JAMES M. INMAN CONSTRUCTION CORP.

OSHRC Docket No. 15174

Occupational Safety and Health Review Commission

March 11, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, USDOL

John L. Floran, Construction Superintendent, James M. Inman Construction Corp., 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

CONCUR:

MORAN, Commissioner, Concurring:

I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.

APPENDIX A

DECISION AND ORDER

Francis V. LaRuffa, Regional Solicitor, United States Department of Labor and Ian P. Spier, for complainant

John L. Floran, Construction Superintendent, James M. Inman Construction Corp., for the respondent

Ditore, J.

PRELIMINARY STATEMENT

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter called the Act), contesting a citation for a serious violation of an occupational safety and health standard, issued by complainant against respondent under the authority [*3] vested in the complainant by section 9(a) of the Act. (29 U.S.C. 658(a)).

The citation alleges that as a result of an inspection on September 22, 1975, of a workplace located at Sak's 5th Avenue Store, Hackensack Avenue, Hackensack, New Jersey, and described as "General Contractor Employing Laborers", the respondent violated section 5(a)(2) of the Act (29 U.S.C. 654(a)(2) by failing to comply with an occupational safety and health standard promulgated by the Secretary by publication in the Federal Register on December 16, 1972 (37 F.R. 27503, republished June 24, 1974, 39 F.R. 22801) and codified in 29 CFR 1926.651(s).

The description of the violation * and the standard as promulgated by the Secretary are as follows:

Description

"Southeast Corner of Sak's 5th Avenue Store

Open excavations on either side of the access road were not provided with substantial barricades nor stop logs to prevent the Pettibone Front End Loader which was operating adjacent the edges from entering the excavation thereby subjecting employees working on the edge to serious physical injuries or death."

Standard as promulgated

" 1926.651 Specific Excavation Requirements

(a) . [*4] . . .

(s) When mobile equipment is utilized or allowed adjacent to excavations, substantial stop logs or barricades shall be installed. If possible, the grade should be away from the excavation.

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* At the outset of the hearing, respondent limited its contest to whether or not the violation was serious, and to the penalty, if any, to be assessed (T. 8).

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Pursuant to the enforcement procedure set forth in section 10(a) of the Act (29 U.S.C. 659(a)), the respondent was notified by letter dated September 29, 1975, from the area director of the Hasbrouch Heights, New Jersey area, that the Occupational Safety and Health Administration proposed to assess a $500.00 penalty for the serious violation.

ISSUES

1. Whether the violation was serious.

2. If it was, whether respondent was responsible for the serious violation.

3. If respondent was responsible, whether the penalty proposed was reasonable and proper.

STATEMENT OF THE EVIDENCE

Respondent, James M. Inman Construction Corp., a New York corporation, is [*5] in the construction business, and maintains an office and place of business at 14 West 40th Street, New York, New York (complaint, answer).

On September 19 and 22, 1975, respondent was the general contractor at a construction site located on Hackensack Avenue, Hackensack, New Jersey, where a Sak's 5th Avenue Department store was to be constructed (T. 15-16). *

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* Reference Key: T. refers to pages of hearing minutes.

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On Friday September 19, 1975, compliance officer Thomas P. Marrinan visited respondent's Hackensach Avenue construction site where he met with John Floran, respondent's construction superintendent. Due to heavy rains, Mr. Floran told officer Marrinan that there was no work in progress that day, and no employees present. Officer Marrinan replied that he would return Monday, September 22, 1975, and then left the site (T. 15-17).

Officer Marrinan returned on September 22nd, and during a walk around inspection with Mr. Floran, he observed a Pettibone front end loader travelling along a sloped and muddy [*6] road from a parking lot area to an excavation at respondent's worksite, where the loader deposited a piece of equipment at the edge of the excavation (T. 17-24, 37-38, 56; Exh. C-1, road marked "R", Exh. C-2, shows front end loader, excavation and two employees).

The excavation located on the left hand side of the muddy road when viewed from the direction of the parking lot, was seven feet deep, ten feet wide and ten feet long. The edge of the excavation was sloped outward and was muddy. Inside the excavation was a concrete cap built upon piles. The edge of the concrete cap was about three feet from the edge of the excavation at the road side, and was about three and a half feet above the bottom of the excavation (T.32-34, 46, 47; Exhs. * C-1, C-2).

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* there were two other photographs (C-3, C-4) received in evidence. Subsequent testimony revealed that these two photographs played no part in the violation herein, and are not considered in this decision (T. 47, 49, 58-59).

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At the time officer Marrinan observed the [*7] front end loader on the road adjacent to the edge of the excavation, he also observed one of respondent's employees at the edge, but outside, of the excavation installing a drain hose into the excavation. This employee did not go into the excavation. An employee of the concrete subcontractor was in the excavation standing on the concrete cap (T. 35, 37, 45, 46, 48-49; Exh. C-2). The front end loader was making a sump pit at the excavation so that the rain water surrounding the concrete cap could be drained from the excavation (T. 55, 68).

Officer Marrinan did not observe any stop logs or other barricades at the edge of, or adjacent to, the excavation. He notified Mr. Floran of this deficiency. Mr. Floran immediately ordered his laborer to position stop logs at the edge of the trench (T. 40-41). Respondent had two employees at the construction site, Mr. Floran, and the laborer, Salvatore Riccotta (T. 18).

Officer Marrinan believed the lack of stop logs at the edge, of, or adjacent to, the excavation created a serious hazard in that mobile equipment traveling or working on the road adjacent to the excavation might slip or fall into the excavation with resultant serious injury [*8] to any employee in the excavation (T. 36, 42). He recommended an adjusted penalty of $500.00 after allowing full credits for size, good faith and prior history (T. 42-46).

Mr. Floran, respondent's construction superintendent, stated that the testimony given by the compliance officer was true and not in dispute; that it was respondent's responsibility to install stop logs at the excavation; that respondent had dug the excavation with a backhoe; that his one laborer acted as a back-up safety man when the backhoe operated; that he was not familiar with the safety and health standard which required stop logs; and that the muddy road was a macadam road which existed prior to the time the construction work started (T. 67-71).

OPINION

Respondent admits it violated 29 CFR 1926.651(s) by failing to install stop logs or barricades on the road adjacent to the excavation shown in exhibit C-2; and admits it was its responsibility to install the barricades or stop logs. Respondent immediately abated the violation at the time of inspection.

Respondent believes that the violation was not of such a serious nature as to justify the imposition of the penalty proposed (T. 7, 71-72). The [*9] seriousness of a violation is determined, as required by the Act (section 17(k)), from the probable harm that might befall an employee because of the violation. If there is substantial probability that death or serious physical harm will befall an employee because of an accident resulting from the violation, then the violation is serious.

The evidence in this case establishes that the violation was serious. The excavation adjacent to the road over which mobile equipment moved, was not provided with stop logs to prevent accidental slips, or falls of the mobile equipment into the excavation in which employees were working or could reasonably be expected to work. If such an accident occurred, and mobile equipment fell into the excavation, any employee therein would probably suffer death or serious physical harm if struck by the equipment.

Respondent knew or with the exercise of reasonable diligence should have known of the serious hazard created by the violation. Respondent was responsible for the serious violation not only as to its own employees but as to the employees of subcontractors whose work placed them in, or gave them access to, the danger zone. Brennan v. O.S.H.R.C. [*10] & Underhill Construction Co., 513 F.2d 1032 (2nd Cir. 1975).

The gravity of the violation under all the circumstances of this case, is low. There was only one employee of the concrete subcontractor standing on the concrete cap installed in the excavation at the time of the inspection. There is no evidence as to whether or not this employee was working there to assist in the drainage of the excavation or for some reason unconnected with his work. Respondent's one employee, the laborer, was not in the excavation and his work did not require him to be in this or any other excavation. The road was a solid macadam road, and there is no evidence of mobile equipment, other than he front end loader, that might use the road adjacent to the excavation. The front end loader was at the excavation at the time of inspection to assist respondent's laborer in draining the excavation of rain water which accumulated there after a heavy weekend of rain.

For the above reasons considered with respondent's size, good faith and lack of prior history, the $500.00 proposed penalty is unreasonable and will be reduced to $100.00.

Although the citation and complaint speaks of excavations, the only [*11] evidence of a violation of the standard herein involved the excavation shown and marked at "E" in exhibit C-2. There is another excavation shown in the lower left hand portion of exhibit C-2 but other than its mention by the compliance officer and the fact that no one was working in it, the record is barren (T. 66).

FINDINGS OF FACT

The credible evidence and the record as a whole establishes preponderant proof of the following specific findings of fact:

1. Respondent, James M. Inman Construction Corp., is in the construction business and maintains an office and place of business at 14 West 40th Street, New York, New York.

2. On September 22, 1975, respondent was the general contractor at a construction site located on Hackensack Avenue, Hackensack, New Jersey, where a Sak's 5th Avenue department store was to be constructed.

3. On September 22, 1975, respondent had two employees at construction site, its construction superintendent, Mr. John Floran, and a laborer, Mr. Salvatore Riccotta.

4. At the construction site was an excavation seven feet deep, ten feet wide and ten feet long. The excavation was dug by respondent's backhoe machine prior to September 22, 1975.

5. [*12] Adjacent to the excavation was a muddy macadam road over which mobile equipment could and did pass.

6. On September 22, 1975, there were no stop logs or barricades installed on the road adjacent to the excavation as required by 29 CFR 1926.651(s).

7. Respondent admits it was responsible for installing stop logs or barricades adjacent to the road side of the excavation, and admits it was in violation of 29 CFR 1926.651(s).

8. On September 22, 1975, a Pettibone front loader was on the road adjacent to the excavation assisting respondent's laborer in creating a sump pit to remove rain water that had accumulated in the excavation.

9. Respondent's laborer was outside the excavation and was engaged in the process of installing a drainage hose into the excavation.

10. In the excavation standing on a concrete cap 3-1/2 feet from the bottom of the excavation and three feet from the edge of the excavation facing the road, was an employee of a concrete subcontractor. There is no evidence of what, if any, construction work this employee was engaged in.

11. The lack of stop gaps at the excavation exposed the employee in the excavation and others who may have had access to it, [*13] to the danger of death or serious physical harm if the front end loader or any other mobile equipment using the road, accidentally slipped, slided or fell into the unbarricaded excavation.

12. The violation was serious and respondent knew, or with the exercise of reasonable diligence should have known of the serious hazard that existed at the excavation.

13. The violation was immediately corrected by respondent.

CONCLUSIONS OF LAW

1. Respondent is, and at all times material herein was, engaged in a business affecting commerce within the meaning of section 3(5) of the Act (29 U.S.C. 652(5)).

2. The Occupational Safety and Health Review Commission has jurisdiction over the subject matter and parties to this action.

3. On September 22, 1975, respondent was in serious violation of 29 CFR 1926.651(s) for its failure to provide stop logs on the road at, or adjacent to, an excavation at its worksite to protect employees who were working in or had access to the excavation.

4. Under all the circumstances of this case with due consideration to the statutory factors of section 17(j) of the Act, including the low gravity of the violation, the proposed penalty of $500.00 is [*14] unreasonable and will be reduced to $100.00.

ORDER

Due deliberation having been had on the whole record, it is hereby

ORDERED that the citation for a serious violation of 29 CFR 1926.651(s) is affirmed, it is further

ORDERED that the proposed penalty of $500.00 is reduced to $100.00, and as reduced, is affirmed.

JEROME C. DITORE, JUDGE, OSAHRC

Dated: April 29, 1976

New York, New York