PETROCELLI ELECTRIC CO., INC.  

OSHRC Docket No. 76-218

Occupational Safety and Health Review Commission

April 11, 1977

  [*1]  

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Reg. Sol., USDOL

Santo Petrocelli, President, Petrocelli Electric Co., Inc., 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 Admistrative 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 the significance [*2]   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.  

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A.   For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.

APPENDIX A

DECISION AND ORDER

Francis V. LaRuffa, Regional Solicitor, United States Department of Labor and Jack R. Fisher, for complainant

Santo Petrocelli, President, Petrocelli Electric Co., Inc., For respondent

DeBenedetto, J.:

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. et seq., hereinafter called the Act) stemming from a citation issued by complainant against respondent under authority provided by section 9(a) of the Act.

The citation and notification of proposed penalty, issued on December 9, 1975, are based on an inspection made   [*3]   on December 2, 1975, of a worksite located in Brooklyn, New York.   The citation alleges nonserious violations of 29 CFR § §   1903.2(a) and 1926.100(a).   No penalty is proposed for the first item and a $25.00 penalty is proposed for the second item.   Respondent timely contested the citation, complaint and answer were filed by the parties, and the case came on for a hearing in New York, New York, on April 26, 1976.   No affected employee or authorized employee representative elected to participate as a party in the case.

OCCUPATIONAL SAFETY AND HEALTH STANDARDS

§   1903.2(a) provides in part:

"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 . . . .   Such notice or notices shall be posted by the employer in each establishment n1 in a conspicuous place or places where notices to employees are customarily posted . . . ."

§   1926.100(a) states:

"Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns,   [*4]   shall be protected by protective helmets."

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n1 The term "establishment" means "a single physical location where business is conducted or where services or industrial operations are performed . . .   Where employers are engaged in activities which are physically dispersed, such as . . . construction . . . the notice or notices required by this section shall be posted at the location to which employees report each day . . . [or] from which the employees operate to carry out their activities." §   1903.2(b).

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ADMISSIONS

Respondent admitted that it is a New York corporation, does business as an electrical contractor, and uses materials and supplies manufactured outside the State of New York (complaint and answer).

Testimony of Raymond Swanson, Compliance Safety and Health Officer

Upon arriving at the construction site he met with the "general superintendent" at the office of the general contractor and requested the presence of a representative from each of the contractors at the worksite for the opening conference [*5]   (Tr. 15).   Among the representatives at that conference was Edward Poppe, respondent's foreman. The following colloquy occurred relating to the Occupational Safety and Health Administration ("OSHA") notice (Tr. 15-16):

"A.   In my opening conference with all the various foremen for the contractors' representative at this site I asked them all if they had the OSHA poster. No one could produce the poster.

At that time I showed them what the poster was.   I informed them that this has to be posted on every construction site where notices of all employees are customarily placed.

* * *

"Q.   Did you talk to any of the representatives of the respondent . . . in regard to this regulation [29 CFR §   1903.2(a)]?

A.   Yes, I did.

Q.   Who was that?

A.   Mr. Edward Poppe.   The foreman.

Q.   What did you say to him and what did he say to you in regard to this?

A.   He did not have the poster. I supplied him with the poster. I explained to him that he had to post it in the shanty.

Q.   Did you ask him if he had one?

A.   Yes, I did.

Q.   What did he say.

A.   He could not produce any.   He did not have any.

* * *

Q.   Did Mr. Poppe indicate to you that he was aware of this requirement?

A.   [*6]   No.   He didn't say that he was aware of it.

* * *

Q.   Did this poster look familiar to him; did he recognize it?

A.   He didn't say that he recognized it."

He observed "Mr. Poppe and another employee" of respondent emerge from the building under construction neither of whom was wearing "a hard hat" (Tr. 19, 24).   Mr. Poppe "acknowledged" that he was not wearing a protective helmet, and he and the other employee of respondent "went to the shanty to get it" (Tr. 21, 29).   The witness described the conditions and operations performed at the construction site, including demolition of a brick wall by jack hammer and material hoisting, that led him to believe protective helmets were necessary (Tr. 19-20).   In recommending the penalties, he gave respondent the maximum credits for "good faith" (20 percent), "size" (10 percent) and "history" (20 percent), as well as an additional 50 percent credit for abatement (Tr. 22-23).   Respondent had only two employees at the worksite (Tr. 24).

Testimony of Edward Poppe, Respondent's Foreman

Mr. Poppe stated that on the day of the inspection in December 1975, he first learned of the inspector's presence on the construction site when he was [*7]   called by the general contractor's superintendent to meet the inspector.   At that time, he stated, he had just left his shanty, which was located behind the general contractor's trailer and outside the fenced-in construction site, and while outside that fenced-in area, he summoned "[o]ne of my fellows.   I don't remember which one of the boys, but I hollered I wanted to see him in the trailer." He further related in relevant part (Tr. 36-38):

"On the way back from there, Tony, the general contractor's superintendent, stopped me and said, 'OSHA is here.   Come on in.'

So I walked into the trailer and that gentlemen [Mr. Swanson] was sitting in the trailer . . .

And Tony said, 'This is the OSHA man, the man from OSHA.' He introduced me to him . . .

He asked me if I had certain papers on the job.   The only papers I had on the job at that particular time were the ones that I received from the electric industry.   It was on OSHA: What you should know about OSHA laws.   That was the only paper that I had at the time, and I told the gentleman that . . .

He told us that we didn't have . . . the proper paper, and he said that he would supply them to us, and he did.   He went out to wherever [*8]   he had the papers and he brought them in and we hung them in our trailer."

At the conclusion of the opening conference, Mr. Swanson notified the parties that he would presently inspect the construction site. Thereupon, Mr. Poppe went to his trailer in order to obtain his "hard hat" and accompanied Mr. Swanson on the inspection tour (Tr. 38).   During the closing conference he was told by Mr. Swanson that "we had no violations against us" (Tr. 39).   Respondent had only one other employee on the jobsite, whose name, the witness stated, is Dennis Giannone.   When questioned as to the whereabouts of Mr. Giannone at the time he first met Mr. Swanson in the general contractor's trailer, Mr. Poppe stated (Tr. 42):

"If I am not mistaken, he was in the building working because I think he was the one I was calling -- I'm not sure -- but when Tony [the general contractor's superintendent] called me, I was outside."

When asked as to the whereabouts of Mr. Giannone at the time of the actual inspection or "walkaround" the following colloquy occurred (Tr. 44-45):

"Q.   You're not sure where he [Dennis Giannone] was at the time of the inspection?

A.   Not at that time, no.   Because -- no.   Because [*9]   when we were walking there was five or six of us walking together, all together and we were talking amongst ourselves, and I don't remember whether I saw him, whether he was there or what.   I don't remember.

Q.   Do you recall Dennis Giannone coming in contact with Mr. Swanson?

A.   Not to my knowledge."

The following testimony was elicited in connection with the "hard hat" matter:

"Q.   Did you at any time discuss hard hats with Mr. Swanson?

A.   I think he did.   He said to me when I walked in the trailer where is your hard hat, if I'm not mistaken and I said it was in my trailer." (Tr. 42)

* * *

Q.   Mr. Swanson, he did not discuss the possibility of a hard hat violation with you?

A.   No, not to my knowledge.

Q.   He didn't say anything about hard hats to you?

A.   He may have said something about hard hats. I remember something about hard hats, but what it was -- I don't remember.

Q.   He may have said something to you about hard hats but you just don't recall, is that it"

A.   I think he said to me when I walked in the trailer, where was my hard hat." (Tr. 46)

DISCUSSION

The evidence shows, and the parties do not dispute the fact, that respondent did not have the OSHA [*10]   notice posted until it was furnished by the compliance officer on the day of the inspection. It is settled law that an employer cannot be charged with failure to post an OSHA notice unless the evidence establishes that the unposted notice had been furnished by OSHA, as required by the standard.   Secretary v. Oak Lane Diner, 3 OSAHRC 936 (1973); Secretary v. Puterbaugh Enterprises, Inc., 9 OSAHRC 718, 721 (1974). Inasmuch as the evidence clearly indicates that the notice had not been previously supplied by OSHA, that item of the citation alleging noncompliance with §   1903.2(a) must be vacated

With regard to the alleged violation of the protective helmet standard, the testimony of Poppe, respondent's formeman, sharply contradicts that of Swanson, the compliance officer.   Swanson testified that he observed Poppe and another employee of respondent (Giannone) emerge hatless from the building under construction where conditions required the wearing of a protective helmet, and that when Swanson confronted the two employees with their failure to wear "hard hats", they proceeded to respondent's "shanty" to obtain the hats.

Poppe's recollection of the circumstances placed [*11]   himself outside the construction area and alone in the vicinity of his shanty where conditions did not require the wearing of a protective helmet. He was not aware that Giannone ever met Swanson during the inspection

In evaluating the conflicting testimony, several factors loom large in undermining Poppe's credibility.   Swanson was aware of the fact that respondent had only one other employee at the worksite besides Poppe.   When describing his initial encounter with Swanson, Poppe stated that he had just left his "shanty" to summon "[o]ne of my fellows.   I don't remember which one . . .", clearly indicating that there was more than one other employee of respondent at the construction site. However, during subsequent testimony Poppe disclosed that respondent had only two men on the jobsite including himself; and when asked to name the other employee, Poppe unhesitantly identified his co-worker as Dennis Giannone.   When questioned regarding the where-abouts of Giannone during his initial encounter with Swanson, Poppe was uncertain.

In much of his testimony, Poppe expressed himself with something less than a positive degree of assurance.   Moreover, there is one striking element in [*12]   his testimony that appears highly improbable, and that is Poppe's ostensible lack of concern and knowledge about Giannone and his activities during the physical inspection of the workplace.   It seems extraordinary that Poppe would be oblivious of Giannone at a time when Poppe, acting as respondent's representative, accompanied the compliance officer during the physical inspection. Additionally, in view of Poppe's disclaimer that he was working in an area where there was need for a protective helmet and considering that the scope of respondent's presence at the site was circumscribed by only two employees, I find it incredible that upon learning of the issuance of the citation for failure to wear a helmet, Poppe would not endeavor to obtain from Giannone, the only other employee of respondent at the construction site, all the essential information concerning Giannone's activities to determine what connection, if any, he might have had with the citation, inasmuch as Poppe was respondent's foreman and the person responsible for supervising and enforcing compliance with safety standards at the worksite.

In view of the foregoing, I find Poppe's testimony to be unconvincing and adopt   [*13]   the statements of the compliance officer as establishing the material facts showing that respondent failed to comply with §   1926.100(a).   It is believed that the penalty proposed by complainant reasonably reflects proper consideration of the criteria required by section 17(j) n2 of the Act, therefore, a $25.00 penalty is deemed appropriate.

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n2 Section 17(j) (29 U.S.C. 666(j)) states:

"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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FINDINGS OF FACT

1.   At the time of the OSHA inspection in December 1975 respondent, an electrical contractor, had two employees, including a foreman, working on a construction site in Brooklyn, New York.

2.   Respondent's base of operations consisted of a "shanty" located in the vicinity of the jobsite.   [*14]  

3.   Respondent was not furnished an OSHA notice for posting in the "shanty" prior to the compliance officer's inspection in December 1975.

4.   On the day of the inspection, respondent's employees were not wearing protective helmets while working in areas where there was a possible hazard of head injury.

CONCLUSIONS OF LAW

1.   At all times relevant herein, respondent has been engaged in a business affecting commerce within the meaning of section 3 of the Act.

2.   Respondent did not violate 29 CFR §   1903.2(a).

3.   Respondent nonseriously violated 29 CFR §   1926.100(a) for which a $25.00 penalty is appropriate.

ORDER

It is hereby ORDERED that:

1.   Item 1 of the December 9, 1975, citation involving §   1903.2(a) is vacated.

2.   Item 2 of said citation relating to §   1926.100(a) is affirmed and a $25.00 penalty is assessed therefor.

RICHARD DeBENEDETTO, JUDGE, OSHRC

Dated: July 20, 1976

New York, New York