SUN RAY LIGHTING COMPANY
OSHRC Docket No. 14580
Occupational Safety and Health Review Commission
January 27, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Ronald M. Gaswirth, Reg. Sol., USDOL
Louis Peters, Secretary-Treasurer, Sun Ray Lighting Co., 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 discretionaly 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 [*2] 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.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
The citation should be vacated as the evidence does not establish that "[p]ersonal protective equipment was not provided" by respondent as charged in the citation. (Emphasis added.) See Secretary v. P & M Sales, Inc., OSAHRC Docket No. 3443, May 3, 1976. 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 Burroughs' decision, his decision is attached hereto as Appendix A so that the law in this case may be known.
APPENDIX A
DECISION AND ORDER
Harvey M. Shapan and Gail Dickenson, Office of the Solicitor, U.S. Department of Labor, on behalf of complainant
Louis Peters, Secretary-Treasurer, Sun Ray Lighting Company, [*3] on behalf of respondent
STATEMENT OF CASE
BURROUGHS, Judge: This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., 84 Stat. 1590 (hereinafter "Act"). Respondent seeks review of a serious citation issued to it on August 11, 1975, and the penalty of $500 proposed for the alleged violation.
The citation and notification of proposed penalty emanate from an inspection conducted on August 7, 1975, at a workplace located on Almeda Road, Houston, Texas. Respondent is a lighting maintenance company. Two employee of respondent were working on an electric Gulf sign at the time of inspection at a height of approximately 75 feet above the ground.
The serious citation alleges that respondent committed a serious violation of section 5(a)(2) of the Act by failing to comply with the safety standard published at 29 C.F.R. 1910.132 (a). The citation describes the alleged violation as follows:
"Personal protective equipment was not provided for protection of the following hazards capable of causing injury or impairment in the function of any part of the body: One employee was working on an electric sign approximately 75 feet [*4] from the ground without the protection of a safety belt and life line."
Respondent, by letter dated August 15, 1975, and received by complainant on August 19, 1975, timely advised complainant that it desired to contest the citation and proposed penalty.
A hearing was held on November 4, 1975, in Houston, Texas. No additional parties desired to intervene in the proceeding.
JURISDICTION AND ISSUES
Respondent concedes that, at all times material to this proceeding, it was engaged in a business affecting commerce within the meaning of the Act, and that the Commission has jurisdiction of the parties and of the subject matter herein (Tr. 6).
The following issues are presented for determination in this proceeding:
1. Did respondent violate section 5(a)(2) of the Act by failing to comply with the standard published at 29 C.F.R. 1910.132(a)?
2. Was the violation, if one occurred, a serious violation within the meaning of section 17(k) of the Act?
3. What penalty, if any, should be assessed in the event a violation is determined?
FINDINGS OF FACT
The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically [*5] determined in resolving the issues in dispute:
1. Respondent is a corporation engaged in the lighting maintenance business (Tr. 8, 22). It is primarily a service organization (Tr. 22).
2. Respondent's employees are generally engaged in maintenance and repair operations to outdoor lighting fixtures, e.g., signs, or janitorial services with respect to indoor lighting fixtures. Maintenance and repair employees usually work in one or two man teams (Tr. 10, 16, 17, 21, 22-23).
3. On August 7, 1975, respondent employed approximately 22 persons (Tr. 9). It employes no persons as foreman or superintendent (Tr. 10).
4. The operating manager, his assistant or a dispatcher assign employees to specific jobs. Maintenance and repair employees are generally assigned several jobs each morning. Once assigned to specific jobs, the employees have the responsibility to perform the needed services (Tr. 10-11, 68).
5. On August 7, 1975, the operating manager directed Randy Combs and James Grafton to repair a sign at a Gulf station located at Almeda Road and Old Spanish Trail, Houston, Texas. The job order was given to Grafton because he had a greater technical knowledge than Combs [*6] (Tr. 11-12, 38, 43, 68). Grafton was in charge of the job (Tr. 12). Combs was his helper (Tr. 42, 63).
6. Combs regarded Grafton as the foreman since he was more experienced. He took orders from Grafton and Grafton was responsible for making certain the work was done properly (Tr. 42-43).
7. Grafton had no power to fire or discipline Combs (Tr. 45, 71). Management had never informed Combs that Grafton was a foreman (Tr. 43).
8. When Grafton and Combs arrived at the location of the Gulf sign, they raised themselves to the sign by the basket on the boom truck they were using. In the process of checking the sign, it was discovered that it had a bad ballast (Ex. 5; Tr. 63-64).
9. Grafton asked Combs if he would go inside the sign and remove the ballast while he returned to the ground to obtain another. In the interest of saving time, Combs climbed inside the sign and supported himself with his arm around part of the sign (Tr. 40, 64-65).
10. At the time of the inspection, Combs was inside the sign. He was not tied off or secured by a lifeline (Exs. 1-5; Tr. 7, 38-39). He remained inside the sign for approximately five to ten minutes without being tied off (Tr. 39-40). [*7] The sign was approximately 75 feet above asphalt pavement (Tr. 39).
11. Combs was never instructed about the requirements of the Occupational Safety and Health Act that pertained to his job. He was never instructed about the use of safety belts and the requirement for tying off (Tr. 46).
12. Grafton had been advised not to climb out of the basket of a boom truck (Tr. 27-28, 29, 65). If it became necessary to climb out of the basket, Grafton was aware that he was suppose to wear a safety belt with a lanyard (Tr. 66).
13. Grafton and Combs were aware that they were not following established procedures when Combs climbed out of the basket onto the sign (Tr. 41, 65).
14. Respondent furnishes necessary safety equipment to its employees and continually advises them concerning safe practices. Respondent then assumes that the employees will comply with the applicable standards (Tr. 12-13, 16, 31).
15. Respondent conducts no group safety meetings. Safety is generally discussed with employees on an individual basis (Tr. 18-19). Respondent has no written safety procedures (Tr. 20-21).
16. Employees are encouraged and directed by respondent to advise management when safety equipment [*8] is not operating properly or whenever they feel a particular job is dangerous (Tr. 19-20).
17. New employees are generally informed as to the available safety equipment and assigned with an experienced employee. Generally, new employees have had experience within the industry (Tr. 33-34, 70).
18. The operating manager is responsible to insure that respondent's employees are following all applicable OSHA standards. He seldom checks employees on the job (Tr. 12, 24). Generally, no management officials of respondent are at the various workplaces and make no checks to see if employees are complying with OSHA standards (Tr. 14, 18, 23-24, 69-70). Respondent assumes that employees have regard for their own safety and follow prescribed safety instructions (Tr. 15, 30).
19. Prior to August 7, 1975, the operating manager had never observed Grafton or Combs working at a work site (Tr. 30). He assumed they followed oral instructions which had been given to them (Tr. 30).
OPINION
This case emanates from the observance by a compliance officer of an employee of respondent inside a Gulf Oil sign located at Almeda Road and Old Spanish Trail, Houston, Texas. Complainant alleges that [*9] respondent violated the standard published at 29 C.F.R. 1910.132(a) n1 by the employee's failure to use a safety belt and lifeline while he was inside the sign.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 29 CFR 1910.132(a) provides:
"Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The basic facts are undisputed. Respondent concedes that its employee was inside the sign, which was located approximately 75 feet above asphalt pavement, and that the employee was not tied off or secured by a lifeline attached to his safety belt. Respondent submits that it should [*10] be absolved of any responsibility for the act of the employee since safety equipment had been furnished and the employee simply chose not to use it.
Respondent is primarily a service organization. One of its functionis involves the maintenance and repair of outdoor lighting fixtures such as signs. This work is done by one or two man teams. They receive their job assignments in the morning and are dispatched to perform the necessary repairs. On August 7, 1975, a crew composed of James Grafton and Randy Combs was assigned to repair the Gulf station sign located at Almeda Road and Old Spanish Trail, Houston, Texas. Upon arriving at the location, they were lifted to the sign in a basket on the boom truck they were using. In the process of checking the sign, it was discovered that it had a bad ballast. Grafton asked Combs to climb from the basket onto the sign and remove the ballast while he went to the ground to obtain a replacement. They followed this course of action in order to conserve time. Combs remained inside the sign for five to ten minutes.
Respondent's defense is predicated on what has become known as the "isolated incident" exception. The Act does not require employers [*11] to be an absolute guarantor that employees will always follow promulgated safety standards, Secretary v. Standard Glass Co., 1 OSAHRC 594 (1972). Employers are not "responsible for unpreventable instances of hazardous conduct" by employees. Secretary v. Engineers Construction, Incorporated, 20 OSAHRC 348 (1975). The general rule was stated by the Commission in Standard Glass Co., supra, at 596, as follows:
"An employer cannot in all circumstances be held to the strict standard of being an absolute guarantor or insurer that his employees will observe all the Secretary's standards at all times. An isolated brief violation of a standard by an employee which is unknown to the employer and is contrary to both the employer's instructions and a company work rule which the employer has uniformly enforced does not necessarily constitute a violation of section 5(a)(2) of the Act by the employer."
Respondent has no organized safety program. There are no written safety procedures and no formal group meetings. Safety practices are discussed with individual employees as "different things come up" (Tr. 25). Respondent does have a good program of furnishing safety equipment [*12] to employees, but no checks are ever made on employees to ascertain if the equipment is being used properly or whether the employees are in fact using the equipment. Respondent merely assumes that employees will comply with applicable safety standards.
Respondent's approach to safety for its employees, in reality, places the burden on the employee after he has been given safety equipment. The Act requires a greater standard of care on the part of employers. An employer's responsibility under the Act is not fulfilled by merely furnishing safety equipment.
Combs testified that he was never instructed about the use of safety belts and the requirement for tying off (Tr. 46). It is apparent that respondent's approach to safety has failed to disseminate the full ramifications of the safety policy which it claims to have implemented. The availability of safety equipment is of little value if the employee has not been instructed when he is to use it and how it is to be used.
The facts of record do not support an "isolated incident" exception. Combs was unaware of the safety standards applicable to his work and had never received any instruction in the use of safety belts. Respondent [*13] had no means of insuring enforcement of the safety procedures it supposedly followed. n2 Respondent simply absolved itself of any responsibility under the Act after safety equipment was furnished. A higher standard of conduct is required of an employer prior to absolving it of responsibility for a violation of a safety standard.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 This does not imply that respondent must have a foreman assigned to each crew of maintenance and repair employees. Periodic checks on employee safety can be made with a minimum of inconvenience to management. There must be some system to insure that safety procedures are being followed by employees.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
NATURE OF VIOLATION
Complainant submits that the violation was serious within the meaning of section 17(k) of the Act. n3 Section 17(k) does not require that there be a substantial probability of an accident occurring because of an existing hazard. It is only necessary to prove that in the event of an accident there is a substantial probability that the resulting injury will be serious [*14] in nature or death will result. Secretary v. Natkin and Company, 20 OSAHRC 1472 (1973).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 Section 17(k) of the Act provides:
"For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The employee was at a height of 75 feet above an asphalt pavement. The employee would have died or suffered serious bodily injury in the event he had fallen to the pavement. The violation is deemed to be serious within the meaning of section 17(k) of the Act.
PENALTY DETERMINATION
The employee was in an exposed position for approximately five to ten minutes. He had a firm seat on the sign and was able to [*15] assure himself stability by holding to the sign. Respondent is a small employer and has no history of past violations. After consideration of the factors required by section 17(j) n4 of the Act, a penalty of $150 is assessed.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 Section 17(j) of the Act 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."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
CONCLUSIONS OF LAW
1. Respondent was, at all times material hereto, engaged in a business affecting commerce within the meaning of the Act.
2. Respondent was, at all times material hereto, subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter herein.
3. On August 7, 1975, an employee of respondent was sitting and working [*16] on an electric sign 75 feet above asphalt pavement without any safety protection in violation of 29 C.F.R. 1910.132(a).
4. The violation of 29 C.F.R. 1910.132(a) was a serious violation within the meaning of section 17(k) of the Act.
5. A penalty of $150 is assessed for the serious violation of 29 C.F.R. 1910.132(a).
ORDER
Upon the basis of the foregoing findings of fact and conclusion of law, it is
ORDERED: (1) That the serious citation issued to respondent on August 11, 1975, is affirmed; and
(2) That the notification of proposed penalty issued to respondent on August 11, 1975, is modified is assess a penalty of $150 for the serious violation.
Dated this 22nd day of April, 1976.
JAMES D. BURROUGHS, Judge