Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.


This case is before the Commission for review on the issue of whether the Administrative Law Judge erred in assessing a penalty of $1620 for a serious violation of 29 C.F.R. 1926.500(d)(1) and 29 C.F.R. 1926.28(a) alleged in the alternative.  The Respondent, Dun-Par Engineered Form Co., was originally cited by the Secretary of Labor for an alleged repeated violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678.  The Secretary proposed a penalty of $1620.  The judge declined to find the violation repeated, affirming instead a serious violation of the Act.  Section 17(b) of the Act, 29 U.S.C. 666(b), provides for a maximum civil penalty of $1000 for each serious violation of the Act.[[1/]]  Dun-Par correctly maintains, and the Secretary concedes, that the assessed penalty in this case should not have exceeded $1000.  Accordingly, that portion of the judge's order assessing a penalty of $1620 for the serious violation affirmed in Citation No. 1 is vacated.  The case is remanded to the Administrative Law Judge for the assessment of an appropriate penalty for this violation.



Dated:  APR 27 1984

ROWLAND, Chairman, Dissenting:

While I agree with the majority that the judge erred as a matter of law in assessing a penalty in excess of that permitted under the Act for a serious violation, I dissent from its decision to remand this matter to the judge for a penalty assessment.   In my view, the majority errs in failing to consider Respondent's arguments that it did not violate the Act in the first instance.

Respondent was alleged to have violated 29 C.F.R. 1926.500(d)(1) for failure to provide perimeter guardrail protection for employees working on open-sided floors at heights of approximately 38 and 46 feet or alternatively section 1926.28(a) for allowing these employees to work without safety belts, lifelines, and lanyards. [[1]]   The record, in brief, shows that Respondent was a subcontractor engaged solely in installing and removing formwork for concrete flooring on the worksite in question.   The record further shows that Respondent could not have used guardrails during a substantial portion of its work because such guardrails would obstruct the formwork.  There is also evidence tending to show that safety belts and some of the other means of protecting employees suggested by the Secretary's inspector also could not have been used or would have been ineffective to protect employees.  Respondent took steps to minimize the exposure of its employees by structuring the work such that employees spent as little time as possible at the perimeter and worked from the perimeter toward the inside of the building.  Finally, Respondent requested that the general contractor install guardrails as soon as conditions would permit, normally when the formwork for a particular floor had been completed.

On these facts, the judge affirmed the citation, finding essentially that there was some exposure of Respondent's employees to the unguarded floor perimeters and that some measures could have been taken for their protection.  Respondent filed a petition for review, contending that the judge's decision is not supported by the facts and is contrary to relevant case law regarding the duty of a subcontractor to protect against hazardous conditions which it did not create or control as well as contrary to case law regarding the requirements of section 1926.28(a) and the duty of the employer when compliance with the specific terms of a standard is not possible.  Respondent also disputed the judge's penalty assessment.

Former Commissioner Barnako filed a direction for review of the judge's decision, stating as the only issue for review the propriety of the judge's penalty assessment.  Despite the fact that Respondent filed a brief on review renewing all of its exceptions to the judge's decision, the majority only considers the penalty issue.   I would not limit review to the penalty assessment.

The circumstances of this case plainly demonstrate that a penalty assessment cannot logically be separated from, and considered without regard to, the merits of the underlying citation.  A penalty assessment necessarily implies that a violation has occurred, yet no such determination has been made by the Commission, despite Respondent's forceful arguments that it did not violate the Act. Moreover, it is well settled that a penalty assessment is based upon the size of the business of the cited employer, the gravity of the violation, the employer's good faith, and the history of previous violations.  J.L. Foti Construction Co., 80 OSAHRC 36/C10, 8 BNA OSHC 1281, 1980 CCH OSHD 24,421 (Nos. 76-4429 and 76-5049, 1980).  Under these criteria, circumstances such as limited duration of employee exposure and the efforts made to protect employees are to be taken into account in assessing an appropriate penalty.  E.g., Connecticut Natural Gas Corp., 78 OSAHRC 60/B3, 6 BNA OSHC 1796, 1978 CCH OSHD 22,874 (No. 13964, 1978); National Steel and Shipbuilding Co., 78 OSAHRC 48/A2, 6 BNA OSHC 1680, 1978 CCH OSHD 22,808 (Nos. 11011 and 11769, 1978), aff'd, 607 F.2d 311 (9th Cir. 1979).  In this case, however, Respondent also defends against the citation itself by referring to its efforts to limit employee exposure and otherwise to protect its employees.  It argues that such matters are relevant to determining the scope of the employer's duty.  Thus, application of the penalty assessment criteria here necessarily will require consideration of factual matters and contentions integrally related to the merits of the citation itself.

By refusing to include the merits within the scope of its review, the majority in effect fragments this case despite the fact that modern judicial practice encourages the prompt disposition of all claims presented.  Thus, the Federal Rules of Civil Procedure warrant the broadest possible scope of action consistent with fairness to the parties; joinder of claims and remedies is strongly encouraged.  United Mine Workers v. Gibbs, 383 U.S. 715, 724 (1966).  The tribunal having jurisdiction over the parties should dispose in one proceeding of all related grievances between the parties.  Price v. Williams, 393 F.2d 348 (D.C. Cir. 1968); Rolls-Royce, Ltd. v. United States, 364 F.2d 415 (Ct. Cl. 1966).

In this regard, I note that although section 10 of the Act, 29 U.S.C. 659, allows an employer to contest either a citation or notification of proposed penalty,[[2]] Commission precedent is that a notice of contest filed by an employer limited to the penalty will nevertheless be construed to include a contest of the citation as well if the employer subsequently indicates that its intent was also to challenge the citation.  State Home Improvement Co., 77 OSAHRC 216/A2, 6 BNA OSHC 1249, 1977-78 CCH OSHD 22,435 (No. 14098, 1977); Turnbull Millwork Co., 75 OSAHRC 16/A13, 3 BNA OSHC 1781, 1975-76 CCH OSHD 20,221 (No. 7413, 1975).  This precedent implicitly recognizes that normally it is inappropriate to limit consideration only to the amount of a penalty assessment when a challenge to the underlying citation itself is properly brought before the Commission.  In view of the close relationship between penalty assessment and determination of a violation here, the majority errs in denying Respondent the right to be heard on all of its exceptions to the judge's decision.

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[[1/]] Section 17(b) states the following:

(b) Any employer who has received a citation for a serious violation of section 5 of the Act . . . shall be assessed a civil penalty of up to $1,000 for each such violation.

[[1]] 29 C.F.R. 1926.500(d)(1) requires, in pertinent part, that "[e]very open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing . . . on all open sides . . . . " Section 1926.28(a) requires that employees wear "appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part [Part 1926] indicates the need for using such equipment to reduce the hazards to the employees."

[[2]] 29 U.S.C. 659(c) provides that "[i]f an employer notifies the Secretary that he intends to contest a citation . . . or [penalty]. . notification.... the Commission shall afford an opportunity for a hearing . . . . "