F.H. SPARKS OF MARYLAND, INC.

OSHRC Docket Nos. 15472; 15760

Occupational Safety and Health Review Commission

February 2, 1978

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Before CLEARY, Chairman; and BARNAKO, Commissioner

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor U.S. Department of Labor

Ira J. Smotherman, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

The July 8, 1976, decision of Administrative Law Judge James D. Burroughs is before the full Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ["the Act"]. Judge Burroughs held that respondent, F.H. Sparks of Maryland, Inc., had conceded a citation for nonserious violation of 29 CFR 1926.351(b)(3) n1 and a citation for serious violation of 1926.28(a) n2 and had contested only the proposed penalties in Docket No. 15472. The Judge assessed a total penalty of $325 for the two violations. In Docket No. 15760, the Judge affirmed a citation for "repeat-serious" violation of 1926.28(a) and assessed a $500 penalty.

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n1 1926.351 Arc welding and cutting.

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(b) Welding cables and connectors.

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(3) When it becomes necessary to connect or splice lengths of cable one to another, substantial insulated connectors of a capacity at least equivalent to that of the cable shall be used. If connections are effected by means of cable lugs, they shall be securely fastened together to give good electrical contact, and the exposed metal parts of the lugs shall be completely insulated.

n2 1926.28 Personal protective equipment.

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

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For the following reasons, we affirm.

In September 1975, the Secretary inspected respondent's worksite, the construction of a hotel in Atlanta, Georgia. Respondent was subsequently issued the two citations alleging noncompliance with 1926.28(a) and 1926.351(b)(3). Respondent's President, Mr. N. S. Collyer, filed a timely notice of contest, which reads as follows:

We have been served with the aforementioned Citations Nos. 1 and 2 and assessed penalties which were received on September 26, 1975. We hereby appeal from and protest the amount of penalties.

Citation No. 1 refers to failure to insulate cable lugs, etc. The violation incorporated in this Citation was corrected immediately. We submit that the penalty of $35.00 was excessive, considering the hazard and the measures required to correct same.

Citation No. 2, pertaining to wearing of safety belts or equivalent protection, was a technical violation on our part which was immediately corrected by our creating another method of access to our scaffold. However, the penalty of $550.00 as a serious violation is excessive under the circumstances. [*3]

As stated above, the alleged violations were corrected immediately upon receipt of the citation.

The matter was assigned Docket No. 15472 and a complaint was issued that alleged in part:

(A) On or about October 17, 1975, by letter dated October 10, 1975, respondent filed with the Secretary a notification of intent to contest the aforesaid proposed assessment of penalties pursuant to the provisions of 10(c) of the Act. Said notification of intent to contest was duly transmitted to the Occupational Safety and Health Review Commission.

(b) The citation was not contested and has become a final order of the Commission pursuant to 10(a) of the Act.

In its answer, respondent, through legal counsel, admitted these allegations. The answer, however, also included a denial of the substance of the alleged violations.

From October 15 to October 21, 1975, a follow-up inspection was conducted at the worksite for which a "repeat-serious" citation for noncompliance with 1926.28(a) was issued. Mr. Collyer filed a timely notice of contest challenging both the merits of the citation and the proposed penalty. This matter was assigned Docket No. 15760. The resulting complaint reiterated [*4] the Secretary's position concerning the notice of contest in Docket No. 15472:

The proposed penalties assessed in relationship to these citations [Docket No. 15472] have been contested and said contest is presently pending before the Commission. These citations were not contested and have become a final order of the Commission and not subject to review by any Court or Agency.

Respondent's answer, filed by legal counsel, admitted this allegation except insofar as it alleged the nonreviewability of the final order.

By pretrial motion, dated January 21, 1976, respondent moved to amend its notice of contest in Docket No. 15472 to deny the merits of both citations. Respondent's counsel represented that he relied upon the Commission's decision in Florida East Coast Properties, Inc., 74 OSAHRC 5/C7, 1 BNA OSHC 1532, 1973-74 CCH OSHD para. 17,272 (No. 2354, 1974) in admitting paragraph VII of the complaint stating that only the proposed penalties had been contested. In an attached affidavit, Mr. Collyer stated that he is not an attorney and that he intended "at all times" to contest the merits of the citations as well as the proposed penalties.

Judge Burroughs denied the motion, [*5] ruling that the notice of contest clearly expressed respondent's lack of intent to contest the citations. The Judge held that the Commission's decision in Turnbull Millwork Company. 75 OSAHRC 16/A13, 3 BNA OSHC 1781, 1975-76 CCH OSHD para. 20,221 (No. 7413, 1975), upon which respondent relied, is distinguishable in that respondent has conceded the violations in its notice of contest.

In Florida East Coast Properties, Inc., supra, the Commission held that when a timely notice of contest is limited to the penalty issue, the citation becomes a final order under section 10(a) of the Act. In a later decision, Turnbull Millwork, a divided Commission observed that cited employers, often unaware of the distinction between a contest of the citation and that of a proposed penalty, had sometimes contrary to their intention been precluded from contesting the citation. As a result, the Commission modified Florida East Coast Properties, supra. In Turnbull, the majority stated that it would permit amendments of notices of contest, which are facially limited to the penalty issue, to include a contest of the citation if a subsequent pleading indicates an initial intent [*6] to contest the citation.

On review, respondent excepts to the Judge's denial of its motion to amend. It argues that Turnbull is controlling and that Mr. Collyer's affidavit was improperly rejected by the Judge. We disagree.

The holding in Turnbull is narrower than respondent suggests. It addressed only instances where a respondent limited the wording of its notice of contest to the proposed penalties, while intending to contest both the penalties and the merits of the citation. We agree with Judge Burroughs that the notice of contest here plainly reveals that Mr. Collyer understood the distinction between contesting the citation and the proposed penalties and chose to contest only the latter. The notice of contest concedes the existence of the violations and states that they were abated. In addition, the second notice of contest filed by Mr. Collyer a month later in Docket No. 15760 clearly contested both the citation and proposed penalty in that case. Thus, it is apparent that Mr. Collyer was aware of how to contest both the citations and proposed penalties. Respondent offers no explanation of why Mr. Collyer's notices of contest were phrased so differently if his [*7] intent in each was the same. In this regard, Mr. Collyer's affidavit is unconvincing.

Respondent's contention that it relied upon the holding in Florida East Coast Properties, Inc., supra, in failing to deny that part of the complaint stating that the citation had not been contested is inapposite. We agree with Judge Burroughs that respondent was aware of the distinction between contesting the citation and proposed penalties and clearly manifested its intent to contest only the latter. The instant case is distinguishable from Turnbull, which involved an unclear notice of contest. It is also distinguishable from Penn-Dixie Steel Corp. v. O.S.H.R.C., 553 F.2d 1078 (7th Cir. 1977), wherein the Court remanded to the Commission a case that the Commission had held to raise only penalty-related issues. There, the notice of contest included references disputing the Secretary's claims with respect to the citation. Moreover, the court relied on the fact that there was no showing that the individual filing the notice of contest was aware of the distinction between contesting a citation and a proposed penalty. 553 F.2d at 1081. Accordingly, we affirm the denial of respondent's [*8] motion to amend its notice of contest.

Respondent was cited for a "repeat-serious" violation of 1926.28(a) when a compliance officer observed respondent's foreman, Donald Burkes, and an employee, Ralph Coker, near the edge of the roof of the structure pulling a cable up the side of the structure. The employees were observed standing on a steel beam, 20 inches wide, affixed to the interior side of the parapet wall, which was four feet high and four inches wide. The beam was approximately 18 inches below the top of the parapet wall. Neither employee was wearing a tied-off safety belt or was otherwise protected from falling over the 18 inches of the parapet wall to the ground 100 feet below.

Respondent argues that the Judge erred by affirming the citation. It characterizes the employees' failure to wear tied-off safety belts as unpreventable employee misconduct in violation of an enforced company workrule. It argues that it had no knowledge of their conduct. In sum, respondent argues that there was nothing more it could have done to prevent such action. We are not persuaded.

The Commission has held that, although an employer is generally responsible for violations either [*9] created by supervisory employees or within their actual or constructive knowledge, an employer may defend by showing that it took all feasible precautions to prevent the occurrence of the violation. Ocean Electric Company, 75 OSAHRC 6/C14, 3 BNA OSHC 1705, 1975-76 CCH OSHD para. 20,167 (No. 5811, 1975), aff'd., No. 76-1060 (4th Cir., August 2, 1977), withdrawn and rehearing granted, October 26, 1977. Here, foreman Burkes initiated and participated in the hazardous activity. His conduct is therefore imputable unless respondent proves that it was unpreventable. Alder Electric Company, Inc., 77 OSAHRC 49/C8, 5 BNA OSHC 1303, 1977-78 CCH OSHD para. 21,748 (No. 13573, 1977); Iowa Southern Utilities Company, 77 OSAHRC 32/C10, 5 BNA OSHC 1138, 1977-78 CCH OSHD para. 21,612 (No. 9295, 1977).

We agree with Judge Burroughs that respondent's workrule requiring safety belts was inadequate and that respondent failed to establish that it was enforced. Thus, respondent has failed to prove that it took all feasible measures to preclude the violation. Accordingly, foreman Burkes' action is imputed to respondent.

The record establishes persuasively that safety [*10] belts, life lines, and lanyards were provided to any employee requiring them. Mr. Crawford, respondent's project supervisor, testified that all employees were instructed daily to use safety belts whenever working on swing stages, fixed openings, and near edges of buildings.

Mr. Burkes, the foreman, testified n3 that respondent required that employees use tied off safety belts while working in dangerous areas. However, according to Burkes' testimony a dangerous area was merely defined as "anywhere where there's a chance of falling." He stated that it was his duty to enforce the safety belt rule, but that generally respondent left to individual employees the decision whether to use a safety belt.

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n3 Mr. Burkes and Mr. Coker were deposed by agreement of the parties in lieu of their testifying at the hearing.

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Mr. Coker testified that employees were instructed daily to use safety belts whenever necessary. Both Coker and Burkes testified that they did not use a safety belt under the circumstances of the cited condition [*11] because they felt that no fall hazard existed. Coker testified that before proceeding to the roof Burkes and he had removed their safety belts. He further testified that, upon reaching the roof, he asked Burkes if safety belts were needed and that it was mutually determined that they were not. Thus, both men believed that they were in compliance with respondent's rules when observed standing next to the edge of the roof. Respondent does not challenge the good faith of their belief.

The foremen's and employee's testimony establishes that respondent's safety belt rule required employees to decide for themselves under a general danger test when and where tying off was required. This is inadequate. Brennan v. Butler Lime and Cement Co., 520 F.2d 1011 (7th Cir. 1975); Enfield's Tree Service, Inc., 77 OSAHRC 32/B3, 5 BNA OSHC 1142, 1977-78 CCH OSHD para. 21,607 (No. 9118, 1977); J.K. Butler Builders, Inc., 77 OSAHRC 26/A2, 5 BNA OSHC 1075, 1977-78 CCH OSHD para. 21,585 (No. 12354, 1977). More specific direction was required. Brennan v. Butler Lime & Cement Co. and O.S.H.R.C., supra. An employer cannot shift his ultimate responsibility of compliance with the [*12] Act to a supervisory employee in this manner.

Respondent argues that the decisions in National Realty and Constr. Co., v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973), and General Electric Co. v. O.S.H.R.C., 540 F.2d 67 (2d Cir. 1976), require vacating the citation because the record does not demonstrate the feasibility of further steps it should have taken to prevent employee misconduct and thereby avoid citation. We reject this argument inasmuch as both decisions are inapposite.

Respondent relies on language in National Realty stating that the Secretary, in that case, was required to establish the feasibility and likely utility of an adequate safety program to prevent employees' from committing unsafe acts in violation of the employer's instructions. That holding does not require a contrary result here. National Realty involved a citation for violation of section 5(a)(1) of the Act, the so-called general duty clause. The court concluded that the gist of the allegation, as tried, was the inadequacy of the employer's safety program per se. In the instant case, however, respondent is not charged with having an inadequate safety program. The respondent is charged [*13] instead with not requiring the use of tied-off safety belts, a charge that the Secretary established.

The Secretary does not have to prove the respondent's safety program was inadequate. To insure that employers are not held to a standard of strict liability, however, the Commission permits employers to defend by establishing that noncompliance was the result of unpreventable employee misconduct. See e.g., Leo J. Martone & Assoc., Inc., 77 OSAHRC 46/C4, 5 BNA OSHC 1228, 1977-78 CCH OSHD para. 21,718 (No. 11175, 1977). Respondent has failed to establish this defense for the reasons discussed above.

General Electric does not suggest a different result. There, the court stated that its decision vacating the Commission's affirmance of a violation of a specific standard based on the language referred to in National Realty did not explore the ultimate extent of an employer's duty to see that employees used required safety equipment. Rather, the decision relied upon the particular facts of that case, which are not relevant here.

In addition, respondent argues that Isaacson Structural Steel Company, 75 OSAHRC 54/F2, 3 BNA OSHC 1138, 1974-75 CCH OSHD para. 19,592 [*14] (No. 1731, 1975) requires vacation of the citation. There, the employer was cited for noncompliance with 1926.28(a), in part because an employee was observed exposed to the hazard of falling 34 feet while working on top of an inverted A-frame. The majority held that 1926.104(b) n4 requires that safety belts used under the mandate of 1926.28(a) be secured above the point of operation, i.e., above the wearer. n5 As there was nothing above the exposed employee to which a safety belt could be tied off, the Isaacson majority concluded that compliance was impossible and vacated that allegation of the citation.

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n4 1926.104 Safety belts, lifelines, and lanyards.

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(b) Lifelines shall be secured above the point of operation to an anchorage or structural member capable of supporting a minimum dead weight of 5,400 pounds.

n5 1926.28 Personal protective equipment.

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(b) Regulations governing the use, selection, and maintenance of personal protective and lifesaving equipment are described under Subpart E [ 1926.100-107] of this part.

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Here, Judge Burroughs found that there was nothing above the exposed employees to which they could tie off. Nevertheless, he affirmed the citation, finding that the employees could have tied off either to the beam on which they stood or to an adjacent outrigger post. Respondent argues that the Judge erred by not vacating on the basis of Isaacson.

Judge Burroughs' decision was filed shortly before issuance of our decision in Kelly Construction Services, Inc., 76 OSAHRC 89/F3, 4 BNA OSHC 1491, 1976-77 CCH OSHD para. 20,925 (No. 7102, 1976). In Kelly, the employer was cited for noncompliance with 1926.28(a) as the result of the exposure of several employees to a fall hazard while raising an elevator door into position at the edge of an open elevator shaft 24 stories high. The employees were wearing safety belts affixed to lanyards. The lanyards, however, were not tied off.

In affirming the citation in Kelly, we rejected the employer's argument that tying off was not necessary because the lanyards would have to be longer than the six-foot maximum permitted by 1926.104(d). n6 We stated:

What respondent is saying, [*16] in effect, is that because the fall distance cannot be limited to six feet as required by 29 C.F.R. 1926.104(d) it is therefore permissible to expose employees to a fall distance of twenty-four stories by not protecting them in any manner. The argument is fallacious. We would require such protection as is reasonable even if it means the utilization of a lanyard in excess of six feet in length.

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n6 1926.104 Safety belts, lifelines, and lanyards.

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(d) Safety belt lanyard shall be a minimum of 1/2-inch nylon, or equivalent, with a maximum length to provide for a fall of no greater than 6 feet. The rope shall have a nominal breaking strength of 5,400 pounds.

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Kelly is part of the basis for our later holding that impossibility of compliance with the requirement of 1926.104(b) is not a defense to a citation for violation of 1926.28(a). Blakeslee-Midwest Prestressed Concrete Co., 77 OSAHRC 191/A2, 5 BNA OSHC 2036, 1977-78 CCH OSHD para. 22,284 (No. 76-2552, 1977).

Judge Burroughs correctly anticipated [*17] Kelly and Blakeslee. Thus, his failure to follow precedent is harmless error. n7 Isaacson is plainly inconsistent with these cases. We believe that Kelly and Blakeslee are more responsive to the congressional purpose of ensuring the greatest protection possible for employees. Section 2(b) of the Act, 29 U.S.C. 651 (1970). Furthermore, we note that Commissioner Barnako's above-quoted language in Kelly illustrates the basic unsoundness of Isaacson. For these reasons, we believe that our departure from Isaacson is well grounded. See Dunlop v. Rockwell International, 540 F.2d 1283, 1291 (6th Cir. 1976). Isaacson is overruled insofar as it is inconsistent with this decision.

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n7 Judge Burroughs also declined to follow the subsidiary holding of Isaacson that 29 CFR 1926.104(b) requires that safety belts be secured above the point of operation. Instead, he noted, as did the dissenting opinion in Isaacson, that 1926.104(b) refers to lifelines exclusively and is inapplicable where safety belts are secured by lanyards directly to fixed structures. He stated that this is made plain by 1926.107, which recognizes the obvious distinction between lanyards and lifelines:

1926.107 Defecations applicable to this Subpart.

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(b) "Lanyard" means a rope, suitable for supporting one person. One end is fastened to a safety belt or harness and the other end is secured to a substantial object or a safety line.

(c) "Lifeline" means a rope, suitable for supporting one person, to which a lanyard or safety belt (or harness) is attached.

Respondent excepts to the failure of Judge Burroughs to follow that precedent. The Judge's failure to do so is harmless error. In Ray Evers Welding Company, Inc., 77 OSAHRC 181/F7, 5 BNA OSHC 1948, 1977-78 CCH OSHD para. 22,220 (No. 76-628, 1977), we recently affirmed a violation of 1926.28(a) over the employer's argument that compliance with 1926.104(b) was impossible. We agreed with the Judge that 1926.104(b) was inapposite as the case involved "a failure to use safety belts, not lifelines, and safety belts could have been tied off to structural members of the building." Judge Burroughs correctly reached the same conclusion here.

We emphasize, however, the need for Commission Judges to follow precedent established by the full Commission. Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1975).

[*18]

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The respondent also contends that the Judge erred in characterizing the violation as "repeated." In view of the Judge's assessment of a $500 penalty, with which we agree, we will not address the respondent's contention.

A maximum penalty of $10,000 is authorized for a repeated violation. 29 U.S.C. 666(a). However, the penalty assessment of $500 is significantly less than the $1,000 authorized for a serious or nonserious violation. 29 U.S.C. 666(b) & (c). Therefore, the question of whether the violation should be classified as repeated need not be addressed by the Commission. Todd Shipyards Corp. v. Secretary of Labor; No. 75-1909 (9th Cir., December 13, 1977) (concurring opinion); Penn Central Transportation Co., 77 OSAHRC 15/F4, 4 BNA OSHC 2033, 1976-77 CCH OSHD para. 21,540 (No. 13084, 1977).

Accordingly, the Judge's decision is affirmed.

So ORDERED.