UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 2911

DAVID NEISS, D/B/A NEISS ENGINEERING COMPANY,

 

                                              Respondent.

 

 

May 19, 1976

 

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

MORAN, Commissioner:

A decision of Review Commission Judge John J. Morris dated April 9, 1974, is before this Commission for review pursuant to 29 U.S.C. § 661(i). That decision, which is attached hereto as Appendix A, is affirmed except insofar as it assessed a penalty of more than $40.00 for each of the violations set forth in Items 6, 9, and 10 of the citation.

            The respondent is a relatively small company which employs less than 20 employees. Although respondent had been cited for violations on one prior occasion, it has demonstrated a cooperative attitude and good abatement record. Items 6, 9, and 10 all involve a failure to protect against fall hazards with standard railings. In determining his penalty proposal, the complainant considered the gravity of each violation to be low. We agree with this determination as the record fails to establish that there was a height probability of the occurrence of injury to any of the respondent’s employees or that a significant number of its employees were exposed to the hazards for a substantial period of time. Considering these facts in conjunction with the criteria enumerated in 29 U.S.C. § 661(i), we find that a $40.00 penalty, as proposed by the complainant, is appropriate for each of the aforementioned items.

Accordingly, the Judge’s decision is modified by substituting a penalty of $40.00 for each of the penalties assessed by the Judge as to Items 6, 9, and 10 of the citation and, as so modified, the Judge’s decision is affirmed.

FOR THE COMMISSION:

 

William S. McLaughlin

Executive Secretary

Gloria W. White

Acting Executive Secretary

Dated: May 19, 1976

 

BARNAKO, Chairman, Concurring:

I concur with my colleague’s decision in this case.

The Secretary proposed a penalty of $40 each for items 6, 9, and 10 of the citation. Judge Morris recommended an assessment of $120 for each of these items. In recommending the assessment he relied on the Commission’s decision in Dixie Electric, Inc., 5 OSAHRC 201, BNA 1 OSHC 1418, CCH O.S.H.D. para. 16,889 (1973). This matter is distinguishable.

In Dixie Electric, the Commission concluded that a $40 proposed penalty for failure to guard an open-sided floor was inadequate and assessed a $200 penalty for the violation. The basis for that decision was a finding that the gravity of the violation was relatively high and that consequently a substantial penalty was necessary. Among other things, the record in Dixie Electric indicated that a number of employees worked between 6 and 24 inches from the edge of an unguarded floor. The probability of a fall was high.

In the instant case, however, the record is very different. Respondent stipulated that its employees were exposed to the hazards involved, but the record does not contain evidence indicating the likelihood of an accident occurring or showing high gravity in any other manner. Accordingly, the reason for assessing a substantial penalty in Dixie Electric is not applicable to this case.

In addition, as my colleague points out, Respondent is a relatively small company and has demonstrated a cooperative attitude.

 

CLEARY, Commissioner, DISSENTING:

I dissent to the majority’s action modifying the Administrative Law Judge’s decision. I would affirm his decision without modification.

Commissioner Moran on his own motion directed this case for review on the following issues:

(1) Does the record establish that employees of respondent were exposed to the hazards created by the existence of the conditions alleged by complainant to constitute a violation of 29 U.S.C. § 654(a)(2)?

(2) Did the Judge exceed the Commission’s authority by assessing penalties in excess of the amount respondent would have had to pay, had he not exercised his right to a hearing on complainant’s charges of non-compliance with §§ 1926.500(b)(1), 1926.500(b)(2) and 1926.500(d)(1) of volume 29 of the Code of Federal Regulations?

As in Star Circle Wall Systems, Inc., No. 3271, BNA 4 OSHC 1011, CCH OSHD para. 20,502 (1976), the Secretary has filed a brief that does not take issue with the Judge’s disposition of the issues on review and respondent has filed no brief. In Star Circle, the Commission said:

This is significant because the order for review involves only matters decided adversely to respondent. Also, exposure issues are the subject of several pending Commission decisions that have been fully briefed. Under these circumstances, we decline to rule upon the issues that have been raised sua sponte.

That decision is controlling here, and accordingly I would affirm the Administrative Law Judge’s decision.

 

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 2911

DAVID NEISS, D/B/A NEISS ENGINEERING COMPANY,

 

                                              Respondent.

 

 

FINAL ORDER DATE: May 9, 1974

APPENDIX A

DECISION AND ORDER

Appearances:

William J. Kilberg, Solicitor of Labor T.A. Housh, Jr., Regional Solicitor Henry C. Mahlman, Associate Regional Solicitor James H. Barkely, Trial Counsel of Denver, Colorado for the Secretary of Labor.

 

Erick K. Furedy, Trial Counsel of Denver, Colorado for the Respondent.

 

STATEMENT OF THE CASE

John J. Morris, Judge, OSAHRC

This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651, et seq., hereafter called the Act) contesting certain Citations issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act.

The Citations allege that Complainant inspected a workplace under the ownership, operation or control of Respondent located at 50 Adams Street, Denver, Colorado, and described as a concrete pier and platform apartment building with curtain walls of precast concrete.

It is further alleged that at the above workplace, Respondent violated Section 5(a)(2) of the Act by failing to comply with occupational safety and health standards promulgated by Complainant pursuant to Section 6 thereof.

The contested Citation was issued on April 25, 1973, as the result of an inspection on April 16, 1973, and it is alleged that the standards violated were duly published in the Federal Register and subsequently recodified in the Code of Federal Regulations as hereinafter noted. Abatement was proposed as hereafter noted. Citation Number 2 alleges as follows:

Item Number

Standard or Regulation Allegedly Violated

Abatement Date

Description of Alleged Violation

Proposed Penalty

1

29 CFR 1903.2

May 4, 1973

The employer did fail to post the notice to employees furnished by the Labor Dept. informing them of their rights under the Act.

 

$50

2

29 CFR 1926.450(a)(2)

Upon receipt of Citation

The ladder leading from the 2nd floor balcony to the 3rd floor balcony on the outside had a branch knot defect in the side rail.

 

$40

3

29 CFR 1926.450(a)(7)

Upon receipt of Citation

The ladder leading from the 2nd floor balcony to the 3rd floor balcony was not used on a pitch that was one-quarter of the working length.

 

$40

4

29 CFR 1926.450(a)(9)

Upon receipt of Citation

 

The employer did fail to extend the side rails of 5 ladders 36 inches above the landings.

 

$40

 

5

29 CFR 1926.450(b)(12)

Upon receipt of Citation

 

The job made ladders did not have the cleats secured with 3–10d common wire nails or other fasteners of equivalent strength.

 

$40

6

29 CFR 1926.500(b)(2)

May 4, 1973

 

Ladderway floor openings and platforms were not guarded by standard railings and toeboards on all exposed sides except at entrance to ladder openings.

 

$40

7

29 CFR 1926.25

May 4, 1973

 

Employer failed during the course of construction to keep the work areas, passageways and stairs cleared of scrap lumber with protruding nails and other debris.

 

$40

8

29 CFR 1926.350(a)(9)

Upon receipt of Citation

 

Employer did fail to secure compressed gas cylinders in an upright position on the ground in front of the building.

 

None

9

29 CFR 1926.500(d)(1)

May 4, 1973

 

The open-sided floors more than 6 ft. above the ground level were not guarded by standard railings on the 1st, 2nd and 3rd floors.

 

$40

10

29 CFR 1926.500(b)(1)

May 4, 1973

 

Floor openings were not guarded by standard railings or covered as required on the 2nd and 3rd floors on the exposed sides.

 

$40

11

29 CFR 1926.300(b)(2)

May 4, 1973

 

The belts of the compressor in the storage room were not guarded from exposure to contact by employees.

 

None

12

29 CFR 1926.500(e)(1)

May 4, 1973

 

 

The stairs leading to the basement were not equipped with standard stair railings or standard handrails.

 

None

 

 

All of the heretofore cited standards are set forth with particularity in the Appendix of this decision.

After Respondent contested this enforcement action, and a Complaint and an Answer having been filed by the parties, the case came on for hearing in Denver, Colorado, on August 28, 1973. The transcript fails to reflect whether the notice of the hearing was posted so a post-trial notice and order was duly posted. No persons objected or desired to intervene in the proceedings.

STATEMENT OF JURISDICTION

The parties have stipulated that the Occupational Safety and Health Review Commission has jurisdiction (Tr. 4, 5, 8). Respondent does business in the State of Colorado, uses the facilities of interstate commerce including the U.S. mail system and telephone services (Tr. 7). Respondent further has employees who were exposed to the hazards involved in this litigation (Tr. 6). Accordingly, the Occupational Safety and Health Review Commission has jurisdiction of the subject matter of this litigation.

STATEMENT OF APPLICABLE LAW PERTAINING TO PENALTIES

The violations in this case are alleged non-serious violations, wherein the proposed penalties do not exceed $50. The Review Commission has, in past decisions, asserted that no monetary penalties for non-serious violations should be assessed where the situation involves small, low-level gravity violations. The rationale for these decisions is that the assessment of a penalty in such circumstances does little to effectuate the purposes of the Act. Secretary of Labor vs. General Meat Company, OSAHRC Docket Number 250, et seq.

On the other hand, in the case of Secretary of Labor vs. Hydroswift, OSAHRC Docket Number 591, et seq., the Review Commission held that the assessment of small monetary penalties for non-serious violations having a level of gravity other than low does effectuate the purposes of the Act. Penalties serve to remind employers that their primary responsibility under the Act is adherence to its protective mechanisms. Failure to impose penalties relating to violations with high levels of gravity serves only to restrain the Act’s effective operation and hinder its functions to reduce the hazards of the workplace for all employees. See Secretary of Labor vs. Osborn Apparel Manufacturing Company, OSAHRC Dockets Number 1868 and 1869.

A further line of case law is set forth in Secretary of Labor vs. Dixie Electric, Incorporated, OSAHRC Docket Number 1345 (November 14, 1973). In Dixie Electric, the Review Commission held that the degree of probability of injury was relatively high where Respondent’s employees were exposed to the unguarded edge of an open-sided floor. Accordingly, the Review Commission raised the $35 penalty of the trial judge to $200.

ISSUES PRESENTED

The initial legal issue presented by the parties is whether or not a general contractor is responsible for conditions not created by him and outside of his control (Tr. 6–7; Resp. Post-trial Brief).

The second issue presented is what penalty, if any, should be assessed for the various violations involved herein (Tr. 6; Resp. Posttrial Brief).

The third issue urged by Respondent is that he is entitled to a lower category as to employees endangered by having the number reduced to his own employees and each of the subcontractors assessed on the basis of their own employees (Resp. Post-trial Brief).

STATEMENT OF THE EVIDENCE

Respondent admits that the violations alleged in the Citation, Items 1 through 12, existed (Resp. Ex. A, Post-trial Brief; Tr. 5, 6).

As to the initial legal issue of responsibility of the general contractor for conditions not created by him or outside of his control, Respondent admits that some of his employees were exposed to the hazards involved (Tr. 6, 47). According to the Compliance Officer, Respondent had thirteen employees at the jobsite, located on the second, third and fourth floors (Tr. 44, 45–48). Respondent’s evidence shows that he is engaged primarily as a general contractor in the engineering and developing business (Tr. 66, 78). His contract with the subcontractors states that the subcontractors will comply with safety regulations (Tr. 67). His testimony indicated that he had four employees of a total of 25 people on the jobsite (Tr. 48, 49, 67–68). The main thrust of Respondent’s defense is that he has no control over the subcontractors (Tr. 69–71, 85–86) or tradespeople (Tr. 77). Further, several of the violations were caused by subcontractors (Tr. 45).

The Occupational Safety and Health Act of 1970 imposes liability on an employer who has employees exposed to the involved hazards. The parties herein stipulated that the Respondent did have some exposed employees (Tr. 6, 47), and the uncontroverted evidence is that Respondent had employees on the jobsite, notwithstanding that the estimates of the number of employees varied between the Compliance Officer and the Respondent (Tr. 44, 47, 48, 67–68, 71). Having established exposure to his employees, it follows that Respondent general contractor is responsible. It is not a defense to the general contractor to establish that the condition in violation of the standard was not created by him if the above factors are established. Further, Respondent’s view that the conditions are ‘outside of his control’ (Tr. 6–7) seeks to ignore the contractual relationship between the general contractor and the subcontractor (Tr. 67). The facts establish responsibility on the part of the general contractor.

The third issue urged by Respondent is that Respondent should be entitled to a lower category as to employees endangered by having the number reduced to his own employees and each of the subcontractors assessed for their employees. This view urged by Respondent is in no way contemplated within the statutory structure of the Act. The liability of the general contractor has been established if the circumstances in this case have been established as enumerated above.

Respondent admits the existence of a state of facts establishing each of the violations (Tr. 5–6; Resp. Ex. A, Post-trial Brief); accordingly, it follows that each of the alleged violations should be affirmed.

Item 1 of the Citation is an alleged violation of the standard regarding failure to post notice to employees informing them of their rights under the Act. The proposed penalty was $50 (Tr. 39–40), dictated by the compliance manual, and there were no adjustment factors considered (Tr. 40). Respondent stipulated that this penalty was reasonable (Tr. 4, 5–6; Resp. Ex. A, Post-trial Brief). Respondent defensively offers evidence and stipulations that the poster was removed by unknown persons (Tr. 5–6, 68). It had been hung by Respondent and his superintendent; he did not know when it had been removed, but there had been vandalism on the jobsite (Tr. 69). The stipulation of the parties is not necessarily binding on a Review Commission Judge, and the stipulation that the proposed $50 penalty is reasonable is rejected. Complainant’s compliance manual proposing a flat penalty of $50 for failure to post constitutes an arbitrary determination contrary to the Act. Penalties should be proposed and assessed on a fair and consistent basis, and they must be arrived at by considering the criteria specified in Section 17(j) of the Act. The evidence indicates that the employer did post the necessary OSHA form but that it was removed by vandals. Respondent should not be held responsible for the act of a third party in these circumstances. In view of the arbitrary assessment, Respondent’s evidence of posting, and because of the relatively remote effect of 29 CFR 1903.2 on the health and safety of employees, the proposed civil penalty of $50 for Item 1 of the Citation should be vacated. A penalty of ‘none’ should be assessed.

In arriving at the adjusted penalty for Items 2 through 12, Complainant considered the likelihood of injury, severity, and extent to which the standards were allegedly violated and the number of employees exposed (Tr. 65; Compl. Ex. 1). The Compliance Officer did not allow a credit for good faith because of prior inspections (Tr. 11) involving violations of a serious nature (Tr. 11). Full credit was allowed for Respondent’s size (Tr. 11). As to history, Respondent was given a 10% credit and nothing for good faith; this evaluation was made on the basis of a single prior Citation involving similar violations (Tr. 11, 42, 43, 53; Compl. Ex. 1). A 50% credit for abatement was allowed (Tr. 11). The total credits of 20% as outlined above were considered as to each of the hereinafter discussed violations (Tr. 11, 16).

If a Respondent has a prior history of violation, the Compliance Officer reduces the prior history credit by half (Tr. 53). While there were 105 alleged violations on the previous jobsite (Tr. 41), Respondent corrected the violations (Tr. 43). In the instant case and at the time of the initial inspection (Tr. 63), he was cooperative (Tr. 62), and he talked with the subcontractors with the Compliance Officer, advising them of the items that had to be corrected (Tr. 51). It is this Judge’s view that the Compliance Officer failed, in effect, to give sufficient consideration to the good faith of Respondent in that he deducted a percentage of the good faith credit as well as a portion of the credit for history for a single prior Citation (Tr. 53). This error permeates the various items of the Citation.

Item 2 of the Citation alleges that the ladder leading from the second floor balcony to the third floor balcony (and used to gain access to work above) had a branch-knot defect on the side rail (Citation; Tr. 9–10, 45, 54; Compl. Ex. 2). 29 CFR 1926.450(a)(2) prohibits the use of ladders with faulty or defective construction. As to this violation, the Compliance Officer considered the probability and severity of injury to be high to moderate. A person might fall two stories if the ladder were to break (Tr. 9–10, 14–15). The defective ladder was less than 15% of the ladders on the jobsite (Tr. 9–10). After considering the credits as outlined above, an adjusted penalty of $40 was proposed.

The placement of this defective ladder across open space and the possibility of a two-story fall (Tr. 9–10) place this factual situation within the category of Hydroswift, cited supra. However, the proposed civil penalty of $40 is excessive and should be vacated, and a penalty of $30 assessed in lieu thereof.

Item 3 of the Citation involves a ladder that was not used on a pitch that was one-quarter of its working length (Citation; Tr. 14–15). An adjusted penalty of $40 was proposed. If the ladder were to break, a person would fall and require treatment from a doctor (Tr. 15). The violation here indicates a low-level gravity situation within the doctrine of General Meat Company, cited supra, and the proposed penalty of $40 should be vacated.

Item 4 of the Citation involves side rails for a ladder that did not extend 36 inches above the railing (Tr. 16). The Compliance Officer considered that there was a low probability of severe injury (Tr. 16). Five ladders (over 50% of those on the jobsite) were not so extended (Tr. 16–17). The Compliance Officer recommended an adjusted penalty of $40 (Tr. 16–17). Complainant’s Exhibit 3 depicts the violation in Item 4 of the Citation (Tr. 22, 26; Compl. Ex. 3). In view of the foregoing facts, the violation set forth in Item 4 is controlled by the doctrine set forth in General Meat Company, cited supra, and the proposed penalty of $40 should be vacated.

 

Item 5 of the Citation involves ladders made on the job that did not have cleats secured with 3–10d wire nails or other fasteners of equivalent strength (Tr. 17). The Compliance Officer considered the probability of injury to be low. He further believed, however, that if the cleats were to pull out, a person would fall and require a doctor’s treatment (Tr. 17). There was no showing by the Complainant that the job-made ladders were unsafe by virtue of not being provided with the fasteners as provided in the standard. Lack of proof of such a detail would indicate that the situation involves the doctrine of General Meat Company, cited supra, and the proposed $40 penalty should be vacated.

Item 6 of the Citation involves certain unguarded floor openings and platforms and a violation of 29 CFR 1926.500(b)(2). Complainant’s Exhibits 7, 8, and 9 depict floor openings (including the third floor) without railings or covers (Tr. 23–24, 26, 28, 32; Compl. Ex. 8). The violation herein falls within the Review Commission’s decisions as expressed in Secretary of Labor vs. Dixie Electric, Incorporated, OSAHRC Docket Number 1345 (November 14, 1973). A penalty of $40 was proposed (Complaint; Notification of Proposed Penalty). On the basis of Dixie Electric, cited supra, a civil penalty of $120 is appropriate for the penalty of the violation of 29 CFR 1926.500(b)(2) in the circumstances herein.

Item 7 of the Citation involves a housekeeping violation, alleging that Respondent failed to keep the work areas, passageways and stairs clear of scrap lumber and other debris (Tr. 18). [Complainant’s Exhibits 4, 6 and 7 show the conditions alleged (Tr. 22–23, 26, 28, 31, 32).] The Compliance Officer considered the likelihood of injury to be moderate and that a doctor would be required if an injury did occur (Tr. 18). The severity was rated as being low to moderate (Tr. 18). The extent to which the standard was violated was considered high, as there were five different locations involved (Tr. 18–19).

It is this Judge’s belief that the factual situation in Item 7 involves relatively high gravity. From the photographic evidence it appears that if a person were to fall, he could be injured by striking any of the protruding nails or, in the alternative, he could step on any of the nails which are clearly visible in the photographs. Accordingly, this situation is ruled within the doctrine of Hydroswift, cited supra. However, the penalty of $40 is excessive, and a penalty of $30 should be assessed in lieu thereof.

Item 8 involves a failure to secure compressed gas cylinders (Citation; Compl. Ex. 10; Tr. 26, 28). Complainant’s Exhibit 9 shows the unsecured cylinders (Tr. 24, 28). There was a proposed civil penalty of ‘none’ (Tr. 60; Compl. Ex. 1). This proposed penalty is proper and should be affirmed.

Item 9 of the Citation involves a failure to guard with standard railings the open-sided floors which were more than six feet above ground level (Tr. 19, 24–29, 60–61; Compl. Ex. 11). On cross-examination, the Compliance Officer admitted that he had not seen anyone going close to the edge (Tr. 60–61); however, in view of the stipulation heretofore discussed that some of Respondent’s employees were exposed, a violation is established. This condition existed on three floors, and a person falling would no doubt be injured; hence, the case falls within the doctrine of Dixie Electric, cited supra. The $40 civil penalty proposed is inadequate, and a penalty of $120 should be assessed.

Item 10 of the Citation involves floor openings that were not guarded by standard railings or covered at the second and third floor levels on the exposed sides (Citation; Tr. 24). The reasoning of Dixie Electric, cited supra, is likewise applicable here. The proposed penalty of $40 is inadequate, and a penalty of $120 should be assessed.

Item 11 of the Citation involves unguarded belts of a compressor (Citation; Tr. 26–27, 28; Compl. Ex. 13). The compressor was not in use but was available in the storage area (Tr. 35). The Compliance Officer recommended an unjusted penalty of ‘none’ (Tr. 60; Compl. Ex. 1). The proposed penalty was properly evaluated, and the proposed penalty of ‘none’ should be affirmed.

Item 12 of the Citation involves stairs leading to the basement which were not equipped with standard railings or hand rails (Citation; Tr. 20). Complainant considered the various factors outlined above in arriving at an adjusted penalty of ‘none’ (Tr. 60; Compl. Ex 1). This proposed penalty is proper, and the proposed penalty of ‘none’ should be affirmed.

FINDINGS OF FACT

1. Respondent is an individual doing business in the State of Colorado, using the facilities of interstate commerce (Tr. 7).

2. Respondent has employees who were exposed to the hazards involved in this litigation (Tr. 6).

3. Respondent admits that the violations existed in Items 1 through 12 of Citation Number 2 (Resp. Ex. A, Post-Trial Brief; Tr. 5, 6).

4. The poster mentioned in Item 1 of the Citation was removed by unknown persons after it had been put up by Respondent and his superintendent (Tr. 5–6, 68, 69).

5. There had previously been some vandalism at the jobsite (Tr. 69).

6. In arriving at the adjusted penalties for the hereinafter enumerated violations, Complainant considered the likelihood of injury, the severity thereof, the extent to which the standard was violated, and the number of employees exposed (Tr. 65; Compl. Ex. 1).

7. In connection with Respondent’s history, the Compliance Officer gave a credit of 10% and nothing for good faith; this evaluation was based on a single prior Citation involving similar violations (Tr. 11, 42, 43, 53; Compl. Ex. 1).

8. Item 2 of the Citation involved the use of a ladder with a branch knot defect on the side rail (Citation: Tr. 9–10, 45, 54; Compl. Ex. 2).

9. In connection with the violation mentioned in the preceding paragraph, a person might fall two stories if the ladder were to break (Tr. 9–10)

10. Item 3 of the Citation involved a ladder that was not used on a pitch that was one-quarter of its working length (Tr. 14–15).

11. If the ladder mentioned in the preceding paragraph were to break, a parson would fall and require treatment from a doctor (Tr. 15).

12. Item 4 of the citation involved side rails for a ladder that did not extend 36 inches above the railing (Tr. 16).

13. The violation mentioned in the preceding paragraph involved a low probability of severe injury (Tr. 16).

14. Item 5 of the Citation involved ladders that did not have cleats secured with three 10–d nails or other fasteners of equivalent strength (Tr. 17).

15. The violation mentioned in the preceding paragraph involved a low probability of injury (Tr. 17).

            16. In connection with the violation stated in Item 5 of the Citation, the evidence failed to establish that the job-made ladders were unsafe (Totality of Record).

17. Item 6 of the Citation involved unguarded floor openings and platforms without railings or covers as high as the third floor (Tr. 23–24, 26, 28, 32; Compl. Ex. 7, 8, 9).

 

18. Item 7 of the Citation involved a failure to keep work areas, passageways and stairs clear of scrap lumber and other debris (Tr. 18, 22–23, 26, 28, 31, 32; Compl. Ex. 4, 6, 7).

19. With regard to the violation mentioned in the preceding paragraph, if a person were to fall, he could be injured by striking any of the protruding nails or he could step on them (Compl. Ex. 4, 6, 7).

20. Item 8 of the Citation involved a failure to secure compressed gas cylinders (Citation; Tr. 26, 28; Compl. Ex. 9, 10).

21. For the violation mentioned in the preceding paragraph, there was a proposed civil penalty of ‘none’ (Tr. 60; Compl. Ex. 1).

22. Item 9 of the Citation involved a failure to guard with standard railings the open-sided floors more than six feet above ground level (Tr. 19, 60–61; Compl. Ex. 11).

23. Item 10 of the Citation involved unguarded floor openings at the second and third floor levels on the exposed side (Citation; Tr. 24).

24. Item 11 of the Citation involved unguarded belts of a compressor (Citation; Tr. 26–27, 28,; Compl. Ex. 13).

25. For the violation mentioned in the preceding paragraph, there was a proposed civil penalty of ‘none’ (Tr. 60; Compl. Ex. 1).

26. Item 12 of the Citation involved stairs leading to the basement that were not equipped with standard railings or handrails (Citation; Tr. 20).

27. For the violation mentioned in the preceding paragraph, there was a proposed adjusted penalty of ‘none’ (Tr. 60; Compl. Ex. 1).

CONCLUSIONS OF LAW

1. Respondent is, and was at all times relevant to the issues herein, engaged in a business affecting commerce within the meaning to Section 3(3) of the Occupational Safety and Health Act of 1970 (Facts, 1).

2. Respondent is, and was at all times herein mentioned, an employer within the meaning of Section 3 (5) of the Act, subject to the provisions of Section 4(a) and 5(a) of the Act and the standards promulgated under Section 6 thereof (Facts, 1, 2).

3. Respondent violated the hereinafter enumerated standards:

Item 1 29 CFR 1903.2;

Item 2 29 CFR 1926.450(a)(2);

Item 3 29 CFR 1926.450(a)(7);

Item 4 29 CFR 1926.450(a)(9);

Item 5 29 CFR 1926.450(b)(12);

Item 6 29 CFR 1926.500(b)(2);

Item 7 29 CFR 1926.25;

Item 8 29 CFR 1926.350(a)(9);

Item 9 29 CFR 1926.500(d)(1);

Item 10 29 CFR 1926.500(b)(1);

Item 11 29 CFR 1926.300(b)(2);

Item 12 29 CFR 1926.500(e)(1);

(Facts, 3).

4. The proposed civil penalty of $50 for the violation of 29 CFR 1903.2 should be vacated, and a proposed civil penalty of ‘none’ should be assessed therefor (Facts, 4, 5).

5. The proposed civil penalty of $40 for the violation of 29 CFR 1926.450(a)(2) should be vacated, and a civil penalty of $30 assessed in lieu thereof (Facts, 6, 7, 8, 9).

6. The proposed civil penalty of $40 for the violation of 29 CFR 1926.450(a)(7) should be vacated, and a penalty of ‘none’ should be assessed in lieu thereof (Facts, 10, 11).

7. The proposed civil penalty of $40 for the violation of 29 CFR 1926.450(a)(9) should be vacated, and a civil penalty of ‘none’ assessed in lieu thereof (Facts, 12, 13).

8. The proposed civil penalty of $40 for the violation of 29 CFR 1926.450(b)(12) should be vacated, and a penalty of ‘none’ assessed in lieu thereof (Facts, 14, 15, 16).

9. The proposed civil penalty of $40 for the violation of 29 CFR 1926.500(b)(2) should be vacated, and a civil penalty of $120 should be assessed in lieu thereof (Facts, 17).

10. The proposed civil penalty of $40 for the violation of 29 CFR 1926.25 should be vacated, and a penalty of $30 should be assessed in lieu thereof (Facts, 18, 19).

11. The proposed civil penalty of ‘none’ for the violation of 29 CFR 1926.350(a)(9) is proper and should be affirmed (Facts, 20, 21).

12. The proposed civil penalty of $40 for the violation of 29 CFR 1926.500(d)(1) should be vacated, and a penalty of $120 should be assessed in lieu thereof (Facts, 22).

13. The proposed civil penalty of $40 for the violation of 29 CFR 1926.500(b)(1) should be vacated, and a civil penalty of $120 should be assessed in lieu thereof (Facts, 23).

14. The proposed penalty of ‘none’ for the violation of 29 CFR 1926.300(b)(2) is proper and should be affirmed (Facts, 24, 25).

15. The proposed civil penalty of ‘none’ for the violation of 29 CFR 1926.500(e)(1) is proper and should be affirmed (Facts, 26, 27).

ORDER

Based on the foregoing findings of fact and conclusions of law, it is hereby ORDERED and ADJUDGED:

1. Citation Number 2, Items 1 through 12, for the alleged violation of the hereinafter enumerated standards:

29 CFR 1903.2;

29 CFR 1926.450(a)(2);

29 CFR 1926.450(a)(7);

29 CFR 1926.450(a)(9);

29 CFR 1926.450(b)(12);

29 CFR 1926.500(b)(2);

29 CFR 1926.25;

29 CFR 1926.350(a)(9);

29 CFR 1926.500(d)(1);

29 CFR 1926.500(b)(1);

29 CFR 1926.300(b)(2);

29 CFR 1926.500(e)(1);

is affirmed.

2. The proposed civil penalty of $50 for the violation of 29 CFR 1903.2, as set forth in Item 1, is vacated, and a penalty of ‘none’ is assessed in lieu thereof.

            3. The proposed civil penalty of $40 for the violation of 29 CFR 1926.450(a)(2), as set forth in Item 2, is vacated, and a penalty of $30 assessed in lieu thereof.

4. The proposed civil penalty of $40 for the violation of 29 CFR 1926.450(a)(7), as set forth in Item 3, is vacated, and a penalty of ‘none’ is assessed in lieu thereof.

5. The proposed penalty of $40 for the violation of 29 CFR 1926.450(a)(9), as set forth in Item 4, is vacated, and a penalty of ‘none’ is assessed in lieu thereof.

6. The proposed civil penalty of $40 for the violation of 29 CFR 1626.450(b)(12), as set forth in Item 5, is vacated, and a penalty of ‘none’ is assessed in lieu thereof.

7. The proposed civil penalty of $40 for the violation of 29 CFR 1926.500(b)(2), as set forth in Item 6, is vacated, and a penalty of $120 is assessed in lieu thereof.

8. The proposed civil penalty of $40 for the violation of 29 CFR 1926.25, as set forth in Item 7, is vacated, and a penalty of $30 is assessed in lieu thereof.

9. The proposed civil penalty of ‘none’ for the violation of 29 CFR 1926.350(a)(9), as set forth in Item 8, is proper and is affirmed.

10. The proposed civil penalty of $40 for the violation of 29 CFR 1926.500(d)(1), as set forth in Item 9, is vacated, and a penalty of $120 is assessed in lieu thereof.

11. The proposed penalty of $40 for the violation of 29 CFR 1926.500(b)(1), as set forth in Item 10, is vacated, and a civil penalty of $120 is assessed in lieu thereof.

12. The proposed civil penalty of ‘none’ for the violation of 29 CFR 1926.300(b)(2), as set forth in Item 11, is proper and is affirmed.

13. The proposed civil penalty of ‘none’ for the violation of 29 CFR 1926.500(e)(1), as set forth in Item 12, is proper and is affirmed.

 

So ORDERED in the City and County of Denver, Colorado.

 

John J. Morris

Judge, OSAHRC

April 3, 1974

APPENDIX

Citation Number 2

Item Number 1:

§ 1903.2 Posting of notice; availability of Act, regulations and applicable standards. (a) 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, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor. Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to insure that such notices are not altered, defaced, or covered by other material.

Item Number 2:

§ 1926.450 Ladders. (a) General requirements. (2) The use of ladders with broken or missing rungs or steps, broken or split side rails, or other faulty or defective construction is prohibited. When ladders with such defects are discovered, they shall be immediately withdrawn from service. Inspection of metal ladders shall include checking for corrosion of interiors of open end hollow rungs.

Item Number 3:

§ 1926.450 Ladders. (a) General requirements. (7) Portable ladders shall be used at such a pitch that the horizontal distance from the top support to the foot of the ladder is about one-quarter of the working length of the ladder (the length along the ladder between the foot and the top support). Ladders shall not be used in a horizontal position as platforms, runways, or scaffolds.

Item Number 4:

§ 1926.450 Ladders. (a) General requirements. (9) The side rails shall extend not less than 36 inches above the landing. When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point of access, shall be installed.

Item Number 5:

§ 1926.450 Ladders. (b) Job-made ladders. (12) Cleats shall be inset into the edges of the side rails one-half inch, or filler blocks shall be used on the rails between the cleats. The cleats shall be secured to each rail with three 10d common wire nails or other fasteners of equivalent strength. Cleats shall be uniformly spaced, 12 inches top-to-top.

Item Number 6:

Subpart M—Floor and Wall Openings, and Stairways.

§ 1926.500 Guardrails, handrails, and covers. (b) Guarding of floor openings and floor holes. (2) Ladderway floor openings or platforms shall be guarded by standard railings with standard toe boards on all exposed sides, except at entrance to openings, with the passage through the railing either provided with a swinging gate or so offset that a person cannot walk directly into the opening.

Item Number 7:

§ 1926.25 Housekeeping. (a) 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. (b) Combustible scrap and debris shall be removed at regular intervals during the course of construction. Safe means shall be provided to facilitate such removal. (c) Containers shall be provided for the collection and separation of waste, trash, oily and used rags, and other refuse. Containers used for garbage and other oily, flammable, or hazardous wastes, such as caustics, acids, harmful dusts, etc., shall be equipped with covers. Garbage and other waste shall be disposed of at frequent and regular intervals.

Item Number 8:

§ 1926.350 Gas welding and cutting. (a) Transporting, moving, and storing compressed gas cylinders. (9) Compressed gas cylinders shall be secured in an upright position at all times except, if necessary, for short periods of time while cylinders are actually being hoisted or carried.

Item Number 9:

§ 1926.500 Guardrails, handrails, and covers. (d) Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toe board wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

Item Number 10:

§ 1926.500 Guardrails, handrails, and covers. (b) Guarding of floor openings and floor holes. (1) Floor openings shall be guarded by a standard railing and toe boards or cover, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways.

Item Number 11:

Subpart I—Tools—Hand and Power.

§ 1926.300 General requirements. (b) Guarding. (2) Belts, gears, shafts, pulleys, sprockets, spindles, drums, fly wheels, chains or other reciprocating, rotating, or moving parts of equipment shall be guarded if such parts are exposed to contact by employees or otherwise create a hazard. Guarding shall meet the requirements as set forth in American National Standards Institutes, B15.1–1953 (R1958), Safety Code of Mechanical Power-Transmission Apparatus.

Item Number 12:

§ 1926.500 Guardrails, handrails, and covers. (e) Stairway railings and guards. (1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified below, the width of the stair to be measured clear of all obstructions except handrails.