ATLANTIC CONCRETE, INC.  

OSHRC Docket No. 1157

Occupational Safety and Health Review Commission

November 16, 1972

  [*1]  

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: BURCH

OPINION:

  BURCH, COMMISSIONER: On October 17, 1972, Judge Leon J. Moran issued a decision and order in this case.

Pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651, et seq., 84 Stat. 1590), I am hereby directing that the Judge's decision be reviewed by the Commission in order to conform the decision with established Commission policy.

Accordingly, it is ORDERED that paragraph three of the Judge's order is amended to provide that respondent's motion to withdraw the notice of contest of citation for serious violation number two is granted and the Secretary's citation for serious violation number two and notification of proposed penalty are affirmed.

[The Judge's decision referred to herein follows]

MORAN, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereinafter called the Act) contesting Citation for Serious Violation No. 2 and a Citation for other than serious violations issued by the Complainant against the Respondent under the authority vested in Complainant by   Section [*2]   9(a) of that Act.   Citation No. 2 alleged that the Respondent, a concrete company, had violated the standard set forth in 29 CFR 1926.500(b)(1) formerly 1518.500(b)(1) as adopted by 29 CFR 1910.12 by failing to provide a standard railing and toeboard or cover on the exposed sides of a floor opening in a hopper structure.   The Citation for other than serious violations alleges 12 violations of standards promulgated by the Secretary of Labor under Section 6 of the Act.   The Respondent timely filed notice of contest as to Citation No. 2 and as to items numbered 1, 2, 5, 7(a) and 7(b), 8(a) and 8(b) and 12 of the Citation for other than serious violations.   The proposed penalty assessed for Citation No. 2 issued on June 30, 1972, was $600.00.   The proposed penalties for the contested other than serious violations alleged in that Citation issued also on June 30, 1972, were $100.00 for item number 1; $50.00 for item number 2; and $30.00 each for items 5, 7, 8 and 12.   The Respondent did not contest a Citation for Serious Violation (Citation No. 1) also issued on June 30, 1972.

At a hearing held in Roanoke, Virginia, on September 28, 1972, the Complainant and the Respondent offered a stipulation [*3]   (Joint Exhibit No. 1) which was received as part of the record.   In addition, the Respondent filed a Motion to Withdraw Notice of Contest with Respect to Citation No. 2 which alleged a serious violation for failure to comply with the stand- and set forth in 29 C.F.R. 1926.500(b)(1), formerly 29 C.F.R. 1518.500(b)(1).   No affected employees or representatives of affected employees participated in the hearing although given an opportunity to do so.   The parties at the hearing offered no other evidence oral or documentary and did not desire to file proposed findings of fact or statements.

  The Respondent in the motion to withdraw notice of contest as to the alleged serious violation contained in Citation No. 2 has made representations that the alleged violation has been abated; that there will be compliance in the future with applicable provisions of the Act; and that the posting and notice requirements of the Commission's Rules of Procedure has been complied with as to all pleadings previously filed.   The Respondent further subsequently certified that a copy of the motion to withdraw notice of contest as to the alleged serious violation has been posted. The attorney for   [*4]   Complainant has advised that there has been tender of the proposed penalty. No objections having been filed the granting of Respondent's motion would not be inconsistent with the purposes and provisions of the Act.

In Joint Exhibit Number 1 the parties stipulate in part as follows:

(1) That respondent, at the time of the inspection, was not in violation of 29 C.F.R. 1904.2, as alleged in paragraph 6(a) of the complaint, and 29 C.F.R. 1903.2, as alleged in paragraph 6(b) of the complaint, since the "Log of Occupational Injuries and Illnesses," OSHA Form No. 100, referred to in paragraph 6(a), and the poster referred to in paragraph 6(b), were posted and maintained in respondent's shops to which employees customarily reported and do report for work each workday.

(2) That respondent, at the time of the inspection, was not in violation of 29 C.F.R. 1926.50(f), (formerly 29 C.F.R. 1518.50(f)), as alleged in paragraph 6(c) of the complaint, in that said requirement is no longer applicable by virtue of amendment of 29 C.F.R. 1926.50 at 37 F.R. 3512, February 17, 1972.

(3) Although respondent, in the citation which issued on June 30, 1972, was cited for a violation of 29 C.F.R. 1926.550(a)(3),   [*5]   and a penalty of $30.00 was proposed thereon, complainant did not allege a violation of that standard in the   complaint, as said standard was revoked by virtue of amendment of 29 C.F.R. 1926.550(a)(3) at 37 F.R. 13763, July 14, 1972.

(4) For the reasons certified and stipulated above by the parties hereto, the civil penalties proposed for those alleged violations should not be imposed.

(5)(a) That said respondent, at the time of the inspection, was in violation of 29 C.F.R. 1926.550(a)(14)(i), (formerly 29 C.F.R. 1518.550(a)(14)(i)), as alleged in paragraph 6(d) of the complaint, and 29 C.F.R. 1926.550(a)(6), (formerly 29 C.F.R. 1518.550(a)(6)), as alleged in paragraph 6(e) of the complaint, in that it did not provide an accessible fire extinguisher of 5 B.C. rating or higher, on Northwest Crane #25, or a Lorain Truck Crane, and it did not maintain a record of the dates and results of inspections on either of those cranes.

In view of the stipulation entered into by the parties, the Complainant is deemed to have abandoned the alleged violations contained in items 1, 2, 5, and 7(a) and 7(b) of the Citation issued for alleged nonserious violations.   Since the motion to withdraw [*6]   the notice of contest as to Citation No. 2 is granted and because of the stipulation entered in the record the sole issue for determination is whether penalties should be assessed for the admitted violations in item numbered 8(a) and (b) of the Citation for which a penalty of $30.00 was proposed by the Secretary and item number 12 for which a penalty of $30.00 was proposed.

With respect to item 8 of the Citation for alleged non serious violations the Respondent was cited for failure to comply with a standard promulgated by the Secretary and set forth in 29 C.F.R. 1926.550(a)(14)(i) formerly 29 C.F.R. 1518.550(a)(14)(i) in that Respondent did not provide an accessible fire extinguisher of 5 B.C. rating or higher "available for use on the Northwest Crane #25" and failure to provide such an extinguisher "available for use on the Lorain Truck Crane." In item 12 of this citation for other than serious   violations the Respondent was charged with violation of the standard set forth in 29 C.F.R. 1926.550(a)(6), formerly 29 C.F.R. 1518.550(a)(6) for failure to maintain records of the dates and results of annual crane inspections for the Lorain Truck Crane and the Northwest Crane [*7]   #25.

By the stipulation adduced at the hearing Respondent admitted these violations.   The following facts as to these were also stipulated: (1) the Northwest Crane had been on the jobsite for only a couple of days, and was not in operation and could not be used until the boom was extended, and a particular device fitted to it; and (2) when the Northwest Crane was fitted for operation some seven working days after the inspection, abatement of the conditions alleged in the citation and the complaint was effected; and only one employee would have been affected by the failure to have the required fire extinguisher aboard, and the condition alleged was abated immediately.

In General Meat Company, Inc., J. E. Chilton Millwork and Lumber Company, Inc.,   In the instant case the Respondent immediately abated the violations with regard to items 8 and 12.   As to the Northwest Crane [*8]   #25 the abatement was in effect prior to its being put in operation.   The Respondent according to the record abated all violations both serious and non-serious promptly and has shown good faith in causing compliance with the Act and assuring continuing compliance.   The penalties proposed for the violations contained   in items 8 and 12 of the Citation are small, being $30.00 for each other than serious violation. Under the circumstances no penalty should be assessed for these two alleged violations.

FINDINGS OF FACT

Having considered the record as a whole including the pleadings of the parties and the stipulation, the record substantially supports finding:

1.   Respondent, Atlantic Concrete, Incorporated, is a North Carolina corporation authorized to do business in the Commonwealth of Virginia, and has an office and place of business in Salem, Virginia, where it is engaged in the manufacture and distribution of ready-mix concrete (Complaint and Answer).

2.   At all times pertinent herein, Respondent and its employees were engaged in the construction of a ready-mix concrete plant on Route 100, one mile south of Interstate 81, in or around Dublin, Virginia.   Equipment, materials [*9]   and supplies used by the Respondent and its employees at this worksite originated at, or were received directly from, points located outside the Commonwealth of Virginia (Complaint and Answer).

3.   As a result of an inspection conducted on April 18, 1972, of Respondent's worksite in or around Dublin, Virginia,d by authorized representatives of the Complainant, there were issued on June 30, 1972, two citations for alleged serious violations and one citation for alleged other than serious violations.

4.   On or about April 18, 1972, the Respondent did not provide an accessible fire extinguisher of 5 B.C. rating or higher available for use on the Northwest Crane #25 (Joint Exhibit No. 1, p. 2).

5.   The Northwest Crane #25 at the time of inspection   had been on the jobsite for only a couple of days, was not in operation and could not be used until the boom was extended and a particular device fitted to it and when it was fitted for operation some seven working days after the inspection abatement of the condition was affected (Joint Exhibit No. 1, p. 2).

6.   On or about April 18, 1972, the Respondent did not provide an accessible fire extinguisher of 5 B.C. rating or higher [*10]   available for use on the Lorain Truck Crane at the worksite (Joint Exhibit No. 1, p. 2).

7.   On or about April 18, 1972, the Respondent did not maintain a record of the dates and results of inspections of either the Northwest Crane #25 or the Lorain Truck Crane (Joint Ex. No. 1, p. 2).

CONCLUSIONS OF LAW

1.   At all times pertinent hereto the Respondent was engaged in a business affecting commerce within the meaning of Section 3 of the Occupational Safety and Health Act and the Commission has jurisdiction of the parties and of the subject matter herein.

2.   The Respondent was in violation of the standard at 29 C.F.R. 1926.550(a)(14)(i) formerly 29 C.F.R. 1518.500(a)(14)(i) on April 18, 1972, in that there was a failure to provide an accessible fire extinguisher of 5 B.C. rating or higher available for use on the Northwest Crane #25 and on the Lorain Truck Crane.

3.   The Respondent was in violation of the standard at 29 C.F.R. 1926.550(a)(6) formerly 29 C.F.R. 1518.550(a)(6) on April 18, 1972, in that there was a failure to maintain a record of the dates and results of annual crane inspections for the Northwest Crane #25 and the Lorain Truck Crane.

4.   The Respondent's violations [*11]   of 29 C.F.R.   1926.550(a)(14)(i) and 29 C.F.R. 1926.550(a)(6) were other than serious violations.

5.   No penalty should be assessed for the Respondent's violations of 29 C.F.R. 1926.550(a)(14)(i) and 29 C.F.R. 1926.550(a)(6).

6.   The Respondent was not in violation of 29 C.F.R. 1904.2 (item 1 of citation for other than serious violation) and no penalty should be assessed.

7.   The Respondent was not in violation of 29 C.F.R. 1903.2 (item 2 of citation for other than serious violation) and no penalty should be assessed.

8.   The Respondent was not in violation of 29 C.F.R. 1926.50(f) (item 5 of citation for other than serious violation) since this is no longer applicable by virtue of amendment of 29 C.F.R. 1926.50 at 37 F.R. 3572, February 19, 1972, and no penalty should be assessed.

9.   The alleged violation by Respondent of 29 C.F.R. 1926.550(a)(3) (item 7(a) and 7(b) of citation for other than serious violation) and the proposed penalty of $30.00 are deemed abandoned by the Complainant since it was not alleged as a violation in the complaint for the reason that said standard has been revoked by virtue of amendment to 29 C.F.R. 1926.550(a)(3), at 37 F.R. 13763, July   [*12]   14, 1972.

10.   The granting of the Respondent's motion to withdraw notice of contest as to Citation for Serious Violation Number 2 would not be inconsistent with the purposes and provisions of the Act.

It is, therefore, ORDERED, that

1.   The citation and notice of proposed penalties issued for violations of 29 C.F.R. 1904.2, 29 C.F.R. 1903.2, 29 C.F.R. 1926.50(f), and 29 C.F.R. 1926.550(a)(3) is hereby vacated.

2.   That part of the Complainant's citation charging violations of 29 C.F.R. 1926.550(a)(14)(i) and 29   C.F.R. 1926.550(a)(6) are AFFIRMED but no penalty is assessed.

3.   The Respondent's motion to withdraw the notice of contest of Citation for Serious Violation Number 2 is granted.