MAX J. KUNEY, INC.
OSHRC Docket No. 14545
Occupational Safety and Health Review Commission
April 27, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Robert A. Friel, Assoc. Regional Solicitor
James A. Fish, 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 an unreviewed Judge's decision. [*2] 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 the citation because the evidence fails to establish that the cited condition constituted a recognized hazard. See National Realty and Construction Co. v. OSAHRC, 489 F.2d 1257 (D.C. Cir. 1973). 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 Donegan's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.
APPENDIX A
DECISION AND ORDER
Charles G. Preston, Office of the Solicitor, U.S. Department of Labor, For the Complainant
James A. Fish, For the Respondent
Donegan, Judge: This is a proceeding pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., [*3] 84 Stat. 1590, hereinafter referred to as the Act).
The Respondent, Max J. Kuney, Inc., is a contractor in the construction industry and on July 31, 1975 had a worksite at 7th and Spokane St., Post Falls, Idaho where its employees were engaged in excavating a shallow trench with a backhoe.
This worksite was inspected on the morning of July 31, 1975 as a result of two OSHA compliance officers (inspectors) observing, while en route to another inspection, the bucket of the backhoe being operated in close vicinity to one of two men working in the shallow trench.
As a result of the inspection, a citation for a violation of section 5(a)(1) of the Act and a notification of a proposed penalty of $550 for the alleged violation were issued to the Respondent on August 12, 1975.
The citation, proposed penalty, and section of the Act allegedly violated are as follows:
Citation Number One (Serious)
Item Number 1 -- "On July 31, 1975 the employer failed to provide a place of employment that was free from recognized hazards that are causing or likely to cause death or serious physical harm in that an employee, while checking grade in an excavation, was exposed to the bucket of the backhoe [*4] as it came down and bit into the ground."
Abatement Date: Immediately upon receipt of citation
Proposed Penalty: $550
Section of the Act cited: Section 5(a)(1) of Public Law 91-596, Occupational Safety & Health Act
Section 5(a) Each employer --
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.
The Respondent's timely letter of contest dated August 14, 1975 signed by Jeff Kuney, Vice President, cleary expresses the intention to contest the proposed penalty of
"As allowed under the provisions of the Occupational Safety and Health Act of 1970, this employer intends to contest the penalty as imposed under the above-referenced citation.
This letter will also serve as notice that the alleged violation was corrected immediately after being pointed out by the OSHA inspector.
We would appreciate prompt notification from your office as to when and where such contest may be heard so that this matter may be resolved while all parties concerned can be easily contacted."
The Respondent's "answer" denies the allegation of the "complaint" [*5] that the Respondent's "notice of contest" did not place the serious violation in issue and that the citation thereby became a final order of the Commission by operation of section 10(a) of the Act. The issue raised by the Respondent's assertion that it intended to contest the citation and alleged violation when it contested the proposed penalty was considered at the start of of the hearing. A ruling was made that neither the citation nor violation had been timely contested and therefore the citation had become a final order of the Commission (T. 14).
This ruling, made at the hearing, has been reversed as set forth hereafter. In addition to the timely contested proposed penalty of $550, the alleged serious violation is considered as an issue to be resolved in this decision. The parties have been apprised of this reversal and have stated that they do not wish to submit additional evidence concerning the alleged violation.
It was stipulated that the alleged violation was abated at the time of the inspection (T. 22).
The Respondent admits that its business activities affect commerce within the meaning of the Act and that the Commission has jurisdiction in this case (T. 15).
No [*6] affected employees or representatives of affected employees have elected to participate as a party in the case (T. 3-4).
The attorneys for the parties have submitted post-hearing briefs.
FINDINGS
In ruling that the Respondent had not timely contested the citation, it was determined that the letter of contest clearly expressed the Respondent's intention to contest the proposed penalty and not the citation. Although the "answer" filed in this case asserts that the Respondent intended to contest the violation, the Commission's decision in the Garland Call Pole Company case n1 was considered as being applicable to the facts and thereby precluded an amendment of the notice of contest for the purpose of placing the citation in issue (T. 4-17).
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n1 See: Secretary v. Garland Call Pole Company, No. 2028, 17 OSHRC 765, May 8, 1975; Garland Call Pole Company v. OSHRC and Secretary, appeal docketed July 7, 1975, D.C. Cir., No. 75-1646.
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After the hearing had been closed in this case, the Commission on December 15, [*7] 1975 issued a decision in the Turnbull Millwork Company case n2. This decision held that a notice of contest limited solely to the proposed penalty could be amended to include a contest of the citation when a subsequent pleading of the Respondent indicates that it was the intention of the Respondent to contest the citation when the timely notice of contest of the proposed penalty was filed.
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n2 See: Secretary v. William W. Turnbull, d/b/a Turnbull Millwork Company, No. 7413, OSHRC , December 15, 1975.
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Although the "Turnbull Millwork" case does not refer to the "Garland Call Pole" case, it clearly applies to the facts in this case. "Turnbull Millwork" and related cases n3 require that the ruling made at the hearing be reversed and that the citation in this case be considered to be at issue.
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n3 See: Secretary v. Juhr & Sons, No. 2314, OSHRC , January 13, 1976; Secretary v. Acme Metal, Inc., No. 1811 and No. 1931, OSHRC , January 29, 1976; Secretary v. Collator Corporation, No. 2004, OSHRC , February 25, 1976; Secretary v. P & M Sales, Inc., No. 3443, OSHRC , May 3, 1976.
[*8]
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The alleged violation involves the cooperative work activities of the operator (Jay Pearce) of a backhoe and a laborer (Louis York) who were engaged in locating a water line in a ditch that was being excavated for the purpose of installing pipe between a catch basin and a manhole (Exhibit R-1).
When the inspectors (Donald Brzowski and Jose Alvarado) observed the alleged violation, there were two men in the excavation but only laborer York was exposed to the alleged hazard of being accidentally struck by the backhoe bucket as it was extended to the area in the ditch where the laborer was probing with his shovel to locate the water line. The bucket of the backhoe was also being used at the same time as a probing tool to locate the water line. The ditch was approximately 3 feet deep and the backhoe operator and the laborer were visible to each other for the purpose of using hand signals.
The testimony of the witnesses is conflicting as to the proximity of the laborer to the backhoe bucket while it was in motion. The inspectors testified that they observed the backhoe bucket being brought down to within [*9] 1 to 2 feet of the laborer in the ditch.
Although the operator of the backhoe, the laborer, and the foreman at the worksite testified that the laborer was not underneath the backhoe bucket while it was in motion, it is concluded from an evaluation of the credible and substantial evidence of record that the bucket of the backhoe was in motion within a distance of 1 to 2 feet of where the laborer was probing the ditch with the shovel. When the alleged violation was observed by the inspectors, laborer York remained within the range of operation of the buckhoe bucket while it was in motion.
The backhoe bucket moves up and down in a vertical plane - it does not pivot from the boom in a horizontal plane. To swing the bucket in a horizontal plane, it is necessary to swing the boom to which the bucket is attached. The bucket can also be raised and lowered in a vertical plane by raising and lowering the boom. The bucket is extended out on the boom and drawn towards the backhoe when it is used for digging. When probing for the water line, it was used in this manner. The movements of the boom and bucket are hydraulically operated by controls located in the cab of the backhoe.
Although [*10] the operator of the backhoe was qualified and experienced, and the machine was in good operating condition; it is concluded that the laborer was exposed to the hazard of suffering a serious injury from being accidentally struck by the backhoe bucket while it was in motion in such close proximity to him.
Donald Hawkins, business manager of Laborer's Local 238 which covers eastern Washington and northern Idaho, and Gerald Greeley, field representative Operating Engineers Local 370 which covers eastern Washington and Idaho, were witnesses on behalf of the Respondent. They have had extensive experience with the equipment and operation involved in this case. Although they stated that the conditions as described in the testimony of laborer York were safe, they also testified that they would consider it unsafe if the bucket coming out towards the laborer had come down one foot in front of him when not fully extended. It was Mr. Greeley's opinion that the swing radius of the bucket is a hazardous area and that safety requires an employee to be three or more feet away from this area when the boom and bucket are in motion (T. 154-168).
The Respondent's foreman, Thomas Stone, an operating [*11] engineer, was present when the inspectors observed the alleged violation on July 31, 1975.
It is concluded that the Respondent was in violation of section 5(a)(1) of the Act, as charged in the citation, in that its employee York, while under the supervision of Respondent's foreman, was exposed on July 31, 1975 to the recognized hazard of being struck by the bucket of the backhoe which would likely cause a serious injury or death. This hazard could have been avoided if laborer York had withdrawn from the hazardous area while the boom and bucket of the backhoe were in motion.
The parties have stipulated that only employee York was exposed to the alleged hazard. The evidence supports a finding that no other employee at the worksite was exposed to the hazard of the moving backhoe bucket. Employee York was exposed to the hazard for approximately 15 minutes. The Respondent promptly abated the violation at the time of the inspection. The violation was of a low level of gravity n4.
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n4 Examples of some of the factors that are considered in determining the degree of gravity of the violation are: number of employees exposed to risk of injury; duration of employee exposure; precautions taken against injury, if any; and degree of probability of occurrence of an injury.
[*12]
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The parties stipulated that the Respondent's gross business as a contractor for the 1974 and 1975 fiscal periods was approximately ten million dollars. There were approximately five employees at the worksite involved in this violation but, as stated previously, there was only one employee exposed to the hazard. The Respondent was given full credit for good faith and history by the Complainant, which is supported by the evidence of record.
It is concluded that pursuant to the provisions of section 17(j) of the Act n5, an appropriate civil penalty for this violation of the Act is $75.
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n5 Section 17(j) provides: "The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations."
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CONCLUSIONS OF LAW
1. The Respondent, Max J. Kuney Co., was at all times material to this proceeding an employer engaged in business affecting interstate commerce within the meaning of section 3 of the Act.
2. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter of this proceeding as provided in section 10 of the Act.
3. The Respondent's worksite at Post Falls, Idaho was inspected by authorized employees of the Secretary of Labor on July 31, 1975 in accordance with section 8 of the Act.
4. The Respondent was in violation of section 5(a)(1) of the Act on July 31, 1975 as alleged in the citation issued to the Respondent on August 12, 1975.
5. An appropriate civil penalty for this violation of section 5(a)(1) of the Act is $75.
ORDER
Based on the foregoing findings of fact and conclusions of law, it is ORDERED:
1. That the citation issued to the Respondent on August 12, 1975 be, and is hereby affirmed.
2. That the notification of proposed penalty of $550 issued to the Respondent on August 12, 1975 be vacated and that a penalty of $75 be assessed therefor, and that the same be, and are hereby vacated and [*14] assessed accordingly.
THOMAS J. DONEGAN, Judge
Date: July 15, 1976