EMERICK CONSTRUCTION, a corporation

OSHRC Docket Nos. 76-2851; 76-4190

Occupational Safety and Health Review Commission

October 26, 1977

[*1]

Before: CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Daniel Teehan, Regional Solicitor

Paul Emerick, President, Emerick Construction, for the employer

OPINION:

DECISION

BY THE COMMISSION: These consolidated cases are before the Commission for review pursuant to 29 U.S.C. 661(i). At issue is the appropriateness of the penalties assessed by Review Commission Judge Thomas J. Donegan for four job safety violations. In its brief to the Commission, the respondent argues that the penalties imposed are excessive, but does not contest the fact that the violations occurred as described in the citations.

Both cases arise from inspections of a hospital worksite where the respondent was engaged as the general contractor for the construction of a hospital addition. Although separate hearings were held, the cases were consolidated by the Judge for decision.

Docket No. 76-2851

The respondent was found to be in serious violation of 29 C.F.R. 1926.28(a) because an employee was exposed to a 28-foot fall when he crawled outside of perimeter guarding, without any personal protective equipment, to help a carpenter who was in the process of erecting [*2] guardrails. He was in this position for only a few minutes. Safety belts were available at the site, and admittedly should have been used. A penalty of $600 was assessed for this violation.

The respondent was also found to be in nonserious violation of 29 C.F.R. 1926.401(j)(1) because two strings of temporary lights lacked bulb guards. The bulbs had been installed by an electrical subcontractor at the respondent's request. Guards were unavailable locally, and had been ordered by the respondent prior to inspection. Judge Donegan assessed a penalty of $100 for this violation.

Docket No. 76-4190

The respondent was found in serious violation of 29 C.F.R. 1926.451(d)(10) for failure to install guardrails on a tubular welded scaffold. An unprotected employee was exposed to a fall of 34 feet. The scaffold had been used by the respondent in this condition for a "couple of days" prior to inspection. A penalty of $900 was assessed.

The last violation concerns a repeated violation for the failure to provide guardrails and toeboards as required by 29 C.F.R. 1926.500(d)(1) when there is a fall hazard of 6 feet or more from an open-sided floor or platform. The Judge assessed [*3] a penalty of $300. Two separate locations were involved. The first was a 15-foot section of the fourth floor perimeter which had an upper railing but no midrail or toeboard. The rest of the 350-foot perimeter was properly railed. The other location involved an unguarded 8-foot long platform on which two employees were working. The platform extended from ground level, over sloped ground, to the foundation ledge, resulting in a 10-foot fall distance at the ledge. The record does not indicate what portion of the ramp's length was 6 feet or more above adjacent ground level, so as to require guarding.

Appropriateness of the Penalties

The respondent has approximately 100 employees. The evidence demonstrates that the respondent had tried to develop a coordinated safety program. Its supervisors had attended a training program conducted by the Occupational Safety and Health Administration at the respondent's request. The respondent's projects were frequently inspected by the insurance carrier, also at the respondent's request. Regular safety meetings were also conducted at the worksite. * However, the respondent has a history of six prior citations, which had become final orders [*4] before the hearings in the instant cases.

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* These safety measures are noted for the purpose of indicating respondent's good faith efforts to protect its workers, not to absolve it from liability for failure to comply with standards. Amoco Oil Co., 76 OSAHRC 39/A2, 3 BNA OSHC 1745, 1975-76 CCH OSHD para. 20,183 (No. 4804, 1975).

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In assessing penalties, the Review Commission is required by 29 U.S.C. 661(i) to give due consideration to the size of the respondent's business, the gravity of the violation, the good faith of the respondent, and its history of prior violations. Spaghetti Importing and Warehouse Co., 77 OSHARC 36/C2, 1977-78 CCH OSHD para. 21,655 (No. 14414, 1977); Keyes Associates, 76 OSAHRC 132/A6, 4 BNA OSHC 1796, 1976-77 CCH OSHD para. 21,180 (No. 13410, 1976). These factors need not be accorded the same or equal weight in varying factual situations. Keyes Associates, supra.

Considering the above criteria, the Commission concludes that the $600 penalty assessed for the serious violation [*5] of 29 C.F.R. 1926.28(a) in No. 76-2851 is appropriate. Although the duration of exposure to the one affected employee was short, the potential for injury, due to the failure to use a safety belt, was high.

The 1926.401(j)(1) bulb-guard violation, on the other hand, was of relatively low gravity and the respondent was in the process of complying when inspected. Under these circumstances, the Commission does not consider it appropriate to assess any penalty.

The 1926.451(d)(10) scaffold violation in No. 76-4190 was of high gravity. The respondent had permitted the hazardous condition to continue unabated for a significant time prior to inspection. The $900 penalty assessed for this serious violation is therefore appropriate.

The $300 penalty assessed by the Judge for the 1926.500(d)(1) repeated violation is excessive. Of the 350-foot perimeter on the fourth floor, only a 15-foot section was improperly guarded. The top rail provided at this location furnished some employee protection. Although the respondent's attempt to comply fell short of meeting the full requirements of the standard, good faith and substantial compliance are apparent. The maximum fall distance [*6] near the end of the unguarded platform was 10 feet. However, since the record does not indicate what portion of the platform's 8-foot length required railing, the gravity of the situation is not proved to be high. Under these circumstances, a penalty of $100 is appropriate.

Accordingly, the penalty assessed for the violation of 29 C.F.R. 1926.401(j)(1) is vacated, and a penalty of $100 is assessed for the violation of 29 C.F.R. 1926.500(d)(1). As so modified, the Judge's decision is affirmed.