WILEY N. JACKSON COMPANY AND MOORE BROTHERS COMPANY, INC., A JOINT VENTURE, d/b/a MOJAC COMPANY

OSHRC Docket No. 1602

Occupational Safety and Health Review Commission

November 6, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge David H. Harris, dated April 6, 1973, is before this Commission for review pursuant to 29 U.S.C. 661(i).

Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, the Judge's decision is hereby affirmed in all respects.

CONCURBY: VAN NAMEE (In Part)

DISSENTBY: VAN NAMEE (In Part)

DISSENT:

VAN NAMEE, COMMISSIONER, concurring in part and dissenting in part: I concur in the majority's affirmance of Judge Harris' finding of a violation in this matter. However, I must dissent from its affirmance of the trial Judge's assessment of a $650 civil penalty for the following reasons.

Respondent, a joint venture comprising the Wiley N. Jackson Company and the Moore Brothers Company, was engaged in road and bridge construction work at the juncture of Glebe Road and Interstate 95 (I-95) in Arlington, Virginia. At approximately 10:00 a.m. on September 13, 1972, one of Respondent's trucks struck and killed one of Respondent's employees while backing up on Glebe Road. The deceased had been acting as a flagman. He had been directing [*2] Glebe Road traffic around a scaffold upon which some of Respondent's employees were engaged in painting the I-95 overpass. The parties stipulated that the deceased was not wearing a red or orange colored warning vest at the time of the accident; that another of Respondent's flagman at the site was wearing an appropriate warning vest; and that Respondent's Project Manager had previously reprimanded the deceased for failing to wear such garment.

On these facts Respondent was cited initially for a serious violation of the standard published at 29 C.F.R. 1926.201(a)(4). The standard provides in pertinent part:

Flagmen shall be provided with and shall wear a red or orange garment while flagging.

A penalty of $650 was proposed. Complainant thereafter moved to reduce the allegation to non-serious, and the motion was granted. No amendment was offered as to the amount of the proposed penalty. Judge Harris concluded that the violation exposed the flagman and the painters on the scaffold to injury, and for that reason assessed the proposed penalty. I believe the Judge misconstrued the intent of the cited standard and thereby overestimated the gravity of the violation.

The [*3] cited standard must be read in conjunction with 29 C.F.R. 1926.201(a)(1) which provides:

When operations are such that signs, signals, and barricades do not provide the necessary protection on or adjacent to a highway or street, flagman or other appropriate traffic controls shall be provided.

Clearly, the thrust of the quoted standard is to provide for the protection of employees around which a flagman is directing traffic. In this case, the painters were so protected by the deceased flagman. It will be noticed that the standard does not require the use of a flagman since it permits the use of "other appropriate traffic controls" in the event that "signs, signals and barricades" are insufficient.

Obviously, the cited standard has application only when an employer elects to comply with the requirements of subparagraph (a)(1) by using a flagman. Subparagraph (a)(4) comes into operation only if the employer elects to use a flagman. It requires the flagman to wear a red or orange garment. Clearly, the thrust of this standard is to increase the flagman's visibility to traffic for his own protection. It may be that by rendering the flagman more visible painters such as Respondent's [*4] receive an incidental extra measure of protection. But such extra measure does not make the employees exposed to the hazard for which the cited standard was intended. Accordingly, I agree with the Secretary's original estimation as stated in paragraph IV(a) of his complaint; only one employee was exposed in this case.

Under all the circumstances, the $650 penalty affirmed by the majority is excessive. Only one employee was exposed and the duration of exposure was brief. Moreover, Respondent had provided warning vests and issued instructions that they be worn. In this regard, I note another of Respondent's flagmen was wearing his vest. Furthermore, it appears that Respondent had an on-going safety program. In the circumstances I conclude that the violation was of low gravity and that Respondent acted in good faith. I also note that Respondent's business is of small to medium size and that it has no history of previous violations. In view of the above factors, a civil penalty of $100 should have been assessed by the Commission in this case.

[The Judge's decision referred to herein follows]

HARRIS, JUDGE: This is an action under Section 10(c) of the Occupational [*5] Safety and Health Act of 1970, 29 U.S.C. 651, et seq. (hereinafter the Act), to review an action commenced by a citation issued by the Secretary of Labor (hereinafter Complainant) pursuant to Section 9(a) of the Act and a notice of proposed penalty thereon issued pursuant to Section 10(a) of the Act. The citation and the notice of proposed penalty were issued against Mojac Company, a joint venture of Wiley N. Jackson Company and Moore Brothers Company, Incorporated, both corporations, (hereinafter Respondent), on October 10, 1972.

The citation (P-1) charges that, at a workplace located at I-95 and Glebe Road, particularly at I-95 overpass number B-606, Respondent violated the standard at 29 CFR 1926.201(a)(4), in that on or about September 14, 1972, it allowed "the following unsafe conditions to exist: Flagman not wearing a red or orange warning jacket while flagging traffic." The citation demanded immediate abatement. The notice of proposed penalty (P-1) seeks a penalty for the alleged violation in the sum of $650.00.

Respondent by letter dated October 20, 1972, notified Complainant that it intended to "contest the penalty assessed for Citation No. 1 -- 'Serious Violations'" [*6] (P-2).

The complaint, filed November 14, 1972 charges that Respondent "violated a standard set forth at 29 CFR 1926.201(a)(4) in that an employee was allowed to flag traffic without wearing a red or orange warning jacket" (Compl. para. IV(a); citation for serious violation, Item 1).

Respondent's answer, filed November 27, 1972, among other things, admits the facts pleaded in the complaint which concern operations affecting interstate trade and concedes jurisdiction (Ans. II); alleges that the employee involved had been repeatedly reprimanded for violations of "good safety Principles and Procedures" (Ans. IV(2)); that the said employee was actually a subcontractor (Ans. IV(3)); and that the violation charged was a serious one within the meaning of Section 17(k) of the Act (Ans. V). Respondent's formulation of the issues, filed January 9, 1973, admits "that the affected employee was not wearing a red or warning jacket (Issues (1)); and re-iterates the allegation that said employee was "actually a subcontractor . . ." (Issues (4)).

The within matter was referred to the Occupational Safety and Health Review Commission (hereinafter Commission) for hearing pursuant to Section [*7] 10(c) of the Act on October 26, 1972 and assigned to me for trial on January 4, 1973.

Pursuant to notice and by agreement of the parties, a prehearing conference and the hearing were held on January 30, 1973 in Washington, D.C.

A stipulation in writing, executed by the parties hereto on January 29, 1973, was received in evidence as their joint exhibit (P-3).

The citation, the notice of proposed penalty and the notice of contest herein (P-2) were posted at the job office on October 11 or 12, 1972 and remains posted as of January 30, 1973 (Tr. 12). No employee was present or requested the right to participate in the hearing (Tr. 11).

Complainant moved to amend the complaint to substitute Moore Brothers Company, Incorporated in the place and instead of Morris Brothers Company, Incorporated, as a member of the Joint Venture herein (Tr. 4). There being no objection thereto, the said motion was granted. Complainant also moved to strike paragraph V from his complaint stating that he had no intention of establishing that the violation was a serious one within the meaning of Section 17(k) of the Act and that he lacked sufficient information and therefore did not intend to offer evidence [*8] as to the gravity of the offense (Tr. 5-7). There being no objection thereto, paragraph V of the complaint was ordered struck.

Among other things, it was stipulated by the parties hereto that Respondent was engaged on various construction projects on and about Interstate 95 (hereinafter I-95) an interstate highway, and was engaged in a business affecting commerce within the meaning of Section 3 of the Act; that during its past fiscal year it employed an average of 125 persons daily and its dollar volume was approximately $9 million; that at or about the time of the charged offense it employed about 85 persons at the junction of I-95 and Glebe Road, in Arlington, Virginia; that on the morning of September 13, 1972, a crew of painters, using a scaffold, had begun painting the north abutment on a bridge crossing Glebe Road; that at the same time, employees of Respondent, pursuant to instructions, backed trucks loaded with excavated material in an easterly direction on the westbound lane of Glebe Road so that the trucks could proceed up a ramp to I-95 and that this maneuver required the trucks to back around the painters' scaffold; that Respondent had stationed a flagman, wearing [*9] a red or orange reflectorized vest, on the east side of the bridge over said Glebe Road at a spot marked "x" on "Joint Exhibit No. 3" (P-4(a) and its enlargement P-4(b)), who was halting and directing traffic on Glebe Road to avoid the trucks and the said painters scaffold; that at about 10:00 a.m. of said September 13, 1972, one Messinezis, a painter, was acting as a flagman to direct traffic around "his crew" and that Messinezis was not wearing a red or orange warning jacket; that Messinezis had been observed by Respondent's Project-Manager on previous days flagging traffic while not wearing a red or orange vest, and had been reprimanded by him for so doing; that Respondent provided red or orange reflectorized vests to be used for flagging operations; that a truck backing around the painters' scaffold struck and killed Messinezis while backing; that the operator of the truck made an observation in his left and right rear-view mirrors before backing and did not see Messinezis; that moments before the occurrence Respondent's flagman on the bridge over Glebe Road, had seen Messinezis facing eastward with his back to the truck (P-3).

After hearing the testimony of the witnesses and [*10] having considered the same together with the exhibits and the stipulations, representations and admissions of the parties, it is concluded that the substantial evidence, on the record considered as a whole, supports the following findings of fact and conclusions of law.

The standard involved herein, 29 C.F.R. 1926.201(a)(4), provides:

Flagmen shall be provided with and shall wear a red or orange garment while flagging.

The parties have agreed that the offense alleged does not fit the statutory description of a serious violation and the Respondent has conceded that the man acting as a flagman at the base of the painters' scaffold was its employee and was not wearing a red or orange garment while so engaged. These facts constitute a violation of the standard as alleged in the citation herein. There remains but to determine whether the amount proposed by the Complainant, the sum of $650.00, is, under the circumstances of this case, an appropriate penalty and should be assessed against Respondent.

The record is silent as to the number of men in Messinezis' crew who were atop the scaffold engaged in painting the north abutment of the bridge over Glebe Road, although all [*11] references to them is in the plural (Tr.16; 34; 37; 49; P-3, II(d), (g)).

Exhibit P-5, a photograph taken on the day following the occurrence of the fatal accident to Messinezis and admittedly contrived or staged (Tr.42), which was received as a joint exhibit (Tr.41) for the purpose of approximating the distance between the truck being loaded and the painters' scaffold (Tr. 42), includes a portion of the said scaffold. This photograph indicates that the scaffold was constructed of tubular members and was wheeled, apparently so that it could more easily be moved underneath the bridge. The scaffold was about 15 to 16 feet above the roadway (Tr.37). Exhibit P-5 also speaks to the fact that each loaded truck was required to back sharply to the driver's right to avoid the scaffold leg-members positioned in the roadway.

The record is also silent as to the number of trucks which were lined up waiting to be loaded and backed to the ramp on I-95 or the frequency of these maneuvers and the number of times during the day that a loaded truck was required to back around the painters' scaffold on the day of the occurrence herein. On the following day, the compliance officer noted [*12] six trucks lined up to receive excavated material at the point shown in Exhibit P-5 (Tr. 39).

The complaint (para. IV(a)) alleges that "One employee was affected by this violation."

I cannot agree. In my view, not only was the deceased flagman affected, if indeed he is the employee referred to, but the "crew" of painters on the wheeled scaffold, in whose behalf the flagging was being done, were placed in jeopardy by the trucks backing around their scaffold. In my opinion, the gravity of this violation, under the circumstances which appear in the record, lies between a very low potential for injury and a severe potential for injury ( Sec. v. Nacirema Operating Company, Inc.,

There was evidence that Respondent carried on periodic safety talks but maintained no formal safety program, as such (Tr. 23; 29). However, it did report the occurrence herein immediately and cooperated fully with the representatives of the Labor Department (Tr.30-31).

The parties have stipulated that Respondent's Project Manager had observed the deceased flagging traffic on previous days while not wearing a red or orange vest and had reprimanded him for that [*13] failure (P-3, para II(h)). It seems to me that Respondent would have better served itself and its employees and more properly have furthered the clear purpose of the Act, had it promptly enforced the wearing of the required vest.

FINDINGS OF FACT

(1) The Respondent, Mojac Company, a joint venture is composed of Wiley N. Jackson Company, a corporation, and Moore Brothers Company, Incorporated, a corporation with its principal office and place of business located at Box 6252, Shirlington Station, Arlington, Virginia, and at all times material hereto was engaged in the business of road and bridge construction affecting I-95, an interstate highway.

(2) Respondent employs a number of employees on various construction projects, including approximately 85 employees at I-95 overpass and Glebe Road in Arlington, Virginia.

(3) In the course of its business operations in the past fiscal year, respondent employed an average of 125 employees and had an annual dollar volume of business of approximately $9,000,000.

(4) On the morning of September 13, 1972, Respondent's employees were painting the south abutment on a bridge for I-95 upon a wheeled scaffold approximately 15 to 16 feet [*14] above the roadway. Simultaneously respondent's employees were taking out excavated material from a spot at the middle of the same bridge and were, pursuant to instructions, backing eastward on the westbound lane of Glebe Road in order to go up a ramp to I-95. This maneuver required that trucks back around the painting scaffold.

(b) At the time and at the site hereinbefore mentioned, Respondent's employee was acting as a flagman to direct traffic around said scaffold. In the course and conduct of this operation, he was not wearing a red or orange warning jacket, or any other type of reflectorized vest.

CONCLUSIONS OF LAW

(1) The respondent is an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Act at all times material hereto and the Commission has jurisdiction of the parties and of the subject matter herein.

(2) On September 13, 1972, respondents violated the standard at 29 C.F.R. 1926.201(a)(4) of the Act (37 F.R. 27520).

(3) The penalty of $650.00 proposed for the violation involved herein is not inappropriate.

Now therefore, in view of the foregoing and having duly considered the gravity of the violation, the good faith of Respondent, [*15] its size, and its history of previous violations and good cause therefore appearing, it is ORDERED THAT:

1. Paragraph V of the complaint herein be and the same is hereby struck and the citation be and the same is hereby amended to conform therewith.

2. The citation, as amended, and the proposed penalty thereon, be and they are hereby affirmed.

3. Respondent be and it is hereby assessed and required to pay a civil penalty in the sum of $650.00.