WALLACE L. BOLDT GENERAL CONTRACTOR, INC.

OSHRC Docket No. 12351

Occupational Safety and Health Review Commission

September 30, 1976

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor

J. Joe Harris and Frank S. Manitzas, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge Harold A. Kennedy, dated October 14, 1975, is before this Commission for review pursuant to 29 U.S.C. 661(i).

Having examined the record in its entirety, the Commission finds that the Judge properly decided the case and adopts his decision which is attached hereto as Appendix A. n1 Accordingly, the Judge's decision is hereby affirmed.

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n1 Chairman Barnako does not agree to this attachment.

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Appendix A

Robert A. Fitz, for the Secretary

Frank S. Manitzas and J. Joe Harris, for the Respondent

Harold A. Kennedy, Judge:

This is a proceeding under the Occupational Safety and Health Act of 1970 initiated by the Respondent Employer's filing of a timely notice of contest to a "serious" n1 citation issued by the Complainant Secretary on November 27, 1974.

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n1 Section 17(k) provides that "a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."

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The citation, designated Citation No. 2, recited than an inspection was made at 6602 Blanco Road in San Antonio, Texas, on November 27, 1974. The Secretary's citation alleges that the inspection disclosed noncompliance with the occupational safety and health standard n2 appearing at 29 C.F.R. 1926.451(a)(4) in the following language:

Failure to provide guardrails and toeboards on all open sides and ends of platform more than ten (10) feet in height on the following scaffold:

a. The manually propelled mobile scaffold in Cinema 3 was in use at the 18 foot [*3] level with a two foot wide platform and was not equipped with guardrails or toeboards on the open side and ends.

Summary: The condition described in the alleged violation of this citation exposed employees to an 18 foot drop which could reasonably be expected to cause death or serious physical injury.

The cited standard provides:

(4) Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor, except needle beam scaffolds and floats (see paragraphs (p) and (w) of this section). Scaffolds 4 feet to 10 feet in height, having a minimum horizontal dimension in either direction of less than 45 inches, shall have standard guardrails installed on all open sides and ends of the platform.

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n2 Section 5(a)(2) of the Act provides that each employer subject to the Act "shall comply with occupational safety and health standards promulgated under this Act." Paragraphs III and IV of the complaint allege the violation in similar language but assert exposure of only one employee.

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The citation prescribed abatement "immediately," but abatement is not a disputed issue in the proceeding. A penalty of $500 was proposed by the Secretary. n3 The case came on for trial on April 25, 1975, in San Antonio, Texas. The Secretary called Daniel Stahly, the investigating officer, and Wallace L. Boldt, president and principal stockholder of Respondent, to testify. Mr. Boldt was recalled to testify for Respondent. Mr. Kenneth Claybourne, Respondent's insurance agent, also appeared for the Respondent. No one requested party status or appeared on behalf of Respondent's employees, who are not organized (Tr. 5-6).

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n3 The Secretary's complaint (Para. VII) asserts that the penalty proposed became final due to Respondent's failure to contest it. The undersigned has rejected this position (Tr. 22-4). See Danco Construction Company, Dockets 4681-3, dated April 22, 1975.

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* * *

There is no issue with respect to jurisdiction (Tr. 24). The complaint alleges Respondent is a Texas corporation [*5] engaged in a general contracting business that affects commerce. Respondent did not dispute such allegations. The record also establishes that Respondent grossed nearly $5 million and employed on the "average" approximately 65 employees in 1974 (Tr. 27). The Twin Fox Theatre job in San Antonio was a "less than" $80,000 project involving the work of approximately seven employees of Respondent and several subcontractors (Tr. 27-30, 110). It is thus clear that Respondent is an "employer" within the meaning of Section 3(5) of the Act.

* * *

President Boldt testified that in November 1974 Respondent was involved in the renovation of a five-year old building housing the Twin Fox Theatre in San Antonio. "[I]t was merely dividing one of the auditoriums into two auditoriums" (Tr. 28). Respondent utilized five subcontractors to perform the job to do the painting, the electrical work and installation of the ceiling, insulation and the air conditioning. Each subcontractor utilized three or four employees of its own. Respondent had as many as seven employees of its own on the job. Mr. Boldt thought there would have been a maximum of 10 workers at the jobsite on the day of the inspection. [*6] See Tr. 27-30, 110.

Compliance Officer Stahly n4 testified that at about 8:00 a.m. on November 27, 1974, he was asked by his superior, OSHA Area Director Herbert M. Kurtz, to go to a Fox Theatre on Blanco Road in San Antonio and make an inspection where "he was aware that there was some work being done" (Tr. 75). He arrived at the jobsite at 9:00 a.m., parked his car in the lot and entered the building through a back door on the west side. He found acoustical work in process when he entered, and he asked a workman who was in charge. He was referred to a man on a scaffolding who turned out to be a foreman for Stefak Construction Company, a subcontractor engaged to install the insulation. The Stefak foreman identified Boldt as the prime contractor (Tr. 74-5). Within five or 10 minutes he made contact with Boldt's "representative," identified initially as a "Mr. Frank" (Tr. 34). There were, he said, only three of Respondent's employees present at the jobsite -- Superintendent Calvin O. Prine, Johnny Adams and a Mr. Munk (Tr. 36, 70, 133). He believed there were three or four Stefak employees also present on the jobsite that morning (Tr. 70).

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n4 Mr. Stahly's testimony appears at Tr. 30-85 (Secretary's case-in-chief) and at Tr. 133-37 (rebuttal).

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Mr. Stahly testified that he held an opening conference in the jobsite office, a converted closet in the lobby, with Superintendent Prine, one of Respondent's carpenters (later identified as a Mr. Adams, Tr. 133) and the foreman for Stefak, the subcontractor. Mr. Prine accompanied Mr. Stahly on the walk-around. With respect to the cited condition, Mr. Stahly said he observed a man working at a height of 18 feet above the ground level on a "small narrow platform" without guardrails or other protectior (Tr. 39, 49). He determined the height by measuring the first of three sections (six feet each, Tr. 39, 136) of the scaffolding on which the platform rested. The platform, he said, was made of either two 2 X 8's or 2 X 10's (i.e., measuring two inches thick and either eight inches or 10 inches wide) placed lengthwise. (Apparently the platform was actually 9 inches wide, consisting of two 2 X 10's, Tr. 117.)

Mr. Stahly took a photograph of the [*8] scaffolding showing a workman "in a squatting or kneeling position on the platform" (Tr. 42). He identified such worker as Respondent's employee Johnny Adams based on an identification given by Respondent's superintendent, first at the opening conference (Tr. 133-4) and later at the time of the walk-around (Tr. 40), and also by the employee himself (Tr. 40). He identified the man in the foreground of the picture as a Mr. Munk (Tr. 85). Mr. Stahly stated that he observed Mr. Adams on the platform only for five minutes or so as Superintendent Prine called the employee down from the platform when the hazard was pointed out by the compliance officer (Tr. 41, 45, 135).

Mr. Stahly was of the opinion that Mr. Adams could have fallen to the concrete floor and suffered broken bones or internal injuries (Tr. 47). He considered Respondent "very cooperative" (Tr. 36) and allowed Respondent the "maximum" 20% allowable under the Secretary's guidelines for good faith in computing the proposed penalty (even though its safety program was not actually evaluated until sometime after the inspection). He explained that another 20% was given for Respondent's favorable "history" and another 10% for [*9] "size" (Tr. 81-2).

When testifying for the defense, Mr. Boldt spoke at some length, and with understandable pride, of his firm's safety record over the past 11 years. See Tr. 87-124; RX 1 (accident prevention program); RX 2 (disabling injury reports for 1967-73); Rxs 3 and 4 (letters reporting lost time reports (none) for 1969 and for period August 1, 1968 through July 31, 1970); RX 5 (1970 safety award); RX 6 (1972 safety award) and RX 7 (summary of lost time reports for 1970-1974. n5

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n5 Mr. Boldt testified that only three of his employees had sustained time loss injuries: one man was off "maybe four months" in 1967 with a broken arm; another was off one day in 1971 (actually injured off the job he thought); and a third employee was off 23 days in 1973 with an injured hand (Tr. 102-3). He computed Respondent's accident per man hour rate at .0000043, its accident ration at .0001841 (Tr. 104). Mr. Boldt acts as Respondent's safety director (Tr. 123).

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Insurance Agent Claybourne, who has handled Respondent's insurance [*10] for four years, testified that Respondent's safety program was "nothing short of phenomenal" (Tr. 128). Because of Respondent's safety record it has a 65 per cent "modifier" premium -- meaning Respondent pays only 65% of the prescribed workmen's compensation insurance rate. In addition, a 25% rebate has been made annually to Respondent based on its loss ratio (Tr. 129-30). According to Mr. Claybourne, Respondent's insurer (Aetna), was so impressed with Respondent's safety program that it is utilizing some of the features in its own safety program (Tr. 131).

President Boldt also testified concerning a meeting he had with OSHA Area Director Kurtz and commented on the photograph taken by Compliance Officer Stahly at the time of his inspection (SX 1). According to Mr. Boldt, Area Director Kurtz came to the theatre jobsite after the citation was issued and met with him and Superintendent Prine. He stated that Mr. Kurtz acknowledged during such meeting that he had visited Respondent's jobsite three or four days before Mr. Stahly had made his investigation. Mr. Boldt related that the area director had not idenitified himself on his first visit but indicated during the conference held [*11] after the citation was issued that Respondent could have been cited previously on the basis that "I saw some violations then" (Tr. 114-15). Mr. Boldt also stated that Mr. Kurtz indicated at the conference that the cited scaffolding condition had been corrected (Tr. 115).

With respect to the Secretary's photograph (SX 1), Mr. Boldt said he could identify neither of the persons in the picture. He said that a Mr. Munk could have worked for Respondent, although he did not know him. He acknowledged that Mr. Adams was an employee of Respondent, but he could not identify him as the person standing on the platform on the third level of the scaffolding (Tr. 115-16). According to Mr. Boldt, the platform in question was actually 19 inches wide (the width of two 2 X 10's, Tr. 117-18), and the man on the scaffolding was, in his opinion, in the process of moving the platform to the next level above (Tr. 121, 124). No guardrails could have been installed, he added, until the platform was completed (Tr. 121-22).

Testifying on rebuttal, Mr. Stahly stated that Mr. Adams was identified to him by Respondent's superintendent. He also took issue with Mr. Boldt's view of what the worker was doing [*12] on the scaffolding when the photograph was taken. According to the compliance officer, Employee Adams was using a screw drill in preparation for the installation of a wall bracket (Tr. 133-36).

* * *

Respondent contends that the citation should be vacated, first, because it is "based, at least in part, upon an inspection conducted by a representative of the Secretary of Labor prior to the presentation of proper credentials to the owner, operator or agent in charge of Respondent's work site" (Resp's. Br., pp. 2, 3-6). Second, Respondent contends that there are "serious and material variances between the citation and the evidence" so that the citation must be vacated for insufficient evidence (Resp's. Br., pp. 2-3, 6-9). Third, Respondent argues, in the alternative, that the proposed penalty is excessive -- i.e., that it is "both unreasonable and unwarranted" (Resp's. Br. pp. 3, 9-14).

After having heard the witnesses and carefully reviewed the record and the briefs, I have concluded that the citation was sustained by the evidence and that Respondent's first two contentions must be rejected. I agree, however, that the Secretary's proposed penalty is excessive.

The prior entry [*13] of an area director upon a private jobsite without presenting credentials or otherwise identifying himself before undertaking to direct an official inspection is hardly within the spirit of the Act. On the other hand, such entry, even though it may involve a trespass, n6 could hardly warrant invoking the "extreme sanction" of vacating a citation. See Brennan v. OSAHRC and Bill Echols Trucking Co., 487 F.2d 230 (5th Cir. 1973). Section 8(a) of the Act, n7 relied upon by the Respondent, makes presentation of credentials "mandatory only when the Fourth Amendment would bar a warrantless search and thus notice of authority is required." Accu-Namics, Inc., 8 OSAHRC 890 (1974), affirmed, Accu-Namics, Inc. v. OSAHRC and Secretary, 515 F.2d 828 (5th Cir. 1975). There is no indication in the record that any of Respondent's representatives asked for any notice of authority when Mr. Kurtz first visited the jobsite or that the Secretary relied on any information gathered at that time in establishing that a violation occurred a few days later. In any event, any improper conduct on the part of the area director in making such prior visit to the jobsite did not operate [*14] to invalidate the citation. As the Fifth Circuit stated in Accu-Namics:

* * * The manifest purpose of the Act, to assure safe and healthful working conditions, militates against such a result. * * * n8

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n6 According to the Secretary, however, "the workplace was accessible by walking through the open door" (Secy's Br. p. 6).

n7 Section 8(a) of the Act provides:

(a) In order to carry out the purposes of this chapter, the SEcretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized -

(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area workplace or environment where work is performed by an employee of an employer and

(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.

n8 Respondent cites Alsea Lumber Company, 2 OSAHRC 1005 (1973) and Genco, Inc., 4 OSAHRC 1146 (1973). Both of these cases, especially Genco, is different from the instant matter. There was really no investigation conducted in Genco after the credentials were presented. The Secretary withdraw his appeal from my decision in the case, and the Commission declined to review it. One of the grounds for dismissing one charge in Alsea was the fact that the evidence was based on testimony of the compliance officer to the effect that he observed an employee without a life jacket on the day of the inspection some distance away as he drove toward the jobsite prior to commencing his inspection. The Commission did not review my decision. The Court of Appeals for the Ninth Circuit did not reach this issue in rendering its decision. Brennan v. OSAHRC and Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1975).

[*15]

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In arguing its second contention, Respondent states that the record involves inconsistencies which give rise to uncertainty. It suggests that the name of the theater and the address referred to in testimony are sufficiently different from what were given in the citation (6602 Blanco Road v. 605 Blanko Road and Cinema 3 v. Fox Twin Theatre) that the case should be dismissed. But I am not persuaded that the proof offered really related to a theater in San Antonio "entirely different" from the one referred to in the citation (Resp's Br., p.7). Both Respondent's president and the Secretary's inspecting officer were obviously discussing the same workplace that was inspected on November 27, 1974. No objection was made during the hearing on this issue, and Respondent was not surprised or prejudiced by the Secretary's proof.

Similarly, the scaffolding and platform pictured in Secretary's Exhibit 1 and about which Compliance Officer Stahly testified are undoubtedly the same ones referred to in the citation, even if there was "extensive scaffolding" at the workplace (Resp's Br., p.8). From the record, [*16] it is apparent that Respondent had control of the scaffolding and platform, and, in any event, an employee of Respondent, the prime contractor, was exposed to the cited hazard. This was sufficient under the Act. Cf. Brennan v. OSAHRC and Underhill Construction Corp., 513 F.2d 1032 (2d Cir. 1975).

Noncompliance with 1926.451(a)(4) was thus established as was a violation of Section 5(a)(2) of the Act (quoted at footnote 2, supra). Moreover, the violation was "serious." The cited hazard involved possible serious physical harm (Tr. 47), which is all that Section 17(k) (quoted at footnote 1, supra) requires. See for example, California Stevedore and Ballast Company v. OSAHRC,    F.2d    (9th Cir. 1975); Natkin & Co., 2 OSAHRC 1472 (1973). n9

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n9 A serious violation cannot be found under Section 17(k), however, unless the employer knew or should have known "of the presence of the violation." Respondent has not defended on this ground, but it is clear that Respondent should have known of the violation. Respondent's superintendent was present at the jobsite at the time of the investigation when the violation occurred. While holding that a non-serious violation required proof of knowledge on the part of the employer, the Court in Alsea, supra, stated in a footnote (#5) in part:

* * * Proof of an employer's failure to provide guardrails, safety equipment, instructions, or the like, would establish a prima facie case of an employer's knowledge of its own acts of omission. * * *

[*17]

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The amount of the proposed penalty, as Respondent points out on his brief, is unwarranted. It was calculated according to a formula expressly rejected in Nacirema Operating Co., Inc., 1 OSAHRC 33 (1972). See Tr. 81-3. It may be that Area Director Kurt and Compliance Officer Stahly are required by the Secretary's "guidelines" to treat all serious citations alike insofar as proposing penalties based on gravity are concerned, but the practice does not comport with Section 17(j) of the Act. Nacirema, Supra.

Section 17(j) provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

The Commission has held that an employer is entitled to an independent evaluation of these factors by the Commission. See, for example, Dreher Pickle Co., 2 OSAHRC 497 (1973).

Having considered these statutory factors in the case [*18] at bar, a penalty of $90 is assessed. There is no adverse history, and Respondent is not an employer of a large size. The lower penalty is called for primarily due to Respondent's good faith and the low gravity of the violation. Respondent has been cooperative, and it has a good safety program as demonstrated by its safety record. The gravity of the violation is low because it was established that only one employee was exposed and for only a brief period. See National Realty & Construction Company, 1 OSAHRC 731 (1973) reversed on other grounds, 489 F.2d 1257 (D.C. Cir. 1973).

* * *

Based on the foregoing, and the whole record, the following conclusions of law are entered:

1. Respondent is now, and at all times mentioned herein, an "employer" within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and the subject metter;

2. The Secretary established that Respondent violated Section 5(a)(2) of the Act by failing to comply with 29 C.F.R. 1926.451(a)(4); and

3. The violation established was "serious" within the meaning of Section 17(k) of the Act.

ORDER

Based on the foregoing, and [*19] the whole record, it is ORDERED that:

1. Citation No. 2 issued against Respondent on November 27, 1974, is AFFIRMED; and

2. The penalty proposed therefor is vacated, and a penalty of $90 is ASSESSED.

Dated: October 14, 1975

Harold A. Kennedy, Judge, OSAHRC