BRAND INSULATIONS, INC.

OSHRC Docket Nos. 8685; 8686

Occupational Safety and Health Review Commission

September 15, 1976

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

William Kloepfer, Assoc. Regional Solicitor

Dennis P. Owen, National Safety Director, BRAND INSULATION, INC., for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge David H. Harris, dated February 10, 1975, is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision held that respondent violated 29 U.S.C. 654(a)(2) by failing to comply with the occupational safety and health standards codified at 29 C.F.R. 1926.25(a), 1926.250(a)(3), 1926.500(d)(2), and 1926.451(a)(4). The Judge assessed penalties of $100, $150, $150, and $500, respectively. In each instance the amount of the penalty was in excess of that proposed by the complainant.

The order for review was issued sua sponte by Commission Moran. It stated the following issue:

Whether there was any legal basis for the assessment of penalties in excess of the amounts proposed by the Secretary of Labor.

The issue was not raised by either party. Neither party petitioned for review, hence there has been no appeal to the full Commission. Respondent has not indicated any interest, whether by letter, brief or [*2] other means in having the Judge's decision reviewed. The Secretary has filed a letter asking for affirmance of the decision.

In these circumstances, we decline ot reexamine Commission precedents on the directed issue n1 or any other aspect of the Judge's decision.

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n1 See, e.g., Allied Structeral Steel Co., 14 OSAHRC 689, 2 BNA OSHC 1457 1974-75 CCH OSHD para. 19,184 (1975).

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Accordingly, the Judge's decision is affirmed. So ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

I am again compelled to register an objection to my colleagues' abuse of the authority delegated by Congress to the members of this Commission. The statutory authority, conferred upon Commission members by 29 U.S.C. 661(i), to direct review is not qualified by any requirement that the interested parties petition for such review. Furthermore, this authority is not limited by any requirement that the issues specified in a direction [*3] for review be briefed by the parties or that the issues involved a "compelling public interest." n2 No such requirements are stated in the Act and as yet Messrs. Barnako and Cleary have failed to come forth with any substantive basis for their position in this line of cases.

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Moreover, my colleagues disposition of this case on the basis of lack of interest by respondent is inconsistent with their condonation of the increased penalty. [*4] They totally disregard the fact that neither party sought an increase in the proposed penalty before the Judge. Such hypocrisy reflects unfavorably on the Commission, and I shall not be associated with it.

As I have indicated in numerous prior decisions, it is wrong for the Commission to raise the complainant's penalty proposals for a number of reasons. It violates the equal protection and due process provisions of the Constitution, exceeds the authority bescowed on the Commission by Congress and, as a matter of practice, is a poor policy because of its chilling effect upon employers who may wish to exercise their right to contest alleged violations. n3 I will not repeat what I have previously stated in those cases. However, it is important to note that by exercising its right to contest the complainant's penalty proposals, the respondent must pay a penalty which is $300.00 more than it would have been required to pay if it had not exercised that right. n4

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n3 See, e.g., my separate opinions in Secretary v. Worcester Pressed Steel Co., 20 OSAHRC 737 (1975); Secretary v. Chicago Bridge & Iron Co., 13 OSAHRC 355 (1974); Secretary v. California Stevedore & Ballast Co., 4 OSAHRC 642 (1973); Secretary v. M.A. Swatek & Co., 2 OSAHRC 1276 (1973).

n4 If the employer does not contest the Secretary's citation or penalty proposal, both become final, and the penalty cannot be increased thereafter. Dale M. Madden Construction, Inc. v. Hodgson, 502 F.2d 278 (9th Cir. 1974); 29 U.S.C. 659(a).

[*5]

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Thus, my colleagues are again warning employers with this decision to refrain from exercising their rights for, if they do so, they will be slapped with a larger penalty. This Commission was established solely to carry "out the adjudicatory functions under the Act." 29 U.S.C. 651(b)(3). Decisions such as this one indicate that the Commission is aligned on the side of the prosecutor. The United States Court of Appeals for the Third Circuit in Frank Irey, Jr., Inc. v. OSAHRC, 519 F.2d 1200, 1203 n. 3 (3d Cir. 1974), recognized that it was poor policy for the Commission to raise penalties when it stated that:

"We suggest that by claiming such power the Commission invites criticism of its intartiality or at least its appearances."

The Commission errs in not heeting that sound advice.

Since this decision does not cover all matters included in Judge Harris' decision, the same is attached hereto as Appendix A.

Appendix A

DECISION

HARRIS, Judge, OSAHRC

The above-captioned matters, although not formally consolidated for trial, were heard on the same day, involve the same respondent, Brand Insulations, [*6] Inc., concern four alleged non-serious violations of standards at the same workplace and several of the witnesses are common to both matters. It is appropriate therefore, in the interest of brevity, to file a single decision entitled in both matters with will deal severally with each citation.

The citation issued in case docket number 8685, dated June 7, 1974, in Item 1, charges that at the Gavin Power Plant, Cheshire, Ohio, as the result of an inspection on May 28, 1974, the respondent violated the standard at 29 CFR 1926.25(a) by reason of its:

"Failure to keep areas clear and free of debris during the course of construction; area outside of fabricating shop, wagon overflowing with debris and debris piled on the ground."

The said standard provides:

During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures.

(37 FR 27509, December 16, 1972)

Item 2 of said citation charges a violation of the standard at 29 CFR 1926.250(a)(3) by reason of the respondent's:

"Failure to keep passageways clear to provide [*7] for free and safe movement of employees in following areas; (a) unit 2, elev. 307 east side of boiler, material stored on catwalk, (b) Unit 2, elev. 287, east side of boiler, material stored on catwalk, (c) Unit 2, elev. 258 southend, material stored on catwalk, (d) Unit 2 Elev. 238, south east corner, material stored on catwalk, (e) Unit 2, elev. 238 north side, material stored on catwalk, (f) Unit 2, elev. 209 southend, material stored on catwalk, (g) Unit 2, elev. 229, Col. M-7 east side, material stored on catwalk, (h) Unit 2, elev. 199, west side, planks stored on walkway."

The said standard provides:

Aisles and passageways shall be kept clear to provide for the free and safe movement of material handling equipment or employees. Such areas shall be kept in good repair.

(37 FR 27520, December 16, 1972)

Item 3 of the same citation alleges a violation of the standard at 29 CFR 1926.500(d)(2) by reason of respondent's:

"Failure to guard runways by a standard railing or the equivalent on all open sides, 4 feet or more above the floor level; in unit 2, elev. 238 men walking on runway (2 X 12 plank) with only rope top rail on one side."

The said standard provides:

Runways shall [*8] be guarded by a standard railing, or the equivalent, as specified in paragraph (f) of this section, on all open sides, 4 feet or more above floor or ground level. Wherever tools, machine parts, or materials are likely to be used on the runway, a toeboard shall also be provided on each exposed side.

(37 FR 27543, December 16, 1972)

The citation requires abatement of the conditions alleged in Items 1, 2 and 3, by June 14, 1974. The Notice of Proposed Penalty, dated June 7, 1974 proposes a penalty of $40 for Item 1; $80 for Item 2 and $80 for Item 3.

A general notice of contest, dated June 21, 1974, was served on complainant on June 26, 1974.

A complaint, which follows the allegations of the citation was filed on July 15, 1974. Respondent filed its answer on July 31, 1974 wherein it contests the aggregate amount of the proposed penalties.

On October 10, 1974, respondent filed a list of the witnesses it proposed to present and a formulation of the issues to be litigated wherein it proposed to contest the reasonableness of the penalties proposed for the three items in the citation and the alleged violation of the standard at 29 CFR 1926.250(a)(3).

In case docket number 8686, the [*9] inspection took place on May 13, 1974 and the citation, issued on June 10, 1974, charges a violation of the standard at 29 CFR 1926.451(a)(4) at the same workplace by reason of respondent's:

"Failure to guard all open sides of platforms more than 10 feet above the ground or floor and scaffolds 4 feet to 10 feet in height, having a minimum horizontal dimension in either direction of less than 45 inches, shall have standard guardrails installed: (a) employees working on a platform on Elevation 149 in Unit 2, Column C-4, insulation pipe, (b) employees working on platforms on Elevation 248, Unit 1, Column J-7, finishing the vent stack."

The said standard provides:

Guardrails and toeboards shall be installed on all open sides not ends of platform more than 10 feet above the ground or floor, except needle beam scaffolds and floats (see paragraphs (p) and (w) of this section). Scaffolds 4 feet to 10 feet in height, having a minimum horizontal dimension in either direction of less than 45 inches, shall have standard guardrails installed on all open sides and ends of the platform.

(37 FR 27534, December 16, 1972)

This citation requires abatement by June 17, 1974. The Notice of Proposed [*10] Penalty, also dated June 10, 1974, proposes a penalty in the sum of $400.

Respondent's general notice of contest, dated June 21, 1974, was served upon the complainant on June 26, 1974. A complaint following the language of the citation, was filed on July 12, 1974. Respondent's answer, filed July 31, 1974, limits its contest to the reasonableness of the penalty. The same intention is expressed in its formulation of issues filed on October 10, 1974.

At the hearing, respondent reiterated its intention to contest the reasonableness of the penalties proposed by the complainant for each of the four violations charged and to contest only the alleged violation of the standard at 29 CFR 1926.250(a)(3) which is Item 2 in the citation dated June 7, 1974 (Tr. 5-6).

It was stipulated that Brand Insulations, Inc., the respondent, is a corporation organized under the laws of the State of Illinois, engaged in the business of supplying and installing insulation and pipe covering on a national scale; that it is the third largest organization in this business in the United States with 1973 sales in excess of $26 million and that it employs an average of 944 persons daily (Tr. 7-9).

It was further [*11] stipulated that respondent had been cited for violations of complainant's standards on June 25, 1973 and on April 11, 1974 which it did not contest (Tr. 9-10).

One of the said citations alleged a serious violation of the standards (Tr. 32; 42).

Although, as it appears supra, respondent admitted the violations of the standards alleged in items 1 and 3 of the citation dated June 7, 1974 (case docket No. 8685) and the violation alleged in the citation dated June 10, 1974 (case docket No. 8686), testimony concerning the circumstances thereof were received relevant to the imposition and the amount of any penalty which might be levied thereon, without objection.

There is little dispute as to any of the pertinent facts. Respondent was one of 40 to 50 subcontractors engaged in the construction of a 20-story structure (case number 8685, Tr. 14; 67). The inspection conducted on May 28, 1974, was a follow up of an inspection of the same work site conducted on April 1, 2 and 3, 1974 as a result of which a serious citation was issued to respondent (Tr. 21; 37; 42).

As to case docket number 8685, item 1, scrap insulation, debris and scrap material were found outside the fabricating shop and [*12] piled upon a trash cart (Tr. 13; 22; C-2. As to item 2, waste and scrap material, boxes of insulation and scaffold planks were found in the passageways which are between 40 and 44 inches wide (Tr. 14; 23; 25; C-3). Respondent's employees were observed at or near some of the places described in item 2 (Tr. 26); others were observed moving about all of the areas described (Tr. 27; 36). Two of respondent's superintendents participated in the walk-around with complainant's compliance officers and identified respondent's employees (Tr. 18; 35). As to item 3, respondent's employees were walking upon a runway plank 2 by 10 inches with a rope handrail on one side, about 138 feet above the ground at elevation 238 on the eighth floor (Tr. 16; 27; 29; C-4).

At the time of the inspection in April 1974, the compliance officer noted the same kind of conditions he found on May 28, 1974. He had noted debris piled outside the fabricating shop, as well as runways which had no protective railings (Tr. 41; 42; 43-44).

With reference to case docket number 8686, the inspection took place on May 13, 1974 (Tr. 9). Two of respondent's employees were working on a scaffold pick, which is a portable [*13] metal platform 20 feet long and 24 inches wide. The scaffold pick had been placed across two guardrails of a passageway and was about 10 feet above the ground at elevation 149 (Tr. 9; 10-12; 14-15) and in Unit 2, two of respondent's employees were working on a board laid across two handrails of a passageway. The board was about 20 feet above the ground which was strewn with debris. No handrails were provided. Respondent's superintendent, who was present, ordered the condition corrected (Tr. 16; 20-21).

All of the conditions described in both citations (case docket number 8685 and 8686) have been corrected (R-6).

There is evidence that the Ohio Electric Company, in charge of the building under construction, had complained to respondent that it had been obstructing the passageways and that the respondent had returned the complaint sheets indicating that the condition had been corrected (Tr. 83-84).

Complainant has sustained his burden of establishing the violation of the standard at 29 CFR 1926.250(a)(3) alleged in item 2 of the citation issued on June 7, 1974.

As to the violations of the standards at 29 CFR 1926.25(a) and 29 CFR 1926.500(d)(2) charged in the same citation, respondent [*14] has admitted that the said violations occurred as alleged. A similar admission is made as to the violation of the standard at 29 CFR 1926.451(a)(4) alleged in the citation issued on June 10, 1974. This admission is reiterated in respondent's Proposed Findings of Fact and Conclusions of Law, p.3.

I come now to consideration of appropriate penalties. Respondent is a large organization. It is simultaneously engaged, at various separated locations, in the installation of insulating materials and pipe coverings in new building construction. As is evident from the record in this case, its employees who are so engaged, of necessity must work in places which are at great heights, exposed to the elements and in many cases not yet enclosed by the ongoing construction. It is just such perils that the standards to which reference is made hereinabove are designed to protect against. The workman, intent upon the performance of his assigned task, will stumble over debris or clutter which should have been removed, or step back to reach a tool or piece of equipment, and in the absence of the protection required by the said standards, will, only too often, become another accident statistic [*15] with an ever-widening pool of grief, hardship and monetary loss, which not only has an impact upon the immediate people involved but upon our society as a whole.

In the matter sub judice, the respondent was put on notice of the existence of the very same conditions in April 1974. Yet, in May of the same year these conditions were again found to exist at the same workplace. No evidence was offered by this respondent to demonstrate that it had made any special effort to guard against a recurrence of these conditions. It argues, as respects the violation of the standard at 29 CFR 1926. 451(a)(4), that the incident was an isolated one of which it was not aware (Findings of Fact etc., Docket No. 8686, p. 2-3). No such proof was offered by it at the hearing.

Under the circumstances of these cases I am persuaded that the penalties should be substantial. Now therefore, good cause appearing it is

ORDERED that:

1. Respondent be and it is hereby found to have violated the standards at 29 CFR 1926.25(a); 29 CFR 1926.250(a)(3) and 29 CFR 1926.500(d)(2) alleged in the citation dated [*16] June 7, 1974 and the said citation be and it is hereby affirmed (Case Docket No. 8685).

2. Respondent be and it is hereby found to have violated the standard at 29 CFR 1926.451(a)(4) alleged in the citation dated June 10, 1974 and the said citation be and it is hereby affirmed (Case Docket No. 8686).

3. Respondent be and it is hereby assessed and required to pay a penalty in the sum of $100 for the aforesaid violation of the standard at 29 CFR 1926.25(a); a penalty of $150 for the aforesaid violation of the standard at 29 CFR 1926.250(a)(3) and a penalty in the sum of $150 for the aforesaid violation of the standard at 29 CFR 1926.500(d)(2) (Case Docket No. 8685).

4. Respondent be and it is hereby assessed and required to pay a penalty in the sum of $500 for the aforesaid violation of the standard at 29 CFR 1926.451(a)(4) (Case Docket No. 8686).

DAVID H. HARRIS, Judge, OSAHRC

Dated: February 10, 1975.