OSHRC Docket No. 15316

Occupational Safety and Health Review Commission

April 18, 1977


Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  


Harold Engel, Regional Solicitor, U.S. Department of Labor

Dante J. Macario, Anthony Izzo Co., Inc., for employer



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.   Leone    [*2]   Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.  



MORAN, Commissioner, Concurring:

I would affirm the Judge's decision for the reason 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.



Mark J. Lerner, for the complainant

Mr. Dante J. Macario, Construction Manager for Anthony Izzo Co., Inc., for the respondent

CAPPS, Judge:

Statement of the Case

This is a proceeding brought under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.) (hereinafter referred to as the Act) upon Respondent's contest of Citation No. 1 for non-serious violations, Citation No. 2 for a serious violations, and a Notification of Proposed Penalty in the total amount of $655 which were issued to Respondent on September 15, 1975.

A hearing in this matter was held before me on January 22,   [*3]   1976, in Washington, D.C., at which time Respondent was only contesting Citation No. 2 wherein it is alleged to be in serious violation of 29 C.F.R. 1926.451(d)(10) which requires that all tubular welded frame scaffolds that are at least 10 feet above the ground or floor must have guardrails, mid-rails, and toeboards at all open sides and ends.   Respondent is also contesting the proposed penalty of $600 in connection with said violation.

Based upon the entire record herein, including the stipulations of fact by the parties and admissions made in response to request for same, and from my observations of the witnesses and their demeanor, I make the following Findings of Fact and Conclusions of Law.

Findings of Fact

Respondent, Anthony Izzo Co., Inc., is a corporation engaged in masonry contracting.   Its principal office and place of business is in Bethesda, Maryland.   On August 26, 1975, Respondent maintained a workplace at 1000 Wisconsin Avenue, N.W., Washington, D.C., and in the operation of its business at that location it used materials from places outside the District of Columbia.   On said date Respondent employed approximately 176 employees.

On August 26, 1975, there was [*4]   an inspection of Respondent's aforesaid jobsite by an OSHA Compliance Officer.   At that time there existed on the jobsite the two tubular welded frame scaffolds referred to in Citation No. 2.   One was on the north side of the middle commercial level and the other was on the south side of the middle commercial level (hereinafter referred to as the "north scaffold" and the "south scaffold," respectively).   The distance between them was 50-75 feet. Both scaffolds stood on a concrete surface and both were equipped with two scaffolding boards.

The uncontradicted testimony of the Compliance Officer and/or of the union representative who accompanied him on the walk-around inspection, clearly establishes that several Izzo employees were working on both the north and south scaffolds under the direction and supervision of one of Respondent's deputy foremen, Anthony Sampogna.   Persons specifically identified by name as Izzo employees were Roberts on the north scaffold platform and Carter on the south scaffold platform. The platform where the said employees were working was 15 feet high on the north scaffold and 19 feet high on the south scaffold. Both scaffolds were open-sided, and neither [*5]   of them had a guardrail, mid-rail, or toeboard, or any equivalent protection against falls to the concrete deck below.

During the inspection a few of Respondent's employees were working below the scaffolds cleaning the area of brick, mortar, and other debris that had fallen from the scaffolds.

Respondent's employees who were working on the unguarded open scaffolds were exposed to the hazard of falling either 15 feet or 19 feet to the concrete deck below.   The absence of toeboards on the scaffold platforms exposed those employees working in the area beneath the scaffolds to the hazard of being struck by a brick (which weighs anywhere from five to eight pounds) or other objects and debris falling off the edge of the platforms. There is a substantial probability that the consequences of such accidents would be death or serious physical harm.

By written stipulation prior to hearing Respondent admitted that it violated all seven of the cited safety standards alleged in Citation No. 1, all of which are characterized therein as non-serious, and agreed that the proposed penalty for Items 5 and 6 of said Citation in the total amount of $55 was appropriate.   There were no penalties proposed [*6]   for the other five items.

The proposed penalty of $600 with respect to the serious violation alleged in Citation No. 2 was arrived at after deducting a 40% (20% each for good faith and history) adjustment credit ($400) from the starting figure of $1,000 for a serious violation.

Conclusions of Law

1.   Respondent was at all times material hereto an employer engaged in a business affecting commerce as defined by Sections 3(3) and 3(5) of the Act, and had employees as defined by Section 3(6) of the Act, and was subject to the requirements of the Act and the regulations promulgated thereunder.

2.   On August 26, 1975, Respondent was in violation of those standards found at 29 C.F.R. 1903.2(a), 29 C.F.R. 1926.151(b)(2), 29 C.F.R. 1926.401(j)(1), 29 C.F.R. 1926.402(a)(8), 29 C.F.R. 1926. 450(a)(9), 29 C.F.R. 1926.450(a)(10), and 29 C.F.R. 1926.451(a)(2).

3.   On August 26, 1975, Respondent was in violation of the standard found at 29 C.F.R. 1926.451(d)(10).

4.   Respondent's violation of 29 C.F.R. 1926.451(d)(10) was serious within the meaning of section 17(k) of the Act in that there was a substantial probability that death or serious physical harm could result from the violative [*7]   conditions.   The "knowledge" requirement of section 17(k) has been met because knowledge of the existence of the hazard by the deputy foreman who supervised the employees on the unguarded scaffolds is imputable to Respondent.  

5.   The proposed penalty of $55 for the non-serious violations of 29 C.F.R. 1926.450(a)(9) and (10) and the proposed penalty of $600 for the serious violation of 29 C.F.R. 1926.451(d)(10) are appropriate and in accord with section 17(j) of the Act.

Upon consideration of the foregoing findings of fact and conclusions of law, it is


1.   That the Citations and Notification of Proposed Penalty issued to Respondent on September 15, 1975, are affirmed.

2.   A civil penalty of $655 is assessed against Respondent.


Dated: April 29, 1976

Hyattsville, Maryland