ADVANCE AIR CONDITIONING, INC.

OSHRC Docket No. 1036

Occupational Safety and Health Review Commission

April 4, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY. Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission upon our orders directing review of a decision rendered by Judge James A. Cronin. Judge Cronin affirmed two items of Complainant's citation charging non-serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). The Judge also affirmed Complainant's amended citation alleging a serious violation of section 5(a)(1) of the Act and assessed a penalty of $550 therefor.

We have reviewed the record. Based on such review, we conclude that the Judge erred by finding Respondent in serious violation of section 5(a)(1).

Accordingly, we adopt his decision only to the extent it is consistent herewith. n1

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n1 Review was also directed on the issues whether the Judge erred in affirming two items of the citation for non-serious violation and whether both citations were issued with reasonable promptness. We find no error in the Judge's disposition as to the non-serious citation. The issue of reasonable promptness was not raised during the issue formulation stage of these proceedings. Accordingly, we do not consider it. Chicago Bridge and Iron Company, O.S.H.R.C. Docket No. 744, BNA 1 O.S.H.R. 1485, CCH Employ. S.&H. Guide para. 17, 187 (Rev. Com'n., January 24, 1974).

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In his brief filed in response to the direction for review, Complainant concedes that the standard prescribed at 29 C.F.R. 1926.500(b)(1) n2 "may be applicable under the circumstances of this case." We find on the record that this standard is indeed applicable. Accordingly, this case is controlled by our previous decisions holding that a citation for violation of section 5(a)(1) is not appropriate where there exists a specific occupational safety and health standard governing the conduct at issue. Sun Shipbuilding and Drydock Company, BNA 1 O.S.H.R. 1381, CCH Employ. S. & H. Guide para. 16, 725 (1973); Brisk Waterproofing Company, Inc., BNA 1 O.S.H.R. 1263, CCH Employ. S. & H. Guide para. 16, 345 (1973).

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n2 The cited standards provides: "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."

A "floor opening" is defined as "[a]n opening measuring 12 inches or more in its least dimension in any floor, roof, or platform, through which persons may fall." 29 C.F.R. 1926.502(b).

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It is uncontradicted on the record that Respondent violated the applicable standard. Respondent was on notice as to the alleged serious violation and did in fact defend against the allegations. We consequently find that the issue of a violation of the standard was tried by the consent of the parties pursuant to Rule 15(b) of the Federal Rules of Civil Procedure. n3 Therefore, Respondent will not be prejudiced by an amendment of the Judge's order to find a serious violation of section 5(a)(2) of the Act. Sun Shipbuilding, supra; Brisk Waterproofing, supra.

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n3 Federal Rule 15(b) provides, in pertinent part, as follows:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. . . .

[*4]

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Accordingly, that portion of the Judge's decision finding Respondent in serious violation of section 5(a)(1) of the Act is amended so as to find Respondent in serious violation of section 5(a)(2) of the Act for failure to comply with the requirements of 29 C.F.R. 1926.500(b)(1). As amended the decision of the Judge is hereby affirmed. It is SO ORDERED.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in the disposition of this case. The complaint concerning the violation of section 5(a)(1) is broadly drawn, and clearly alleged conduct that violated the more specific requirements of section 1926.500(b)(1), even though that was not specifically alleged. Under these circumstances, the under-lying facts were tried. The Commission is not precluded from considering and deciding that a violation of section 1926.500(b)(1) existed. N.L.R.B. v. Pecheur Lozenge Co., 393 F.2d 401 (2d Cir. 1953). Cf. Bendix Corp. v. F.T.C., 450 F.2d 534 (6th Cir. 1971).

The "reasonable promptness" issue was not raised by the respondent before or during the hearing. It was raised by the [*5] Judge who noted that the citation in the case was issued 75 days following the date of inspection, and who asked the parties to brief the "reasonable promptness" issue. The Judge clearly was without power to inject himself into this adversary proceeding on this issue. An issue of "reasonable promptness" is not something jurisdictional to be raised at any stage of the proceedings or considered by the Commission even though it is not raised by the parties. See Chicago Bridge & Iron Co., No. 744 (January 24, 1974), stating that a "reasonable promptness" issue can and should be raised by the respondent during the "issue formulation stage." Otherwise, it is waived. My views concerning the term "reasonable promptness" are set forth fully in my dissent to Chicago Bridge & Iron Co., supra.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: I do not agree that this tribunal cannot consider the complainant's admitted failure to issue the citation in accordance with the requirements of 29 U.S.C. 658(a). As the Court said in National Realty and Construction Company, Inc. v. OSAHRC et al., 489 F.2d 1257 (C.A., D.C. 1973).

So long as fair notice is afforded, an issue [*6] litigated at an administrative hearing may be decided by the hearing agency even though the formal pleadings did not squarely raise the issue.

In this case the parties actually briefed the "reasonable promptness" issue at the request of the trial judge. They had fair notice of the issue and it was litigated. Furthermore, although the Commission disapproves of resolving the case on this issue "because it was not raised during the issue formulation stage," it has no problem with a disposition based upon an occupational safety and health standard not even discussed at the trial stage and, so far as the record shows, unknown to any party to this proceeding at the time of the trial.

The citation which initiated this case was issued by complainant on June 6, 1972, and resulted from an inspection of respondent's worksite which was conducted on March 23, 1972: an interval of 75 days between inspection and citation.

29 U.S.C. 658 authorizes the complainant to issue citations alleging violations of the Act and sets forth the requirements and conditions under which this authority is to be exercised.

Subsection (a) states:

If, upon inspection or investigation, the Secretary or his authorized [*7] representative believes that an employer has violated a requirement of section 5 of this Act . . . he shall with reasonable promptness issue a citation to the employer. [emphasis supplied]

Congress clearly stated what it meant by the phrase "reasonable promptness" in the conference committee report which reconciled different versions of the Act which had passed in each of the Houses. The inclusion of that requirement resulted from a compromise between different provisions contained in those bills covering the citation and abatement of hazardous working conditions. In the final stages of the legislative processes leading to its enactment, the bill adopted by the Senate contemplated that the Secretary's representative would himself decide whether there was a violation and would issue the citation at the conclusion of his inspection while still on the employer's premises. The bill which had passed the House of Representatives contemplated an inspector with lesser authority. He would simply conduct an inspection while some other official would later decide whether the conditions observed by the inspector warranted the issuance of a citation.

Under the Senate bill, [*8] therefore, there was to be no lapse of time between inspection and citation and under the House bill there obviously had to be some, but exactly how much was left unanswered.

These differing versions were resolved by the conference committee which drafted the language which is now section 9 of the Act, 29 U.S.C. 658. In so doing, that Committee reported the following to Congress:

The Senate bill provided that if . . . the Secretary . . . "determines" that an employer has violated mandatory requirements under the Act, he shall "forthwith" issue a citation. The House amendment provided that if . . . the Secretary "believes" that an employer has violated such requirements, he shall issue a citation to the employer. The conference report provides that if the Secretary "believes" that an employer has violated such requirements he shall issue the citation with reasonable promptness. In the absence of exceptional circumstances any delay is not expected to exceed 72 hours from the time the violation is detected by the inspector. Report No. 91-1765, 91st Cong., 2nd Session, December 16, 1970, at 38. [emphasis supplied]

In his brief, complainant argues that section [*9] 9(a) must be read in the light of section 9(c) of the Act, which states:

No citation may be issued under this section after the expiration of six months following the occurrence of any violation.

It is, therefore, contended that issuance of a citation as much as 180 days after an inspection comports with the reasonable promptness requirement of section 9(a).

This interpretation is untenable. It is quite apparent that "reasonable promptness" and the six-month limitation are two entirely separate considerations. Several paragraphs after the discussion of the 72-hour time period between inspection and citation, the previously cited report of the conference committee states:

The House amendment prohibited issuance of a citation more than three months after the occurrence of any violation. The Senate receded with an amendment changing three months to six months.

Those two time limitations cover three separate and distinct events: a violation occurs, an inspection is conducted, a citation is issued. Congress expressed its intent that 72 hours would normally be the maximum interval between the latter two events and specifically prohibited the expiration of more than six months [*10] for the entire chain of events.

Complainant's argument not only overlooks the legislative history concerning inspection procedures briefly related above, but is also inconsistent with a well-established rule of statutory construction. To maintain that the six-month period specified in section 9(c) constitutes the only limitation on the time within which all citations must be issued is to render superfluous that part of section 9(a) requiring citations to be issued with reasonable promptness. Where a statute admits a reasonable construction which gives effect to all of its provisions, the Supreme Court has ruled, the court will not adopt a strained reading which renders one part a mere redundancy. Jarecki v. G.D. Searle and Company, 367 U.S. 303 (1961), at 307-308.

The differences here are clear. Section 9(c) is a restriction against citing an employer for a violation that ceased to exist more than six months before action against him was initiated. The reasonable promptness requirement is a rule of inspection procedure, designed to encourage abatement of hazardous working conditions soon after they are observed.

Indeed, this is the only sensible and reasonable [*11] interpretation in light of the very reason for the enactment of this statute: the early abatement and elimination of unsafe and unhealthful working conditions. To permit a delay of six months between the time an unsafe condition is observed by the complainant and his initiation of action to abate it, is to condone the continued existence of the very conditions the Act was intended to eliminate. If the cited conditions are, in fact, detrimental to workers' safety and health (as complainant asserts by his issuance of a citation), then working people are exposed to the same, and their safety and health are unnecessarily endangered during the period of the delay between inspection and citation. Delay of this kind necessarily raises a question whether complainant doubts that such conditions are actually hazardous. If he thought they were, he would certainly move promptly to effect their abatement.

In the instant case, it is clear that those requirements which respondent failed to meet could have easily and quickly been brought into conformance with the requirements of the law and the applicable occupational safety and health standards. For reasons which do not appear in [*12] this record, complainant chose to let those conditions persist for over two months. Delay of this kind erodes the very legislative purpose of any law to protect the safety and health of working people. This law, however, does not permit such a contradiction.

The Administrative Procedure Act which governs proceedings before this agency, 29 U.S.C. 659(c), also supports the proposition that this case can be resolved on "reasonable promptness" grounds. 5 U.S.C. 557(b) governs the scope of review afforded to the Commission and provides the following:

On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rules.

The issue, then, is whether or not the Judge could have decided the case on the basis of the reasonable promptness requirement of section 9(a). There is no question that he could have, for the reasonable promptness requirement must be met in order to establish subject matter jurisdiction. The language of section 9(a) is mandatory; and just as it is required that the citation be "in writing," it is required that it shall be issued with reasonable [*13] promptness. Failure to act in accordance with either mandate renders the citation, which is the subject of the complaint, null and void, and no penalties can be assessed therefor. The failure to observe a similar mandatory requirement under a related law, the Coal Mine Health and Safety Act of 1969, has recently resulted in the invalidation of certain safety standards promulgated pursuant to that Act. United States v. Finley Coal Company, et al.,    F.2d    (6th Cir., 1974). The same result is appropriate here. A mandatory requirement for issuance of citations must be observed or the citation is invalid.

It is an established rule of civil procedure that the issue of subject matter jurisdiction can be raised by any party or the court, sua sponte, at any stage of the adjudicative proceeding, Fed. R. Civ. Pro. 12(h)(3). It is incorrect to insist, as does the concurring opinion, that raising of the question of subject matter jurisdiction by the judge affects his impartiality.

Complainant also suggests that a Commission ruling that section 9(a) can be raised as a bar when respondent has not raised the issue itself is inconsistent with the position taken in [*14] the dissenting opinion in Secretary of Labor v. Thorleif Larsen & Son, Inc., There, the tribunal had jurisdiction to hear the case, and that opinion was to the effect that the parties could, by consent, limit the hearing to those issues which they agree are in dispute. The parties cannot, however, agree that the tribunal has subject matter jurisdiction where it has none.

Moreover, in view of the nature of the Commission proceedings and the number of parties who appear pro se, it is unfair to deny respondent his rights by limiting the decision to those issues raised by one not familiar with the practice of law. To do so would subordinate the prompt abatement of hazardous conditions to the subtlety of formal pleading doctrines.

Finally, occupational safety and health is a new field of law and is not to be judged by traditional common law concepts. The enforcement procedures in this Act have been carefully circumscribed as the result of deliberate legislative compromise among widely divergent viewpoints. As the Supreme Court said in United States v. McCord, 233 U.S. 157, 162; 34 S. Ct. 550, 58 L. Ed. 893, 897 (1914) with [*15] reference to another statute:

The statute thus creates a new liability and gives a special remedy for it, and upon well-settled principles the limitations upon such liability become a part of the right conferred, and compliance with them is made essential to the assertion and benefit of the liability itself.

The 5th Circuit in following this well-settled principle, said in Simon v. United States, 224 F.2d 703, 705, (1957), quoting 34 Am. Jur., Section 7, pp. 16-17:

A statute which in itself creates a new liability, [giving] an action to enforce it unknown to the common law, and [fixing] the time within which that action may be commenced, is not a statute of limitations. It is a statute of creation, and the commencement of the action within the time it fixes is an indispensable condition of the liability and of the action which it permits. The time element is an inherent element of the right so created, and the limitation of the remedy is a limitation of the right.

[The Judge's decision referred to herein follows]

CRONIN, JUDGE. OSAHRC: This is a proceeding under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.; hereafter [*16] called the Act) contesting two Citations and Notification of Proposed Penalty issued by the Complainant against the Respondent under the authority of Sections 9(a) and 10(a) of the Act.

On June 6, 1972 a Citation for Serious Violation was issued to the Respondent charging a violation of 29 C.F.R. 1926.500(b)(1). On that same date another Citation was issued charging 3 non-serious violations of the Act, namely, 29 C.F.R. 1926.401(a)(1), 1926.651(i)(1) and 1926.601(b)(3). Both of these citations were issued as a result of an inspection of a Respondent workplace on March 23, 1972.

The Secretary's complaint modified and amended the citation for Serious Violation by alleging that Respondent had violated Section 5(a)(1) of the Act and omitting the citation's alleged violation of 1926.500(b)(1). n1 With respect to the citation containing the alleged non-serious violations, the complaint realleges in substance the citation's three charges.

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n1 See Secretary of Labor v. Plasterning Incorporated,

[*17]

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Respondent's brief cites Commission Rule 33 in support of Respondent's contention that a complaint amends a citation only when the Secretary sets forth reasons for amendment and states with particularity the change sought. But as Respondent points out, this rule wasn't effective as of the date of the filing of Secretary's complaint.

During the period when the Commission's Interim Rules of Procedure were operative (September 30, 1971 through September 27, 1972) the Commission has consistently held that differences or variances between the complaint and citation constitute an amendment of the citation. Secretary of Labor v. American Agencies Co., Inc., J. R. Steel subsidiary, Secretary of Labor v. Cook Ford Sales, Inc., See also Secretary of Labor v. Otis Elevator Company, In view of this well established position of the Commission, this Judge is [*18] constrained to find that the citation in this case was amended by the complaint.

The alleged violation of Section 5(a)(1) of the Act was described in the complaint as follows:

On March 23, 1972, and at times prior thereto, respondent violated section 5(a)(1) of the Act in that respondent allowed employees to work "a top a roof" (sic) approximately 50 feet above the ground which had exposed floor openings and did not provide the employees with protection from falling. Respondent thus did not provide its employees with a place of employment which was free from recognized hazards that cause or are likely to cause death or serious physical harm.

Section 5(a)(1) of the Act provides:

Sec. 5(a) Each Employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

The alleged violation of 1926.401(a)(1), to be abated, "Immediately," was described in the citation as follows:

A non-double insulated portable electric drill in use without grounding of non-current carrying metal parts.

The standard as promulgated by the [*19] Secretary provides:

(a) Portable and/or cord and plug connected equipment. (1) The noncurrent-carrying metal parts of portable and/or plug-connected equipment shall be grounded.

The alleged violation of 1926.651(i)(1), to be abated, "Immediately," was described in the citation as follows:

Excavated material not retained 2 feet from the edge of excavation.

The standard as promulgated by the Secretary provides:

(i) In excavations which employees may be required to enter, excavated or other material shall be effectively stored and retained at least 2-feet or more from the edge of the excavation.

The alleged violation of 1926.601(b)(3), to be abated, "Immediately," was described in the citation as follows:

A mobile hydraulic truck crane in use on job site not equipped with an audible warning device as required. n2

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n2 The complaint alleges "that respondent's mobile hydraulic truck crane was not equipped with an audible warning device at the operator's station."

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The standard as promulgated by the Secretary provides: [*20]

(3) All vehicles shall be equipped with an adequate audible warning device at the operator's station and in an operable condition.

The Secretary in his Notification of Proposed Penalty proposes that a penalty of $550.00 for the serious violation be assessed, $25 for the alleged violation of 29 C.F.R. 1926.401(a)(1), and no penalties for the other two alleged non-serious violations.

Pursuant to due notice, this case was heard at Las Vegas, Nevada on January 11, 1973. Briefs were filed by both the Secretary and Respondent.

JURISDICTION AND ISSUES

Respondent is a Nevada corporation maintaining its primary place of business at Las Vegas, Nevada. In its answer Respondent admits that it is in the construction industry, purchasing goods from points outside the state of Nevada, and an employer engaged in a business affecting commerce within the meaning of Section 3(3), 5 and 6 of the Act. On these facts, jurisdiction over the Respondent is conferred on the Commission.

The issues to be resolved and determined are:

1. Whether the record establishes that the Secretary issued a citation with reasonable promptness as required by Section 9(a) of the Act?

2. Whether Respondent [*21] violated the standards as alleged?

3. If Respondent violated the cited standards, what penalties should be assessed?

SUMMARY OF EVIDENCE

The Respondent, Advance Air Conditioning, Inc., under a sub-contract, commenced the installation of new duct systems and air conditioning units and outlets at the Convention Center, Law Vegas, Nevada in October, 1971. Approximately one month prior to March 21, 1972, Respondent's employees began to install metal hanger straps through 2-inch by a quarter inch holes "slotted" in the roof (Tr. 70). During the first two days of this project, two employees were engaged fulltime in this work. Subsequently, the work was performed by one employee, an experienced workman, a "premium worker," named Eugene Duncan. He was "periodically" supervised by Respondent's sheet metal foreman, Abraham, who would "line out" the work and check its progress (Tr. 75).

In early March, 1972, about two weeks after Respondent began work on the roof, the "curbs" for air conditioning outlets were brought onto the roof by a crane and the 4 X 4 foot openings for the air conditioning outlets were outlined on the roof with markings pencil by Respondent's Foreman, [*22] Abraham. These so-called "curbs" consisted of metal flashing, 12 inches wide and 12 inches high, designed to weather-seal the air conditioning openings. Respondent contracted with the roofing sub-contractor, Steel Inc., to create these openings in the roof which were spaced at random throughout the roof area. Whenever an air conditioning opening was out, Steel Inc. would notify Respondent's employee, Duncan, who would immediately "tag weld" the curb around the opening and then replace the cut out piece of roof decking by temporarily screwing it to the top of the curb. Foreman Abraham performed the "curbing" work on the first opening, instructing employee Duncan on the procedures to be followed on the remainder of the openings.

During the period Respondent's employee was installing these curbs, another sub-contractor, Plastering Incorporated, was installing fire wall draft stops positioned approximately every 30 feet across the width of the roof (about 200 feet). These dry wall draft stops were suspended down about eight feet from, and attached to, the underside of the roof. In order to install these draft stops, 2 by 30 foot openings in the roof had to be created so [*23] that the scaffolding of Plastering Incorporated could be inserted. Due to a jurisdictional labor dispute with the steward of the Sheet Metal Union, Plastering Incorporated was compelled to make arrangements with Steel, Inc. for its sheet metal people to remove the roof decking thereby creating the necessary 2 by 30 foot openings, and to then close them. When the scaffolding was in place the opening was guarded by a railing on the scaffold itself, consisting of a rope threaded through a pipe, about 30 inches high.

By oral agreement, these openings were to be closed whenever Plastering Incorporated advised Steel, Inc. that its drywall crew had evacuated an opening. The majority of the unguarded openings were re-covered within a matter of minutes of evacuation. Some openings, however, were left completely uncovered and unguarded, anywhere from 15 to 30 minutes, "or sometimes longer" (Tr. 26) sometimes overnight (Tr. 34) and, up to "a day, a day and a half" (Tr. 49).

On several occasions as many as 3 or 4 of the 2 by 30 foot openings were in existence at the same time (Tr. 25, 54-55). Foreman Abraham had observed unguarded 2 by 30 foot openings when on the roof but was under the [*24] impression they were in the process of being covered (Tr. 90). All of the roof openings were 48 to 51 feet above ground level (Tr. 9-10).

On March 21, 1972, employee Duncan was in the process of placing a curb around a 4 X 4 air conditioning opening when he fell through an unguarded 2 by 3 foot opening which was positioned within 6 inches of his worksite. This opening had remained unguarded approximately one day prior to the accident (Tr. 52, 59). Foreman Abraham had been on the roof on March 21, 1972 but didn't notice this unguarded opening which was about 200 feet away from where he was installing hanger straps.

Foreman Abraham previously had cautioned Respondent's employees, "Be careful around the openings" (Tr. 78). n3

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n3 The record is unclear whether the Foreman was referring to the 4 by 4 foot air conditioning openings, or the 2 by 30 foot openings, or both.

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On March 23, 1973 Compliance Officer Ray T. Ballis, in the company of Mr. Joseph Parrulli of the Nevada Industrial Commission, inspected [*25] Respondent's work site at the Las Vegas Convention Center. He testified that he observed a non-double-insulated quarter inch electric drill being used (Tr. 98). On cross-examination he stated the drill had a metal case, was connected but not being used, and that the ground prong had been clipped off (Tr. 104-105).

Mr. Leo Kutcher, Respondent's president, testified that he inspected the drill in question and it was a plastic, double insulated Rexford Drill, that never had a grounding prong. He stated that Mr. Ballis told him that Respondent's drill was in violation because it didn't have "ground" and there were no markings on it indicating it was "legal" (Tr. 154).

Compliance Officer Ballis testified that at the time of inspection he observed an excatation measuring approximately 15 by 20 feet and 6 to 8 feet deep, adjacent to the north wall of the construction site and was told by Respondent's representative on inspection that this excavation was Respondent's. The excavation spoils were positioned within two feet of the edge of the excavation (Tr. 99). An employee of Respondent was in a trench adjoining and leading to this excavation approximately 30 to 40 feet away from the [*26] sides of the excavation but this trench was in compliance with the Act with respect to the excavated spoils (Tr. 100, 118-119, 122).

Officer Ballis also observed a crane leased by Respondent from Jake's Crane Company, Las Vegas, Nevada, being used and operated by an employee of Respondent. This crane did not have a horn or other warning device (Tr. 99-100).

In determining the proposed penalties for the alleged Serious Violation, the Compliance Officer took into consideration 3 factors -- good faith, size and history. With respect to the non-serious violations, the additional factor of gravity was considered.

At the time of the inspection, Respondent had 73 employees; with total annual billings on the Las Vegas Convention Center contract of approximately "one million twenty-five" and had no prior history of violations for "failure to adopt proper safety measures" (Tr. 156).

DISCUSSION

A. As to Secretary's Compliance with Section 9(a) of the Act.

Because the citation in this case was issued 75 days after the date of inspection, the parties were requested to brief the point of whether the record establishes that the Secretary failed to issue the citation with reasonable [*27] promptness as required by Section 9(a) of the Act. The entire record has been reviewed, and the briefs of the parties considered in this regard.

Section 9(a) in pertinent part provides that:

If upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of Section 5 of this Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a citation to the employer.

The first crucial factor to be considered in determining whether the Secretary has failed to comply with this requirement is when did the Secretary believe, or have a basis for belief, as a result of his inspection or investigation, that Respondent violated the Act. For it is the intervening period between his belief and the issuance of the citation that determines whether the citation was issued with reasonable promptness. Even if the circumstances of a particular case showed that the Secretary should have arrived at his belief prior to the time he did, the period to be evaluated would be from that prior point to the date citation was issued.

Because the record in this case fails to establish [*28] when the Secretary arrived at his belief that Respondent had committed all of the cited violations, or when, under all the circumstances, he should have, we are unable to conclude that the citations were not issued with reasonable promptness (Tr. 103-105). We further would point out that Respondent did not raise this issue, specifically and with particularity, prior to, or during the hearing, or contend that Respondent was prejudiced by the 75-day delay between the inspection and the issuance of the citation.

B. As to Violation.

The record evidence is considered sufficient to sustain a finding that Respondent violated 29 C.F.R. 1926.601(b)(3). Respondent had leased a crane without a horn or other audible warning device and permitted an employee to operate it on the work site in that condition. Respondent's primary defense is that the complaint alleged that the crane was owned by the Respondent, whereas the evidence establishes that the crane was leased, not owned, by the Respondent. But the possessive form, "respondent's . . . crane," also conveys the sense of Respondent's control over the crane under some claim of right and is not limited in its meaning solely to [*29] ownership. The crane here was leased and operated by Respondent. Therefore, to describe the crane as "respondent's" under such circumstances is appropriate.

The gravamen of the offense is the use of defective motor vehicle equipment and the standard does not contemplate that an employer can evade responsibility by claiming lack of ownership. The Respondent is chargeable with knowledge of the standard's provisions and is under a duty not to operate an industrial vehicle without an operable audible warning device.

A violation of 29 C.F.R. 1926.651(i)(1) also is established by the record. The complaint alleged that Respondent violated this standard because it did not effectively store and retain excavated or other material at least two feet from the edge of an excavation which employees may be required to enter. In its answer, Respondent denied the allegation of violation of this standard on the sole ground that because the excavation was in an area of extremely hard composition the excavation posed no threat of cave-in, the risk against which the standard was designed to protect. The answer did not deny any of the factual allegations of the complaint, only the allegation of [*30] violation, and Commission Rule 33 provides that any allegation not denied in the answer shall be deemed admitted.

Respondent's attorney in his closing argument contended that the Secretary failed to prove that excavation was actually made by Respondent and that the substance of the law was not violated because no hazard existed due to the composition of the excavation soil. As a result of a colloquy between Respondent's counsel and the Judge at the hearing, the further point was raised in defense that no evidence had been introduced to prove that Respondent's employees were required to enter the excavation.

The admission by Respondent's representative on the inspection establishes that the excavation was Respondent's; proof that Respondent did the actual excavation is not required. Also, because Respondent's answer failed to deny the allegation that employees may be required to enter the excavation, that factual allegation is deemed admitted and binding on Respondent.

Respondent's initial defense that no hazard existed because of the soil's composition is not well taken. Respondent has contended that the standard's objective is to prevent cave-ins. But a reading of [*31] 29 C.F.R. 651(i) makes clear that the objectives of that standard is to prevent excavated or other materials from falling into excavations where employees are working, not cave-ins. Therefore, the composition of the excavation's soil has no relevance in determining whether a violation of the standard has been committed.

In view of the testimony of Respondent's President, which is fully credited, we are unable to conclude that the record evidence establishes a violation of 29 C.F.R. 1926.401(a)(1) on March 23, 1972.

Turning to a discussion of whether Respondent committed a serious violation of section 5(a)(1) of the Act, the Secretary has relied on two different conditions at the Las Vegas Convention Center work site to establish Respondent's liability. The first concerns Respondent's practice of "curbing" 4 by 4 foot roof openings without furnishing its employees any protection from falling, except oral advice to be careful. The initial inquiry which must be answered is whether this practice is a "recognized" hazard in the construction industry likely to cause serious physical injury or death. Obviously, working on such openings is hazardous but there is no record [*32] evidence that the construction industry generally recognizes this practice as an unreasonable risk when performed by an experienced employee. The only evidence bearing on this issue was elicited from witness Cripps, an experienced air conditioning contractor, who testified that the method of curbing employed was an accepted industory-wide practice (Tr. 145), and in the testimony of Mr. Parrulli, that the method utilized was in compliance with the Nevada Safety Code (Tr. 133). Therefore, on the state of this record, the Secretary has failed to prove that the curbing method utilized by Respondent's employee was "recognized" as a hazard likely to cause him serious physical harm.

The second condition, however, relied on by the Secretary to establish a violation, that of employees working in close proximity to unguarded 2 by 30 foot openings at 48 to 51 feet above ground level, constitutes a different situation. There is no dispute, and the record is clear, that such a practice is a recognized hazard in the construction industry likely to cause serious physical harm. n4 Respondent, however, contends that it was not responsible for the creation of these openings and did not know that [*33] any of its employees were working in their vicinity.

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n4 See Transcript pp. 144, 146, 156, 157.

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By requiring, in Section 5(a)(1), that employers provide a workplace free from recognized hazards likely to cause serious physical harm, Congress did not intend to make every employer an insurer against all harm caused by working conditions. Rather, the Congressional intent, as reflected in the legislative history, was to restate the common law principle that an employer has a non-delegable duty to use reasonable care in providing working conditions for his employees which are reasonably safe considering the nature of the employment. n5 This duty, of course, also includes the concomitant duties of supervising the working conditions, warning employees of dangerous conditions, as well as the duty to take such reasonable measures for relief as may be available to the employer.

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n5 See excerpts from the report of Senate Committee on Labor and Public Welfare (1970 U.S. Code Cong. & Ad News 5186).

[*34]

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While agreeing that the risk to which Respondent's employees were exposed was not from a cause for which Respondent was responsible, we also must conclude that Respondent's foreman failed to exercise a reasonable amount of care in supervising the conditions under which his subordinate was working and failed to take care to investigate conditions which indicated danger. These failures are Respondent's responsibility and constitute a violation of Section 5(a)(1) of the Act.

During the two-week period preceding the accident, Respondent's foreman, Abraham, had observed unguarded 2 by 30 foot openings on the roof. The existence of these openings should have alerted him to a possible danger threatening his subordinate who was required to work on, and traverse, the roof area and should have caused him to make further inquiry to ascertain the cause of the obviously dangerous working condition. His impression, previously derived from a conversation with another subcontractor's foreman, that these openings would be guarded in a manner eliminating any unreasonable risk was clearly belied by what he observed. [*35]

Respondent may have had little reason to anticipate that an experienced employee knowingly would work 6 to 12 inches from an unguarded 2 by 30 foot opening but the recognized hazard in this case is not limited to this one particular opening. It applies to all the unguarded 2 by 30 foot openings existing on a roof where an employee was required to walk and work and Respondent, through its sheet metal foreman, is chargeable with knowledge of their existence.

C. As to Penalty.

All four factors prescribed in Section 17(j) of the Act, the size of the Respondent's business, gravity of the violations, the good faith of the employer, and history of previous violations have been duly considered.

The Respondent at the time of the inspection employed more than 70 employees and less than 100, had no history of prior violations under the Act, and no evidence adversely reflecting on Respondent's good faith was introduced into the record.

The Secretary proposed no penalties for the alleged violations of 1926.601(b)(3) and 1926.651(i)(1). Because of the comparatively low level of gravity of these violations we agree with the Secretary's evaluation that no penalties should be assessed. [*36]

The Secretary proposes a penalty of $550 for the serious violation of section 5(a)(1). Starting with an unadjusted penalty of $1000, discounts of 20% for no history of previous violations under the Act were allowed by the Secretary in computing the proposed penalty.

While finding no error in the weight accorded Respondent's size, no history of previous violations, and good faith, the record fails to reflect what, if any, consideration was given by the Secretary to the gravity of a violation, several elements must be considered: (1) the number of employees exposed to the risk of injury; (2) the duration of the exposure; (3) the precautions taken against injury, if any; and (4) the degree of probability of occurrence of any injury. Secretary of Labor v. National Realty and Construction Co., Inc.,

In this case, one employee was exposed to a recognized hazard of two weeks' duration and another for two days. Respondent, through its foreman, did not take any steps to eliminate the hazard other than to rely on an oral admonition. The final element to be considered is the degree of probability of an injury occurring to an employee required to [*37] traverse and work on a roof containing unguarded 2 by 30 foot openings created by another craft. Under the circumstances of this case we conclude that the probability of serious injury resulting while relatively high was not an absolute certainty.

Weighing all of the above required factors, we find that the Secretary's proposed penalty of $550 is a reasonable and appropriate penalty.

FINDINGS OF FACT

Upon the entire record, the following facts are found:

1. Advance Air Conditioning Inc., Nevada Corporation, employed approximately 7o employees in March 1972.

2. During the two-week period prior to March 21, 1972, an experienced employee of Respondent was engaged in welding metal flashing around 4 by 4 foot air conditioning openings.

3. These openings were in the roof of the Convention Center, unguarded, and about 48 to 51 feet above the level of the Convention Center.

4. The curbing method employed by this employee, without use of any guarding, safety belts or lifelines, constituted industry-wide practice and does not constitute a recognized hazard in the construction industry.

5. On March 21, 1972, this experienced employee was placing a curb around an air conditioning [*38] opening when he fell through an adjacent, unguarded, 2 by 30 foot opening, which had been left unguarded for approximately one day and which was positioned within 6 to 12 inches of his work site.

6. The employee who fell was aware of the existence of the 2 by 30 foot unguarded opening when he commenced his work on March 21, 1972.

7. This opening was created by Steel Inc., the roofing sub-contractor, on behalf of Plastering Incorporated, another sub-contractor engaged in the installation of fire wall draft stops spaced every 30 feet across the roof.

8. For remuneration, Steel Inc. agreed with Plastering Incorporated to create the necessary openings for this work and then to re-cover them upon being notified that Plastering Incorporated had withdrawn its dry wall scaffolding from the openings.

9. While Plastering Incorporated was working within these openings, the openings were guarded by a rope railing, 30 inches high, which was part of the scaffolding apparatus.

10. During the five-week period preceding March 21, 1972, approximately 15 to 20 such openings were created and closed by Steel Inc. On several occasions there were as many as 3 or 4 openings existing at one time. [*39]

11. The majority of these openings were covered immediately after Plastering Incorporated evacuated its scaffolding from the openings, but others were closed within 15 to 30 minutes, or an hour; sometimes these openings were left unguarded over night and one remained unguarded a day and a half.

12. Working or traversing a roof where there are unguarded 2 by 30 foot openings constitutes a recognized hazard in the construction industry.

13. Respondent's foreman, who periodically went onto the roof to supervise Respondent's experienced employee, observed on several occasions unguarded 2 by 30 foot openings.

14. Respondent's sheet metal foreman on March 21, 1972, was working on the roof approximately 200 feet from the unguarded 2 by 30 foot opening but did not know of its existence.

15. Respondent's foreman had warned Respondent's employees to, "Be careful around the openings."

16. Respondent's portable electric drill observed by the Compliance Officer on March 23, 1972, was a plastic, double insulated Rexford Drill.

17. On March 23, 1972, a crane leased and operated by the Respondent did not have a horn or any other audible warning device.

18. On March 23, 1972, [*40] in Respondent's excavation which employees may be required to enter, excavated or other material was stored within two feet of the edge of the excavation.

CONCLUSIONS OF LAW

1. The Respondent is an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act and is obliged to comply with the standards promulgated under the Act at 29 C.F.R. 1926.

2. On March 23, 1972, the Respondent was in violation of 29 C.F.R. 1926.601(b)(3), and 29 C.F.R. 1926.651(i)(1) but no penalties are appropriate.

3. On March 21, 1972, and prior thereto, Respondent was in violation of Section 5(a)(1) of the Act and this violation is "serious" as that term is defined in Section 17(k) of the Act.

4. A penalty of $550 for Respondent's violation of Section 5(a)(1) of the Act is appropriate.

5. On March 23, 1972, the Respondent was not in violation of 29 C.F.R. 1926.401(a)(1).

ORDER

Based on the foregoing findings, conclusions of the law, and the entire record, it is ORDERED that:

1. The alleged violation of 29 C.F.R. 1926.401(a)(1), and the proposed penalty based thereon, are hereby VACATED.

2. Violations of 29 C.F.R. 1926.601(b)(3) and 29 C.F.R. [*41] 1926.651(i)(1) are AFFIRMED but no penalties are ASSESSED.

3. Violation of Section 5(a)(1) of the Act is hereby AFFIRMED and a penalty of $550 is assessed.