Docket No. 14395

K & B SHEET METAL, INC.

OSHRC Docket No. 14395

Occupational Safety and Health Review Commission

January 18, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis v. LaRuffa, Regional Solicitor, USDOL

Donald Betterbed, K & B Sheet Metal 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 significance of [*2] 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:

I would vacate all the charges because the evidence does not establish that respondent subcontractor cleated or caused the alleged violative conditions or was otherwise responsible for them. Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975); Secretary v. Otis Elevator Company, SOAHRC Docket No. 8468, May 14, 1976 (concurring and dissenting opinion); Secretary v. Anning-Johnson Company, OSAHRC Docket Nos. 3694 & 4409, May 12, 1976 (concurring and dissenting opinion). 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 Alfieri's decision, his decision is attached hereto as Appendix A so that the law in this [*3] case may be known.

Appendix A

DECISION AND ORDER

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor and Theodore T. Gotsch, for complainant

Mr. Donald Betterbed, (pro se), K & B Sheet Metal, Inc., For respondent

Alfieri, Judge.

STATEMENT OF THE CASE

This is a proceeding under section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.) contesting two nonserious citations issued on July 30, 1975 by the complainant against the respondent under the authority vested in the complainant by section 9(a) of the Act (29 U.S.C. § 658(a)).

The citations allege that an inspection made during the period July 22-29, 1975, of respondent's workplace, located at the construction site of the Academic and Science buildings of Suffolk Community College, Riverhead, New York, showed that the respondent violated section 5(a)(2) of the Act (29 U.S.C. § 654(a)) because it failed to comply with occupational safety and health standards promulgated by the Secretary under section 6 of the Act (29 U.S.C. § 655) and codified in 29 C.F.R. § § 1926.25(a) and 1926.150(c)(1)(i). The respondent is also charged with violating a regulation promulgated by the [*4] Secretary pursuant to section 8 of the Act (29 U.S.C. § 651) and set forth at 29 C.F.R. 1903.2(a) relating to posting of a notice to employees. All are nonserious violations.

The standards and the regulation allegedly violated and descriptions of the alleged violations follow.

Citation number 1, item number 1

The alleged violation reads:

"During the course of construction, work areas, passageways and stairs in and around the Academic and Science buildings were not kept clear from form and scrap lumber with protruding nails and all other debris, e.g.

Science Building:

A) Four puddles of water on the first floor, each about 50 sq. ft. in area.

B) Corrugated sheet metal, cardboard, wood with protruding nails, various sizes of pipe on ground southwest of building.

Academic Building:

C) Pieces of concrete block throughout first floor rooms and passageways.

D) Overturned wooden horse and 14 foot ladder were laying in a passageway in the central area of first floor.

E) Concrete blocks, pieces of concrete and brick were scattered in, at and near the southeast entrance to the building.

F) Concrete blocks, bricks, cardboard, metal strapping, lumber, pieces of concrete near [*5] the wooden ramp at the southwest entrance to the building."

The cited standard, 29 C.F.R. 1926.25(a), provides as follows:

"(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."

The violation was to be abated immediately, and the proposed penalty is $55.00.

Citation number 1, item number 2

The regulation set forth in 29 C.F.R. 1903.2(a) reads:

"Mach employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor. Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to insure that such notices [*6] are not altered, defaced, or covered by other material.

The violation is stated to be that:

"Notice furnished by the Occupational Safety & Health Administration, U.S. Department of Labor informing employees of the protections and obligations provided for in the Act was not posted at the building site."

Immediate abatement was specified with zero penalty.

Citation number 2, item number 1

This was classified as a repeat violation. It reads as follows:

"Fire protection was not provided for the Academic and Science Buildings such as portable 2A fire extinguishers for each 3,000 sq. ft. of protect areas or, in lieu of each extinguisher, a 55 gallon drum of water with 2 pails, or a hose line as defined sub-paragraph (iii) of this paragraph."

The standard, 29 C.F.R. 1926.150(c)(1)(i) provides:

(i) A fire extinguisher, rated not less than 2A, shall be provided for each 3,000 square feet of the protected building area, or major fraction thereof. Travel distance from any point of the protected area to the nearest fire extinguisher shall not exceed 100 feet.

(ii) One 55-gallon open drum of water with two fire pails may be substituted for a fire extinguisher having a 2A rating." [*7]

Immediate abatement was required and a proposed penalty of $95.00 fixed.

Pursuant to the enforcement procedure in section 10 of the Act (29 U.S.C. § 659), the respondent was informed by a notice dated July 30, 1975 that the proposed penalty assessment for the violations totalled $150.00. The respondent filed its notice of contest on August 7, 1975.

The Secretary's complaint was filed on September 2, 1975. Paragraph V(3) amended citation number 2 by eliminating the allegation that violation of 29 C.F.R. 1926.150(c)(1)(i) was a repeat violation but continuing it as a nonserious violation.

Rule 15(a) of the Federal Rules of Civil Procedure permits a party to "amend his pleading once as a matter of course at any time before a responsive pleading is served." Commission Rule 33(a)(3) requires the complainant to set forth the reasons for amendment and to state with particularity the change sought whenever he seeks to amend the citation in the complaint. The Commission Rule 33(a)(3) was adhered to and the citation was properly amended in accordance with paragraph V(3) of the complaint.

ISSUES

The chief issues raised by the respondent, is whether as a subcontractor it can be cited [*8] and penalized for nonserious violations of standards creating hazardous conditions, to which its employees were exposed, created by employees of other employers.

The secondary issue is whether respondent violated section 8 of the Act (29 U.S.C. § 657) by failing to comply with the Secretary's regulation set forth in 29 C.F.R. 1903.2(a)?

Lastly, what penalty, if any, should be assessed for any violation of the Act?

SUMMARY OF RELEVANT EVIDENCE

It was stipulated between the parties at the hearing that the respondent K & B Sheet Metal Inc., is a New York corporation located in Holbrock, New York; it is engaged in business effecting commerce, utilizing materials moved in interstate commerce; it had a net worth of $300,000.00 and its average daily number of employees is 35; the notice of hearing and notice of contest were posted at the jobsite and in respondent's shop, respondent has no control over the equipment mentioned in the citation such as fire extinguishers and some of the debris mentioned an the housekeeping violation n1 and that none of respondent's employees were injured at the time and place of the alleged, violations.

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n1 Citation number 1, item number 1.

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The sole witness testifying in this case was the complainant's compliance officer. On the morning of July 22, 1975, he visited a construction site where the Science and the Academic buildings were under construction. He contacted the general contractor, J.R. Stevenson, Inc., who in turn called together the other contractors. At the opening conference was Joseph Colozzo, the foreman and representative for the respondent. Mr. Colozzo accompanied the compliance officer on his inspection.

The violations allegedly found at the Science building are set forth in citation number 1, items numbered 1A and 1B. Men were seen working on the first floor of the building in an area where there were four puddles of water each covering about 60 square feet. Through Mr. Colozzo, the compliance officer learned that three of the workers were respondent's employees. Mr. Colozzo himself had been working in the area (Tr. 17, 18). Respondent's employees were within 10 feet of the puddles (Tr. 30). Two colored photographs were introduced through [*10] the witness. They show large pieces of roofing sheet metal, pipes, wood and other debris strewn about both the south (Exh. C-2) and the west sides of the building (Exh. C-3). The witness's testimony as to what housekeeping conditions he observed in those areas was substantially the same as that which is shown in the two photographs. He saw similar housekeeping conditions on the other sides of the building (Tr. 40). During the course of the inspection several workers expressed to the witness, their fear of going in and out of the building because the roofers were throwing pieces of sheet metal down to the floor. The witness did not observe this (Tr. 26). However, he did see most of the employees entering the building through the south side (Tr. 31).

The inspection of the Academic building resulted in the issuance of items numbered 1C through 1F of citation number 1. Items 1E and 1F allege that debris was scattered at and near the southwest and the southeast entrances on the south side of the building. Three additional colored photographs placed in evidence through the witness (Exh. C-4, C-5 and C-6) show cement blocks, bricks, wooden planks and pieces of metal at and near [*11] the two entrances on the south side of the building. The witness gave testimony that verified what is shown in the photographs. Similar conditions were observed by the witness at the other sides of the building (Tr. 40). Mr. Colozzo acknowledged that the conditions were not as they should be but denied that the respondent was responsible for them (Tr. 41).

Items numbered 1C and 1D relate to the building's interior. The compliance officer and Mr. Colozzo entered the building through the entrance shown in Exhibit C-4 and observed it being used by the employees (Tr. 35, 36). Two men identified as respondent's employees by Mr. Colozzo, were observed working on the ground floor of the building (Tr. 35). Concrete blocks were seen throughout the hallways and the various incomplete rooms on the first floor. In the main hallway, running north and south, an area where all of the employees were seen working, there was an overturned wooden horse and a 14-foot ladder laying on its side (Tr. 40, 41).

According to the witness, the hazard present in items 1A through 1F is tripping, which could cause extensive but minor injuries such as cuts, bruises and fractures (Tr. 43, 44). Allowing credit [*12] for good faith, size, abatement and none because of history, the proposed penalty arrived at by the compliance officer is $55.00 (Tr. 45, 46).

Concerning item number 2, the witness stated that there was no posting of the OSHA poster explaining to the employees their rights (Tr. 42). Zero penalty was proposed (Tr. 46).

Citation number 2, item number 1

The witness testified that at the Science building he saw roofers welding and that sparks were falling to the second and first floors. A plumbing contractor was using a heating element. Compressed gas cylinders were on the first floor (Tr. 47). In the Academic building he also saw compressed gas cylinders. Neither building had fire extinguishers, nor a 55-gallon drum of water nor water hoses (Tr. 46), and when this was called to Mr. Colozzo's attention he indicated that he did not feel it was respondent's responsibility (Tr. 46).

The compliance officer deemed the violation to be low in gravity. An allowance was given for size. No credit was given for good faith and history. The proposed penalty is $95.00 (Tr. 48, 49).

The cross-examination of the compliance officer, in the main, elicited from him that the debris observed [*13] around both buildings did not include materials used by the respondent's employees (Tr. 55-64).

DISCUSSION

The respondent's problems arise under section 5(a)(2) (29 U.S.C. § 654(a)(2), the special duty clause. That section requires that employers comply with occupational safety and health standards promulgated under the Act.

Directing its attention to the housekeeping standard, 29 C.F.R. 1926.25(a) and the fire prevention standard, 29 C.F.R. 1926.150(1)(i) the respondent contends that it had not caused the violations for which it was cited and therefore it was not responsible for their abatement. In support of its position, respondent cites Anning-Johnson Company v. Secretary of Labor, 516 F.2d 1081 (7th Cir. 1975). There the Court ruled that subcontractors, like the respondent, involved in a multiemployer construction project could not receive citations or be held Liable for penalties under the Act for nonserious violations of promulgated standards to which their employees were exposed, but which the subcontractors neither created nor were responsible for pursuant to the terms of their contract.

Our case falls within the jurisdiction of the United States Court [*14] of Appeals, Second Circuit. Since Anning-Johnson is a case decided by the Seventh Circuit, this Judge is not required to follow that ruling.

On the question of liability under the Act in Secretary v. ALCAP Blectrical Corp., n1 17 OSAHRC -- (Mo. 1722, May 15, 1975), a case involving nonserious and serious violations, the Commission stated:

"At issue is whether a subcontractor can be held liable under the Act if its employees are exposed to hazards resulting from conditions it did not create or control. We have consistently answered that affirmatively. See Secretary v. City Wide Tuckpointing Service Co., OSAHRC Docket No. 247 (May 24, 1973), Secretary v. Gilles and Cotting, Inc., OSAHRC Docket No. 504 (October 9, 1973), Secretary v. Hawkins Construction Co., OSAHRC Docket No. 949 (May 20, 1974).

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n1 Commissioner Cleary concurring stated:

"The lead opinion has correctly stated the issue and reached the proper conclusion.

I must, however, disassociate myself from the lead opinions reliance on City Wide Tuckpointing Service Co., No. 247 (May 23, 1973), Gilles & Cotting, Inc., No. 504 (October 9, 1973), and Hawkins Construction Co., No. 949 (May 20, 1974). All of these cases are inapposite."

* * *

"Although I agree with my colleague that a subcontractor can be found in violation of the Act if its employees are exposed to hazards resulting from conditions it did not create or control, I would rely on our decisions in R.H. Bishop Co., No. 637 (May 30, 1974), California Stevedore & Ballast Co., No. 1132 (May 28, 1974), cited and quoted in the lead opinion in Robert E. Lee Plumbers, Inc., No. 2431 (May 2, 1975). All of these cases are factually similar and raise the same issue."

[*15]

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At this time the Commission has not announced a departure from its position. Thus, this Judge must follow the precedent established by the Commission (Continental Steel Corporation v. Secretary, 10 OSAHRC 93, 94-95 and the cases cited therein).

Accordingly, I am constrained to reject the respondent's defense and rule that the respondent employer is obligated under the Act, as presently interpreted by the Commission, to protect the safety and health of his workers, regardless of who created the hazards to which they might be exposed, or even of who had the responsibility or means to correct the violative condition (ALCAP Electrical Corp., supra).

We consider then the evidence before me. The complainant's evidence established at the hearing that respondent's employees were exposed to the claimed occupational hazards because during the course of construction of the Academic and Scientific buildings it failed to take affirmative action to protect its employees from the hazardous conditions. The record is barren of any proof to the contrary. Thus, the respondent is in violation of the standard [*16] 29 C.F.R. 1926.25(a) as alleged by the complainant.

With respect to the alleged failure to comply with 29 C.F.R. 1926.150(c)(1)(i) the complainant's evidence showing the absence of firefighting equipment or acceptable alternatives at the jobsite where respondent's employees were working is undisputed. Thus, the complainant has sustained the burden of proof that the respondent violated the standard 29 C.F.R. 1926.150(1)(i).

Relative to the non-posting in violation of 29 C.F.R. 1903.2(a), the respondent offers no defense for its failure to adhere to the standard. The violation is established.

It has been long settled that neither the Commission nor its Judges have the authority to rule on the constitutionality of the Act. Secretary v. American Smelting and Refining Company, 4 OSAHRC 445, 447 (1973). An administrative agency does not have the power to determine the constitutionality of the statute it administers. Public Utilities Commission v. United States, 355 U.S. 534, 539 (1958); Montana Chapter of Association of Civ. Tech., Inc., v. Young, 514 F.2d 1165, 1167 (9th Cir., 1975). Considered within this hard and fast rule I am obliged to hold that the [*17] question of the Act's constitutionability raised by the respondent in its answer is beyond the authority of this Judge.

I have considered all of the criteria set forth in section 17(j) of the Act (29 U.S.C. 666.(i)) as well as all the evidence in the case in assessing penalties for the several item of violation. It is appropriate to note that although citation number 2 was amended by changing it from a "repeat" to a plain nonserious, the history of previous violations mitigates against any reduction in the proposed penalty for item number 1 thereof.

Having heard the testimony and observed the demeanor of the witness, and having considered the same, together with the citations, notification of proposed penalty, notice of contest, pleadings, representations, stipulations and admissions of the parties, it is concluded that the preponderance of evidence, on the entire record, supports the following:

FINDINGS OF FACT

1. That respondent K & B Sheet Metal, Inc., was an employer maintaining a place of employment at the construction site of the Academic and Scientific buildings, Suffolk County Community College, Reverhead, New York.

2. That the respondent did not have the Occupational [*18] safety and Health Administration poster posted at the construction site.

3. That three of respondent's employees were working on the first floor of the Scientific building within ten feet of four puddles of water each about 50 square feet in area.

4. That there was sheet metal, wood, pipe and other debris on the ground southwest of the Science building whereat the respondent's employees were working and were exposed to such hazards.

5. That throughout various first floor incompleted rooms and passageways of the Academic building, there were concrete blocks. Two of respondent's employees were working there and were exposed to the hazardous condition.

6. That respondent's employees working on the first floor of the Academic building were exposed to the hazards created by an overturned wooden horse and a 14-foot ladder laying in a passageway in the central area of the building's first floor.

7. That respondent's employees were exposed to the hazard caused by concrete blocks, brick, pieces of wood, metal scrapings, cardboard, plastic and paper at the southwest entrance to the Academic building.

8. That respondent's employees were exposed to the hazard created by concrete [*19] block, pieces of concrete block and bricks at the southwest entrance to the Academic building.

9. That respondent's employees were working on the first floor of the Scientific building and the first floor of the Academic building in areas which did not have fire extinguishers rated at not less than 2A provided for each 3,000 square feet of protected area or in lieu thereof, a 55-gallon drum of water with two pails, or a hose line.

CONCLUSIONS OF LAW

1. Respondent on July 22, 1975, was in violation of Section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)) by failing to comply with 29 C.F.R. 1926.25(a).

2. Respondent on July 22, 1975, was in violation of section 5(a)(2) of the Act of failing to comply with 29 C.F.R. 1926.150(c)(2)(i).

3. Respondent on July 22, 1975, was in violation of the Secretary's regulation by failing to comply with 29 C.F.R. 1903.2(a).

Respondent's notice of contest relating to items numbered 1 and 2 of citation number 1 and citation number 2, item number 1, is dismissed. Citation number 1, items numbered 1 and 2 and citation number 2, item number 1, are affirmed. The following penalties are assessed:

Citation number 1, item number 1	$55.00
Citation number 1, item number 2	Zero
Citation number 2, item number 1	$95.00

[*20]

SO ORDERED.

EDWARD V. ALFIERI, JUDGE, OSAHRC

Dated: March 1, 1976, New York, New York