STAR CIRCLE WALL SYSTEMS, INC.
OSHRC Docket No. 3271
Occupational Safety and Health Review Commission
March 9, 1976
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Francis V. LaRuffa, Regional Solicitor, U.S. Dept. of Labor
Arnold E. Rubinstein, for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Commissioner:
On March 4, 1974, Administrative Law Judge Joseph Chodes issued a decision vacating a citation for serious violation and three items of a citation for non-serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. Judge Chodes also affirmed three items alleging non-serious violations of the standards at 29 CFR § 1926.25(a), § 1926.501(d) and § 1926.252(a) and assessed penalties of $250.
Neither party petitioned for review of the Judge's decision. Commissioner Moran on his own motion ordered review on the following issues concerning non-serious items 1, 2, and 6, the only items affirmed by the Judge:
(1) Whether the Judge erred in finding a violation for noncompliance with 29 C.F.R. § 1926.501(d), when the complaint, in paragraph V section 3, charged a violation of 29 C.F.R. § 1926.500(d)(1), and the Secretary's motion to amend such in the complaint to 29 C.F.R. § 1926.500(d) was granted at the hearing (Tr. 23).
(2) Whether [*2] the evidence adduced in this case establishes that employees were exposed to any hazard as a result of the Judge's finding that respondent failed to comply with the standards at 29 C.F.R. § 1926.25(a), 29 C.F.R. § 1926.501(d), and 29 C.F.R. § 1926.252(a).
The Secretary has submitted a brief that does not take issue with the Judge's disposition of the items on review. Respondent has not filed a brief. This is significant because the order for review involves only matters decided adversely to respondent. Also, exposure issues are the subject to several pending Commission decisions that have been fully briefed. Under these circumstances, we decline to rule upon the issues that have raised sua sponte.
Accordingly it is ORDERED that the Judge's decision is affirmed.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
I find the majority's action in automatically affirming the Judge's decision because the respondent has not filed a brief and because the parties have not asked for Commission review to be totally unacceptable and contrary to law.
First, 29 U.S.C. § 661(i) authorizes "any" member of this Commission to direct review of a Judge's decision. This statutory authority is not [*3] restricted to those instances in which the parties have requested review.
Second, reliance on the respondent's failure to file a brief is improper. A recent decision of the United States Court of Appeals for the Ninth Circuit states the following:
"Respondent did not file a brief with this court although it had actively contested this citation in the proceedings below. We do not infer that respondent has withdrawn its contest."
Brennan v. Smoke-Craft, Inc., No. 74-2359 (9th Cir., February 13, 1976) at n.6. The same position was taken by another Circuit Court which stated that an employer who contested a citation and had not withdrawn that contest
". . . has an interest in the controversy even though it is unwilling to do anything to protect that interest."
Brennan v. OSAHRC and Santa Fe Trail Transport Company, 505 F.2d 869, 871 (5th Cir. 1975). In still another case where the employer contested a citation and had not responded to the Secretary of Labor's petition for review, the Circuit Court ruled as follows:
"[T]he employer has not withdrawn its contest of the Secretary's citation. Thus we conclude that there is a continuing case or controversy warranting judicial [*4] review even though [the employer] has not responded to the petition for review."
Brennan v. OSAHRC and Hanovia Lamp Division, Canrad Precision Industries, 502 F.2d 946, 948 (3d Cir. 1974).
Finally, it is fundamentally unfair to affirm a decision which finds respondent in violation of three occupational safety standards when the record indicates that no violations were shown.
Not only does the record fail to show actual employee exposure to the hazardous conditions, n1 but there is nothing to indicate that the same conditions had been or would be in existence when employees had been or "will be" in the areas involved.
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n1 As I indicated in Secretary v. Gilles & Cotting, Inc., infra, actual exposure should be the test for determining liability under the Act.
n2 Inasmuch as the exposure question is no longer "pending" since the issuance of the Commission's Gilles & Cotting decision, my colleagues should not use this excuse to avoid their responsibilities under the law to "carry out adjudicatory functions under the Act." 29 U.S.C. § 651(b)(3). Surely this requirement applies to each and every case before the Commission and this respondent is entitled to Commission adjudication of its case.
[*5]
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Affirmance of items 1, 2, and 6 of the citation for nonserious violations seems even more absurd when one realizes there is no evidence that any of respondent's employees were at the site during the inspection, n3 which according to the pleadings, is when respondent allegedly violated the cited standards.
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n3 The inspecting officer testified that the only employee of respondent which he saw at the site was the employee representative who accompanied him during the inspection.
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Not only was there insufficient evidence of employee exposure to support the charges, but none of the allegedly violative conditions were created by, nor were they under the control of, respondent. The general contractor was responsible for removal of debris from the site (items 1 and 2). This was accomplished by carting the debris from the work areas of the building and carrying it down in containers via elevators. Despite this usual practice, employees of [*6] an employer other than respondent were observed throwing debris off of a building to a dumpster below (item 6). There is nothing which tends to prove that respondent's employees who, according to vague hearsay testimony of dubious probative value may have been in the area at some time, would have been there when these other employees were discarding debris in this manner or when the accumulation of debris created a hazardous housekeeping condition.
Besides the deficiency of proof tending to show either actual or potential exposure, respondent, as a subcontractor, should not be held liable for nonserious violations for which it has neither responsibility nor control, and which it did not create. Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975).
Since the majority decision does not discuss any of the matters covered in Judge Chodes' decision, the same is attached as Appendix A.
APPENDIX A
Ian P. Spier, for the Secretary of Labor
Arnold E. Rubenstein, for the Respondent
Joseph Chodes, Judge, OSAHRC
STATEMENT OF THE CASE
This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC et seq., hereafter called [*7] the Act), in which the Respondent is contesting two Citations issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of the Act. The Citations allege that as a result of the inspection of a work-place under the ownership, operation or control of the Respondent, located at 25th Street and FDR Drive, New York, New York, the Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.
The Citations which were issued on May 29, 1973, allege that the violations resulted from a failure to comply with certain standards promulgated by the Secretary and codified in 29 Code of Federal Regulations, Part 1926. The standards prescribed in Part 1926 were adopted as standards under the Occupational Safety and Healty Act of 1970 at 29 CFR 1910.12.
Specifically, the Respondent was charged with a serious violation of 29 CFR 1926.500(c)(1)(i) for failure to provide a standard rail or intermediate rail for a wall opening with a drop of more than 4 feet, which would effectively reduce the danger of falling. The standard [*8] provides:
"(c) Guarding of wall openings. (1) Wall openings, from which there is a drop of more than 4 feet, and the bottom of the opening is less than 3 feet above the working surface, shall be guarded as follows:
(1) When the height and placement of the opening in relation to the working surface is such that either a standard rail or intermediate rail will effectively reduce the danger of falling one or both shall be provided;"
Respondent was also charged with the nonserious violations of the Following standards:
1. 29 CFR 1926.25(a)
"(a) During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures."
2. 29 CFR 1926.501(d)
"(d) Debris, and other loose materials shall not be allowed on or under stairways."
3. 29 CFR 1926.500(e)(1)(ii)
"(e) Stairway railings and guards. (1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified below, the width of the stair to be measured clear of all obstructions except handrails:
* * * [*9]
(ii) On stairways less than 44 inches wide having one side open, at least one stair railing on the open side;"
4. 29 CFR 1926.500(c)(1)(ii)
"(ii) The bottom of a wall opening which is less than 4 inches above the working surface, regardless of width, shall be protected by a standard toeboard or an enclosing screen either of solid construction or as specified in paragraph (f)(7)(ii) of this section."
5. 29 CFR 1926.500(b)(8)
(8) Floor holes, into which persons can accidentally walk, shall be guarded by either a standard railing with standard toeboard on all exposed sides, or a floor hole cover of standard strength and construction that is secured against accidental displacement. While the cover is not in place, the floor hole shall be protected by a standard railing."
6. 29 CFR 1926.252(a)
"(a) Whenever materials are dropped more than 20 feet to any point lying outside the exterior walls of the building, an enclosed chute of wood, or equivalent material shall be used. For the purpose of this paragraph, an enclosed chute is a slide, closed in on all sides, through which material is moved from a high place to a lower one."
Pursuant to the enforcement procedure set forth in [*10] Section 10 of the Act, the Respondent was notified by letter dated May 29, 1973 from Nicholas A. DiArchangel, Area Director of the New York, New York area, Occupational Safety and Health Administration, U.S. Department of Labor, of proposed penalties for the violations alleged in the total amount of $1500.
after Respondent contested this enforcement action, and a Complaint and Answer had been filed by the parties, the case came on for hearing at New York, New York, on September 10, 1973.
AMENDMENTS TO COMPLAINT AND CITATION
At the hearing the Judge granted the Complainant's motion to amend the standard citation in the Complaint, paragraph V, item 3, to read, "29 C.F.R. 1926.500(d). The Judge also granted Complainant's motion to amend the standard citation in item 4 of the nonserious Citation to read 29 CFR 1926.500(c)(1)(ii). Amendment of the reference to building "e" in the description of alleged violation in the Citation for serious violation to building "C" was also granted. (T-23. 24)
The Complainant's motion to delete the word "provide" and substitute the word "protect" in item 5 of the Citation for nonserious violations and in paragraph IV(6) of the Complaint was [*11] granted. (T-82, 83)
STIPULATIONS
1. The Respondent is a corporation located in the City of New York and its legal name is Star Circle Wall Systems, Inc. (T-7)
2. The Respondent purchases goods which are produced outside of New York State and is engaged in a business which affects inter state commerce. (T-7)
3. Respondent's relative size is considered to be large. (T-7)
4. No one was injured at the time the alleged violations took place. (T-8, 9)
5. Respondent employed approximately 1000 employees during the previous year. (T-10)
6. The Respondent posted the Citation at its office and at the worksite. (T-10)
7. Any officer or employee of the Respondent is authorized to speak for the Respondent at the hearing.
8. The Respondent had the contractual liability for providing the internatl protection of the worksite, specifically the guarding of floor openings, floor holes and stair railings which were left unguarded as alleged in the Citation for serious violation of 29 CFR 1926.500(c)(1)(i) and in the Citation for nonserious violation of 29 CFR 1926.500(e)(1)(ii), 29 CFR 1926.500(c)(1)(ii) and 29 CFR 1926.500(b)(8), items 3, 4 and 5, respectively. (T-24-27) [*12]
9. The facts alleged by the Complainant in the Complaint and in the Citation relating to the serious violation and in items 3, 4 and 5 of the Citation for nonserious violation are admitted. (T-25, 26)
10. It is further admitted that there was a violation of the standards referred to in paragraph (9) above, but that none of the Respondent's employees were exposed to the hazards created by the violations of the pertinent standards. (T-19, 25, 26)
11. With respect to items 1, 2 and 6 of the Citation for nonserious violations of 29 CFR 1926.25(a), 29 CFR 1926.501(d) and 29 CFR 1926.500(b)(8), respectively, the violations are admitted but exposure of the Respondent's employees to the hazard created by the violations are not admitted.
SUMMARY OF EVIDENCE
It was stipulated that the Respondent violated all standards charged against it in the Citations for serious and nonserious violations. It was also stipulated that Respondent's employees were not exposed to the hazards presented by the Citation for serious violation and items 3, 4 and 5 of the Citation for nonserious violations.
With respect to items 1, 2 and 6 of the nonserious Citation, Peter Richardson, a Compliance Officer [*13] of the Complainant who inspected the workplace involved herein from May 4, 1973 to May 8, 1973, testified that he spoke to Mr. Castle, a carpenter steward for the company (Respondent) from Local 257 (International Brotherhood of Carpenters) during the walk-around inspection and Mr. Castle "agreed" that the Respondent's employees were exposed to all areas of the job site, including the particular areas involved in the above items. (T-34-36) With particular reference to item 6, failure to use an enclosed chute for dropping materials Mr. Richardson testified that debris was continuously being thrown off the top of the building in the area of the exit from Building to Building D which was used by all employees on the site, including employees of the Respondent. (T-31, 36)
Mr. Richardson also testified that employees of other employers including H.R. & H., the general contractor on the job, Zwicker Electric and Dic-Underhill, a joint venture, were exposed to the hazards presented by the violations charged against the Respondent. (T-38)
Testimony by the Respondent's witnesses established that housekeeping chores on the job were the responsibility of the general contractor, R.H.R. [*14] (T-81) Debris was removed from the job in Dumpsters. (T-91) Although protection (providing railings to protect wall openings and stairs) was put up by the Respondent in accordance with its contract, the protection was removed by other trades working in the area. (T-83-85) Respondent's employees were required to go throughout the work project to perform their work. (T-86)
In assessing proposed penalties, n1 Mr. Richardson made no allowance for good faith because of prior inspections made of the Respondent, and the fact that the Respondent did not appear to be putting up barricades in many areas. He allowed 10 percent for size of Respondent's business as the Respondent had approximately 12 employees on the job. No allowance was made for history of previous violations because of the prior inspections referred to above. An allowance of 50 percent was made for all nonserious violations based on the expected abatement of the violations. No abatement credit was allowed for the serious violation. (T-43, 44)
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n1 Section 17(j) of the Act provides that "The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.
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An unadjusted penalty of $1,000 was proposed for the serious violation (failure to guard wall openings) because of the gravity of the violation as there was the potential hazard of an employee falling down 36 stories. A 10 percent credit for size brought the actual proposed penalty down to $900. (T-45, 46)
With respect to item 1 of the nonserious Citation (failure to keep areas free of lumber with protruding nails and debris) an unadjusted penalty of $190 was recommended based on the hazard that an employee could step on the nails and the debris could cause an employee to fall down. (T-52) After adjustment for size and the expected abatement of the violation the penalty was reduced to $85
A proposed penalty of $190 (adjusted to $85) was recommended for violation of item 2 of the nonserious Citation (failure to keep stairs clear of debris) because two of the stairways were completely blocked off and in case of fire employees would have no means of getting down except by another stairway in the building provided they knew the location of the other stairway. (T-52, 53)
For violation of item 3 of [*16] the nonserious Citation (failure to provide railings for stairs) a penalty of $130 (adjusted to $55) was recommended as there was a possibility that the absence of a handrail could cause an employee to step off the landing and fall 5 or 6 feet. (T-53, 54)
Item 4 of the nonserious Citation involved failure to protect wall openings by a toeboard or screen. A penalty of $155 (adjusted to $70) was recommended as there was the possibility that employees working could kick debris or tools through the openings down the shaft where people were working. (T-54, 55)
An unadjusted penalty of $500 (adjusted to $225) was proposed for violation of item 5 of the nonserious Citation (failure to provide railings or covers for floor holes). The holes were 2 feet by 3 feet and while many employees of different companies were exposed to the hazard, Mr. Richardson did not consider it probable that a person would step into the holes. (T-56, 57)
Item 6 of the nonserious Citation charges failure to provide an enclosed chute to drop materials and debris outside the exterior of Building D. An unadjusted penalty of $180 (adjusted to $80) was recommended because employees walking from one building to [*17] another were exposed to the hazard of being hit by debris which was being thrown from a height of approximately 30 feet. (T-36, 57, 58)
DISCUSSION
In view of the stipulations of the parties, the issue presented for decision with respect to the Citation for serious violation and items 3, 4 and 5, of the Citation for nonserious violation is whether an employer can be held to have violated an occupational safety or health standard where none of its employees were exposed to the hazard presented by the failure to comply with the requirements of the standard. It is immaterial insofar as the Respondent is concerned, that employees of other employers were exposed.
Accordingly, the Respondent's motion to dismiss the Complaint insofar as the Citation for serious violation and items 3, 4 and 5 of the citation for nonserious violations is granted, and the above items of the Citations should be vacated.
For a finding that Respondent violated items 1, [*18] 2 and 6 of the Citation for nonserious violations, it is necessary to find that Respondent's employees were exposed to the danger the standart is designed to obviate. The evidence to support such a finding was the hearsay evidence provided by the Compliance Officer who testified that he was told by Mr. Castle, the steward of the employees' union that Respondent's employees were exposed to all of the hazards involved in the items under consideration. Hearsay evidence, while generally admissible in administrative proceedings should have probative value in the circumstances. See Davis on Administrative Law, Section 14.05. The circumstances in the instant case, considering that the source of the hearsay evidence would be expected to have knowledge of the facts stated to the Compliance Officer, and have no reason for falsification, coupled with the evidence that Respondent's employees were required to work throughout the buildings at the worksite, are of sufficient probative value to support a finding that Respondent's employees were exposed to the hazards presented by the violations of items 1, 2 and 6 referred to above.
Respondent argued that it was not its responsibility to take [*19] care of the housekeeping chores required by items 1 and 2 or to provide the chute for dropping debris from the building as require in item 6, but that on the contrary, it was the responsibility of the general contractor on the job. Decisions of the Commission hold that each employer is responsible for achieving safe and heal ful working conditions for its employees and the employer cannot avoid compliance by shifting this obligation to another.
The Respondent established that it did not create the violation of item 6, that is, the dropping of debris from the building without a chute where it could injure Respondent's employees walking below However, under decisions of the Commission, each employer must provide its employees with a safe place of employment.
There remains the determination of the appropriate penalties for the violations of items 1, 2 and 6 of the Citation for nonserious violations. The undersigned is generally in accord with the Compliance Officer's consideration of the elements of gravity good faith and [*20] history of previous violations. Approximately twelve of the Respondent's employees were exposed to the hazards involved herein, with the possibility of a wide range of injuries resulting from the violations. On balance, it is considered that the penalties proposed by the Complainant are not unreasonable.
FINDINGS OF FACT
On the basis of the Citation, Notice of Proposed Penalty, Notice of Contest, pleadings, stipulations, the testimony adduced at the hearing and the representations of the parties, it is concluded that on the basis of the record as a whole, a preponderance of the evidence supports the following findings of fact:
1. Paragraph 1 through 11 of the Stipulations are incorporated [*21] herein as findings of fact.
2. On May 29, 1973, the Complainant issued to the Respondent a Citation for the serious violation of the standards set forth at 29 CFR 1926.500(c)(1)(i) and a Citation for nonserious violations of (1) 29 CFR 1926.25(a); (2) 29 CFR 1926.501(d); (3) 29 CFR 1926.500(e)(1)(ii); (4) 29 CFR 1926.500(c)(1)(ii); (5) 29 CFR 1926.500(b)(8); and (6) 29 CFR 1926.252(a) at the Respondent's workplace at 25th Street and FDR Drive, New York, New York.
3. On May 29, 1973, the Respondent was notified by the Complainant of a proposed penalty of $900 for the serious violation of the standard referred to in paragraph (2) above and $600 for violation of the nonserious violations.
4. On June 7, 1973, the Respondent filed with the Complainan a notice of its intention to contest the Citations and proposed penalties referred to in paragraphs (2) and (3) above.
5. Between May 4, 1973 and May 8, 1973, the Respondent violated the standards referred to in paragraph (2) above.
6. None of the Respondent's employees were exposed to the hazards presented by the violation of the serious violation or items 3, 4 and 5 of the nonserious violations referred to in paragraph (2) above. [*22]
7. Approximately twelve of the Respondent's employees were exposed to the hazards presented by the nonserious violations of items 1, 2 and 6 referred to in paragraph (2) above.
8. Giving due consideration to the size of the Respondent's business, the gravity of the violations, the good faith of the Respondent and the history of previous violations, the appropriate penalty for violation of item 1 of the Citation for nonserious violation is $85; the appropriate penalty for violation of item 2 is $85 and the appropriate penalty for item 6 is $80.
CONCLUSIONS OF LAW
1. The Respondent at all times material hereto was engaged in business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.
2. The Respondent at all times material hereto was subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder, and the Commission has jurisdiction of the parties and of the subject matter herein.
3. The Respondent did not violate the standards set forth at 29 CFR 1926.500(c)(1)(i); 29 CFR 1926.500(e)(1)(ii); 29 CFR 1926.500(c)(1)(ii); and 29 CFR 1926.500(b)(8).
4. Respondent violated [*23] the Occupational Safety and Health standards set forth at 29 CFR 1926.25(a); 29 CFR 1926.501(d); and 29 CFR 1926.252(a); and is assessed penalties of $85, $85 and $80, respectively.
ORDER
Upon the basis of the foregoing findings of fact and conclusion of law, and upon the entire record, it is ORDERED the Citation for serous violation of 29 CFR 1926.500(c)(1)i) and items 3, 4, and 5 of the Citation for nonserious violation of 29 CFR 1926.500(e)(1)(i); 29 CF $1926.500(c)(1)(ii); and 29 CFR 1926.500(b)(8) and the penalties proposed by the Complaint of $900, $55, $70 and $225, respectively are hereby vacated.
It is further ORDERED that items 1, 2 and 6 of the Citation for nonserious violation of 29 CFR 1926.25(a); 29 CFR 1926.501(d) and 29 CFR 1926.252(a) are affirmed and the penalties of $85, $85 and $80, respectively, are hereby affirmed.
JOSEPH CHODES, JUDGE, OSAHRC
Dated: Mar. 4, 1974, New York, New York