HULLENKREMER CONSTRUCTION CO., INC.
OSHRC Docket No. 15370
Occupational Safety and Health Review Commission
February 28, 1978
[*1]
Before: CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
William L. Hullenkremer, Pres., Hullenkremer Construction Co., Inc., for the employer
OPINION:
DECISION
BY THE COMMISSION: A decision of Administrative Law Judge Paul L. Brady is before the Commission pursuant to a direction for review by former Commissioner Moran issued under § 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. Judge Brady affirmed a violation of 29 C.F.R. § 1926.451(a)(4) and assessed a penalty of $250. n1
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n1 The Judge also purported to vacate item 2 of the citation, which alleged a violation of 29 C.F.R. § 1926.451(a)(14). Respondent did not, however, contest that item, and it is therefore a final order of the Commission by operation of law. 29 U.S.C. § 659(a). The Judge's order is therefore modified to delete all references to the alleged violation of 29 C.F.R. § 1926.451(a)(14).
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Respondent was the general contractor at a worksite in Van Buren, Ohio, and [*2] had completed the erection of one wall of a school building shortly before the inspection. One of respondent's employees was standing on a scaffold 16 feet above the ground washing down the wall with a hose, brush, and chemical solution to remove excess mortar. A bucket was placed on the scaffold boards, which were approximately five feet wide from front to back. It is undisputed that the scaffold had neither guardrails nor toeboards.
As a result of the inspection, respondent was cited for allegedly violating § 1926.451(a)(4). n2 At the hearing, respondent's president admitted that there was a violation of § 1926.451(a)(4). He stated: ". . . the violation was there. There is no question about that." He defended on the ground that guardrails were normally used but had been removed by a mason because he felt that the handle of the brush could hit the guardrails and knock him off balance. Evidence was adduced that none of respondent's masons had ever been injured.
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n2 The pertinent parts of 29 C.F.R. § 1926.451 provide the following:
§ 1926.451 Scaffolding.
(a) General requirements.
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(4) Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor. . . .
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(14) Scaffold planks shall extend over their end supports not less than 6 inches nor more than 12 inches.
[*3]
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Judge Brady found a violation of § 1926.451(a)(4) based on the evidence adduced at the hearing. He stated that respondent had made no showing that justified the removal of guardrails and assessed the $250 penalty proposed by the Secretary. n3
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n3 Respondent's petition for review consists solely of the following statement: "We request a consideration for a review of the above case." Although the petition for review does not specify the issues respondent wishes to have reviewed, we note that respondent is pro se. Therefore, only one item now being in issue, we are reviewing the Judge's findings and penalty assessment as to that item. See Phillip E. Runyan, d/b/a Chief Metal Products, 77 OSAHRC 184/D4, 5 BNA OSHC 1980, 1977-78 CCH OSHD para. 22,251 (No. 14005, 1977). Also see 43 Fed. Reg. 4604 (1978), where the Commission has recently simplified its Rules of Procedure as to filing of petitions for review in order to assist employers and employees who appear before the Commission without legal counsel.
[*4]
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We have reviewed the Judge's decision and affirm the Judge's finding that respondent violated § 1925.451(a)(4) for the reasons stated in his decision. We think, however, that the $250 penalty assessed by the Judge is too high. After careful consideration of the record and pleadings before us, we reduce the penalty to $100 based on the limited duration of employee exposure to injury, and respondent's good faith as exemplified by its generally safety-conscious attitude and the fact that the guardrails were normally in place, as witnessed by the compliance officer who observed the worksite on four or five occasions prior to the OSHA inspection.
Item 1 of the citation for violation of 29 C.F.R. § 1926.451(a)(4) is affirmed and a $100 penalty is assessed.