WILLIAM PHILLIPS COMPANY

OSHRC Docket No. 76-0014

Occupational Safety and Health Review Commission

April 25, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Regional Solicitor, U.S. Department of Labor

William Phillips, William Phillips Company, for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded [*2] the significance of an unreviewed Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

My colleagues err in affirming the Judge's decision in this case since neither the Commission nor the Judge has addressed respondent's impossibility of performance defense. Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges.

Since my colleagues do not address any of the matters covered in Judge LaVecchia's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

APPENDIX A

DECISION AND ORDER

William E. Curphey III, For Complainant

William Phillips, Pro Se, For Respondent

LaVecchia, Judge, OSHRC:

This proceeding was brought under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.), hereafter referred [*3] to as "the Act."

Inspection of respondent's worksite at 21000 Emery Road, in Cleveland, Ohio on December 5, 1975 resulted in the issuance of a citation by the Department of Labor, Occupational Safety and Health Administration, on December 10, 1975, charging a serious violation of the safety standard set forth at 29 C.F.R. 1926.28(a). A proposed penalty of $500 was issued concurrently with the citation.

Respondent filed a notice of contest on December 31, 1975, which, after commencement of the hearing, was deemed to be a contest of the violation charged as well as the penalty. A complaint and answer were filed, after which the matter went to a hearing in Cleveland, Ohio on June 3, 1976.

THE SAFETY STANDARD

The citation charged respondent with violating the following safety standard in the manner described:

Item

Standard

Description of Violation

1

29 C.F.R. 1926.28(a)

Failed to provide and require the

use of personal protective equip-

ment in all operations where there

is exposure to hazardous conditions.

Southwest corner of building man on

parapet five fect above roof, 30 foot

drop to ground no safety belt. Ladder

on roof which could have been used to

achieve purpose.

[*4]

A stipulation was expressed: Respondent had issued a safety belt to the particular employee discovered in violation of the standard, but he was not wearing it at the time of the inspection.

THE COMPLIANCE OFFICER'S TESTIMONY

After presenting his qualifications, the compliance officer stated that he conducted an inspection on December 5, 1975 which resulted in the issuance of the instant citation. He went to the roof of a store in a shopping center, and found respondent's employee in a kneeling position on a parapet about 5 feet high, and about 30 feet from the ground. He was not wearing a safety belt. Below him was a concrete driveway and entrance to the building, and he was wearing nothing more than his regular work clothing. There were adequate structures to which a safety line could have been attached while he was performing his work. He was engaged at the moment of the inspection in re-rigging at a different location a swing stage, or scaffold, on the face of the building. A foreman and 3 employees were involved in the work being done. The employee found in the hazardous position was using a line and hook to fish up the scaffold roof hooks for a change of position. [*5] Other employees were seen without safety belts, but they were not exposed to a hazardous condition. At a later time the compliance officer returned to observe the operation and found that the employees had on their safety belts and were using proper procautions and equipment against falling.

TESTIMONY OF RESPONDENT

The respondent's testimony, in the form of statements and questions at times, essentially comes to this: He has issued safety belts, lines, and other safety equipment to his employees, but they for the most part neglect to use the equipment. The company, which was incorporated last year, employs a varying number of employees for purposes of tuckpointing, caulking, and otherwise waterproofing buildings. He stated that he employs one or two foremen, but policing his employees is difficult because they may be scattered about in small groups working on several jobs in any one day. He emphasized the difficulty of convincing his employees to use the equipment issued to them for the safety purposes under consideration. They find the equipment cumbersome and constricting at times. He indicated that on many occasions an employee will remove the safety equipment as soon [*6] as the foreman, or the respondent himself, is gone from the worksite. He stated that it was impossible for him or his foreman to supervise the other employees at all times in order to insure that they use safety equipment. He stated that he had threatened disciplinary action on many occasions, but has never actually carried out his threats. No training is given to employees in the use of the safety equipment issued.

DISCUSSION

The Commission has held that 28(a) requires the use of safety belts under circumstances similar to those presented in this case. Underhill Construction Corp., 15 OSAHRC 695 (1975). The violation is admitted, but respondent's position is that he should not be penalized for the failure of his employees to use the safety belts issued to them. Respondent's foreman at the instant worksite knew, or should have known that the employee mounted on the parapet was not wearing a safety belt or safety line. This knowledge is imputable to the respondent. Furthermore, respondent indicated that he was aware of the fact that his employees were not using the safety equipment issued to them. Effective enforcement of the use of such equipment has not been [*7] instituted by respondent.

Turning now to the question of assessment of an appropriate penalty, it is noted that the gravity of the violation is high. The employee worked for a time on a parapet without protection against a potential fall of thirty feet or more. A fall from that height onto concrete could have resulted in death or at the least, serious injury. Respondent did show good faith in providing safety belts and lines to its employees, and there is no prior history of violations. Respondent is a small employer, and its operations obviously are seasonal. Considering these factors, a penalty of $150 would appear to be appropriate.

FINDINGS OF FACT

1. Respondent is engaged in a business affecting commerce, and on December 5, 1975 was inspected while performing a tuck-pointing operation in Cleveland, Ohio.

2. An employee of respondent was straddling a parapet about 30 feet over concrete, without a safety belt or safety line, or other means of protection from falling.

3. Safety [*8] belts had been issued by the employer to its employees, but enforcement of their use had not been implemented, nor had training in their proper utilization been provided.

CONCLUSIONS

1. The Review Commission has jurisdiction of this matter.

2. Responden volated Section 5(a)(2) of the Act by not complying with the provisions of the safety standard set forth at 29 C.F.R. 1926.28(a).

ORDER

In view of the findings and conclusions indicated above, it is ORDERED: that the citation be, and the same hereby is, AFFIRMED.

A penalty of $150 is assessed.

Louis G. LaVecchia, Judge, OSHRC

Dated: July 29, 1976

Chicago, Illinois