act sets forth Congressional policy in the following terms:
The Congress declares it to be its purpose and policy . . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . .
Clearly, the Act which is remedial in nature seeks to protect the worker. In order to accomplish this purpose, it may be necessary to look to an employer who controls the working environment. Whether the employer controlling work environment is also the employer for wage or tort purposes should not be a governing factor.
Asserted employer-employee relationships brought into issue under the Act must, of course, be examined in light of the realities of the asserted relationship and the right of direction and control over the asserted employee. But, [*5] given the express purpose and policy of the Act, these should be tempered by the degree to which the asserted employer has the power to control the work environment. In multi-employer violations, such as this, there may be no other way of affording protection from safety and health hazards to employees. Compare Morey, "The General Duty Clause of the Occupational Safety and Health Act of 1970," 86 Harv. L. Rev. 988, 998 (1973).
It is my view, therefore, that even without reaching the issue of the exposure of respondent's own employees, the Commission should find respondent in violation of the Act based on the exposure of Denver Dry Wall's employees over whom respondent exercised control.
II.
Without addressing himself to the issue of respondent's liability for the exposure of employees of the subcontractor over whom it had control, the Judge vacated the items because "the primary defect in the instant cause is the lack of any evidence of employee exposure on the part of this Respondent."
An example of this type of analysis by the Judge is his disposition of item no. 6 of the citation for non-serious violations. n4 This item alleged a failure to comply with 29 [*6] CFR § 1518.300(b)(2) [now 29 CFR § 1926.300(b)(2)] in that there was machinery on the worksite without adequate guards. Even though the Judge noted that respondent admitted ownership and control of the defective machinery, he concluded that there was inadequate evidence of employee exposure to find a violation. The Judge generally stated: "A violation may not be found if predicated on bare assumption, inference, innuendo or suspicion" (emphasis added). I disagree with the breadth of this contention. There is at least a permissible inference that machinery belonging to an employer that is on his worksite is used by his employees.
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n4 Although the Judge refers to item no. 5, it is clear from his discussion of the item that he is actually addressing item no. 6.
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The majority, without comment, has endorsed the Judge's determination that a violation cannot be proved without evidence of "actual" employee exposure. n5 The facts of this case, therefore, raise two questions of paramount importance. First, [*7] what constitutes employee exposure? Second, who has the burden of proving exposure?
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n5 The Judge's decision is consistent with other Commission decisions authored by the majority. See Arizona Public Service Co., No. 329 (October 18, 1973).
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A majority of the Commission has held that "actual" exposure is required before a violation may be found. n6 I disagree with this approach. The purpose of the Act is to prevent accidents, not to fix the blame for an accident after it has occurred. n7 Accordingly, it is incumbent upon the Commission to designate as a violation and to order the abatement of any hazard to which employees may potentially be exposed. n8 To await the actual exposure of employees is too late. "The Act affords protection from potential as well as actual hazards." Home Supply Co., No. 69 (March 28, 1974) (Cleary, Commissioner, concurring in part and dissenting in part). The distinction between actual and potential exposure is, however, more semantic than real. Thus, I believe that a violation [*8] of the Act can be based on either actual or potential exposure. Any difference would seem to be one of degree rather than kind.
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n6 In Arizona Public Service Co., supra note 1, the Commission stated: Clearly, there must be exposure to the hazard before it can be said that there is a likelihood of death or serious physical harm. Since Meade was not actually exposed there is no violation. Id. (Slip op. at 4) (emphasis added).
n7 See Brennan v. O.S.H.R.C. & Manuel Maes Constr. Co., Inc., No. 73-1464 (10th Cir., March 28, 1974).
n8 Where a hazard exists on a worksite and employees have access to the situs of the hazard, there is potential exposure, regardless of whether there is any evidence of an employee coming into immediate proximity of the hazard.
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With respect to the burden of proving exposure, section 10(c) of the Act provides that the Commission shall afford an opportunity for a hearing in accordance with section 5 of the Administrative Procedure Act (A.P.A.), n9 requiring that [*9] an agency give all parties opportunity for a hearing and decision in accordance with section 556 of the A.P.A.
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n9 5 U.S.C. § 554 et seq. (1967).
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Section 556(d) of the A.P.A. provides as follows: "Except as otherwise provided by statute, the proponent of a rule or order has the burden of proof . . ." Similarly, the Commission's rules of procedure place the burden of proof on the Secretary in actions commenced by the filing of a notice of contest when the employer in effect requests a hearing on the matters that have been alleged by the Secretary. n10
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n10 29 CFR § 2200.73(a).
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The Secretary must, therefore, present a prima facie case. Once a prima facie case is established, the burden of producing rebutting evidence is on the respondent. A crucial question, then, is whether the burden of producing evidence of employee exposure is on the Secretary, [*10] or whether evidence of non-compliance with a standard at a workplace of the employer constitutes a prima facie case, thereby shifting the burden to the employer to establish that its employees were not or could not have been exposed to the hazard?
Without a protracted discussion of presumptions and the shifting of burdens, n11 it should be noted that there are essentially three evidentiary considerations important here. Probability, access to proof, and social policy, all strongly suggest that the proving of one fact, ( e.g., non-compliance with a standard at a workplace) raises a rebuttable presumption with respect to a second fact (employee exposure, "actual" or "potential").
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n11 For a discussion of this subject, see McCormick, Law of Evidence Ch. 36 (2d ed. 1972); Jaffe, "Administrative Law: Burden of Proof and Scope of Review," 79 Harv. L. Rev. 914 (1966); Ray, "Presumptions and the Uniform Rules of Evidence," 33 Texas L. Rev. 588 (1955).
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With respect to probabilities, McCormick [*11] states:
Perhaps a more frequently significant consideration in the fixing of the burdens of proof is the judicial estimate of the probabilities of the situation. The risk of failure of proof may be placed upon the party who contends that the more unusual event has occurred.
McCormick, supra at 787. Because it is usual that at least some employees of a prime contractor, such as his job supervisor and others with wide responsibilities, at a construction worksite are actually or potentially exposed to some or all of the violative conditions found to exist by the Secretary, the employer should prove the unusual circumstances, i.e., that his employees were not exposed to the hazards.
A second consideration for requiring the employer to prove a lack of exposure is the employer's greater access to proof. As McCormick observes:
A doctrine often repeated by the courts is that where the facts with regard to an issue lie peculiarily in the knowledge of a party, that party has the burden of proving the issue.
McCormick, supra at 787. It is clear that an employer's personnel are in a position far superior to that of compliance officers in having knowledge of and access [*12] to evidence of where each employee is working or assigned at a particular time. Under these circumstances it is only reasonable to place the burden of proving a lack of exposure on the employer.
Finally, for public policy reasons the burden of proof with respect to any lack of exposure should be upon the employer. As an administrative agency, the Commission has an affirmative duty to protect the "public interest." n12 That normally protean term has definite meaning here. It is the essential purpose of the Act of providing safe and healthful working conditions.
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n12 Brennan v. O.S.H.R.C. & John J. Gordon Co., No. 73-1729 (2d Cir., February 25, 1974) (Slip op. at 1922).
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To require the Secretary to prove actual exposure would be detrimental to the intent of the Act. As Judge Burroughs observed in Allied Electric Co., No. 433 (June 23, 1972) Administrative Law Judge):
It would be an undue burden on the petitioner to require a showing of actual use of defective equipment. Any such requirement [*13] would cause the compliance officer to wait around in hopes of someone using the equipment. This would result in a cat-and-mouse game as contended by the petitioner. More importantly, it would expose an employee to a hazard prior to the Secretary being able to require it to be corrected.
In summary, it is my view that upon proof by the Secretary of non-complying conditions on respondent's worksite there should be a general presumption that respondent's employees are actually or potentially exposed to the hazard and that respondent then has the burden of proving a lack of actual or potential exposure.
For the foregoing reasons, and inasmuch as respondent in the instant case has failed to introduce any evidence that its employees were not exposed to the violative conditions, I would affirm the violations vacated by the Commission.
[The Judge's decision referred to herein follows]
ORINGER, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10(c) of t Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereinafter referred to as the Act) to review a citation for serious violations alleging violations of two sections of a standard, and a citation for [*14] other than serious violations, containing eight (8) items, all issued by the Secretary of Labor (hereinafter referred to as the Complainant or Secretary), pursuant to Section 9(a), and a proposed assessment of penalties thereon issued, pursuant to Section 10(a) of the Act.
The citations issued on October 18, 1971, and the complaint filed on or about November 11, 1971, alleged that J.E. Roupp Co., Inc., a Corporation, the employer (hereinafter referred to as the Respondent), on October 12, 1971, at a workplace apparently under its operation and control wherein some of its employees were working, violated occupational safety and health standards promulgated pursuant to Section 6 of the Act, namely, those standards found at 29 CFR 1518.500(d) and 29 CFR 1518.500(e), now found at 29 CFR 1926.500(d) and 29 CFR 1926.500(e), which were alleged to be serious violations and, in addition thereto, those standards found at 29 CFR 1518.450(a)(9) and (10), 29 CFR 1518.450(b)(5) and (12) (Item No. 1); 29 CFR 1518.451(a)(4) and 29 CFR 1518.451(b)(11) (Item No. 2); 29 CFR 1518.500(b)(1) (Item No. 3); 29 CFR 1518.500(b)(8) (Item No. 4); 29 CFR 1518.400(a) (Item No. 5); 29 CFR 1518.300(b)(2) (Item [*15] No. 6); 29 CFR 1904 (Item No. 7); 29 CFR 1518.150(c)(1) (Item No. 8), all of which standards, other than that contained in Item No. 7, are now found at 29 CFR Part 1926.
The notification of proposed penalty was issued by the Complainant on the Respondent on even date with the citation, to wit, October 18, 1971, in which the Complainant proposed to assess penalties of $500 for the alleged serious violations and penalties of $14 for Item No. 1; $14 for Item No. 2; $65 for Item No. 3; $14 for Item No. 4; and $14 for Item No. 5, of the citation for non-serious violations. No penalty was proposed for Items No. 6, No. 7, and No. 8 of the citation for non-serious violations. The total penalties to be assessed against the Respondent for all alleged violations amounted, in the aggregate, to $621.
The Respondent timely filed its notice of contest in the within action. This cause was referred to the Occupational Safety and Health Review Commission for hearing, pursuant to Section 10(c) of the Act, on November 5, 1971, and on subsequent date, the undersigned was appointed, and the within case assigned to him for hearing, pursuant to Section 12(e) of the Act.
Pursuant to notice, [*16] the hearing was held on January 10, 1972, in Denver, Colorado. Upon opening of the hearing, an oral motion was made by the Complainant, and joined in by all of the parties, to consolidate Case Docket No. 147, bearing the title of Secretary of Labor v. Denver Dry Wall Company, with the instant cause. After a telephonic conference with one Commission member, the only one available at the time, concerning the grant of authority to waive the rule on consolidation, the undersigned granted the motion subject to the rendering of two separate decisions. Having received proposed findings of fact and conclusions of law from the Complainant in March, 1972, and none from Respondent, and having waited much longer than the time granted counsel for submission of such findings and conclusions, and such findings and conclusions not being mandatory, the judge at this time is rendering his decision.
Having heard the testimony and observed the demeanor of the witnesses, and having considered the same, together with the citations, notice of proposed penalties, pleadings, representations, stipulations, and admissions of the parties, it is concluded that substantial evidence on the record considered [*17] as a whole, supports the following
FINDINGS OF FACT
1. The Respondent, J.E. Roupp Co., Inc., a Corporation, is a corporation licensed to do business in the State of Colorado, and is engaged in the business of construction and reconstruction as a general contractor (Complaint and Answer).
2. The Respondent regularly received in commerce materials and supplies which have originated outside the State of Colorado, and its employees regularly handle and work on goods that have been shipped overseas in commerce (Complaint and Answer).
3. On or about October 18, 1971, a citation for serious violation was issued to this respondent, charging violations on October 12, 1971, of Sections of that standard found at 29 CFR 1518.500(d) and (e), (now found at 29 CFR 1926.500(d) and (e)) (Citation and Complaint).
4. On or about October 18, 1971, the Secretary issued upon the Respondent a citation for non-serious violation, alleging violation of those standards found as follows: Item No. 1, 29 CFR 1518.450(a)(9) and (10), 29 CFR 1518.450(b)(5) and (12); Item No. 2, 29 CFR 1518.451(a)(4), 29 CFR 1518.451(b)(11); Item No. 3, 29 CFR 1518.500(b)(1); Item No. 4, 29 CFR 1518.500(b)(8); [*18] Item No. 5, 29 CFR 1518.400(a); Item No. 6, 29 CFR 1518.300(b)(2); Item No. 7, Section 24 of the Act and 29 CFR 1904; Item No. 8, 29 CFR 1518.150(c)(1). All of the above standards, other than that contained in Item No. 7, are now found at 29 CFR, Part 1926 (Citation and Complaint).
5. On or about October 18, 1971, the Secretary issued upon the Respondent, a notification of proposed penalties for all of the above alleged violations in the total amount of $621 (Notification of proposed penalties).
6. Prior to November 5, 1971, the Respondent filed with the Secretary, a timely notice of contest (see acknowledgment of this Commission).
7. On October 11 and 12, 1971, this Respondent had eight (8) employees working at the construction project (Answer).
8. The record is absent any affirmative evidence that employees of this Respondent were working on any of the balconies or stairways found to be without guard rails or handrails, on October 11 or 12, 1971, or at any time relevant to the issues herein litigated, in violation of 29 CFR 1518.500(d) and (e), now found at 29 CFR 1926.500(d) and (e) (T. pp. 1 thru 108; Complainant's Exhibits 1 thru 15; Respondent's Exhibit No. [*19] 1).
9. The record is absent any affirmative evidence that any supervisory employee of this Respondent knew that anyone was working on that portion of the balcony unequipped with guardrails or that anyone was working on or using those stairways unequipped with railings on October 11 or 12, 1971, or at any time relevant to the issues herein litigated (T. pp. 1 thru 108; Complainant's Exhibits 1 thru 15; Respondent's Exhibit 1).
10. The record is absent any affirmative evidence that employees of the Respondent used ladders unequipped with side rails extending at least 36 inches above the landing which were not tied or secured to prevent displacement and which had cleats which were not inset or filled between and had fixed ladders not installed in accordance with ANI-A-14.3, on October 11 or 12, 1971, or at any time relevant to the issues herein litigated (T-pp. 1 thru 108; Complainant's Exhibits 1 thru 15; Respondent's Exhibit 1).
11. The record is absent any affirmative evidence that any employee of the Respondent on October 12, 1971, or at any time relevant to the issues herein litigated, utilized a fixed ladder unequipped for mounting with toe clearance of at least [*20] seven inches (T-pp. 1 thru 108; complainants Exhibits 1 thru 15; Respondent's Exhibit 1).
12. The record is absent any affirmative evidence that on October 12, 1971, or at any time relevant to the issues herein litigated, any employee of this Respondent used a scaffold at the project unequipped with guard rails and two boards (T-pp. 1 thru 108; Complainant's Exhibits 1 thru 15; Respondent's Exhibit 1).
13. The record is absent any affirmative evidence that any employee of the Respondent, on October 12, 1971, or at any time relevant to the issues herein litigated, used a scaffold that was equipped with a platform that had open spaces (T-pp. 1 thru 108; Complainant's Exhibits 1 thru 15; Respondent's Exhibit 1).
14. The record is absent any affirmative evidence that any employee of the Respondent, on October 12, 1971, or at any time relevant to the issues herein litigated, worked in or around floor openings on the second, third and fourth levels of the project which were not guarded by a railing or toeboards (T-pp. 1 thru 108; Complainant's Exhibits 1 thru 15; Respondent's Exhibit 1).
15. The record is absent any affirmative evidence that any employee of the Respondent, on October [*21] 12, 1971, or at any time relevant to the issues herein litigated, worked in or around, or in the proximity of floor holes on the third and fourth levels of the project, which were not guarded by railings or were uncovered (T-pp. 1 thru 108; Complainant's Exhibits 1 thru 15; Respondent's Exhibit 1).
16. The record is absent any affirmative evidence that on October 12, 1971, or at any time relevant to the issues herein litigated, any employee of the Respondent used an electrically powered portable compressor, located at the project, which compressor had exposed uncovered wires, not properly clamped or secured to the motor, and which also had a loose ineffective ground wire (T. pp. 1 thru 108; Complainant's Exhibits 1 thru 15; Respondent's Exhibit 1).
17. The record is absent any affirmative evidence that there were any occupational injuries or illnesses sustained by the employees of this Respondent, making a record of occupational injury and illnesses necessary to be maintained on October 12, 1971, nor had 48 hours expired after the death of the subcontractor's employee, on the date that the violation is alleged to have occurred.
18. The project which the Respondent [*22] was constructing contained no fire extinguishers (Complaint and Answer).
19. No penalty was proposed for violation of Item No. 8 of the citation for non-serious violations, to wit, failure to have a fire extinguisher for each 3,000 square feet of the building area, and the judge finds this reasonable and appropriate in the premises (Citation and Notification of Proposed Penalty).
20. The record is absent any affirmative evidence that the prime contractor assumed a contractual responsibility for all health and safety at the affected workplace, for the employees of all or any of his subcontractors.
DISCUSSION
The Secretary's Citation and Complaint allege two (2) serious violations, and eight (8) non-serious items which allege violations of twelve (12) sections of standards, all promulgated by the Secretary, pursuant to Section 6(a) of the Act. The complaint alleges that the violations occurred on October 12, 1971.
The record discloses evidence that on October 11, 1971, one employee of a subcontractor was working in the area affected by one serious violation, to wit, on a portion of a balcony containing no guard rails, temporary or permanent, and from which the subcontractor's [*23] employee fell, causing his death. The record further discloses that on that day, another employee of the subcontractor used a stairway containing in excess of four (4) risers, while unequipped with either railings or handrails.
There is evidence of record that the Respondent herein, the prime contractor had eight (8) employees on the job, but the record is absent evidence disclosing the areas wherein they worked on the job site. There is no affirmative evidence in the record demonstrating that any employee of the prime contractor worked at any time on either the 11th or 12th of October, in the areas affected by the serious violations. If employee exposure was proved, they would constitute serious violations, as a fall from an unguarded balcony four floors to the place beneath, and a fall from a stairway containing no handrails, railing or bannister, bear substantial probabilities that death or serious physical harm would result therefrom.
There are, in the Judge's knowledge, some construction projects where the prime contractor by contractual obligation assumes all responsibility for health and safety of all employees on the job. There is no such proof in the record in the instant [*24] cause. Nor is there any proof of record that any employee of the prime contractor, supervisory or otherwise, even had knowledge that employees of a subcontractor were working in the affected areas.
There was no proof adduced of record that the Secretary's compliance officer made any attempt to ascertain whether or not any employees of the prime contractor worked in the affected areas or had knowledge that employees of a subcontractor were working in those areas.
The rules of this Commission, in 29 CFR 2200.73(a) (formerly, 29 CFR 2200.33), clearly state as follows:
2200.73 Burden of Proof.
(a) In all proceedings commenced by the filing of a notice of contest, the burden of proof shall rest with the Secretary.
This means that the Secretary has the burden of proving all of the elements of that which constitutes the corpus or entire body of the violation.
A violation may not be found if predicated on bare assumption, inference, innuendo or suspicion.
In Scottish law, as distinguished from all other Anglo-Saxon Common Law jurisprudence, there is a verdict or judgment, as the case may be, designated "not proven," when sufficient proof is absent the record. The [*25] judge finds that insofar as the serious violations are concerned, the Secretary has failed to sustain his burden of proof and the violations were not proven and must fall.
Insofar as the non-serious violations are concerned, the same defects in proof exist except as to Items No. 7 and No. 8.
The judge notes that insofar as the violation of 29 CFR 1518.400(a) (Item No. 5 of the Citation for non-serious violations) is concerned, while the Respondent admits ownership of the machine and admits the lack of a guard thereon, nowhere in the record is proof of the machine's use by an employee of the Respondent. There may be an inference that inasmuch as it was on the premises, it was used or was to be used. This inference, however, does not constitute, in the opinion of the undersigned, substantial evidence. Had evidence been adduced in the record of a conversation between-the compliance officer and a supervisory employee demonstrating use of the machine by any employee of this Respondent at any time on this job, the finding on this issue might well have been different. The judge is of the opinion, however, that the Secretary has failed to sustain his burden of proof insofar [*26] as the items referred to are concerned.
The primary defect in proof in the instant cause is the lack of any evidence of employee exposure on the part of this Respondent. On construction work sites in particular, where employees work in different areas, and the site varies from day to day as the construction progresses, it is incumbent upon the complainant to adduce some evidence that respondent's employees were exposed to a hazard existing at the work site. There are oftentimes employees of many different subcontractors as well as employees of the prime contractor on the same construction job site performing different tasks in different places. Certainly an employer of employees who are never exposed to that part of the work site wherein violations exist cannot be found in violation of the Act.
Accordingly, it is incumbent upon the Secretary to adduce affirmative evidence of employee exposure to a violation for the citation to stand. In the case of Secretary of Labor v. Ellison Electric, OSHRC Docket #412, which became the final decision of the Commission on July 17, 1972, Judge Burroughs stated as follows:
The burden to prove that Respondent exposed its employees to [*27] the alleged violation is upon petitioner (complainant).
The Judge concurs.
Insofar as the alleged violation of 29 CFR 1904 is concerned, (Item No. 7), the complainant alleges a violation of that standard on October 12, 1971. The trier of the issues finds that the standard in effect at the time of the alleged violation, to wit, October 12, 1971, gave the Respondent two working days after receiving knowledge of the occupational injury to record it in its log. (See 29 CFR 1904.2 in the Federal Register of July 2, 1971.)
The initial log was to include recordable occupational injuries and illnesses occurring on or after July 1, 1971. (See 29 CFR 1904.3 in the Federal Register of July 2, 1971.)
This Respondent had no occupational illnesses or injuries to record in the log, and even if it was responsible to record the death of the subcontractor's employee, it had 48 hours so to do, and on October 12, 1971, the alleged date of the violation, only 24 hours had passed since the death occurred. Thus, on October 12, 1971, the Respondent's time to record the death in a log kept pursuant to 29 CFR 1904, still had 24 hours to go. In the opinion of the Judge, a Respondent [*28] has no duty to keep an empty log. The Judge notes in passing that in the Federal Register of January 18, 1972, the Secretary amended the standard found at 29 CFR 1904.2, by, inter alia, extending the time to enter each recordable injury or illness to no more than six (6) working days after receiving information of such injury or illness. While the violation charged in this case took place prior to the amendment, during the time when a 48-hour limitation was in effect, the 48 hours had not expired and the violation is not proven.
Insofar as Item No. 8 of the citation is concerned, the alleged violation of 29 CFR 1518.150(c)(1), that issue is settled by the pleadings wherein the Respondent admits that there were no fire extinguishers at the project, and this item of the citation is affirmed.
Based upon all of the foregoing, and the record in its entirety, the Judge makes the following
CONCLUSIONS OF LAW
1. At all the times herein mentioned, the Respondent employer was and still is, an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties [*29] and of the subject matter herein.
2. The Complainant has failed to sustain the burden of proof of violation by the Respondent of those standards found at 29 CFR 1518.500(d) and 29 CFR 1518.500(e), now found at 29 CFR 1926.500(d) and 29 CFR 1926.500(e).
3. The Complainant has failed to sustain the burden of proof insofar as Item No. 1 of the citation for non-serious violations are concerned, to wit, the alleged violations of those standards found at 29 CFR 1518.450(a)(9) and (10) and 29 CFR 1518.450(b)(5) and (12), now found at 29 CFR 1926.450(a)(9) and (10) and 29 CFR 1926.450(b)(5) and (12).
4. The Complainant has failed to sustain the burden of proof insofar as Item No. 2 of the citation for non-serious violations are concerned, to wit, the alleged violation of those standards found at 29 CFR 1518.451(a)(4) and 29 CFR 1518.451(b)(11), now found at 29 CFR 1926.451(a)(4) and 29 CFR 1926.451(b)(11).
5. The Complainant has failed to sustain the burden of proof insofar as Item No. 3 of the citation for non-serious violations are concerned, to wit, the alleged violation of those standards found at 29 CFR 1518.500(b)(1), now found at 29 CFR 1926.500(b)(1).
6. The Complainant [*30] has failed to sustain the burden of proof insofar as Item No. 4 of the citation for non-serious violations are concerned, to wit, the alleged violation of those standards found at 29 CFR 1518.500(b)(8), now found at 29 CFR 1926.500(b)(8).
7. The Complainant has failed to sustain the burden of proof insofar as Item No. 5 of the citation for non-serious violations are concerned, to wit, the alleged violation of those standards found at 29 CFR 1518.400(a), now found at 29 CFR 1926.400(a).
8. The Complainant has failed to sustain the burden of proof insofar as Item No. 6 of the citation for non-serious violations are concerned, to wit, the alleged violation of these standards found at 29 CFR 1518.300(b)(2), now found at 29 CFR 1926.300(b)(2).
9. The Complainant has failed to sustain the burden of proof insofar as Item No. 7 of the citation for non-serious violations are concerned, to wit, the alleged violation of those standards found at 29 CFR 1904.
10. The Respondent was in violation of that standard found at 29 CFR 1518.150(c)(1), in that the Respondent admitted in the pleadings the allegations of the Secretary that he had no fire extinguishers at his workplace.
11. [*31] The violation of 29 CFR 1518.150(c)(1) (Item No. 8), referred to above, was a violation of the standard promulgated pursuant to, and within the purview of, the Act, and the condition giving rise to that violation had a direct and immediate relationship to safety and health, but did not constitute a "serious" violation within the meaning of the Act.
12. It was reasonable and appropriate for the Secretary to propose no penalty for violation of Item No. 8, the violation of 29 CFR 1518.150(c)(1), now found at 29 CFR 1926.150(c)(1), referred to above.
In view of the foregoing, it is ORDERED, that
1. The citation issued by the Secretary to this Respondent for serious violations of 29 CFR 1518.500(d) and 29 CFR 1518.500(e), be, and the same, is hereby vacated;
2. That part of the Complainant's citation for nonserious violations containing Items No. 1 through No. 7, alleging violations of the standards found at 29 CFR 1518.450(a)(9) and (10), 29 CFR 1518.450(b)(5) and (12), 29 CFR 1518.451(a)(4), 29 CFR 1518.451(b)(11), 29 CFR 1518.500(b)(1), 29 CFR 1518.500(b)(8), 29 CFR 1518.400(a), 29 CFR 1518.300(b)(2), 29 CFR 1904, be, and the same, are hereby vacated;
3. That part [*32] of the Complainant's citation for nonserious violations bearing Item No. 8, alleging violation of that standard found at 29 CFR 1518.150(c)(1), be, and the same, is hereby affirmed.
4. The Complainant's proposed penalties individually and in the aggregate amount of $621, be, and the same are hereby vacated.
SO ORDERED.
ORINGER, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq., (hereinafter referred to as the Act), to review the citation issued by the Secretary of Labor (hereinafter referred to as the Complainant), pursuant to Section 9(a), and a proposed assessment of penalties therein issued, pursuant to Section 10(a) of the Act.
The citation issued on October 18, 1971, and complaint filed on or about November 12, 1971, alleged that the Denver Dry Wall Company, the employer (hereinafter referred to as Respondent), on or about October 12, 1971, at a workplace under its operation or control or wherein some of its employees were working, violated Occupational Safety and Health standards promulgated pursuant to Section 6 of the Act, namely, those standards found at 29 CFR 1518.500(d) and 29 [*33] CFR 1518.500(e), now found at 29 CFR 1926.500(d) and 29 CFR 1926.500(e).
Notification of proposed penalty was issued by the Complainant on the Respondent on even date with the citation, to wit, October 18, 1971, in which the Complainant proposed to assess a penalty of $500 for the alleged violation.
On November 2, 1971, the Respondent filed notice of intention to contest the citation and proposed penalty. This cause was referred to the Occupational Safety and Health Review Commission pursuant to Section 10(c) of the Act on November 5, 1971, and on December 9, 1971, the undersigned was appointed, and the within case assigned to him for hearing and decision, pursuant to Section 12(e) of the Act.
Pursuant to notice, the hearing was held on January 10, 1972, in Denver, Colorado. Upon opening of the hearing, an oral motion was made by the Complainant, and joined in by all of the parties, to consolidate Case Docket No. 146, bearing the title of Secretary of Labor v. J.E. Roupp and Company, Inc., a corporation, with the instant cause. After a telephonic conference with one Commission member, the only one available at the time, concerning the grant of authority to waive the rule on [*34] consolidation, the undersigned granted the motion subject to the rendering of two separate decisions.
Having received proposed findings of fact and conclusions of law from the Complainant in March, 1972, and none from Respondent, and having waited much longer than the time granted counsel for the submission of such findings and conclusions, and such findings and conclusions not being mandatory, the judge at this time is rendering his decision.
Having heard the testimony and observed the demeanor of the witnesses, and having considered the same, together with the citation, notice of proposed penalty, notice of contest, pleadings, representations and admissions of the parties, it is concluded that substantial evidence, on the record considered as a whole, supports the following
FINDINGS OF FACT
1. The Respondent, Denver Dry Wall Company, is a corporation licensed and qualified to do business in the State of Colorado and is engaged in the installation of dry wall in, on, and about construction projects (Complaint and Answer).
2. The Respondent engages in business in at least three States of the Union, to wit, Colorado, Kansas and Texas, and regularly receives in commerce [*35] materials and supplies which have originated outside the State of Colorado and its employees regularly handle and work on goods that have been shipped in commerce (T-70; Complaint and Answer).
3. On or about October 18, 1971, a citation for serious violation was issued to this Respondent, charging a violation on October 12, 1971, of sections of that standard found at 29 CFR 1518.500(d) and (e), (now found at 29 CFR 1926.500(d) and (e)) (Citation and Complaint).
4. On or about October 18, 1971, the Secretary issued upon the Respondent a notification of proposed penalties for the above alleged violations in the total amount of $500 (Notification of Proposed Penalty).
5. On or about November 3, 1971, the Respondent filed with the Secretary a timely notice of contest (Notice of Contest).
6. Representatives of the employees received copies of the pleadings. The pleadings were posted at the Respondent's workplace (Commission Document No. 7, consisting of a letter from Mr. Allison dated November 11, 1971; certificate of service of the answer).
7. On October 11, 1971, employees of Respondent and in particular its lead man foreman, Mr. Robert E. Pierce, were working at [*36] a workplace referred to as, "the J. E. Roupp job," in Arvada, Colorado (T-13, 21).
8. On the day in question, the late Robert E. Pierce was working with another, installing sheetrock to the metal studs on the fourth floor of the aforementioned job, a 4-level appartment building in the process of being constructed (T-13).
9. At the time the late Mr. Pierce was taking a piece of the sheetrock from another employee of the Respondent, he was standing on the fourth floor balcony which did not have a guardrail of any kind erected on the portion of the aforesaid balcony where the deceased was then working (T-13, 14).
10. On October 11, 1971, employees of the Respondent, in particular one, David Stanley Erickson, carried a 4X8 sheet from the third floor to the work area on the fourth floor, via the far west stairway of the north building, which stairway contained no side rails whatsoever (T-14, 15, 31, 32; Complainant's Exhibits No. 4 and 7).
11. On October 11, 1971, in and about the area wherein the late Mr. Pierce was working, there were two permanent balcony railings stored by leaning them up against the wall. These railings fell forward and pushed Mr. Pierce off the balcony which [*37] had no railings or guard rails, temporary or permanent, erected at the time, causing his death (T-16).
12. The late Mr. Pierce was the man in charge of the Respondent's operation at the workplace in question (T-62, 63).
13. The late Mr. Pierce was a company man and at the time of his death, was trying in the best way he knew how, to make the job pay (T-75).
14. In arriving at the amount of the proposed penalty, the compliance officer took into consideration the gravity of the violations, the good faith and safety program of the Respondent, the size of the Respondent's business, and the Respondent's history, insofar as he understood the method of computing the proposed penalty (T-55, 56, 57, 58, 59).
DISCUSSION
The complaint in the within action alleges violations on October 12, 1971, of two sections of the standards promulgated by the Secretary. The record is absent evidence that any of Respondent's employees worked in the vicinity of the affected area on that date. The record, however, contains ample evidence of Respondent's employees, including the late Mr. Pierce, working in the affected areas on October 11, 1971, the date of his death. No motion was addressed [*38] to this discrepancy in proof by the Respondent, nor did the Respondent move for a continuance for the purpose of adducing evidence concerning the 11th of October. The Respondent on the contrary, defended the action as if the complaint alleged October 11, 1971, as the date of the alleged violations. In consonance therewith, the Judge, on his own motion, conforms the pleadings to the proof.
In the instant cause, there certainly was a substantial probability that a fall from a fourth-floor balcony could result in death or serious physical harm, and in the case at bar, did result in death.
Similarly, a fall from a staircase containing four or more steps, and which stairway did not contain railings, bears a substantial probability that such fall could result in death or serious physical harm. In the instant cause, the lead man foreman, the late Mr. Pierce, bore corporate responsibility at the workplace and knew, or, by the exercise of reasonable diligence, could have known, of Mr. Erickson's dangerous journey up the ladder that bore neither railings nor handrails. With the exercise of reasonable diligence on the part of the Respondent employer, it could have and should [*39] have ascertained the fact that its lead man foreman was working on a portion of the fourth-floor balcony which contained neither permanent nor temporary guardrails.
The remaining issue is the appropriateness of the penalty proposed by the Secretary. In view of the gravity of the violation, the fact that two employees were exposed, one to each of the sections violated; the size of the Respondent corporation; the presence or absence of good faith of the Respondent and its past history, the Judge finds the penalty proposed by the Secretary in the aggregate sum of $500 is reasonable and appropriate in the premises.
Based upon all of the foregoing, and the record in its entirety, the Judge makes the following
CONCLUSIONS OF LAW
1. At all the times herein mentioned, the Respondent, Denver Dry Wall Company, was an employer engaged in a business affecting commerce, within the meaning of Section 3 of the Act, and this Commission has jurisdiction of the parties and of the subject matter herein.
2. Pursuant to Section 6(a), of the Act, the Secretary on or about April 17, 1971, adopted the standards prescribed in 29 CFR 1518, and which standards are now found at 29 CFR 1926.
[*40] 3. The Respondent was in violation, on October 11, 1971, of that standard found at 29 CFR 1518.500(d), (now, 29 CFR 1926.500(d), in that the Respondent had an employee working on an open-sided floor or platform (balcony) more than six feet above the ground level which was not guarded by a standard railing or guardrail, either temporary or permanent.
4. The Respondent was in violation on October 11, 1971, of that standard found at 29 CFR 1518.500(e), in that it had an employee working on a flight of stairs which had four or more risers and which was not equipped with standard railings, either permanent or temporary.
5. The Respondent's violation of the sections of the standard previously enumerated constituted serious violations within the meaning of Section 17(k) of the Act, as the violations were such that there was substantial probability that death or serious physical harm could result to an employee working on a fourth-floor balcony containing no guardrails, temporary or permanent, affixed thereto, and to an employee working on a stairway containing four or more risers, unequipped with railings or handrails, temporary or permanent; and the Respondent could have and should [*41] have had knowledge thereof, by the use of reasonable diligence.
6. The penalty proposed by the Secretary for the violations in this case, in the aggregate, amounts to $500. In view of the gravity of the violations, and the exposure of one employee to each of the violations, and all of the elements hereinbefore mentioned, the proposed penalty of $500, is found reasonable and appropriate in the premises.
Based upon the foregoing findings of fact, conclusions of law, and the entire record; having given due consideration to the size of the Respondent's business, the gravity of the violations, the presence or absence of good faith of the Respondent, and its history, and good cause appearing therefor, it is
ORDERED THAT
1. The citation issued for serious violations be, and the same, is hereby affirmed.
2. The penalty in the sum of $500, proposed by the Complainant for the citation referred to in 1, above, be, and the same, is hereby assessed.
SO ORDERED.