UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 14890 |
|
CALCEDO CONSTRUCTION CORPORATION, |
|
|
Respondent. |
|
March 11, 1977
DECISION
Before BARNAKO, Chairman; MORAN and CLEARY,
Commissioners.
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 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.
DATED: MAR 11, 1977
FOR THE COMMISSION:
William S. McLaughlin
Executive Secretary
(SEAL)
MORAN, Commissioner, Concurring in Part, Dissenting in
Part:
I
agree with Judge Osterman’s decision except that I would vacate item 2 of
Citation Number 1 because the evidence establishes that respondent complied
with the requirements of the cited standard. 29 C.F.R. § 1926.102(a)(1). That
standard provides in pertinent part that:
Employees shall be provided with
eye and face protection equipment when machines or operations present potential
eye or face injury . . . (Emphasis added.)
It is
apparent that this standard affords no guidelines as to when eye protection
should be worn. In effect, the matter of wearing eye protection, once provided,
is left to the discretion of the individual employee. Since respondent complied
with the requirements of the standard by providing eye goggles to its
employees, the citation should be vacated. See Secretary v. Gumina Building and Construction Company, OSAHRC Docket
No. 6048, April 28, 1976.
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 Oaterman’s decision, his decision is
attached hereto as Appendix A so that the law in this case may be known.
APPENDIX A
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 14890 |
|
CALCEDO CONSTRUCTION CORPORATION, |
|
|
Respondent. |
|
June 24, 1976
DECISION AND ORDER
APPEARANCES:
Francis V. LaRuffa,
Esquire, Regional Solicitor
Philadelphia, Pennsylvania
by Stephen D. Dubnoff,
Esq.
for the Complainant
Joseph Tomel,
Pro Se
for the Respondent
Osterman, Judge
This
is a proceeding initiated by the Respondent pursuant to Section 10(c) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. 659(c) [hereafter the
Act] to contest three Citations and a Notice of Proposed Penalty issued to
Respondent on or about August 15, 1975. Citation No. 1 charged Respondent with
a non-serious violation of 29 CFR 1926.100(a) [failure to provide hard hats]
for which a penalty of $410 is sought and a non-serious violation of 29 CFR
1926.102(a)(1) [failure to provide eye protection] for which a penalty of $285
is sought. Citation No. 2 charged a serious violation of 29 CFR 1926.451(a)(13) [failure to provide access ladder] for which a penalty
of $900 is sought. Citation No. 3 charged a willful violation of 29 CFR
1926.451(d)(10) [failure to provide guardrails, etc.,
on scaffold] for which a penalty of $3,000 is sought.
The
evidence given at the hearing discloses that on July 31, 1975, the day of the first
inspection, the compliance officer observed that eight of Respondent’s
employees who were working at the jobsite were without protective headgear and
that directly above these employees were a number of ironworkers who were
setting steel sheeting on a wall. Respondent’s men below these ironworkers were
exposed to the hazard presented by falling tools, nuts, bolts, etc. (Tr.
12–13). Respondent’s witness admitted this fact and testified that he provided
hard hats only after he was advised of the inspection (Tr. 61–62).
The
compliance officer also observed a scaffold approximately 25 feet high only
partially planked at the top upon which Respondent’s employees were working.
The platform also lacked appropriate guardrails and toeboards (Tr. 15–17). In
addition, the scaffold lacked a ladder for the use of employees required to
ascend and descend the scaffolding (Tr. 17–19). One of Respondent’s employees,
who was not wearing protective goggles and whose eyes were exposed to flying
chips, was observed cutting brick with a saw (Tr. 19–20). All of these
additional violations were conceded to have been in existence on July 31, the
day upon which the first inspection was conducted (Tr. 59–62; 64–65).
The
remaining violation charged is that covered by Citation No. 3 which alleges a
serious and willful violation of 29 CFR 1926.451(d)(10). It is alleged that on
August 6, when the Secretary’s compliance officer returned to the worksite in
connection with another investigation, he again observed one of Respondent’s
employees at work on the top level of the improperly guarded scaffolding. The
employee was pointing up some brick work with grout (Exh.
C–1; Tr. 23–29; 36; 53).
The
evidence with respect to this alleged violation is contradictory. Witnesses
testifying for the Respondent stated that all deficiencies in the scaffold had
been corrected immediately after the compliance officer’s first visit on July
31 (Tr. 48, 53–54); that the scaffolding on the north side of the structure had
been partially removed prior to the second visit on August 6; and that
dismantling was being completed on August 6 (Tr. 54). It was also testified
that on August 6 the remaining portion of the scaffold, upon which one workman
was observed, was completely planked (Tr. 57). Exhibit C–1 taken from ground
level clearly shows the existence of a guardrail on the scaffold platform but,
because of the angle at which the photo was taken, does not show the planking.
The compliance officer did not climb the scaffold on August 6 to observe the
planking.
Support
for Respondent’s evidence comes from the testimony of the compliance officer
who stated on direct examination that when leaving the worksite on July 31 he
did observe that ‘there were several procedures started to take down the
scaffold, so that there was no imminent danger notice needed to be posted at
the site’ (Tr. 34). On cross-examination the compliance officer admitted also
that he could not remember whether the scaffold appeared different on August 6
than it had appeared on July 31 (Tr. 44).
The
Third Circuit has defined the term ‘willful’ as being the
defiance or such reckless disregard of
consequences as to be equivalent to a knowing and deliberate flouting of the Act, and means more than a mere voluntary action or omission
and involves the element of obstinate refusal to comply.[1]
The
Fifth Circuit has adopted a somewhat broader definition of the term ‘willful’
holding it to be an
action taken knowledgeably by one subject
to the statutory provisions in disregard of the actions
legality. No showing of malicious intent is necessary. A conscious,
intentional, deliberate, voluntary decision properly is described as willful,
‘regardless of venial motive.”[2]
The
evidence in this case does not meet the standard for ‘willful’ set forth in
either circuit. In my opinion the inconclusive record herein does not support a
finding that the Secretary has established by a preponderance of the evidence
that Respondent was in ‘willful’ violation of 29 CFR 1926.451(d)(10) on August 6, 1975. Although this case arose in the
Second Circuit it is my view that the Secretary as a minimum must meet the
criteria set forth by the Fifth Circuit. The Secretary has failed to do so.
FINDINGS OF FACT
1.
Respondent corporation is an employer, engaged in commerce as those terms are
defined by Section 3 of the Act and is subject to the jurisdiction of this
Commission.
2. In
1975 Respondent’s gross revenues were approximately $2,000,000, net income was
approximately $75,000.
3. On
July 31, 1975, Respondent was engaged in the construction of a tramway station
for the Roosevelt Island Aerial Tramway in New York.
4. On
July 31, 1975, Respondent’s employees were permitted to work without protective
headgear in an area where they were subject to the hazard of head injury from
falling objects.
5. On
July 31, 1975, Respondent’s employees were permitted work on a scaffold for
which Respondent had failed to provide access ladders on which to ascend and
descend from the scaffold.
6. On
July 31, 1975, one of Respondent’s employees was permitted to operate a masonry
saw for cutting brick without the use of protective goggles.
7. On
July 31, 1975, Respondent’s employees were permitted to work on a scaffold
platform approximately 25 feet above ground level which was not properly
planked and was not equipped with appropriate guardrails and toeboards.
8.
The record lacks sufficient evidence to establish that on August 6, 1975,
Respondent willfully disregarded the requirements of 29 CFR 1926.451(d)(10).
CONCLUSIONS OF LAW
1. On
July 31, 1975, Respondent was in violation of 29 CFR 1926.451(d)(10); 29 CFR 1926.451(a)(13); 29 CFR 1926.100(a); 29 CFR
1926.102(a)(1). The first two violations indicated above were ‘serious’
violations of the standards.
2.
The proposed penalty of $410 and $285 for the violations of 29 CFR 1926.100(a)
and 1926.100(a)(1) are reasonable and appropriate and not inconsistent with the
provisions of Section 17(j) of the Act.
3.
The proposed penalty of $900 for the violation of 29 CFR 1926.451(a)(13) is reasonable and appropriate and not inconsistent
with the provisions of Section 17(j) of the Act.
4. A
penalty of $900 for Respondent’s serious violation of 29 CFR 1926.451(d)(10) on July 31, 1975 is reasonable and appropriate and not
inconsistent with the provisions of Section 17(j) of the Act. No violation of
this standard occurred on August 6, 1975, and the proposed penalty of $3,000 is
inappropriate.
ORDER
Pursuant
to Section 10(c) of the Act and Rule 66 of this Commission’s Rules of
Procedure, it is ORDERED:
1.
That Citation No. 1 and the penalties proposed for this Citation be, and the
same hereby are, AFFIRMED.
2.
That Citation No. 2 and the penalty proposed for this Citation be, and the same
hereby are, AFFIRMED.
3.
That the violation charged in Citation No. 3 be, and the same hereby is,
reduced from ‘Serious Willful’ to ‘Serious’ and a penalty of $900 is assessed.
The proposed penalty of $3,000 relating to Citation No. 3 is VACATED.
HENRY K. OSTERMAN
Judge, OSHRC
Dated: June 24, 1976
Hyattsville, Maryland