CLARENCE MARTIN, d/b/a MARTIN MASONRY COMPANY

OSHRC Docket No. 1735

Occupational Safety and Health Review Commission

November 1, 1974

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Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Erwin L. Stuller, dated May 2, 1973, is before this Commission for review pursuant to 29 U.S.C. 661(i).

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

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in the disposition of this case for the reasons relating to respondent's good faith and size of its business as expressed in Colonial Craft Reproductions, No. 881 (October 27, 1972).

[The Judge's decision referred to herein follows]

STULLER, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting Citations issued by the complainant against the respondent. The Citations, which were issued on October 30, 1972, allege that an October 26, 1972 inspection of respondent's workplace at 1212 Center Street, Oakland, California, indicates that the respondent has violated Section 5(a)(2) of the Act by failing to comply with the [*2] following occupational safety and health standards:

a. Citation Number 1 (Citation for Serious Violation)

Standard -- Description of Alleged Violation -- Proposed Penalty

29 CFR 1926.28(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure of hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees. -- Failure to require the wearing of appropriate personal protective equipment (safety belt) in an operation where there was an exposure to hazardous conditions, in that employee was allowed to work at the edge of roof area 6 stories in height, accepting materials being hoisted from ground level by rope and pulley. No means of safety protection was provided. -- $600.00.

b. Citation Number 1 (Citation for Other than Serious Violation)

Item 1

29 CFR 1926.28(a) -- Failure to require the wearing of appropriate personal protective equipment (safety goggles) for employee operating target masonry saw located on south end of roof area. -- $45.00.

Item 2

29 CFR 1926.251(b) n1 . . . (3) Job or shop hooks and links, [*3] or makeshift fasteners, formed from bolts, rods, etc., or other such attachments, shall not be used. -- Failure to provide material hoist of adequate construction in that hoisting block was tied to 2 inch X 4 inch with bailing wire. Job or shop hooks and links, or makeshift fasteners, formed from bolts, rods, etc., or other such attachment shall not be used. Located east side of roof area south end. -- $30.00.

Item 3

29 CFR 1903.2 -- Posting of notice; availability of Act, regulations and applicable standards. n2 -- Failure to post Occupational Safety and Health notice at establishment as required. -- $50.00.

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n1 Clerical error in Citation corrected at hearing, Tr. 5-7.

n2 (a) Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor. Such notice or notices shall be posted by the employer in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to insure that such notices are not altered, defaced, or covered by other material.

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The respondent was notified by letter dated October 30, 1972 that the complainant proposed to assess penalties for the violations alleged in the amounts indicated above, which total $725.00.

After a timely Notice of Contest, a Complaint and an Answer had been filed the case was heard at San Francisco, California.

Respondent has conceded all the alleged violations and raised issue only as to the amounts of the proposed penalties.

SUMMARY OF THE RELEVANT CREDIBLE EVIDENCE

The respondent, Clarence Martin, has been a mason for thirty years and since 1968 a licensed masonry contractor doing business under the name of Martin Masonry Company (Tr. 90-92). The respondent conducts a minority business in high risk neighborhoods (Answer, Tr. 101).

The materials used by the respondent's employees come from sources outside the state in which he conducts his business (Tr. 31).

The respondent does not have any full-time employees but does have two men who regularly work with him when he has work for them. Over the course of a year he may have as many as 15 men working for him at one time. The jobs may [*5] last from a few days to two months (Tr.97-98).

Mr. Martin's business capital is approximately $5,000 (Tr.95). He has had no prior history of violations (Tr.10).

On October 26, 1972 the respondent had five employees engaged in completing a two day job of constructing a penthouse on the roof of a six-story building in Oakland, California (Tr.18, 91, 109, 110). The Compliance Officer, upon starting his inspection of the construction site that morning, sought out the representatives of the general contractor and the subcontractors (Tr.18-21).

Upon reaching the roof, the Compliance Officer identified himself to Mr. Griffin, Mr. Martin's representative. Mr. Martin was not at the job site that day but Mr. Griffin, his apprentice, was authorized to represent him in regard to matters concerning the Occupational Safety and Health Administration, although he had no authority to direct the employees. They then proceeded to inspect the premises (Tr. 23, 108-114). Upon having the violations pointed out to him Mr. Griffin acted to immediately correct the offense or stop the offending activity (Tr.51).

During the inspection the Compliance Officer took photos indicating the violations alleged [*6] (Exhibits 3-6). One photo shows an employee of the respondent working near the edge of the roof without protective safety equipment (Exhibit 4). The expert testimony of the Compliance Officer indicated the possible injuries that could result from the violations (Tr.38-41, 65, 68).

The respondent stated that because of the short periods employees work for him safety meetings were impractical, but that he would personally discuss safety problems with each employee. He has had great difficulty in getting the employees to consistently wear hard hats and has sent employees off the job for not wearing hard hats. He has put up the safety poster but the job is in a high risk area and the poster is soon torn down. The respondent has attended meetings to learn the OSHA standards and he tries to enforce the safety rules, but some employees still violate them (Tr. 98-103). The respondent also stated he had asked that railings be put up on the roof (Tr. 106, 107).

DISCUSSION

The concessions and evidence presented clearly establishes jurisdiction, and each violation alleged. Also proven were the respondent's lack of history of previous violations and the fact that his business [*7] was very small. His good faith was established by his prior attempts to obtain guard rails, his earlier posting of the OSHA poster, the immediate abatement of the violations, and his attempts to enforce the OSHA standards in the face of resistence by his short-term employees. Weight is given the fact that the violations occurred during Mr. Martin's absence.

Considering the foregoing, the limited gravity of the nonserious violations, and the fact that the respondent lost a day's income by attending the hearing in which he contested only the exorbitant proposed penalties, it would be inappropriate to assess a penalty for the non-serious violations.

Section 17(b) of the Act requires that a penalty be assessed where there is a serious violation of the Act. The respondent here has admitted such a violation. The evidence establishes that the violation exposed one employee to a possibly fatal fall. The duration of exposure proved was only about 45 minutes. The probability of occurrence of injury, though contested, is obvious.

A further factor considered in arriving at a penalty in this case is the great social need for small minority businesses, such as Martin Masonry Company, to [*8] survive and succeed.

The foregoing factors having been considered, it is determined that $150.00 is an appropriate and reasonable penalty for the serious violation.

FINDINGS OF FACT

1. Materials used by the respondent in his business came from sources outside of the state in which he conducts his business.

2. On October 26, 1972 respondent failed to require one of his employees to wear appropriate personal protective equipment while working at the edge of a roof six stories above the ground.

3. On October 26, 1972 an employee of the respondent operated a target masonry saw without the protection of safety goggles.

4. On October 26, 1972 the respondent allowed one of his employees to operate a material hoist of inadequate construction in that it had makeshift fasteners, job or shop hooks and links.

5. The respondent failed to have posted an Occupational Safety and Health Administration notice at the workplace on October 26, 1972.

6. On October 26, 1972 the respondent had a very small business.

7. The respondent has no previous history of violations.

8. The respondent has shown the utmost good faith.

9. The non-serious violations alleged were of limited gravity. [*9]

CONCLUSIONS OF LAW

1. Respondent was at all times material hereto engaged in a business affecting commerce within the meaning of section 3(5) of the Act.

2. The respondent was at all times material hereto subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder.

3. The Commission has jurisdiction of the parties and the subject matter herein.

4. The respondent committed non-serious violations of the standards set forth at 29 CFR 1926.28(a), 29 CFR 1926.251(b)(3), and 29 CFR 1903.2, as alleged.

5. Respondent committed a serious violation of 29 CFR 1926.28(a), as alleged, on October 26, 1972.

6. The penalties proposed for the non-serious violations are not appropriate.

7. A penalty of $150.00 is appropriate for the serious violation alleged.

ORDER

Based on the foregoing findings of fact, conclusions of law and the entire record, it is ORDERED that:

1. The Citations herein, as amended, are affirmed.

2. The proposed penalties for the non-serious violations are vacated.

3. The proposed penalty for the serious violation is modified and a penalty of $150.00 is assessed.