PLASTERING, INC.

OSHRC Docket No. 1037

Occupational Safety and Health Review Commission

May 3, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On October 2, 1972, Judge Erwin L. Stuller issued his decision and order in this case, affirming a citation for serious violation and assessing a penalty in the amount of $650.

Review of the Judge's decision and order was directed pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") on October 31, 1972.

The Commission has reviewed the entire record, including the briefs of the parties, and finds no prejudicial error therein.

It should be noted, however, that when Chairman Moran directed this case for review by the Commission, it was indicated that the issue on review was whether the Secretary of Labor issued the citation with "reasonable promptness" as required by section 9(a) of the Act. This issue was not raised before or at the hearing, and it is not a jurisdictional issue to be raised at any other stage of the proceedings or considered by the Commission where it has not been raised by the parties. It is now well settled that under these circumstances, the Commission is not empowered to raise the issue; [*2] e.g., Chicago Bridge & Iron Co., No. 744 (January 24, 1974); Morrison-Knudsen Co. & Assoc., No. 692 (March 28, 1974); and Advance Air Conditioning, No. 1036 (April 4, 1974).

In view of the absence of prejudicial error, the Judge's decision and order are affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: Seventy-five days expired in this case between the inspection which disclosed the hazardous condition, and the issuance of a citation by the complainant. For obvious reasons, Congress did not want hazardous conditions of which the Secretary of Labor was aware to persist for a lengthy period of time before action to force their correction was initiated. Consequently, in granting the Secretary the statutory responsibility for initiating such actions, it attached a time condition: only 72 hours would be allowed between inspection and citation.

This condition, and the reason why the same is a jurisdictional matter which the Commission is empowered to raise at any time, have been covered at some length in Secretary v. Silver Skillet Food Products Co., Secretary v. Advance Air Conditioning, Inc., OSAHRC Docket [*3] No. 1036 (April 4, 1974). There is no need to repeat them here.

Of course, if this Commission does not force the Secretary of Labor to comply with the clear mandate of the Act, there will be little incentive for his subordinates to expedite citations whenever they see conditions which are hazardous. The consequences for employees, the intended beneficiaries of this Act, could well be tragic.

It should also be noted that although they specifically disapprove of directions for review upon any issue "where it has not been raised by the parties," the same two members have adopted a decision which increases a penalty amount over that agreed upon by all parties to the case and which was not even an issue in this proceeding.

29 U.S.C. 658(a) and 659(a) make it clear that the issuance of a citation and the notification of the proposed penalty are two separate actions in the procedure for enforcement so carefully arranged in this statute. Section 659(a) permits a respondent "to contest the citation or proposed assessment of penalties." [emphasis supplied]. The language is in the disjunctive -- that means that respondent can contest one or the other; it does not have [*4] to contest both. Brennan v. OSAHRC et al (Bill Echols case), 487 F.2d 230 (5th Cir., 1973). In this case respondent's concise and direct notice of contest did not put in issue the $550 penalty proposal in any way. Its complete text follows:

We protest citation No. 1 -- Page 1 of 1 -- issued 6 (six) of June, 1972. Certification No. 255244.

The respondent contested only the citation, not the penalty. This Commission has no jurisdiction to even consider what the amount of penalty should be. It is not, and never has been, an issue submitted to this tribunal for adjudication. n1 It is clearly error for this decision to purport to assess a penalty in any amount, let alone one in the amount of $650. The $550 penalty proposed by the Secretary of Labor became a final order without contest in June 1972.

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n1 The direct converse of this situation was discussed by the 5th Circuit in the Bill Echols case, supra:

Because the letter requested that the penalty be abated, and because the regulation requires that a complainant specify whether it is contesting the citation or the penalty, 29 C.F.R. 1903.17 . . . ., the inescapable conclusion is that the letter could only have been a notice of contest of the penalty . . . [emphasis by the court]

No Commission or agency . . . can arrogate to itself the power to say that night is day, or that black is white, or that Echols' letter was a notice of contest of a citation.

[*5]

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Based on the position taken by the Secretary of Labor in the case of Secretary v. Thorleif Larson and Son, Inc., 659(a).

[The Judge's decision referred to herein follows]

STULLER, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter called the Act) contesting 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 as the result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at 3150 South Paradise Road, Convention Center Building East, Las Vegas, Nevada, and described as "new construction, addition to existing facilities," the Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards [*6] promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation for Serious Violation which was issued on June 6, 1972, alleges that the violation results from a failure to comply with a standard promulgated by the Secretary and codified in 29 C.F.R. 1926.500(b)(1). The description of the alleged violation contained on said Citation states:

Employer failed to guard by a standard railing and toe board or cover, exposed floor opening in roof deck, East Hall, Las Vegas Convention Building, thereby exposing workers on the roof to a serious hazard. The employer through the exercise of reasonable diligence knew or should have known that such practice constituted a recognizable hazard that could cause death or serious physical harm.

The standard as promulgated by the Secretary provides as follows:

(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.

The other Citation, which was also issued on June 6, 1972, alleges that the violation [*7] results from a failure to comply with a standard promulgated by the Secretary and codified in 29 C.F.R. 1926.251(d)(2)(iii).

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated June 6, 1972 from Lawrence E. Gromachey, Area Director of the Phoenix, Arizona area, Occupational Safety and Health Administration of the United States Department of Labor proposed to assess a penalty of $550 for the alleged serious violation. No penalty was proposed for the other alleged violation.

After Respondent contested this enforcement action, and a Complaint and an Answer had been filed by the parties, the case came on for hearing at Las Vegas, Nevada, On August 15, 1972.

FINDINGS OF FACT

From November 1971 through March 21, 1972, the Respondent had several employees doing plastering work at the Convention Center at Las Vegas, Nevada, during the first three weeks of March, these employees had been installing draft stops which were hung from the ceiling or roof of the building which was about 60 feet above the floor of the building which was about 60 feet above the floor of the building. These employees at first removed a 2 feet [*8] by 30 feet steel roof decking plate through which they would hang their scaffold to work on the draft stops. Additional roof decking plates were removed for them from time to time by sheet metal workers.

On March 21, 1972, four of the Respondent's employees were engaged in the installation of several draft stops. On that day these employees, while moving their equipment on the roof of the building, were required to step over at least one of the unguarded roof openings. One of the employees working on the roof was the Respondent's foreman and agent. The Respondent's president and owner was at the job site from time to time and knew of the unguarded openings in the roof. During the construction period a man who was not an employee of the Respondent fell to his death through one of the openings in the roof deck.

DISCUSSION

Section 5(a) of the Act requires that the Respondent furnish its employees a work place free from recognized and health standards promulgated under the Act. The standard in question, as it applies to this case, requires that the degree of the hazard be reduced by either adequately covering deck openings or by guarding the openings with standard railings [*9] and toe boards before employees are allowed to work on the deck.

The Respondent's Answer raises the issue as to whether it can be penalized where the hazard was not created by it or its employees.

The gravamen of the violation here is not the creation of the hazard but the exposure of one or more employees to the hazard. The evidence establishes that on March 21, 1972, Respondent knowingly had four employees working on the deck which had at least one large opening which was not guarded in the manner required by the standard, thus exposing them to the hazard. Therefore, Respondent violated the Act as charged in The Citation for Serious Violation and in paragraph V.A. of the complaint.

In addition to the Citation for Serious Violation, on June 6, 1972, the Respondent was issued a citation for a non-serious violation. The Notification of Proposed Penalty indicated no penalty for this alleged violation and the Complaint admitted that this violation did not occur. Therefore, it is found that the alleged non-serious violation did not occur.

The final issues concern the penalty of $550 proposed for the serious violation. It is the Complainant's position that as the Respondent [*10] failed to contest the proposed penalty, it becomes the final order of the Commission and therefore not in issue.

The record indicates that both the Notice of Contest and the Answer fail to mention the proposed penalty.

Section 10(a) of the Act, as applicable to this issue, requires that before a proposed assessment can be deemed the final order of the Commission, the Respondent must have failed to timely contest both the citation and the proposed assessment. As the citation was properly contested, the amount of the assessment is in issue.

In determining the amount of the penalty, consideration is given to the fact that the Respondent has a relatively small business. It does not have a history of previous violations. However, the violation did expose four employees to the risk of extremely severe bodily injury or death during parts of each working day during the first three weeks of March, 1972. No pecautions were taken to reduce the probability of occurrence of injury. Great weight is given to the attitude shown by the Respondent's owner and president while testifying, indicating a virtual refusal to be concerned with the safety of the Respondent's employees. This lack of [*11] good faith is attributed to the Respondent and reflected in the penalty. Therefore, it is found that $650 is a reasonable and appropriate penalty.

Accordingly, it is ORDERED that Citation for Serious Violation be and is hereby affirmed, and a penalty of $650 be and is hereby assessed. It is further ORDERED that the Citation for other than serious violations be and is hereby vacated.