OSHRC Docket No. 4872
Occupational Safety and Health Review Commission
August 16, 1974
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: MORAN
OPINION:
MORAN, CHAIRMAN: A decision of Review Commission Judge John S. Patton, dated April 15, 1974, is before this Commission for review pursuant to 29 U.S.C. § 661(i).
The respondent was cited under the Occupational Safety and Health Act of 1970 n1 for noncompliance with a safety standard promulgated under the Act which is codified in 29 C.F.R. § 1926.400(c)(1). The Judge affirmed the charge and assessed a penalty of $100.00.
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n1 29 U.S.C. § 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act.
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The evidence below clearly establishes a violation 29 C.F.R. § 1926.400(c)(1) and we find no error in the Judge's assessment of the penalty upon due consideration of the gravity of the violation, respondent's good faith, the size of his business and the absence of a prior history of violations. Consequently, we affirm the disposition ordered by the Judge.
So ordered.
[The Judge's decision referred to herein follows]
PATTON, JUDGE, OSAHRC: [*2] This case is before this Judge on the complaint of the Secretary of Labor, United States Department of Labor, hereinafter referred to as complainant, versus Rudolph Marossy, hereinafter referred to as respondent, alleging that respondent has violated section 5(a)(2) of the Occupational Safety and Health Act (84 Stat. 1604; 29 U.S.C. 651 et seq. ), hereinafter referred to as the Act and Occupational Safety and Health standard 29 CFR 1926.400(c)(1). The complaint also alleged a violation of Occupational Safety and Health standard 29 CFR 1903.2(a) but at the hearing the complainant withdrew its allegation of violation of said standard.
LAW AND ISSUES OF THE CASE
It is alleged that the respondent violated standard 29 CFR 1926.400(c)(1) in that while painting at Rinker Concrete Yard, South Daytona Beach, Florida, respondent failed to properly protect an employee who was required to work in close proximity to an electric power circuit against electrical shock from coming into contact with said circuit by either deenergizing the circuit and grounding it or by guarding it by effective insulation or by other means.
As above stated, it was also alleged that respondent violated [*3] standard 29 CFR 1903.2(a) in that respondent failed to post an Occupational Safety and Health Administration Notice which apprised employees of their rights and benefits provided under the Act. It was testified that the respondent did post such a notice in his office which he maintained in his home and that it was seen by any employees working for him, whereupon the complainant withdrew its contention that said section had been violated.
The issue for determination, therefore, is whether respondent permitted an employee to work in an area in which said employee could suffer electrical shock by coming into contact with power lines and failed to deenergize the circuit and ground it or guard by effective insulation or other means.
EVIDENCE IN THE CASE
Mr. Marossy testified that he purchases his paint from within the State of Florida but that the paint is manufactured in the State of Georgia. The business is a sole proprietorship owned by Mr. Rudolph Marossy. Mr. Marossy worked as a painting contractor (TR 11). He works out of his house, maintaining an office in his own home (TR 12). His work is normally confined to the county in which he resides (TR 12). With the exception [*4] of a time in 1945 when he was working on a school, at which time he had four employees, the employer never worked with more than one or two employees (TR 21). At the present time, Mr. Marossy has no employees because his business does not justify it and he cannot afford it (TR 34). He stated that he works on these projects just like the men that he has assisting him, engaging in painting and other duties required. He stated they all worked together with a relationship more that of friends than that of employee-employer relationship (TR 21). The job was performed entirely on weekends. Mr. Marossy testified, however, that he never requires an employee to work on a weekend as he feels that the employees have a right to be with their families. He stated that the employee working on the job was, therefore, entirely a volunteer (TR 31). The contractor still owes Mr. Marossy $2,800 for the job in question. He stated it had not been finished because the power company would not turn off the electricity. He said that he could finish it in six to eight hours by working on it himself without asking anyone to do so (TR 32, 33). He described the company as being in a financial [*5] hole (TR 33). He grosses $18,000 to $20,000 a year and nets approximately $9,000 a year (TR 34, 35). Mr. Marossy has seven children (TR 32).
On August 19, 1973, Mr. Marossy was painting a silo in Port Orleans, Florida. He stated it is a concrete silo with steel bands going around, holding the concrete piles together (TR 14). The weekend prior to the accident which occurred, everything was painted up above the level of the power lines but he could not reach the last section and it was necessary on August 19, 1973, to paint from a chair. Power lines carrying 7,000 volts ran 30 to 36 inches from anyone painting the silo (TR 17, 18, 26).
On August 19, 1973, Mr. Bill Bridges, employed by Mr. Marossy engaged in spray painting between the power lines and the silo (TR 17). The respondent testified that he always did any dangerous work himself (TR 18, 19) and he told Mr. Bridges when they arrived at the job site "I like to do this particular side of the silo because of the power lines and I know exactly how to do it" (TR 17). Mr. Bridges, however, stated that he liked to spray and wanted to do it and upon Mr. Bridges' insistence that he be permitted to do it, Mr. Marossy relented [*6] and let Mr. Bridges spray the silo opposite the power lines (TR 17). Mr. Marossy told Mr. Bridges, however, "Bill you have to be very, very careful, there is a power line right there" (TR 17). Mr. Bridges sprayed one section, started down, pushed himself away from the silo and his back touched the power lines and he was electrically shocked and killed (TR 17).
The respondent testified that Mr. Bridges, the deceased employee, was more than an employee to him. Mr. Bridges had no father and according to Mr. Marossy he would come to Mr. Marossy's house at least once or twice a week, other than regular working time and have dinner with Mr. Marossy and his family. When in trouble he would ask Mr. Marossy for personal advice. He stated nobody would give Mr. Bridges a chance and, according to Mr. Marossy
. . . somebody have to, because if nobody gives a chance to a young man today, what's going to happen to our country? And I helped in many ways.
I loaned him money when he needed, just small amounts, or he borrowed my automobile couple of times. Maybe to take a girl out on a date.
Like I said, he was a lots closer to me, and this whole case is affecting me so badly. His [*7] mother is so close to us, to my family, and I just felt so miserable about it many, many nights I couldn't even sleep. But it was something which nobody could do anything about it, but because just happened in a split second (TR 6).
Mr. Marossy further stated that he had worried so over the tragedy that his wife sometimes hardly knew him (TR 31).
EVALUATION OF THE EVIDENCE
There can be no doubt that a violation of the standard did occur. To permit an employee to work within two and one-half to three feet of uninsulated wires carrying 7,000 volts is a very dangerous thing and if the respondent was a larger company, this Judge is of the opinion that the proposed penalty of $500 would be justified. It will be noted, however, that one of the factors which the statute requires to be considered in setting the amount of the penalty is the size of the respondent. Respondent in this case was, in reality, more a painter who sometimes used an assistant or two than a company in the usually accepted sense of the word. Mr. Marossy only netted approximately $9,000 a year out of which he supported a wife and seven children. The purpose of a penalty is to prevent a further violation [*8] of the Act. In the opinion of this Judge, $100 assessed against Mr. Marossy would, to Mr. Marossy, be a larger penalty than a penalty of $500 assessed to an average company. This Judge in observing Mr. Marossy testify was deeply impressed by Mr. Marossy's sincerity and his concern for the welfare of his employees. It appears that the employee who was electrocuted was treated by Mr. Marossy as almost a member of his own family. He took an interest in Mr. Bridges because he felt that Mr. Bridges needed a friend. It will be noted that Mr. Marossy rather than having his employees go into dangerous situations would take any dangerous job himself and leave the less dangerous jobs to his employees. This was his plan at the time that Mr. Bridges lost his life. Mr. Marossy, knowing the pleasure that Mr. Bridges received from engaging in spray paint work, yielded to Mr. Bridges' entreaties that Mr. Bridges be permitted to work near the power lines on this occasion. Mr. Marossy cautioned Mr. Bridges at least five times that day to be mindful of the power line. Mr. Marossy testified that he did not know that they were carrying 7,000 volts, however, his numerous cautions to Mr. Bridges [*9] would indicate that he was aware it was a dangerous situation. It will be noted that when the compliance officer made an appointment to see Mr. Marossy, Mr. Marossy was available because he had cancelled the planned work which necessitated his employees working from a scaffold. This work was cancelled for the day in question because the wind was strong and Mr. Marossy did not feel that his employees would be completely safe working under these conditions. His action, in view of the financial need of Mr. Marossy, would indicate that Mr. Marossy does have a high concern for the safety of his employees. Mr. Marossy testified there have been no previous accidents involving his work or the work of his employees.
In the numerous cases which have come before this Judge, this Judge has never before seen an employer who appeared to be as personally affected by the accidental death of one of his employees as was Mr. Marossy. The effect upon Mr. Marossy is best typified by the statement of Mr. Marossy that he had not been able to sleep at nights and sometimes was so affected that his wife hardly knew him. Mr. Marossy testified that he has not been paid $2,800 that is due him [*10] by the principal contractor. Under the facts of this case, this Judge is of the opinion that a penalty in the amount of $100 will fully effectuate the purposes of the Act and as above stated, will represent as great a penalty to Mr. Marossy as the proposed penalty of $500, would represent to the average respondent. This Judge is, therefore, of the opinion that a penalty in the amount of $100 should be assessed.
FINDINGS OF FACT
1. Respondent is a sole proprietorship engaged in painting as a subcontractor who purchases his paint all of which is manufactured outisde the State of respondent's domicile.
2. Respondent nets approximately $9,000 a year. The evidence is to the effect that he has not been paid for the project at which the alleged violation occurred.
3. On or about August 19, 1973, respondent permitted Mr. Bill Bridges, an employee of respondent, to work within two and one-half to three feet of power lines carrying 7,000 volts of electricity without said power lines being deenergized and grounded and without guarding them with effective insulation or by other means.
4. On or about August 19, 1973, Mr. Bill Bridges, an employee of respondent, while painting [*11] a silo within two and one-half to three feet of said power lines, touched said power lines with his back with the result that he was electrically shocked and killed.
5. The respondent has no prior history of violations of the Act or of accidents occurring in his business.
CONCLUSIONS OF LAW
1. Respondent is engaged in a business affecting interstate commerce as said term is defined by the Act, and is within the jurisdiction of the Occupational Safety and Health Review Commission.
2. On or about August 29, 1973, respondent violated section 5(a)(2) of the Act and Occupational Safety and Health standard 29 CFR 1926.400(c)(1), by permitting an employee to work within two and one-half to three feet of an electrically charged power line, carrying 7,000 volts of electricity without deenergizing the circuit of said power line or grounding it and without guarding it by effective insulation or other means.
ORDER
It is therefore Ordered that:
Respondent violated section 5(a)(2) of the Act and Occupational Safety and Health Standard 29 CFR 1926.400(c)(1) by permitting an employee to work within two and one-half to three feet of an electrically charged power line carrying 7,000 [*12] volts without deenergizing the circuit and grounding it or guarding it by effective insulation or by other means.
A penalty in the amount of $100 is assessed for said violation.
The requirement that said violation be immediately abated is affirmed.