D. FORTUNATO, INC.

OSHRC Docket No. 2114

Occupational Safety and Health Review Commission

December 6, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINION:

By The Commission: This matter is before the Commission for review of a November 7, 1973, decision of Judge Donald K. Duvall pursuant to 29 U.S.C. 661(i). At issue is whether the issuance under 29 U.S.C. 659(b) of a notice of a failure to correct a prior violation was invalid because the reinspection upon which it was based was prematurely conducted. For the reasons stated in Secretary v. Kesler and Sons Construction Company, 9 OSAHRC 1033 (1974), appeal docketed No. 74-1518, 10th Cir., September 5, 1974, we hold that the reinspection was premature.

Accordingly, the decision below is reversed, and the notice of failure to correct the prior violation and the additional penalty of $1,000.00 assessed therefor are vacated.

Commissioner Cleary dissents for the reasons given in his dissenting opinion in Kesler.

[The Judge's decision referred to herein follows]

DUVALL, JUDGE: This case was originally assigned to Judge Leon J. Moran who conducted a hearing of the cause in New York, New York, on April 25, 1973. As Judge Moran retired on June 30, 1973, before promulgating a decision in this case, the case [*2] was reassigned to me on July 12, 1973. On July 17, 1973, I advised the parties in writing of this reassignment of the case and of my intention to decide the case on the record before me unless by August 1, 1973, I received any objecting in writing from the parties, and subject to my review of the applicable law. No such objections having been received, and on the basis of my consideration of all the evidence of record, I make the following:

FINDINGS OF FACT

1. At all times pertinent hereto, Respondent, a New York corporation with employees and an office in Floral Park, New York, was engaged in a construction business which used materials, equipment and supplies produced outside the State of New York (Complaint, Case File item 5).

2. On November 21, 1972, Complainant conducted an inspection of Respondent's workplace, a construction site, at New York Avenue and Prospect Place, Brooklyn, New York, and at that time the compliance officer indicated to Respondent that the scaffolds in use lacked guard rails around the sides and ends which were required under the construction standards, a copy of which, together with a copy of the Act were given to Respondent at that time [*3] (Complaint, Tr. 10, 65-78, 113-114).

3. Said inspection resulted in Complainant's issuance to Respondent on December 4, 1972, a Citation for non-serious violation of 11 occupational safety and health standards under Section 5(a)(2) of the Act and a notification of proposed penalty (Respondent's Answer, Case File item 7; Tr. 62).

4. Complainant made reinspection of Respondent's workplace on December 29, 1972, and found abatement of the non-serious violations previously cited but not of the serious violation discussed with Respondent at the time of the first inspection on November 21, 1972, and again on December 29, 1972 (Tr. 53, 82-85).

5. As a result of said reinspection, Complainant issued to Respondent on January 5, 1973, a Citation for serious violation of 29 CFR 1926.451(c)(13) (standard guard rail on scaffolds) under Section 5(a)(2) of the Act and a notification of proposed penalty in the amount of $550.00. Respondent received the proposed penalty on January 10 but not the Citation until January 15, 1973; it did not contest this Citation and paid the proposed penalty of $550.00 by mail on January 21, 1973, which was received by Complainant on January 23, 1973. Said Citation [*4] required abatement of the alleged violation immediately upon receipt of the Citation (Citation for Serious Violation and Proposed Penalty, Case File item 1; Tr. 8-9; 118).

6. Respondent telephoned Complainant's New York Area Director on January 10, 1973, to inquire about the Citation which had not accompanied the proposed penalty received on that date and was informed it releated to scaffolding and would be forthcoming (Tr. 122-123, 129).

7. Complainant made reinspection of Respondent's workplace on January 16, 1973, and then informed Respondent of the continuing serious violation respecting its scaffolds. As a result of this reinspection Complainant issued to Respondent on January 18, 1973, a notification of failure to correct violation (29 CFR 1926.451(c)(13)) and of proposed additional penalty in the amount of $1,000.00 under Section 17(d) of the Act (Complaint, Case File item 5; Notification, Case File item 2; Tr. 85-89).

8. By letter dated January 22, 1973, Respondent contested the proposed additional penalty of $1,000.00 (Notice of Contest, Case File item 3).

9. On the basis of its January 16, 1973, reinspection Complainant issued to Respondent an Imminent [*5] Danger Notice on January 17, 1973, and at that time the compliance officer who delivered the Notice observed no charges from his previous day's reinspection with respect to Respondent's meeting the requirements of the scaffold standard (Tr. 23-25, 89-93). The Imminent Danger Notice was withdrawn by Complainant the same day in accordance with agreement between Respondent and the Director of OSHA's New York Area Office by which Respondent instituted immediate temporary correction measures; to wit, using a one-inch manila line as top rails, accepting the scaffold bracing as mid-rails, and constructing toe boards and wire screening (Tr. 91 103).

DISCUSSION

The sole issues in this case, raised by Respondent's contest of the Notification of Failure to Correct Violation and of Proposed Additional Penalty issued January 18, 1973, are whether on January 16, 1973, Respondent had failed to correct the scaffolding violation (29 CFR 1926.451(c)(13)) contained in Complainant's citation issued January 5, 1973, and received by Respondent on January 15, 1973, and whether the proposed additional penalty of $1,000.00 was appropriate under Section 17(d) and (j) of the Act.

Respecting the [*6] alleged violation, the record indicates that the January 5 Citation was received in the office of Respondent's chief field coordinator (Mr. Flanagan) at 10:00 a.m. on January 15, 1973, but that he took no corrective action until January 16 or 17 because he was not in his office on January 15 (Tr. 125). While Mr. Flanagan testified that corrective action began the afternoon of January 16, (Tr. 130), the compliance officer (Tr. Martucci) testified that he observed that the scaffolds were still not corrected at the time of his reinspection about noon on January 16 and that no changes had been made between that time and 9 a.m. the morning of January 17 when he returned to serve an Imminent Danger Notice on Respondent and observed Respondent's employees working on a cited scaffold which lacked a top rail, mid-rail, toe board and wire screen (Tr. 86-88, 91-93).

Because the record indicates some contradictions, inconsistencies or confusion in Mr. Flanagan's testimony, I am more impressed with the credibility of Mr. Martucci's testimony, particularly since he was the same compliance officer who had conducted the December 29, 1972, reinspection of Respondent's workplace and thus was in a [*7] good position to observe any changes in the alleged violation. For example, Mr. Flanagan at first admitted that in his phone call to the OSHA New York Area Director (Mr. Di Archangel) on January 10, 1973, he had been informed that the forthcoming Citation related to the scaffolding (Tr. 123), but later he stated that he was not told at that time what the problem was (Tr. 129). Mr. Flanagan was also unsure whether his conversations with Mr. Di Archangel concerning correction of the serious violations occurred on January 16 or 17 (Tr. 123).

Respondent also contests the alleged violation and additional penalty on the ground that the actions of Complainant's agents misled Respondent in two respects. First, by issuing the Citation for serious violation almost two months after the initial inspection (November 21) and over a month after issuance of the non-serious violation (December 4), Respondent reasonably assumed that the serious violation had been reconsidered and abandoned by Complainant (Tr. 34-35). Secondly, that the discussion and agreement reached between Mr. Flanagan and Area Director Di Archangel respecting withdrawal of the Imminent Danger Notice on January 17, [*8] and immediate temporary corrective action, and Respondent's right to contest led Respondent to believe that he had complied with OSHA requirements (Tr. 33-34).

I cannot agree with Respondent's contentions based on the evidence or record, which clearly shows that the existence of the serious violation was brought to Respondent's attention in person on November 21, and December 29, by phone on January 10, and by mail on January 15. The facts that the December 4 Citation did not contain the serious violation and that, due to extensive reviews (Tr. 15-17), the serious violation was not issued until January could hardly have misled Respondent, particularly since he did not contest the January 5 Citation even when it was finally received (slow mail) on January 15. Also, the testimony of Area Director Di Archangel does not support Respondent's contention that their conversation and agreement respecting the Imminent Danger Notice occurred on January 16 rather than January 17 (Tr. 26, 41-44). In any event, that agreement related essentially to the conditions for withdrawal of that Notice and apparently did not preclude Complainant, as a matter of law or equity, from issuing its January [*9] 18 Citation for failure to correct violation (Tr. 29-30).

Respondent's arguments cannot be sustained even if they are construed as claiming a violation of Section 9(a) of the Act for Complainant's failure to issue the Citation for serious violation with reasonable promptness. Such arguments were waived by Respondent when it did not contest the serious violation Citation, which is deemed a final order of the Commission not subject to review by any court or agency (Tr. 9; Section 10(a), Act). The Notification of Failure to Correct Violation and of Proposed Additional Penalty, which was contested, was issued on January 18, 1973, two days after the January 16 reinspection upon which the Notification was based.

While it does appear that Respondent did not fully understand that it was subject to additional citations even during the 15 day period of time it had to contest the January 5 Citation, which required immediate abatement, such misunderstanding is not attributable to Complainant and could have been clarified earlier by Respondent had it sought further clarification from Complainant (Tr. 33, 46-49).

Respondent also asserts that its employees, at least on November 21, [*10] were in the process of dismantling a cited scaffold and therefore was unfairly cited (Tr. 44, 71, 78), but compliance officer Bynoe, who made the inspection on November 21, indicated that while that was a possibility, there were other unguarded scaffolds at the worksite which had been used during that day (Tr. 71, 78). In any event, the January 5, Citation of this serious violation is deemed a final order of the Commission under Section 10(a) of the Act by reason of Respondent's failure to contest that Citation. The dismantling or removal of scaffolding argument was not asserted with respect to the January 18 Citation which was principally based on the condition of the scaffolding on January 16.

A difference of opinion between Mr. Flanagan and Complainant's representatives respecting the existence of a hazardous condition as cited in the serious violation runs throughout this record. As late as January 22, Respondent was still asserting its opinion, as well as asserting that after conversations with Mr. Di Archangel's office on January 16, 1973, it took remedial action "immediately," confirming said conversations by letter dated January 17 (Case File items 3 & 7, Respondent's [*11] letter to OSHA dated February 15, 1973, and letter to Commission dated February 15, 1973).

In Mr. Flanagan's mind, the difference of opinion as to the hazard related primarily to the "intermediate level scaffolding where cross bracing was acting as a guard rail," whereas Complainant claims the serious violation involved all elements of the cited standard -- requiring top and mid-rails, to boards, and wire mesh screen (Respondent's letter to Commission dated February 15, 1973, Case File item 7; Tr. 86). Furthermore, Respondent's letter to OSHA dated January 17, 1973 (Case File item 7, exhibit 5) indicates that Respondent's corrective action began "immediately" on that date and not on January 16, as contended by Mr. Flanagan.

The question remains whether the $1000.00 additional penalty is appropriate under all the circumstances of this case. The additional penalty was computed in accordance with Complainant's Compliance Operation's Manual Tr. 29). Chapter XI B.d. of that Manual states in part that where a follow-up inspection discloses that an employer has failed to abate a violation within the period specified in the Citation, the 15 working days allowed for contest has not yet [*12] expired, and the employer has not yet exercised his appeal rights, "proposed penalties for failure to abate will be assessed against the employer in accordance with the procedures outlined in paragraph B.8.c.(c) of this Chapter -- subject to cancellation if the employer subsequently files a notice of intention to contest."

Chapter XI B.8.c.(1) provides in part that under the circumstances where the employer does not contest the proposed penalty containing the abatement date requirement (this case as of January 16, 1973) "the number of days not abated will begin on the day following the calendar abatement date specified in the Citation and end on the date of inspection." Since the serious Citation here specified immediate abatement upon receipt of the Citation and Respondent received said citation the morning of January 15, January 16 would be both the day following the calendar abatement date specified in the Citation and the date of inspection (reinspection) in this case. The proposed additional penalty here relates to that one day, January 16, and thus is in accord with the OSHA guidelines. The fact that Mr. Flanagan, Respondent's chief field coordinator and safety officer, [*13] was apparently not personally aware of the Citation for serious violation until he came to his office on January 16 does not, absent any showing of special or extenuating circumstances, vitiate the command of the Citation that the alleged serious violation be corrected "immediately upon receipt of this Citation." The normal and intended meaning of such language is that abatement occur at once or, as Complainant suggests, within an hour (Tr. 22-23), depending upon the hour of the day when received. Here the Citation was received by Respondent about 10 a.m. in the morning, so that prompt abatement that day was feasible and required, consistent with the provision of Section 9(a) of the Act that "the citation shall fix a reasonable time for the abatement of the violation."

The additional proposed penalty here was computed in accordance with the OSHA Form 11, which does not take into account the penalty adjustment factors which were considered in proposing the $550 penalty in the initial serious violation Citation which became a final order of the Commission (Tr. 28-29, 50, 76; OSHA Compliance Operations Manual, Chapter XII-86). Respondent apparently takes the position that under the [*14] circumstances of this case, including the delayed issuance and receipt of the January 5 Citation, the difference of opinion respecting the seriousness of the violation, and the prior payment of $550 in penalty, assessment of an additional $1,000.00 penalty would be too severe and inappropriate. I cannot agree.

Respondent had more than adequate notice of the alleged serious violation respecting its scaffolds; the violation was clear and stated with particularity. While Respondent was credited with a 45% reduction of the initial serious violation on the basis of the company's size, good faith, and history of previous violations, such factors were appropriately not considered in computing the additional proposed penalty in view of Respondent's failure, perhaps due to the misjudgment of its chief safety officer, to correct a truly serious hazard with sufficient immediacy, as reasonably required to Complainant, acting through his area director. The fact that the violation was substantially corrected on January 17, the day before the January 18 Citation and additional proposed penalty was issued, does not vitiate the continuing violation on January 16, as shown on this record, [*15] and the duty of Complainant, through reasonable exercise of his powers under the Act, to enforce the Act rigorously.

Considering the gravity of the violation, the relatively large size of Respondent (162 out of 400 companies in the industry; net worth of $40-$50 million) and its generally good safety record (no fatalities in 20 years and few serious accidents, two previous violations) (Tr. 3-4, 118-119), I cannot find as a matter of law that the additional proposed penalty of $1,000.00 is inconsistent with the purpose of the Act under all the circumstances of this case. A recent statement in another Commission case seems apt here:

Respondent should understand that the goal of Congress in passing the Act was to assure so far as possible every working man and woman in the Nation safe and healthful working conditions. . . If this goal is to be schieved the standards must be applied at all times wherever Respondent's employees are working -- not just when it is convenient for Respondent, or when construction is complete. . . Thus Respondent should always comply. Presumably he is more aware of the need for compliance as a result of this proceeding." Secretary of Labor v. Holland [*16] Construction Company;

CONCLUSIONS OF LAW

1. Respondent was and is at all times material hereto an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.

2. Respondent was and is at all times material hereto subject to the requirements of the Act and the jurisdiction of the Commission.

3. On January 16, 1973, Respondent was in violation of Sections 5(a)(2) and 9(a) of the Act for failing to abate a serious violation of the occupational safety and health standard cited at 29 CFR 1926.451(a)(13), as adopted by 29 CFR 1910.12.

4. The proposed additional penalty in the total amount of $1,000.00 for failure to abate the aforestated serious violation is appropriate and consistent with Sections 17(d) and (j) of the Act.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law and the record as a whole, it is hereby ORDERED, that the Notification of Failure to Correct Violation and of Proposed Additional Penalty, issued January 18, 1973, is affirmed.