HOFFMAN ELECTRIC COMPANY

OSHRC Docket No. 2039

Occupational Safety and Health Review Commission

May 3, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge George W. Otto, dated September 29, 1973, is before this Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590).

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.

[The Judge's decision referred to herein follows]

OTTO, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. hereafter called the Act) contesting a Citation issued under the authority vested in Complainant by Section 9(a) of the Act. The Respondent is charged with violation of Section 5(a)(2) of the Act by failure to comply with occupational safety and health standards 29 C.F.R. 1926.500(b) and 29 C.F.R. 1926.500(d) and proposed penalties of $25 and $35, respectively. The hearing was held in Minneapolis, Minnesota, on July 12, 1973.

Based upon the oral and documentary evidence and upon the entire record, [*2] the undersigned judge makes the following

FINDINGS OF FACT

1. Respondent corporation, Hoffman Electric Company, is located in Minneapolis, Minnesota, employs approximately 100 employees with annual dollar volume of two and one-half to three million dollars.

2. On and before November 28, 1972, Respondent maintained a workplace in Bloomington, Minnesota, with five to eight employees engaged in electrical construction (Complaint, Answer, Tr. 73).

3. Following inspection on November 28, 1972, a Citation was issued December 29, 1972, charging Respondent with violation of Section 5(a)(2) of the Act and of two occupational safety and health standards, 29 C.F.R. 1926.500(b) and 29 C.F.R. 1926.500(d). On December 29 a Notification of Proposed Penalty covering both items was issued in the respective amounts of $25 and $35. The Citation issued fixed an abatement date of "immediately upon receipt of Citation" for each item.

4. A floor opening used by Respondent employees was not guarded by a standard railing and toeboards or cover (Tr. 17, 22, 23, 24, 25, 26, 27, 28, Secy. Exhibit 5).

5. The building workplace contained open-sided floors 6 feet or more above adjacent floor [*3] or ground level which were not guarded by a standard railing or the equivalent on all open sides (Tr. 20, 22, 29, 51, Secy. Exhibit 6, 7, 8). Railings had been removed from the window installation areas, although not by Respondent (Tr. 66).

6. There were three elevator shaft openings, one in each building, with ladderways used by Respondent employees to reach the work site (Tr. 26).

7. Materials were lifted to the level needed using the outside of the building.

8. The Respondent did not control the building work site (Tr. 64).

9. The failure to guard the floor opening considered in terms of proximity and use by Respondent employees did not create a substantial probability that death or serious physical harm could result.

10. Although there was some exposure, there was not a substantial probability that death or serious physical harm could result to Respondent employees from their work activity in the area of the unguarded opensided floors.

11. Standards 29 C.F.R. 1926.500(b)(1) and 29 C.F.R. 1926.500(d)(1) were duly promulgated prior to November 28, 1972, 36 Federal Register 7340 and 25232.

DISCUSSION

The Respondent was not in control of the building, but [*4] this is immaterial. An employer who exposes his employees to hazards, subjects himself to enforcement of the Act regardless of who created those hazards. In Charles S. Powell, Docket No. 1971, the Respondent failed to provide standard railings and toeboards for stairwell openings, but as a subcontractor he was responsible for these hazards which were not created by him and which were not under his direct control. The violations which included 1926.500(b)(1) and penalties of $55 were confirmed.

Although there was testimony regarding several openings, it appears that Respondent employees used only the elevator shaft opening going from floor to floor. The work in the immediate area of the opening appears to have been performed before or at the time the concrete floor was being poured.

With open-sided floors there was more exposure and a greater potential for injury considering the moving of materials using the outside of the building, but it appears that there was not a substantial probability that death or serious physical harm could result from the condition that existed.

The penalties are appropriate for the violations found, the amounts proposed are within the [*5] authority of the Area Director, Compliance Operations Manual, Chapters 3 and 11, and there is no necessity to exercise commission authority under Section 17(j).

CONCLUSIONS OF LAW

1. At all times relevant, Respondent was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.

2. Respondent furnished employment to its employees within said business at a workplace located at 1321 East 78th Street, Bloomington, Minnesota.

3. Occupational safety and health standards 29 C.F.R. 1926.500(b)(1) and (d)(1) were duly promulgated and in full force and effect on and before November 28, 1972.

4. Respondent violated Section 5(a)(2) of the Act and occupational safety and health standard 29 C.F.R. 1926.500(b)(1), and such violation is specifically determined not to be of a serious nature within the meaning of Section 17(c) of the Act. The cited abatement date and penalty of $25 are reasonable, with due consideration given to the size of the business, gravity of the violation, good faith and lack of history of previous violations.

5. Respondent violated Section 5(a)(2) of the Act and occupational safety and health standard 29 C.F.R. 1926.500(d)(1), [*6] and such violation is specifically determined not to be of a serious nature within the meaning of Section 17(c) of the Act. The abatement date and penalty of $35 for such violation are reasonable, due consideration having been given to the size of the business, gravity of the violation, good faith and lack of history of previous violations.

Now therefore the following

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law and the record as a whole, it is hereby ordered that Complainant's Citation for violation of 29 C.F.R. 1926.500(b)(1) and 29 C.F.R. 1926.500(d)(1) and the Notification of Proposed Penalty in the respective sums of $25 and $35 issued December 29, 1972, be and the same are hereby affirmed.