DIXIE ELECTRIC, INC.
OSHRC Docket No. 1345
Occupational Safety and Health Review Commission
November 14, 1973
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners.
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter is before the Commission upon my order directing review of a decision of Judge J. Marker Dern. Judge Dern affirmed two and vacated one of the three 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. ).
We have reviewed the entire record. Judge Dern's decision is adopted to the extent it is consistent with this decision.
The relevant facts are not in dispute. Employees of Respondent were engaged in electrical work on the third floor of a building under construction. The edge of the floor was not guarded by a standard railing.
We concur with the Judge that these facts establish a violation of the standard prescribed at 29 C.F.R. 1926.500(d)(1). n1 However, we find his assessment of a penalty of $35 to be inappropriately low in view of Commission precedents concerning the gravity of violations of this standard. Secretary of Labor. v. Heyse Sheet Metal and Roofing Company, Inc. Secretary of Labor v. Glen Construction Company, Inc., Secretary of Labor v. Lance Roofing Company, Inc.,
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n1 The cited standard provides:
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 a standard railing, or the equivalent, as specified in paragraph (f)(i) 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.
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It is uncontroverted that the floor in this case was 35 feet above ground and that Respondent's employees worked six inches to two feet from the unguarded edge. A fall from a height of 35 feet could result in serious injury and even death. The proximity of Respondent's employees to the edge increases the likelihood of a fall. Therefore, we find the degree of probability of occurrence of injury to be relatively high. n2
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n2 We have previously held that the degree of probability of injury occurring as a result of a violation and the severity of such injury are factors in the determination of the gravity of the violation. Secretary of Lavor v. Baltz Bros. Packing Co., Secretary of Labor v. National Realty and Construction Co.,
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Turning now to the remaining criteria of section 17(j) the evidence of record is that Respondent was of moderate size and has no history of prior violations under the Act. There is no evidence from which we could conclude that Respondent acted or did not act with a lack of good faith. In the circumstances and especially in the view of the gravity of the violation, we conclude that a penalty of $200 is appropriate. n3
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n3 If a proposed penalty of the Secretary is contested, the Secretary's proposal becomes merely advisory. The Commission exercises its discretion in applying the several factors specified in section 17(j) on the basis of the record before it. In doing so, it is not bound by the advisory action of the Secretary. Brennan v. Occupational Safety and Health Review Commission and Interstate Glass Company, No. 73-1029 (8th Cir., October 26, 1973).
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Therefore, the Judge's order is amended to assess a civil penalty of $200 for Respondent's violation of 29 C.F.R. 1926.500(d)(1) and as amended it is hereby ORDERED affirmed.
DISSENTBY: MORAN
DISSENT:
MORAN, CHAIRMAN, dissenting: This is another case holding that aroof is a floor -- a position that cannot be defended either as a matter of law, logic, or semantics. I have previously set forth my views on this matter in Secretary v. S.D. Mullins, Inc., et al., I will not repeat them here.
This decision also assesses a penalty more than 5 times greater than the amount proposed by the Secretary of Labor and thus makes the respondent pay for asserting his constitutional right to a hearing. This too is a totally indefensible position for reasons which I set out more fully in Secretary v. M.A. Swatek & Company, Secretary v. California Stevedore & Ballast Company,
[The Judge's decision referred to herein follows]
DERN, 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., hereinafter called the Act) contesting a Citation issued by the complainant against the respondent under the authority vested in complainant by Section 9(a) of that Act. The Citation alleges that as the result of the inspection of a workplace under the ownership, operation or control of the respondent, located at 6451 North Federal Highway, Ft. Lauderdale, Florida, and described as follows "installing electrical components," the respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.
The Citation, which was issued on August 3, 1972, alleges that the violation results from a failure to comply with a standard promulgated by the Secretary by publication in the Federal Register (36 F.R. 25232) and codified in 29 CFR 1926. The description of the alleged violations contained on said Citation states:
1. Failure to guard every open-sided floor or platform 6 feet or more above adjacent floor or ground level by a standard railing; all floors.
2. Failure to equip every flight of stairs having four or more risers with standard stair railings.
3. Failure to provide informational signs to designate safe entrances to buildings; ground floor.
The standards as promulgated by the Secretary provide as follows:
Standard 29 CFR 1926.500(d)(1):
(1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) 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.
Standard 29 CFR 1926.500(e)(1):
(1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified below, the width of the stair to be measured clear of all obstructions except handrails.
Standard 29 CFR 1926.200(i):
(i) Additional rules. American National Standards Institute (ANSI Z35.1-1968, Specifications for Accident Prevention Signs, and Z35.2-1968, Specifications for Accident Prevention Tags, contain rules which are additional to the rules prescribed in this section. The employer shall comply with ANSI Z35.1-1968 and Z35.2-1968 with respect to rules not specifically prescribed in this subpart.
The abatement date for alleged violation of items 1 and 2 of the Citation was August 9, 1972.
Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the respondent was notified by letter dated August 3, 1972, from James E. Blount, Area Director of the Ft. Lauderdale, Florida, Occupational Safety and Health Administration, U.S. Department of Labor, proposed to assess a penalty for the violation alleged in the amount of $60.00.
After respondent contested this enforcement action, and a complaint and answer had been filed by the parties, the case came on for hearing at Ft. Lauderdale, Florida, on November 9, 1972. No additional parties desired to intervene in the proceeding. A brief was filed by complainant. The respondent did not desire to file a brief.
ISSUES
The issues involved herein are whether there were violations of the above-mentioned standards and if so, whether the proposed penalties were appropriate and reasonable.
FINDINGS OF FACT
1. On or about August 1, 1972, the respondent, Dixie Electric, Inc., was engaged as the sole electrical contractor on the Executive Office Building construction site at 6411 or 6451 North Federal Highway, Ft. Lauderdale, Florida (TR 9).
2. Respondent's foreman, John Klasing, at the job site, was in charge of supervising respondent's employees (TR 9).
3. On August 1, 1972, the Secretary, by and through his compliance officer, Jose Sanchez, conducted an inspection of the Executive Office Building site (TR 10, 37).
4. The respondent was a sub-contractor on the job and was an employer within the meaning of Section 3(5) of the Act (TR 9, 56, 69; complaint and answer).
5. The respondent had thirteen employees working at the site on the inspection date (TR 94).
6. The compliance officer, prior to the inspection, held a meeting with all contractors, including respondent, who was represented by Mr. Klasing and conducted a walk-around inspection of the building with employer representatives and employees representatives (TR 10, 38-40).
7. At the time of the inspection, the compliance officer observed no sign at the entrance of the building under construction (TR 38; complainant's Exhibit No. 1).
8. Compliance officer found that the only means of access to the various floor levels of the buildings were by stairways and that the stairs had no railings (TR 40-41; complainant's Exhibit No. 4). This was admitted by Mr. Klasing, respondent's on-job foreman (TR 12, 23).
9. Compliance officer noted respondent's employees were working on the third floor of the building and near the edge or at perimeter of the floor which had no protective railing (TR 41-42, complainant's Exhibit No. 2).
10. Respondent's foreman and another employee, an electrician, admitted that on inspection date, employees were working on the third floor of the building, which when completed would be twelve stories in height, and that there was no guard or railing around the floor or perimeter (TR 12-13, 28-30).
11. Respondent's employees worked within six inches to two feet of the perimeter of the third floor.
12. Respondent's president, Lawrence L. Eldridge, had not visited the job site in question since the construction work had started, but agreed that employees had been removed from several other job sites prior to the time of Mr. Sanchez's inspection when unsafe conditions were created by other contractors and that respondent's employees did not return to the respective job sites until the unsafe conditions were corrected (TR 75-76, 79).
13. Penalties of $35.00 for Item No. 1 and $25.00 for Item No. 2 of the citation were proposed with no penalty for Item No. 3.
14. The initial proposed penalty was $150 for Item No. 1 which was reduced to $35.00 and $100.00 for Item No. 2 which was reduced to $25.00 because of factor considerations of good faith, number of employees of respondent, and history of prior violations (TR 44-48).
OPINION
Section 5(a)(2) of the Occupational Safety and Health Act of 1970, provides that each employer shall comply with occupational safety and health standards promulgated under the Act. The standards allegedly violated have been set forth heretofore.
The facts are uncontroverted in that the respondent is a sub-contractor performing electrical work on a building under construction. Succinctly, the respondent was charged with failing to furnish informational signs at the entrance of the building, to equip stairs with safety rails, and to install safety rails on perimeter of open-sided floors. Respondent contests the violations on basis that it was not required under its contract to make the installations of railings, either on stairs or around perimeter of floors as such were the responsibility of the general contractor. This argument is without merit for to so concede would permit a contract to supersede the intent of the law and this purpose of the Act may not be frustrated or impeded by private contractural arrangement. It is the clear intent of the law for an employer to furnish a safe place of employment for its employees.
Even though the general contractor was admittedly responsible for erecting guardrails, and guardrails around the perimeter of the building, this did not excuse the respondent of securing a safe worksite for its employees. The respondent required its employees to use the stairs to gain access to the third floor and the employees worked on the third floor, thereby being exposed to unsafe work areas. When respondent required its employees to use the unguarded stairs and work on the unguarded third floor, these areas became the respondent's workplace. The knowledge of the unsafe work area by the on-job foreman is imputed to the respondent. The law prohibits employers from ordering its employees to work under unsafe conditions and Dixie Electric should not have allowed its employees to work there, once it became aware that job safety standards were not being observed. In fact, this was recognized by the respondent since respondent had, on prior occasions, on other jobs, informed the general contractor that it would not permit its employees to work in an area which it believed to be unsafe. An employer's policy of safe and healthful working conditions has little value if it is not implemented and apparently this is the crux of the instant case. Respondent's foreman took no affirmative action to remove the employees from the unsafe work areas.
Therefore, the conclusion is warranted that respondent was in violation of standards 29 CFR 1926.500(d) (1) and 29 CFR 1926.500(e)(1) as promulgated under the Act.
The respondent is not considered to be in violation of 29 CFR 1926.200(i). The violation charged is "Failure to provide informational signs to designate safe entrance to building; ground floor," which imports information for the general public rather than to individual employees working on the building. Information of the nature implied by the alleged violation would be the responsibility of the general contractor rather than a sub-contractors at a work site with each posting "information signs," the conflicting information imparted by the various signs. Furthermore, a reading of American National Standards Institute (ANSI), Specifications for Accident Prevention Signs, Z35.1-1968, Section 4.5, clearly shows its inapplicability to the cited violation. Section 4.5 "Informational Signs" states:
4.5 Informational Signs. Informational signs should be used where it is advisable to convey general information, on subjects not necessarily of a safety nature, in order to avoid confusion and misunderstandings. Signs such as those which mark toilets, offices, entrances, and locker rooms fall in this classification.
It clearly indicates that the informational signs contemplate "general information, on subjects not necessarily of a safety nature, . . ." The Act refers specifically to place of employment free from recognized hazards which are not contemplated by ANSI, Section Z35.1-1968, Section 4.5.
APROPRIATENESS OF PENALTY
Once a notice of contest has been served, the authority to assess civil penalties under the Act resides exclusively with the Commission. The Commission, in section 10(c) of the Act, is charged with affirming, modifying or vacating citations issued by the Secretary under section 9(a) and notification issued and penalties proposed under sections 10(a) and 10(b). The Commission, by section 17(j) of the Act is expressly required to find and give "due consideration" to size of the employer's business, the gravity of the violation, the good faith of the employer and the history of previous violations in determining the assessment of an appropriate penalty.
The violations were classified by the complainant as non-serious. The penalties proposed were $35.00 for Item No. 1 and $25.00 for Item No. 2 of the citation.
The respondent presents a good safety program and credit is extended for this. With respect to Item No. 1, the gravity of the violation is not considered high although, admittedly, employees did work near the edge of an unguarded third floor. The gravity of the violation, Item No. 2 is law. The employer had 13 employees at the work site and size of business is small. Therefore, the penalties are considered reasonable and appropriate.
CONCLUSIONS OF LAW
1. The respondent was, at all times material hereto, engaged in a business affecting commerce within the meaning of section 3(5) of the Act.
2. The respondent was at all times material hereto, subject to the requirements of the Act and the standards promulgated thereunder.
3. The Commission has jurisdiction of the parties and of the subject matter herein.
4. Respondent committed non-serious violations of Standards set forth at 29 CFR 1926.500(d)(1) and 29 CFR 1926.500(e)(1).
5. Respondent did not commit violation of the Standard set forth at 29 CFR 1926.200(i).
6. The gravity of the violations warrants a penalty of $35.00 for the violation of 29 CFR 1926.500(d)(1) and $25.00 for the violation of 29 CFR 1926.500(e)(1).
ORDER
Upon basis of the foregoing findings of fact, conclusions of law and upon the entire record, it is Ordered that:
1. Items No. 1 and 2 of complainant's citation of violations of 29 CFR 1926.500(d)(1) and 29 CFR 1926.500(e)(1), the respective proposed penalties thereon and abatement dates are affirmed in all respects.
2. Item No. 3 of complainant's citation of violation of 29 CFR 1926.200(i) is vacated.