SCIENTIFIC COATING COMPANY, INC.

OSHRC Docket No. 1358

Occupational Safety and Health Review Commission

October 11, 1974

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Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with Chairman Moran's order directing review of a decision by Judge Charles Chaplin. Judge Chaplin concluded that Respondent had committed a serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") by violating the standard published at 29 C.F.R. 1926.451(d)(10). He assessed a penalty of $500.

The issues on review were whether the citation was issued with reasonable promptness n1 and whether the citation and assessed penalties should be vacated because the Complainant's representative did not present appropriate credentials to the Respondent prior to the inspection. n2

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n1 The issue of reasonable promptness was not raised during the issue formulation stage of these proceedings. Accordingly, we do not consider it. Chicago Bridge and Iron Company, S. & H. Guide para. 17,187 (January 23, 1974).

n2 Respondent did not move either before or at trial to suppress evidence based on Complainant's possible non-compliance with the requirements of section 8(a) of the Act. This issue was raised for the first time in the direction for review. Accordingly, we do not consider it. Accu-Namics, Inc., S. & H. Guide para. 17,936, concurring opinion (May 30, 1974).

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We have reviewed the entire record and find no prejudicial error.

Accordingly, it is ORDERED that the Judge's decision be and the same is hereby affirmed in all respects.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: In my opinion the citation which was issued in this case should be vacated because neither the conduct of the inspection nor the issuance of the citation conformed with the mandatory provisions of the Act pertaining thereto.

Before conducting a job safety inspection, the Secretary of Labor's representative must present "appropriate credentials" to the "owner, operator, or agent in charge." 29 U.S.C. 657(a). Secretary v. Raymond Hendrix d/b/a, 2 OSAHRC 1005, 1022 (1973). Since that was not done in this case, the citation should have been vacated. In Secretary v. Ron M. Fiegen, Inc.,

The respondent was represented pro se at the hearing by its president who stated the following at the outset of his sworn testimony:

I want to start by informing the Court that I didn't [*3] have any notification whatsoever by anybody about this alleged violation till the Government informed me with a citation. In other words, the contractor, my men, labor, no one informed Scientific Coating in any way at any time of ths violation.

Although the respondent did not make a formal motion in bar of trial on these grounds as would be expected of a lawyer, the substance of the testimony is a clear objection to the manner of conducting the inspection. Under these circumstances the Commission should not elevate from over substance as it does by holding that the respondent's failure to enter a formal motion in the proceedings below waived consideration at this level of whether there was compliance with 29 U.S.C. 657(a). n3 See United States v. White County Bridge Commission, 275 F.2d 529, 535 (7th Cir. 1960); Moore v. Coats Company, 270 F.2d 410 (3d Cir. 1959); Fed. R. Civ. P. 8(e)(1) and (f).

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n3 Furthermore, the Commission's reliance on Secretary v. Accu-Namics, Inc.,

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Additionally, the inordinate delay in the issuance of the citation warrants vacation thereof. Congress made it clear that, in the absence of exceptional circumstances, each citation was to be issued within 72 hours after a violation is detected by an inspector. 29 U.S.C. 658(a). It did not make this a conditional rule or excuse the complainant from complying with that requirement when a respondent fails to object to an excessive delay "during the issue formulation stage" of the proceedings. Since the record in this case establishes a delay more than eight times longer than Congress allowed and fails to show any exceptional circumstances, the citation should be vacated because of complainant's failure to observe the 658(a) requirements. I gave a fuller explanation of this reasoning in Secretary v. Plastering, Incorporated, Secretary v. Advanced Air Conditioning, Inc.,

[The Judge's decision referred to herein follows]

CHAPLIN, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational [*5] Safety & Health Act of 1970, (29 USC 651 et. seq., hereinafter referred to as the Act), wherein Respondent contested the Citation issued August 16, 1972, by the Complainant under the authority of Section 9(a) of the Act. The Citation alleges that as a result of an inspection in July 1972 at a place of employment where Respondent's employees were working (the site of construction of a power plant at the New Jersey College of Medicine and Dentistry, 12th Avenue and Norfolk Street, Newark, New Jersey) the Respondent violated the Act as follows:

Standard of Regulation Allegedly Violated -- Description of Alleged Violation -- Date on Which Alleged Violation must be Corrected

29 CFR Section 1926.451(d)(10) scaffolding -- Scaffolds more than 10 feet above the ground or floor with open sides and ends without midrail and guardrails approximately 42 inches high. Painter foreman and a painter spraying and painting fireproofing on the steel from a scaffold 18 feet high located on the lower level without the required guardrail. -- Immediate

A penalty of $500.00 was proposed,

The applicable standard provides:

(10) Guardrails, not less than 2 X 4 inches or the equivalent, and approximately [*6] 42 inches high, with a midrail, of 1-x 6-inches lumber or equivalent, and toeboards, shall be installed at all open sides and ends on all scaffolds more than 6 feet above the ground or floor. Toeboards shall be a minimum of 4 inches in height. Wire mesh shall be installed in accordance with paragraph (a)(6) of this section.

At the hearing on the issue it was stipulated by the parties that Respondent is a small New Jersey corporation affecting interstate commerce employing an average of two to five painters. Its net worth in the previous year was approximately $80,000.00. No one was injured at Respondent's cited work place and there was no history of previous violations under the Act or under New Jersey statutes. All documents had been properly posted by Respondent and Respondent's representative at the hearing was its President with full authority to speak for the corporation.

The testimony respecting the issue was that offered by the Government through its Compliance Officer. He testified that he had made an earlier inspection of this site and on the occasion here in issue he was making a reinspection of violations against the general contractor and other sub-contractors. [*7] He was accompanied on this inspection by representatives of the general contractor and the employees. As he entered the building under construction he observed two scaffolds in use. On his right a sub-contractor was working on a scaffold that was in compliance with the standards and on the left was a scaffold on which two of Respondent's employees, one of whom described himself as a working foreman, were observed and he detected a violation in the use of this scaffold. The scaffold was approximately 18 feet in height (Tr. 14) consisting of 3 six foot sections of metal, tubular framing. Respondent's employees were standing on a plank platform on top of the scaffold. There was no type of edge railing (Tr. 15) extending above the platform (Tr. 38). However the ladder protruded about one rung above the platform at the ends (Tr. 63). Their work involved spraying a fire-proofing substance on a steel column. He did not actually see them working but they had a spray gun and appeared to have just stopped working. As a result of what he saw he caused a Citation for a serious violation to be issued because of the potential for injury (Tr. 17). An initial penalty of $1,000.00 was established [*8] and then reduced 20% for Respondent's good faith in readily agreeing to abate the situation, 20% for its lack of serious or lost time injuries in the past three years, and 10% for the fact that he was a small business.

Respondent testified in his own behalf that the first knowledge he had ot the alleged violation was when he received the Citation. He described his job practices and how the fire-proofing was actually performed on the job. Further he related that his employee had told him that at the time herein referred to the men were in the process of moving the scaffold and that the platform was positioned below the top of the scaffold (Tr. 48) thus using the scaffolding rising above the platform as the guardrail. Respondent had not been at the worksite; however, based on his experience he felt that the Compliance Officer could not have seen them working on top of the scaffolding but that the men must have been in the process of moving the scaffold when the Compliance Officer saw them.

Respondent argued that his men were instructed in the proper and safe manner of working on scaffolding and that if during the course of their work they changed he is not responsible. [*9] He acted in good faith on this job, the guardrails were there, were made of scaffold components and the scaffold was in accord with standards where it is being utilized as a ladder.

FINDINGS OF FACT

1. Respondent had two employees at a worksite spraying fire-proofing material against a steel girder.

2. The employees were working from a platform on a scaffold 18 feet high.

3. At the time observed by the inspector they were both at the top of the scaffold and at that moment were not protected by guardrails, midrails or toeboards.

4. One of Respondent's employees was considered a working foreman.

5. With reasonable diligence Respondent could have known of the work habits of his employees and the lack of work platform guarding at heights above 6 feet.

6. It either employee had fallen from the height at which they were working, serious injury or death could have resulted.

7. Respondent is a small business without prior safety violations who, by his appearance and demeanor at the hearing and the actions of his employees at the time of the inspection, demonstrates an interest in safety.

CONCLUSIONS OF LAW

1. Respondent was at all times mentioned herein and is [*10] now an employer with employees and is engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2. The Review Commission has jurisdiction over this matter and the parties.

3. Respondent was in violation of 29 CFR 1926.451(d)(10) when its employees worked on an unguarded scaffold more than 6 feet above ground.

4. This violation was a serious violation within the meaning of Section 17(k) of the Act.

5. The proposed penalty of $500.00 for the serious violation of 29 CFR 1926.451(d)(10) is appropriate considering the provisions of Section 17(j) of the Act.

Now therefore it is ORDERED that:

The Citation for serious violation dated August 16, 1972, and the proposed penalty of $500.00 is affirmed.