CONSOLIDATED INTERIOR SYSTEMS, INC.

OSHRC Docket No. 14520

Occupational Safety and Health Review Commission

January 26, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Counsel for Regional Litigation, Office of the Solicitor, USDOL

Francis V. LaRuffa Reg. Sol., USDOL

George A. Juleus, Consolidated Interior Systems, 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 [*2] is accorded the 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.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I would affirm items 2, 4, 5 and 6 for the reasons stated in Judge DeBenedetto's decision, which is attached hereto as Appendix A. However, so much of item 1 that refers to an unguarded electric drill and item 3, in its entirety, should be vacated because the evidence establishes that respondent, a drywall subcontractor, did not create or cause these alleged violations and was not otherwise responsible for them. Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975); Secretary v. Grossman Steel & Aluminum Corporation, OSAHRC Docket No. 12775, May 12, 1976 (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 [*3] Review Commission Judges.

APPENDIX A

DECISION AND ORDER

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor and Leslie P. Brody, for complainant

Mr. George A. Juleus, Consolidated Interior Systems, Inc.

DeBenedetto, J.

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. et seq., hereinafter called that Act) stemming from a citation issued by complainant against respondent under authority provided by section 9(a) of the Act.

The citation, issued on August 12, 1975, alleges that as a result of inspection made on July 22, 1975, of a place of employment located at the Monmouth Shopping Center, Fatontown, New Jersey, respondent nonseriously violated the following safety standards (noted therein as items No. 1 through 6): 29 CFR 1926.401(a)(1), 1926.401(f), 1926.401 (j)(1), 1926.25(a), 1926.451(a)(4), and 1926.451(e)(2). The respective penalties proposed therefor are $105.00, $105.00, none, $50.00, $75.00, and $75.00.

Respondent timely contested the citation. Complaint and answer were filed by the parties, and the case came on for hearing in Newark, New Jersey, on November 13, 1975. No affected employee [*4] or authorized employee representative elected to participate as a party in the case.

OCCUPATIONAL SAFETY AND HEALTH STANDARDS

1926.401(a)(1) provides:

"The noncurrent-carrying metal parts of portable and/or plug-connected equipment shall be grounded."

1926.401(f) states:

"Extension cords used with portable electric tools and appliances shall be of three-wire type."

1926.401(j)(1) provides:

"Temporary lights shall be equipped with guards to prevent accidental contact with the bulb, except that guards are not required when the construction of the reflector is such that the bulb is deeply recessed."

1926.25(a) reads:

"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."

1926.451(a)(4) provides in relevant part:

"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 . . . Scaffolds 4 feet to 10 feet in height, having a minimum horizontal dimension in either direction [*5] of less than 45 inches, shall have standard guardrails installed on all open sides and ends of the platform."

1926.451(e)(2) provides the following requirements for manually propelled mobile scaffolds:

"Casters shall be properly designed for strength and dimensions to support four times the maximum intended load. All casters shall be provided with a positive locking device to hold the scaffold in position."

STIPULATIONS

The parties agreed that respondent is a New Jersey corporation with its principal office in Hawthorne, New Jersey, that respondent's average daily number of employees is four, that it is a "small" corporation engaged in business as an acoustical and drywall contractor, that there were no injuries sustained by respondent's employees in connection with the alleged violations, and that respondent is engaged in interstate commerce (Tr. 5-6).

TESTIMONY OF ANTHONY MERISOLA, COMPLIANCE SAFETY AND HEALTH OFFICER

The witness inspected the worksite on July 22, 1975, including the "Oriental Pearl Store" under construction where five of respondent's employees were working (Tr. 15). One employee was using a Thore 1/4-inch electric drill which had the grounding [*6] prong missing. A second employee was using a Rockwell screwgun which also had the grounding prong missing (Tr. 17). The following colloquy occurred in connection with the extension cords:

"Q. Could you tell us what made you cite a violation of this standard?

A. The employees were complaining about getting electrical shock all throughout the store. After finding that the Thore drill and the Rockwell screwgun weren't grounded, I proceeded to test the extension cords that were on the job. I did this with the use of a woodhead tester, which is part of the testing equipment that we carry. I plugged the tester into the extension cord and found that it was not grounded. I then went to the other end or the male and of it, unplugged it from a, what they call a gangbox, which is a four by four inch box with four receptacles in it, found that it was a three prong, however, you could look into it and there were two wires connected, the green or grounding wire was not connected to the grounding prong. On the other two extension cords, one was a molded cord on the male and female end, they were yellow, the grounding prong was missing from one of them, the other, the third one which was [*7] coiled up and laying down, I also checked that. When I plugged it into the receptable and put the woodhead tester on it, the tester also indicated that that also was not grounded. Because of the molded plug there's no way to see whether or not it's hooked up, so I unplugged it and visually inspected the extension cords from one end to the other and found that the grounding wire was broken. It showed that to Mr. McIntyre and to the shop steward on the job.

Q. OK, so in terms of the extension cords, you both visually observed the fact that they were ungrounded and you used a machine to test that fact?

A. I used a tester on them all sir.

Q. Did you notice any employees that were making use of these extension cords, or were they just lying dormant?

A. No, one was being used by the employee using the Thore drill and another was being used by the employee using the Rockwell screwgun. The third one, the employees indicated that it was in use on the job, but at the time of my investigation, it was not being used."

Two light bulbs hanging from the ceiling at the center of the store and one light bulb hanging at the right side of the store were four to five feet above floor level [*8] and had no guards attached (Tr. 21). The store, which measured approximately 30 feet by 70 feet, "was completely and totally littered with assorted debris making it virtually impossible to walk anywhere around the store without climbing over or tripping over something that was laying on the floor" (Tr. 21). "Immediately after the opening conference with Mr. McIntyre, we were standing at the front of the store . . ." (Tr. 26) when one of respondent's employees (Fmanual DiGregorio) was seen working on a "baker-type" scaffold which the witness measured as 68-1/2 inches high and 29 inches wide. It was not equipped with guardrails (Tr. 26). The scaffold was observed to roll and rock with the movements of that employee. This was found to be caused by the absence of locking devices for the scaffold's four casters (Tr. 27). The witness further testified with respect to the factors taken into consideration in determining the proposed penalties. A full credit of 20 percent was allowed for "history" of no previous violation, a 10 percent credit was provided for "size", and for "good faith" a 10 percent credit was allowed. He noted that respondent had "no formalized safety program" (Tr. [*9] 37). Because the violations were considered to be nonserious, each item received an additional reduction of 50 percent.

TESTIMONY OF BERWOOD McINTYRE

On July 22, 1975, there were five persons employed by respondent at the jobsite, including the witness who was employed as foreman (Tr. 51-53). He was hired for, and worked on, that job "almost three weeks" (Tr. 55). When he started on the project, he notified respondent's representative (who appeared at the site for payroll purposes) that the debris "should be cleaned up before we started working" (Tr. 52). He also requested the representative "for a broom, a shovel or something" to clear the debris, but it was not until sometime after the inspection that the debris was removed (Tr. 55). The following colloquy occurred on direct examination (Tr. 57-59):

"Q. . . . Did you observe Mr. DiGregorio, the shop steward, on the scaffold when Mr. Merisola came into the store?

A. Yes, I did.

* * *

Q. Would you describe the stability of the scaffold in your opinion, while Mr. DiGregorio was on it? Was he steady? Was it --

A. When he went up on it, I held it to hold it against the wall.

Q. Why did you hold it?

A. Because [*10] he wouldn't climb it unless somebody held it. It was that it was rocking (sic).

Q. How do you know he wouldn't climb it unless someone held it?

A. He stated that. He told me that.

Q. Now you said you held it against the wall?

A. Yes, we rolled it along the wall and I would hold it in place while he worked with the sheets on it. You have to understand, when you're up on the scaffolding, working, you're screwing the sheetrock fast, you have to apply pressure to get the screwgun to go into the metal stud, and we're doing that, the scaffolding would have a tendency to tip back or roll back, so somebody had to hold it in place so that it wouldn't tip back or roll back.

Q. You said you not only held it in place but you also pressed it against the wall?

A. Yes.

Q. Is that another means of support, using the wall?

A. Yes."

The extension cable that was "rolled up on the floor" had been "worn out" and "discarded" (Tr. 62). While he was "running a drill" he got "small shocks" (Tr. 62-63). Respondent's employees installed "plasterboard and dry-wall" at a height of about 16 feet (Tr. 64).

TESTIMONY OF GEORGE JULEUS, PRESIDENT OF RESPONDENT CORPORATION

The witness [*11] stated that respondent did not own a Thore drill, that it owned only Rockwell screwguns, two of which were sent to the jobsite with the ground plugs intact at the beginning of the job (Tr. 92-93). The extension cords were also in "A-1 condition" at the start of the job, and he did not know how the extension cords, which were seen by the compliance officer, came about (Tr. 94). The temporary light bulbs were "supplied by the owner of the building or the general contractor," and it is a job that is performed by electricians (Tr. 95). The owner or general contractor was also responsible for removal of debris from the worksite, although ". . . if you're working on a job, you can't throw your garbage in front of you where you're working, you put it in a pile in the center of the room for it to be taken away by the laborers" (Tr. 95). The baker scaffolds used by respondent at the jobsite were "standard scaffold[s]" that do not come equipped with guardrails. He felt that such guardrails would cause a hazard (Tr. 97). He was not aware that the scaffold used at the jobsite did not have casters with locking devices (Tr. 100). He visited the worksite "a couple of times" because "[w]hen [*12] you have a foreman on, you don't have to visit it, it's up to him to run the job and report to you" (Tr. 101). Tr. McIntyre was respondent's foreman on the job in question (Tr. 101). The witness visited the worksite several days prior to the OSHA inspection and noticed that the floor "was a mess" which was partly caused by his employees as well as employees of other contractors who had previously worked on the jobsite (Tr. 119-120).

DISCUSSION

Respondent is charged with violating the Occupational Safety and Health Act for failure to ground plug-connected equipment ( 1926.401(a)(1)), provide or maintain three - wire type extension cords ( 1926.401(f)), n1 equip temporary lights with guards ( 1926.401(j)(1)), maintain its work areas clear of debris ( 1926.25(a)), install guardrails on scaffold's open sides ( 1926.451(a)(4)), and provide locking devices for scaffold's casters ( 1926.451(e)(2)).

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n1 While the standard only refers to "three-wire type" extension cords, sensible meaning and effective operation of the standard require that the grounding wire be equipped with a prong, and that the wire and prong be connected.

[*13]

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The testimony of the compliance officer and respondent's foreman on the jobsite, describing the substandard working conditions, was essentially undisputed. Respondent's employees had used an electric drill and a "screwgun" which did not have grounding prongs. There were three extension cords at the jobsite. One was outworn and discarded. The other two cords were used with the power drill and "screwgun." The grounding wire in one cord was not connected to its grounding prong, and the grounding prong was missing from the other cord. There were three temporary lights hanging from the ceiling about five feet above the floor and no guards were provided to prevent accidental contact with the exposed bulbs. Debris was strewn over the area where respondent's employees were working. The litter was created by respondent's employees as well as by other construction contractors who preceded respondent on the jobsite. The type of scaffold used by respondent's employees required standard guardrails on open sides and locking devices on casters, neither of which was provided.

In support of its case, respondent [*14] asserted that it did not own the drill, and that at the beginning of its construction activity it supplied two "screwguns" with the grounding prongs intact. This is not a valid defense when respondent's employees, including the foreman, were using the substandard equipment within the scope of their employment. Nor is it enough that proper extension cords were supplied by respondent at the start of the job. The responsibility of respondent under the Act is to maintain as well as provide proper equipment for its employees.

Respondent argues that the temporary lights and removal of debris are the responsibilities of the owner or general contractor. A recent case, Anning-Johnson Co., v. Secretary of Labor, 516 F. 2d 1081 (7th Cir. 1975), held that subcontractors working on a multi-employer construction site could not receive citations or be held liable for penalties under the Act for nonserious violations of standards to which their employees were exposed but which the subcontractors neither created nor were responsible for pursuant to their contractural duties. In reaching its conclusion, the Court was motivated by the realities presented by a multi-employer construction [*15] project where the general contractor contractually controls the worksite and the subcontractor's control is contractually limited to his specific field. The Court pointed out the impracticalities of placing on the subcontractor the primary responsibility for complying with occupational safety standards "created and within the control of third parties." Anning-Johnson Co., v. Secretary of Labor, supra, 516 F. 2d at 1088-1090. Apart from the fact that respondent "created," at least in part, the debris, the impracticalities of requiring abatement of the littered work area and unguarded light bulbs are not applicable to the instant case. Respondent admitted that its employees should have collected the debris away from the immediate work area and placed in a pile for removal by another contractor. Similarly, the placing of guards on exposed light bulbs does not require the special services of an electrician, and subversion of craft jurisdiction appears unlikely were respondent to have abated the violation on its own. Nor would it have been economically unfeasible for respondent to have done so in view of the nature of the violation and the inexpensive means available for [*16] accomplishing abatement.

Respondent further contends that the scaffold is of a "standard" type which is sold by the manufacturer without guardrails, and that the use of guardrails on such a scaffold would itself cause a hazard. These arguments are without merit. The fact that the manufacturer does not equip the scaffold with guardrails does not obviate the requirements of the standard. Nor has respondent made a convincing case that guardrails would create rather than eliminate a fall hazard.

Respondent also states that it was not aware the scaffold casters had no locking devices. Under the circumstances of this case, this fact is of no consequence. It is well settled that the actions and knowledge of supervisory employees are imputed to their employer and the employer is responsible for violations of which he has actual or constructive knowledge. Secretary v. Pecosteel-Arizona, 15 OSAHRC 141 (1975).

Section 17(j) of the Act (29 U.S.C. 666(j)) requires consideration of the following factors in assessing appropriate penalties: size of the charged employer's business, gravity of the violation, good faith of the employer, and history of previous violations. While the [*17] weight to be accorded each factor depends upon the circumstances of the individual case, gravity n2 is usually of greater significance. Secretary v. Colonial Craft Reproductions, Inc., 1 OSAHRC 933 (1972).

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n2 The chief elements of gravity include the degree of probability of an injury occurring as the result of a violation, extent of exposure and probable severity of injury. Secretary v. National Realty & Construction Co., Inc., 1 OSAHRC 731 (1972); Secretary v. Baltz Brothers Packing Co., 2 OSAHRC 384 (1973).

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The penalty proposed by complainant for items 1 (failure to ground plug-connected equipment), 3 (failure to guard exposed light bulbs used for temporary lighting), 4 (failure to maintain work area free of debris), and 5 (failure to provide guardrails for scaffold) reasonably reflect proper consideration of the criteria required by section 17(j) of the Act, therefore, these penalties are accepted as appropriate.

Penalties are not warranted for violations of the standards requiring three-wire [*18] extension cords and locking devices for the scaffold casters. As previously indicated, the important factor to be considered in assessing the appropriateness of a penalty is the gravity of a violation. The record reflects that the defective extension cords were used only in conjunction with the ungrounded drill and "screwgun." Because these tools could not be grounded due to the absence of their grounding prongs, the use of defective extension cords therewith neither increased the electric-shock hazard nor created a new risk. Where violations of two separate safety standards cause a single, indivisible hazard, respondent can receive citations for violations of two standards but only one penalty is appropriate.

The express purpose of locking devices for casters is "to hold the scaffold in position." Mr. McIntyre, respondent's foreman, gave a vivid description of the employees' application of the scaffold to the job in hand. The foreman held it in place while another employee worked on top of the platform. As an added safety measure, the scaffold was held pressed against the wall. It could be argued that such mode of operation effectively eliminated the hazard for which the standard [*19] was promulgated. If so, the citation for the violation would fail. However, the testimony of the compliance officer indicates that the hazard was not entirely eliminated. At the time of the inspection, the foreman had apparently left momentarily his holding position at the base of the scaffold to converse with the compliance officer. It was during this time that the scaffold was observed to shake with the movements of the employee standing on the scaffold. That temporary lapse in securing the scaffold in position is an occurrence that one may expect when safety measures depend directly upon human behavior rather than mechanical devices, and is sufficient reason for upholding the citation. The gravity of the violation, however, was such that a penalty should not be imposed.

FINDINGS OF FACT

1. In July 1975 respondent, a subcontractor, had five employees including a foreman working on the construction of a building located at Monmouth Shopping Center, Eatontown, New Jersey.

2. Respondent's employees used a power drill and "screwgun" which did not have grounding prongs.

3. Of the two extension cords used with the drill and "screwgun," one had its grounding wire disconnected [*20] from the prong, and the other had its prong missing.

4. The electric-shock hazard caused by the defective extension cords was identical with the hazard stemming from the ungrounded drill and "screwgun."

5. The building under construction had three temporary lights with unguarded bulbs exposed at a height of about five feet.

6. Respondent's work area was not cleared of debris caused by respondent and other employers.

7. Respondent's scaffold used by its employees at the jobsite measured 68-1/2 inches high and 29 inches wide and did not have guardrails on its open sides.

8. Positive locking devices were not provided for the scaffold casters to hold the scaffold in position.

9. For the most part, the scaffold was held in position by one of respondent's employees during use.

CONCLUSIONS OF LAW

1. At all times relevant herein, respondent has been engaged in a business affecting commerce within the meaning of section 3 of the Act.

2. Respondent nonseriously violated 29 CFR 1926.401(a)(1), 1926.401(j)(1), 1926.25(a), and 1926.451(a)(4); assessment of penalties therefor of $105.00, none, $50.00, and $75,00, respectively, are appropriate.

3. Respondent nonseriously [*21] violated 29 CFR 1926.401(f) and 1926.451(e)(2) but penalties therefor are not warranted.

ORDER

It is hereby ORDERED that:

The citation issued on August 12, 1975, for nonserious violations of 29 CFR 1926.401(a)(1), 1926.401(f) ("item 2"), 1926.401(j)(1), 1926.25(a), 1926.451(a)(4), and 1926.451(e)(2) ("Item 6"), is affirmed, the penalties proposed for items 2 and 6 are vacated, and the following penalties are assessed for all violations: $105.00, none, none, $50.00, $75.00 and none, respectively.

RICHARD DeBENEDETTO, JUDGE, OSAHRC

Dated: February 5, 1976

New York, New York