RAYCO CONSTRUCTION COMPANY, INC.
OSHRC Docket No. 12939
Occupational Safety and Health Review Commission
January 3, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Ronald M. Gaswirth, Regional Solicitor, USDOL
Don K. Miller, Safety Engr. Rayco Construction Co., Inc., for the employer
OPINION:
DECISION
This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.
In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.
The Judge's decision is accorded the [*2] significance of an unreviewed Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).
It is ORDERED that the decision be affirmed.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
Complainant has failed to establish that the violations alleged in Citations 2 and 3 were "repeated" because the evidence on both charges does not demonstrate a course of conduct on the part of respondent so flagrant as to constitute a flaunting of the Act. Bethlehem Steel Corporation v. OSAHRC, 540 F.2d 157, 162 (3rd Cir. 1976). Accordingly, I would modify the Judge's disposition and affirm those citations as nonserious violations of 29 U.S.C. § § 654(a)(2). Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges.
Since my colleagues do not address any of the matters covered in Judge Mitchell's decision, his decision is attached hereto as Appendix A so that the law in this case may be known. [*3]
APPENDIX A
DECISION AND ORDER
Harvey M. Shapan, for Complainant
Don K. Miller, Rayco Construction Co., Inc., for Respondent
STATEMENT OF THE CASE
This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.) contesting Citations issued against Rayco Construction Company, Inc. (Respondent) by the Secretary of Labor (Complainant) under the authority vested in Complainant by Section 9(a) of the Act.
A place of business and employment under the operation and control of Respondent, described as "Construction" located at Oscar Rose Jr. College, 6420 S.E. 15th, Midwest City, Oklahoma, was inspected by a representative of the Secretary of Labor on March 4, 1975. During that inspection alleged violations of four specific safety standards were noted. As a result of the inspection Citation Number 1 (Nonserious, 1 Item), Citation Number 2 (Repeated, 1 Item), Citation Number 3 (Repeated, 1 Item), and Citation Number 4 (Repeated, 1 Item) were issued to Respondent on March 13th. The safety standards allegedly violated were promulgated by the Secretary of Labor pursuant to Section 6 of the Act and are now codified at [*4] Title 29, Code of Federal Regulations, Part 1926.450(a)(9), .500(d)(1), .25(a) and .350(j), respectively.
Pursuant to the enforcement procedure provided in Section 10(a) of the Act Respondent was duly advised by a Notification of Proposed Penalty dated March 13th of the proposal to assess penalties of $45, $1,900, $210 and $95 in connection with the respective Citations.
In a timely manner Respondent filed a letter dated April 7th stating, "After reviewing C S H O No. R-8397, we would like to contest the above case number, particularly Citation No. 2, Item 1. Your attention to this matter will be appreciated." The parties to this proceeding subsequently stipulated that Respondent did not intend to contest Citations Numbers 1 and 4 or the accompanying penalties when this letter was filed. The alleged violations set forth in Citations Numbers 2 and 3 are described in the respective Citations in the following language with the cited safety standards quoted immediately thereafter:
Citation Number 2 --
Item 1 -- 29 CFR 1926.500(d)(1)
"The open-sided floor or platiform 6 feet or more above adjacent floor or ground level did not have a standard railing or the equivalent on all open [*5] sides; i.e., for the perimeter of the second and third floor levels of the west building. Based on Inspection No. M-0305-09-75 Inspection Date: October 29, 1974"
ABATE: "Immediately Upon Receipt of This Citation"
Citation Number 3 --
Item 1 -- 29 CFR 1926.25(a)
"During the course of construction, alteration, or repairs, debris was not kept cleared; i.e., the material scattered throughout the second floor of the west building. Based on Inspection No. M-6512-227-75 Inspection Date: September 12, 1974"
ABATE - "Immediately Upon Receipt of This Citation"
Standard -- 29 CFR Part 1926
"Subpart C -- General Safety and Health Provisions
* * *
1926.25 Housekeeping.
(a) During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures.
* * *
Subpart M -- Floor and Wall Openings, and Stairways
1926.500 Guardrails, handrails, and covers.
* * *
(d) Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by [*6] a standard railing, or the equivalent, as specified in paragraph (f) (1) of this section, on all open sides except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard."
A complaint was filed and answered. Trial was held at Oklahoma City, Oklahoma on August 20, 1975.
PROCEEDINGS AND EVIDENCE
When the trial convened Complainant was represented by legal counsel and Respondent was represented by a person who is not a lawyer. In proceedings prior to the receipt of evidence the parties agreed to and filed a Stipulation. Jurisdiction is stipulated. The parties also stipulate that Citations Numbers 1 and 4 are not in contest and that a previously issued citation for violation of 1926.500(d)(1) has become a final order. The parties also agree that a citation previously issued to Respondent for violation of 1926.350(j) has become a final order.
Complainant presented its case through the Testimony of the Compliance Safety and Health Officer (CSHO) (Larry G. Roberts) [*7] who made the inspection of Respondent's worksite. He describes his inspection of the construction site where 42 of Respondent's employees were engaged in various stages of construction. Some of the employees were observed working on the second floor and some on the third. He identifies the violations observed and explains the hazards involved as well as the potential dangers. Methods of abatement were suggested to Respondent's representative on the walkaround. He notes that the weather was extremely cold with ice and snow present and with a gusty wind blowing. He also states that Respondent was cited for the absence of guardrails on 2 occasions before the instant inspection.
Respondent presented its case through the testimony of its Project Manager of the worksite (William Gummerson). He was not present during the inspection but is able to describe some of the conditions from his knowledge of the worksite and from information given to him by the Job Superintendent who participated in the walkaround. He admits that no guardrails were in place and that there was nothing to prevent installation of guardrails except for some inconvenience. He also admits that some of Respondent's [*8] employees were working in the various positions indicated and that they had been working in those positions for several days before the inspection. He insists that there was never a decision to not put up guardrails. They were not up because of the short lapse of time since the completion of the slab.
Subsequent to receipt of the transcript Complainant filed a brief and Respondent filed advice that no post-hearing brief would be filed. Seventeen days after Complainant filed and served its Post-Hearing Brief Complainant filed a Motion to Take Judicial Notice supported by a Memorandum. In these documents Complainant attempts to establish that a citation for violation of 1926.25(a) was served upon Respondent following an inspection made prior to the instant inspection. That citation has now become a final order of the Commission by reason of Respondent's failure to answer the complaint following Respondent's contest of the citation.
DISCUSSION
JURISDICTION --
The parties stipulate to facts sustaining jurisdiction and also stipulate that the Review Commission has jursidiction. Respondent admits jurisdiction on the record as well.
THE VIOLATIONS --
Citation Number 2 [*9] alleges that there was no standard railing or equivalent around the perimeter of the second and third floor levels of the west building at Respondent's worksite. The evidence clearly establishes this fact. Some of Respondent's employees were observed working on each of the levels. There were no guardrails. Respondent's witness admits that there were no guardrails and also admits that guardrails could have been installed. He urges that only a short time had elapsed since the slab had been poured and also that guardrails would make it more difficult to do the work the men were doing. He also suggests that wire was present at the site for the guardrails but that turnbuckles which had been ordered had not been delivered. When questioned as to the length of time the men had been working in the locations indicated he admitted that they had been on the second floor for some 3 weeks and on the third floor level for at least 2 to 4 days. A fall from the third floor to the second floor would be a fall of 12 feet and to the ground would be 24 feet. A fall from the second floor to the ground would be 12 feet.
The evidence of record herein, as summarized above, conclusively shows that [*10] the conditions existing at the worksite at the time of the inspection were a violation of the cited safety standard. That is the conclusion reached here.
It is noted here that the facts so clearly proven are sufficient to establish a serious violation of the cited standard. Any fall resulting from the absence of the guardrails would very likely result in serious bodily injury -- if not death. However, Respondent was charged with a "Repeated" violation -- not a serious violation. There is nothing in this record which would indicate that Respondent was on notice that it had to defend against a serious violation, nor was the issue of a serious violation tried. Under these circumstances I am restricted to finding the existence of a nonserious violation. See Secretary v. Lipsky and Rosenthal, Inc., 8 OSAHRC 375, 377 (1974).
There is evidence in this record (Stipulation of the parties and Transcript pgs. 12-14, 46 and 59-60) that Respondent has been previously cited for violation of 29 CFR 1926.500(d)(1). That citation has become a final order of the Commission. A citation identified in the Stipulation of the parties (paragraph 9) and submitted by Complainant subsequent to [*11] the tried also shows a previous violation of 1926.500(d)(1) which has become a final order of the Commission. The standard cited in those instances is the same as is cited in the present case. The absence of guardrails is at issue in each case. Under these circumstances the instant violation is clearly a second "Repeated" violation of 1926.500(d)(1). That is the finding made here.
Citation Number 3 alleges that material was scattered throughout the second floor of the west building so as to constitute a violation of the housekeeping standard applicable to construction work. The evidence establishes the location of a considerable amount of lumber with protruding nails, pieces of scaffold, braces, four by four lumber and such material scattered around the second floor level. Respondent's witness could not give the exact amount of time the scattered material had been present but admitted that it was possible that it had been there for "days" or for "anywhere up to several weeks". Under these circumstances there is clear proof of the existence of the violation as described in the Citation.
Complainant has also classified Citation Number 3 as "Repeated". There is no evidence [*12] in the testimony offered at the trial of any prior violation of 1926.25(a) by Respondent. However, Complainant submitted a Motion to Take Judicial Notice some 17 days after the filing of his brief. A copy of a Citation issued to Respondent on October 9, 1974 following an inspection of another of Respondent's worksites on September 12, 1974 is attached to that Motion. This is the same citation that is identified in paragraph 9 of the Stipulation of the parties filed at the beginning of the trial. Respondent admitted at the time this matter was discussed on the record that the October 9th citation had become final but declined to admit that any violation had occurred. Paragraph 9 of the Stipulation refers to a violation of 1926.350(j) rather than to 1926.25(a). This discrepancy does not alter the outcome here, however. Respondent admits that the October 9th citation has become final. Respondent was cited on that citation for violation of 1926.25(a) in that debris was not kept cleared up at the worksite. Respondent was cited in the instant case for violation of that same standard in a very similar manner. Under these circumstances it is held that the instant violation of 1926.25(a) [*13] is properly classified as a "Repeated" violation.
APPROPRIATE PENALTY --
In determining the appropriateness of any penalty assessed in connection with these proven "Repeated" violations it is necessary to give due consideration to the criteria (history, size of business, good faith, and gravity) set forth in Section 17(j) of the Act.
1. This is the third occasion on which the safety standard codified at 1926.500(d)(1) has been violated by Respondent in a period of less than 6 months. It is the second time that Respondent has violated 1926.25(a) in the same period. This being the case it is concluded that Respondent's history of violation is very poor.
2. Respondent had 42 employees at the worksite and is considered to be an average sized construction company.
3. Respondent had an established safety program and was trying to comply with the requirements of OSHA. However, the CSHO considered Respondent's good faith as low because of the fact Respondent had been inspected several times and had been cited previously for the same violations. Under all of the facts in this record it is considered that Respondent's good faith was somewhat in doubt. No attempt had been made [*14] to guard the perimeter of either floor and the debris had been present for some time.
4. The gravity here is somewhat more than moderate, particularly in relation to Citation Number 2 and the missing guardrails. There was no effort whatsoever to protect the employees working while exposed to the unguarded perimeters of the raised floors. Many of Respondent s employees were exposed to the hazard on a continual basis over a period of time extending into weeks. All of them were exposed to the hazard as they moved to their work location up the ladder to the second floor because of the lack of perimeter guardrails on that floor near the head of that ladder. The presence of ice, snow, water, and debris increased the hazard. This Was further compounded at the time of the inspection by a strong, gusty wind and extremely cold weather. The gravity with respect to the debris situation is considered to be a little less than moderate because it did not completely cover the floor. There were apparently areas where the employees could walk if they were careful.
Giving due consideration to each of the foregoing factors in connection with each Citation and giving reasonable weight to the [*15] fact that each of them is a "repeated" violation of the specific cited standard, it is considered that a penalty of $1,400 is appropriate for assessment in connection with Citation Number 2 and that a penalty of $120 is appropriate for assessment in connection with Citation Number 3.
Consequently, based upon the evidence adduced, the arguments made, and the brief submitted we make the following:
FINDINGS OF FACT
1. On March 4, 1975 and at all times material hereto Rayco Construction Company, Inc., Respondent herein, was engaged in business as a construction contractor. On that date 42 of Respondent's employees were working at the Oscar Rose Jr. College at Midwest City, Oklahoma under the employment and direction of Respondent. Respondent was engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970. (Stipulation of the parties; Transcript pgs. 11, 19-24, 46, and 77.)
2. On March 4, 1975 a Compliance Safety and Health Officer (CSHO) inspected Respondent's workplace at the Oscar Rose Jr. College on behalf of the Secretary of Labor. As a result of that inspection Citations Numbers 1, 2, 3 and 4 were issued [*16] to Respondent on March 13th. The Notification of Proposed Penalty issued to Respondent on the same date sought penalties of $45, $1,900, $210, and $95, respectively. On April 17th Respondent contested all of the Citations and proposed penalties. Subsequently Respondent stipulated that it was only contesting Citations Numbers 2 and 3 and the corresponding penalties. (File; Stipulation of the parties; Transcript pgs. 10-11 and 19.)
3. On March 4, 1975 several of Respondent's employees were working on both the second and third floor levels of the building then under construction. At that time there were no guardrails whatsoever around the perimeter of either floor. The employees approached as close as 6 inches from the edge of the floors with some of them working on narrow beams actually outside of the floor areas. Some of the men on the third floor were receiving loads of materials being hoisted to them by a crane. The weather was extremely cold with a strong, gusty wind blowing. Ice, snow and water were present on the working surfaces. The second floor was 12 feet above the ground and the third floor was 12 feet above the second floor. There were areas around the third [*17] floor where the fall was directly to the ground, a distance of 24 feet. (Transcript pgs. 20-33, 38-40, 46, 48-49, 58-59, 63-64, 72, 78, 84-86, 89-92 and Exhibits 1, 2, 3 and 4.)
4. On March 4, 1975 a considerable amount of lumber with protruding nails, pieces of scaffold, braces, four by four lumber and such material was criss-crossed and scattered around the second floor level of the building under construction. These materials had been in place on the second floor level from "days" to up to several weeks. Respondent's employees moved about the entire second floor area in the course of their work and those working on the third floor crossed the second floor to reach their working area. (Transcript pgs. 20, 28, 38-45, 50-52, 55, 61-62, 76, 79-81, 86 and Exhibit 3.)
5. Respondent previously violated the safety standard codified at 29 CFR 1926.500(d)(1) on September 12 and October 29, 1974. (Stipulation of the parties; Citation attached to Complainant's Motion to Take Judicial Notice; and Transcript pgs. 12-14, 46 and 59-60.)
6. Respondent previously violated the safety standard codified at 29 CFR 1926.25(a) on September 12, 1974. (Citation attached to Complainant's Motion [*18] to Take Judicial Notice.)
From the foregoing Findings of Fact we now make and enter the following:
CONCLUSIONS OF LAW
1. At all times material hereto Rayco Construction Company, Inc., Respondent herein, was an employer engaged as a construction contractor in a business affecting commerce within the meaning of Section 3 of the Occupational Safety and Health Act of 1970. On April 17, 1975 Respondent filed a letter contesting the Citations at issue herein. Respondent thereby brought itself and the subject matter of this proceeding within the jurisdiction of the Occupational Safety and Health Review Commission pursuant to Section 10 of the Act.
2. Respondent's failure to have guardrails around the perimeter of the second and third floor levels as found in Finding 3 is a Repeated violation of the safety standard codified at 29 CFR 1926.500(d)(1).
3. Respondent's failure to keep debris from collecting on the surface of the second floor as found and described in Finding 4 is a Repeated violation of the safety standard codified at 29 CFR 1926.25(a).
4. Respondent did not intend to contest Citations Numbers 1 and 4.
ORDER
Based upon the foregoing Findings of Fact and [*19] Conclusions of Law and for good cause shown, it is ORDERED that:
1. Citation Number 1, Citation Number 2, Citation Number 3, and Citation Number 4 be, and the same hereby are, AFFIRMED;
2. The penalties of $45 and $95 proposed in connection with Citations Numbers 1 and 4, respectively, be and the same hereby are AFFIRMED; and it is further
3. ORDERED that the penalties of $1,900 and $210 proposed in connection with Citations Numbers 2 and 3, respectively, be modified to $1,400 and $120, respectively, and as so modified be, and the same hereby are, ASSESSED.
Dated this 17th of March 1976.
JERRY W. MITCHELL, Judge
Dated this 17th of March 1976.
JERRY W. MITCHELL, Judge