CLASTEN VAUGHN, d/b/a VAUGHN ROOFING COMPANY
OSHRC Docket No. 2183
Occupational Safety and Health Review Commission
March 20, 1975
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter presents the issues whether Judge Harold A. Kennedy erred in (1) vacating citations alleging a serious violation n1 of 29 C.F.R. 1926.28(a) and a non-serious violation of 29 C.F.R. 1926.152(a)(1) on the ground that the cited standards are vague; (2) vacating a citation alleging a non-serious violation of 29 C.F.R. 1926.150(c)(1)(viii) on the basis that this charge is not sufficiently particular; and (3) assessing no penalty for a non-serious violation of 29 C.F.R. 1926.552(a)(3)(i).
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n1 Section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") requires employers to comply with safety and health standards issued by the Secretary.
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We have reviewed the record and adopt the judge's decision to the extent it is consistent herewith.
Alleged Serious Violation of 29 C.F.R. 1926.28(a) n2
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n2 This standard presently provides, and at the time of the inspection in this matter provided, that "[t]he employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees."
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Respondent's employees were working as close as 18 inches to the edge of the roof of a building approximately 80 feet in height. The record establishes that safety belts and lanyards were not available at this worksite, and the employees were not otherwise protected against a fall from the roof. One of the employees so exposed was Respondent's job supervisor.
Respondent does not deny the existence of a hazardous condition. Moreover, he testified that he was aware that employees exposed to the hazard of a fall must be protected. Respondent indicated that he provides safety belts and lanyards, but his employees refuse to use them. He defended on the basis that he had no knowledge of the violation. [*3] n3
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n3 Section 17(k) of the Act (29 U.S.C. 666(j)) provides, in pertinent part, that a violation is not serious in nature if the employer did not and could not reasonably know of its presence.
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On this record it is clear that Respondent conceled applicability of the standard. Consequently, the hearing judge erred in deciding otherwise. Moreover, on the facts it is clear the Respondent did not provide safety belts, and they were not used. The standard was breached. Further, we note that Respondent had an on-site supervisor who was also not using a safety belt. Accordingly, Respondent had knowledge of the presence of the violation ( Martin Iron Works, Inc., No. 1690 (Rev. Com'n., January 17, 1975)), and therefore it was serious.
We now turn to the assessment of an appropriate penalty. A fall from a height of 80 feet could easily cause death. The proximity of Respondent's employees to the edge increases the likelihood of a fall. We thus find the gravity of the violation to be high. Considering the remaining [*4] criteria specified in section 17(j) of the Act (19 U.S.C. 666(i)), we concur with the judge's conclusions as to Respondent's size, good faith, and prior history under the Act. On balance we conclude that Complainant's proposed penalty of $600 is appropriate.
Alleged Non-Serious Violation of 29 C.F.R. 1926.152(a)(1) n4
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n4 This standard provides, in pertinent part, as follows:
". . . Approved metal safety cans shall be used for the handling and use of flammable liquids in quantities greater than one gallon. . . . For quantities of one gallon or less, only the original container or approved metal safety cans shall be used for storage, use, and handling of flammable liquids."
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The facts are that Respondent's supply of gasoline used on the worksite was stored in a can of approximately two gallons capacity. The can was not equipped with either a flame arrestor or self-closing spout. The judge vacated saying that the cited standard is vague because it does not define the term "approved." We reverse.
Other regulations, [*5] namely 29 C.F.R. 1926.155(a) and 1926.155(1), specifically define the terms "approved" and "safety can." n5 As we have since held, other regulations may be used to impart meaning to standards employing broad terms. Modern Automotive Service, Inc., Even were we to agree with the judge that the standard cited herein employs broad terms we would have to reverse on the authority of Modern Automotive. But we do not agree with the judge. The definitions set forth in paragraph 1926.155 apply to the entire subpart on fire protection and prevention. Accordingly, the terms as employed in 1926.152(a)(1) have specific meaning, and it was error to vacate on the basis that the standard is vague.
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n5 These standards provide as follows:
"Approved," for the purpose of this subpart, means equipment that has been listed or approved by a nationally recognized testing laboratory such as Factory Mutual Engineering Corp., or Underwriters' Laboratories, Inc., or Federal agencies such as Bureau of Mines, or U.S. Coast Guard, which issue approvals for such equipment."
29 C.F.R. 1926.155(a)
"Safety can" means an approved closed container, of not more than 5 gallons capacity, having a flash-arresting screen, spring closing lid and spout cover and so designed that it will safely relieve internal pressure when subjected to fire exposure.
29 C.F.R. 1926.155(1)
[*6]
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Turning now to the facts, it is apparent that Respondent's can is not a safety can within the above-noted definition. Because it contained a flammable, liquid gasoline, used by Respondent a violation exists and we affirm.
The record is sparse concerning gravity. Complainant proposed no penalty. Considering the other section 17(j) factors as previously discussed, we conclude that no penalty is appropriate.
Alleged Non-Serious Violation of 29 C.F.R. 1926.150(c)(1)(viii) n6
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n6 This standard requires that "[p]ortable fire extinguishers shall be inspected periodically and maintained in accordance with Maintenance and Use of Portable Fire Extinguishers, NFPA No. 10A-1970."
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The citation and complaint asserted that two portable fire extinguishers were discharged, but they did not specify the particular section or sections of the National Fire Protection Association (NFPA) publication of which this condition was alleged to be [*7] violative. Nor did the citation and complaint in any other way inform Respondent of the particular provisions of the NFPA that he supposedly violated. Complainant waited until he began the presentation of his evidence at the hearing, and then said that Respondent was in violation of three specific NFPA provisions. At that time Respondent indicated that he had no prior knowledge of the NFPA provisions. He presented no defense relating to the specific sections alleged by Complainant and he did not rebut Complainant's prima facie case.
It is apparent that the pertinent NFPA sections and the terms thereof constitute a substantive part of Complainant's charge against Respondent. Plainly, by failing to reveal before trial the particular provisions on which he intended to rely Complainant denied Respondent the opportunity to prepare a defense to the specific charges. For example, had Respondent been apprised of the specific sections in issue, he might have raised affirmative defenses to those sections. Moreover, by not knowing the specifics he was deprived of the opportunity to present a meaningful case in rebuttal.
We therefore affirm Judge Kennedy's determination that the citation [*8] is deficient for failure to give Respondent sufficient notice of the charge.
Alleged Non-Serious Violation of 29 C.F.R. 1926.552(a)(3)(i) n7
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n7 29 C.F.R. 1926.552(a)(3) requires that "[w]ire rope shall be removed from service when any of the following conditions exists: (1) In hoisting ropes, six randomly distributed broken wires in one rope lay or three broken wires in one strand in one rope lay."
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Respondent's employees were using a hoist to raise and lower material to and from the roof. One employee was working on the ground below the roof. The wire rope of the hoist was intact before work started but had subsequently been damaged such that two out of its three lays were severed.
On these facts Judge Kennedy correctly found a violation of the cited standard. However, he assessed no penalty therefor. He reasoned that the evidence failed to show the strength of the single lay remaining intact and concluded that the degree of "risk" involved and hence the gravity of the violation could not be determined.
[*9] This conclusion was based on an erroneous reading of our decision in National Realty and Construction Company, Inc., rev'd. on other grounds, 489 F.2d 1257 (D.C. Cir. 1973). We stated therein that a number of factors, including the likelihood of occurrence of an injury, were relevant to deciding the gravity of a violation, but we did not indicate that each factor constituted an essential element of proof. n8
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n8 Judge Kennedy's conclusion to the contrary is also inconsistent with our prior decisions in Baltz Brothers Packing Company, Broadview Construction Company, Tech-Steel, Inc.,
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Moreover, the record establishes [*10] that the hoist rope in question was breaking down from damage while in use on the jobsite. Obviously, the rope could fail entirely while being used. It was possible for a load to fall as much as 80 feet. However, only one employee worked below. Under such circumstances we find the gravity of the violation to be low to moderate. Considering the remaining criteria of section 17(j) as indicated above we assess a penalty of $50.
Accordingly, the citation alleging a serious violation and the citation alleging a non-serious violation of 29 C.F.R. 1926.152(a)(1) are affirmed and penalties of $600 and $0 respectively are assessed therefore, and a penalty of $50 is assessed for the non-serious violation of 29 C.F.R. 1926.552(a)(3)(i). The judge's decision is amended to be consistent herewith and as amended is affirmed. It is so ORDERED.
CONCURBY: CLEARY (In Part); MORAN (In Part)
DISSENTBY: CLEARY (In Part); MORAN (In Part)
DISSENT:
CLEARY, COMMISSIONER, concurring in part and dissenting in part: I agree with the lead opinion's disposition of this case except insofar as it relates to the following two issues:
Issue No. 1: Whether the trial Judge committed reversible error in holding that the standard [*11] at 29 CFR § 1926.152(a)(1) is unenforceably vague?
Issue No. 2: Whether the citation alleging a non-serious violation of the Act for failure to comply with the standard at 29 CFR § 1926.150(c)(1)(viii) should be vacated for not being sufficiently particular?
Issue No. 1
The lead opinion concludes that Judge Kennedy erred in vacating a non-serious citation on the basis that the standard at 29 CFR § 1926.152(a)(1) n9 is vague. Commissioner Van Namee finds the standard at issue to be valid and enforceable as promulgated.
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n9 This standard is quoted, in pertinent part, in the lead opinion.
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It is unclear whether the Commission has the authority to rule on the question of vagueness. See, e.g., Santa Fe Trail Transport Co., No. 331 (December 20, 1973) (Cleary, Commissioner, dissenting) rev'd, 505 F.2d 869 (10th Cir. 1974). I have consistently taken the position that the Commission and its judges lack the authority to review the validity of standards promulgated by the Secretary of Labor. See United [*12] States Steel Corp., Nos. 2975 and 4349 (November 14, 1974) (Cleary, Commissioner, concurring). Thus, I would find that the judge erred in considering the issue of vagueness. Were it settled law that the Commission may properly consider the validity of standards, I would agree with my colleague's disposition.
Issue No. 2
Judge Kennedy vacated the citation alleging respondent's non-compliance with the standard at 29 CFR § 1926.150(c)(1)(viii), n10 finding that the citation lacked particularity and failed to apprise respondent of the charge. The lead opinion affirms the Judge.
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n10 This standard is set out in the lead opinion.
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Section 9(a) of the Act provides in part:
Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated.
In analyzing the requirements of this section the U.S. Court of Appeals for the Second Circuit, in REA Express, [*13] Inc. v. Brennan, 495 F.2d 826 (2d Cir. 1974), stated that the citation, for specificity purposes, should not be read in vacuo. The court went on to find that the "dictates of due process" will be satisfied if the citation provides "fair notice" of the violation alleged. The Commission, therefore, is bound to consider the totality of circumstances, including any remarks that may have been made during the inspection tour n11 or closing conference, n12 in order to determine whether the citation states the alleged violation with reasonable particularity.
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n11 Provisions for the "walkaround" appear in section 8(e) of the Act, Compliance Operations Manual ch. V, § F-1-a, and the regulation at 29 CFR § 1903.8.
n12 Provisions for the closing conference appear in Compliance Operations Manual, ch. V. § I, and the regulation at 29 CFR § 1903.7(e).
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In this case, the citation and the pleadings inform respondent, in sufficiently clear language, that he is charged with violating a particular standard for having two [*14] fire extinguishers in a discharged and useless condition. Both the citation and complaint apprise respondent of the nature of the violation and provide "a reference to the . . . standard . . . alleged to have been violated." In addition, the complaint noted the specific title of the National Fire Protection Association (NFPA) publication n13 expressly incorporated by reference n14 in the standard allegedly violated. During the "walkaround," the compliance officer and respondent's foreman discussed the nature of the violation and this information was later conveyed to respondent.
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n13 NFPA No. 10A-1970
n14 Section 3(a)(1) of the Administrative Procedure Act [5 U.S.C. § 552(a)(1)] grants to the Secretary of Labor the authority to incorporate by reference. The section, in pertinent part, provides as follows:
§ 552. Public information; agency rules, opinions, orders, records, and proceedings. (a) Each agency shall separately state and publish in the Federal Register for the guidance of the public --
(D) Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency;
. . . For the purpose of this paragraph, matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register (emphasis added).
[*15]
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Considering the totality of circumstances associated with the citation, I would find that the "particularity" requirements of section 9(a) of the Act have been satisfied. Respondent was given "fair notice" of the alleged violation.
MORAN, CHAIRMAN, concurring in part, dissenting in part: I concur with that portion of the lead opinion which vacates the item of the citation involving 29 C.F.R. § 1926.150(c)(1)(viii). I dissent from the remainder of that opinion. The disposition of issues made by Judge Kennedy was correct and his decision should be affirmed for the reasons given therein.
I noted that the discussion of vague safety standards contained in both of the preceding opinions totally ignores the decision of the First Circuit in Cape and Vineyard Division v. OSAHRC, F.2d (1st Cir., No. 74-1223, decided March 3, 1975) where the Court noted with respect to a similarly worded standard:
A regulation without ascertainable standards, like this one, does not provide constitutionally adequate warning to an employer. . . .
[The Judge's decision referred to herein follows]
KENNEDY, [*16] JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting a "serious" citation and a non-serious citation issued by the Complainant (Secretary) against the Respondent under the authority vested in Complainant by Section 9(a) of that Act. The citations recite that as the result of an inspection on January 4, 1973 of a workplace under the ownership, operation or control of the Respondent located at 467 Turk Street, San Francisco, California, and referred to as a "roofing job on a remodeling project," the Secretary alleges that the Respondent violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof. n1 Both citations were issued on January 12, 1973.
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n1 Section 5(a)(2) provides that each employer "shall comply with occupational safety and health standards promulgated under this Act."
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[*17] The non-serious citation, designated Citation No. 1, contains five separate charges or "Items." Item No. 1 charges violation of 29 CFR 1903.2 as follows:
Failed to post occupational safety and health notice on job site.
29 CFR 1903.2 provides:
(a) Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor. Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to insure that such notices are not altered, defaced, or covered by other material.
(b) "Establishment" means a single physical location where business is conducted or where services or industrial operations are performed. (For example: A factory, mill, store, hotel, restaurant, movie theatre, farm, ranch, bank, [*18] sales office, warehouse, or central administrative office.) Where distinctly separate activities are performed at a single physical location (such as contract construction activities from the same physical location as a lumber yard), each activity shall be treated as a separate physical establishment, and a separate notice or notices shall be posted in each such establishment, to the extent that such notices have been furnished by the Occupational Safety and Health Administration, U.S. Department of Labor. Where employers are engaged in activities which are physically dispersed, such as agriculture, construction, transportation, communications, and electric gas and sanitary services, the notice or notices required by this section shall be posted at the location to which employees report each day. Where employees do not usually work at, or report to, a single establishment, such as longshoremen, traveling salesmen, technicians, engineers, etc., such notice or notices shall be posted at the location from which the employees operate to carry out their activities. In all cases, such notice or notices shall be posted in accordance with the requirements of paragraph (a) of this section. [*19]
(c) Copies of the Act, all regulations published in this chapter and all applicable standards will be available at all Area Offices of the Occupational Safety and Health Administration, U.S. Department of Labor. If an employer has obtained copies of these materials, he shall make them available upon request to any employee or his authorized representative for review in the establishment where the employee is employed on the same day the request is made or at the earliest time mutually convenient to the employee or his authorized representative and the employer.
(d) Any employer failing to comply with the provisions of this section shall be subject to citation and penalty in accordance with the provisions of section 17 of the Act.
Item No. 2 charges violation of 29 CFR 1926.150(c)(1)(viii) n2 as follows:
Failed to properly maintain fire extinguishers in that two extinguishers on truck at street level were discharged.
29 CFR 1926.150(c)(1)(viii) reads:
Portable fire extinguishers shall be inspected periodically and maintained in accordance with Maintenance and Use of Portable Fire Extinguishers, NFPA No. 10A-1970.
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n2 The citation and complaint erroneously cited "vii" instead of "viii". Amendment was made at the hearing without objection.
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Item No. 3 charges violation of 29 CFR 1926.152(a)(1) as follows:
Failed to provide safety can for dispensing of gasoline on roof.
29 CFR 1926.152(a)(1) provides:
General requirements. (1) Only approved containers and portable tanks shall be used for storage and handling of flammable and combustible liquids. Approved metal safety cans shall be used for handling and use of flammable liquids in quantities greater than one gallon, except that this shall not apply to those flammable liquid materials which are highly viscid (extremely hard to pour), which may be used and handled in original shipping containers. For quantities of one gallon or less, only the original container or approved metal safety cans shall be used for storage, use, and handling of flammable liquids.
Item No. 4 charges violation of 29 CFR 1926.552(a)(3)(i) as follows:
Failed to remove wire rope with more than three broken strands in one rope lay from service on [*21] marco top loading hoist on roof.
29 CFR 1926.552(a)(3)(i) provides:
Wire rope shall be removed from service when any of the following conditions exists:
(i) In hoisting ropes, six randomly distributed broken wires in one rope lay or three broken wires in one strand in one rope lay . . .
Item No. 5 charges violation of 29 CFR 1910.219(f)(3) as follows:
Failed to guard chain and sprocket drive on marco top loading hoist on roof.
29 CFR 1910.219(f)(3) provides:
Sprockets and chains. All sprocket wheels and chains shall be enclosed unless they are more than seven (7) feet above the floor or platform. Where the drive extends over other machine or working areas, protection against falling shall be provided. This subparagraph does not apply to manually operated sprockets.
The serious citation, designated Citation for Serious Violation No. 1, alleges violation of the standard appearing at 29 CFR 1926.28(a) in the following language:
Failed to provide personal protective equipment for three employees exposed to open edge of roof on north side of building.
29 CFR 1926.28(a) provides:
The employer is responsible for requiring the wearing of appropriate personal [*22] protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.
The Secretary's representative, the Area Director of the San Francisco Office of the Occupational Safety and Health Administration of the United States Department of Labor (OSHA), notified Respondent by notice dated January 12, 1973 that penalties were being proposed as follows:
|
Serious Citation |
$600.00 |
|
Non-serious Item No. 1 |
None |
|
Non-serious Item No. 2 |
None |
|
Non-serious Item No. 3 |
None |
|
Non-serious Item No. 4 |
120.00 |
|
Non-serious Item No. 5 |
30.00 |
|
|
Total $750.00 |
Under date of January 29, 1973, Respondent filed his notice of contest as to the "citations issued and penalties proposed" (J3). After complaint and answer were filed, the case came on for hearing in San Francisco, California on May 1, 1973. The Secretary was represented by counsel, and Respondent represented himself. n3 Lawrence Pagels and Mr. F. Lee Lawrence, the two OSHA Compliance Officers who inspected Respondent's cited workplace on January 4, 1973, testified for the Secretary. Mr. Vaughn, after being [*23] called as a witness for the Secretary, testified briefly on his own behalf. Only the Secretary has submitted proposed findings and a brief.
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n3 None of Respondent's employees, who are not organized, sought to participate in the proceeding.
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FINDINGS OF FACT
A. Jurisdiction -- The Business of Respondent
1. Jurisdiction is not disputed. Respondent's answer (J-8) does not dispute the allegations of the complaint that Respondent's address is 940-89th Avenue, Oakland, California; that he is engaged in roofing construction and reconstruction; and that he is an employer in a business affecting commerece within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970. In addition, Respondent testified that he uses materials received from outside of California. According to the record, Respondent has been in the roofing business eight years. The number of his employees since the date of the inspection has ranged from 12 to 15, and he does an annual business of around $250,000 annually.
B. Evidence [*24] on the Charges
2. Senior Compliance Officer F. Lee Lawrence testified that he received a complaint about "an imminent danger situation" involving work on the roof of the Turk Street workplace and sent Compliance Officer Pagels to investigate. Mr. Pagels did so on the morning of January 4, 1973. Both OSHA inspectors went to the workplace in the early afternoon of that day. The record indicates that neither inspector spoke to the Respondent on the day of the inspection.
3. Inspector Pagels said he met with Respondent's foreman on the job, Mr. Johnson, and determined that Respondent had failed to post an OSHA poster advising employees of their rights under the Occupational Safety and Health Act. He said the foreman told him "there was no poster up anywhere on the job site."
4. According to Witness Pagels the standard cited in (non-serious) Item No. 2 required fire extinguishers to be kept charged. He noted that the standard refers to an industry standard, NFPA No. 10A-1970 (SX 1), which Respondent stated he had not seen. A copy of the industry standard was offered, and Mr. Pagels stated that Sections 1110, 1120 and 1210 were relevant to the charge. The cited sections [*25] undertake to place an obligation on the "owner or occupant of a property in which fire extinguishers are located" for the care, maintenance and use of fire extinguishers, including the recharging and inspection of extinguishers and the training of personnel in their use. Inspector Pagels testified that the gauges of two fire extinguishers on a truck at the street level of the workplace indicated that they were "discharged." One employee, he said, was exposed to the possibility of fire starting from a fire wagon. He was assured by Respondent's foreman that "he would take care of the problem."
5. Foreman Johnson pointed to a can and indicated it had gasoline in it, Mr. Pagels said. Mr. Pagels took a picture of the can which picture was offered into evidence (SX-2). Inspector Pagels testified that the can did not meet the standard cited in Item No. 3 because it had no flame arrester or self-enclosing spout.
6. Using a diagram (SX-3), Compliance Officer Pagels explained his understanding of the basis of the charge contained in non-serious Item No. 4 as follows:
This diagram depicts an end view of three lay wire rope. This is the type of wire rope that was being used on the Marco [*26] hoist during our inspection, and each lay is identified as number 1, 2 and 3.
Now, inside the lay, wire rope is made up of smaller strands, and each strand is made up of individual wires.
The standard requires that whenever three wires inside one of these strands is broken or where there are six randomly distributed wires, in other words, they wouldn't have to be in one strand in one lay, that if many wires are broken, the cable is unreliable and should be removed from service.
The condition that we observed was that two of the three lays were parted. And that of the three major lays, major portions, the wire rope, only one remained intact.
7. Inspector Pagels stated that the wire rope was being used in raising and lowering a canvas bag up to and down from the roof of a seven-story building, which he estimated to be 80 feet above the street. He believed one employee on the ground was exposed to a possible fall of the load.
8. Compliance Officer Lawrence drew another diagram or sketch of wire rope (SX-17) and gave his explanation of the violation alleged in Item 4. According to Mr. Lawrence:
Now, as he had those numbered 1, 2 and 3 lays, two of these lays were [*27] completely severed, broken, parted, however you want to call it, they were no more, they were broken. They had completely stripped away from the other lay, leaving only one fully intact in that wire rope.
Mr. Lawrence's recollection of the make-up of each individual lay or strand was apparently n4 different from that of Mr. Pagels. At page 66 of the transcript Mr. Lawrence testified:
As I explained in the beginning, there were no strands in these lays, there were only wires. Okay. So it depends on the termirology that you want to use.
Now, sometimes they will take one lay and they will make up individual strands within a lay, each strand will have a definite number of wires. And each one of those strands will be twisted together to make up a lay. That wasn't the case in this particular wire.
This particular wire had single wires that were twisted together to make one lay. There was three lays to this wire.
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n4 But see his testimony at Tr. 71-2 where he indicated each lay was made of small wires.
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9. Mr. [*28] Lawrence opined that the two lays were broken, "probably" from wear, but he did not in fact know the cause. He thought the worn rope involved a risk to the hoist operator (because the wire could "whip back" and hit him) as well as to a man below because of the possibility that a hoist load, which he estimated at "anywhere from 150 to 250 pounds," might fall if the rope broke. Foreman Johnson expressed the view to him at the time of the inspection, however, that the wire rope was sufficiently strong to be in use at the Turk Street workplace. Asked on cross-examination by Mr. Vaughn if he knew the size of the wire rope in use, he replied he did not ascertain that fact. n5 Mr. Lawrence acknowledged in fact that he did not know the strength capability of a lay of a wire rope without a destruction test being made.
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n5 Mr. Lawrence responded in part: "What I'm saying to you is this, no matter what the size of the rope is, the standard says when you have so many wires within a strand that are broken, that wire has to be replaced . . ."
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10. Referring to Item No. 5, Mr. Pagels said that there was a chain and sprocket drive running between the gasoline engine on the hoist and the lift mechanism which had no guard on it. He said the drive was below seven feet, and he thought that the operator of the hoist (the foreman) could have got his clothes, fingers or other part of his body in the chain or the sprocket (SXs 4 and 11).
11. Both inspectors presented evidence concerning the alleged "serious" violation (SXs 4-13, 16). Mr. Pagels said the cited standard (see CFR 1926.28(a)) required Respondent to "provide and assure use of equipment" to protect employees from falling from the roof, and none was provided. He believed two or three employees were exposed much of the time that work was being performed. He referred to certain photographs he had taken at the time of the inspection in an effort to show that the employees were exposed to a risk of falling: SX 5 -- showing the foreman within two feet or so of the roof edge; SX 6 -- employee near fire wall opening (and stepping over canvas), also SXs 9, 10, 11, 12, 13; and SX 7 -- employee outside of fire wall. Mr. Pagels expressed the view [*30] that the exposure of the employees at the edge of the roof of the seven-story building posed a sufficient risk to be a serious violation. n5A He added that Respondent's foreman was aware of the condition as "he was directly involved in the work." According to Inspector Pagels, Respondent could have protected his employees and satisfied the cited standards "in various ways." Catch platforms and nets were mentioned as possibilities, but he considered the use of safety belts and lanyards as the most practical.
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n5A Section 17(k) provides that "a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."
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12. Compliance Officer [*31] Lawrence said he also observed workers exposed at the edge of the roof of the building at the Turk Street workplace, a situation he believed constituted a serious violation. Mr. Lawrence drew a sketch (SX-16) to illustrate the condition he said he saw and the need for "appropriate personal equipment." He testified that the Secretary's regulations provide Respondent with "several" options, including the use of safety nets, catch platforms and safety belts with lanyards. Handrails he considered inappropriate.
13. Mr. Lawrence testified that he returned to the Turk Street workplace again on January 5, 1973, the day after the OSHA inspection, after receiving another telephone call. He said he found Respondent's workmen again working without personal protective equipment, with the exception of one man who was wearing an unattached safety belt. There was safety belt equipment on a bucket on top of the roof, but the foreman "seemed a little confused" about its use. He said he thereupon held a meeting with Respondent's employees and explained about the need to use personal protective equipment.
14. Finally, Mr. Pagels explained how the Secretary had calculated the proposed penalties [*32] (SXs 14 and 15). He said no penalty was assessed for Item No. 1 because Respondent was not aware of the need to post the OSHA notice. An unadjusted penalty of $400.00 was assigned to Item No. 4 based on a "C" "gravity" determination, and this was reduced by application of a 40% credit based on Respondent's "good faith" (10%), "size" (10%) and "history" (20%) n6 An additional abatement credit of 50% was applied to reduce the penalty to $120.00. The same allowances were applied to the unadjusted penalty of $100.00 for Item No. 5, resulting in a proposed penalty of $30.00. The unadjusted penalty for the serious citation was set at $1,000.00 and then adjusted downward by application of the 40% credit allowed for good faith, size and history (but with no abatement credit being given), producing a final proposed amount of $600.00. According to Mr. Pagels the Secretary was given "maximum amount of 20 per cent for history." He said his "overall impression was that there wasn't an extensive safety program," and "size depends upon the number of employees the company has."
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n6 Section 17(j) provides that civil penalties under the Act must give "due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations."
[*33]
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15. Respondent Vaughn was asked what he knew of the alleged violations by the Secretary's counsel. He also testified briefly in his own defense. Mr. Vaughn said that he visited the job site at 467 Turk Street only once, and that was several days before the job was begun and prior to the time of the Secretary's inspection. The roofing job was performed in about seven days by approximately six employees under the supervision of one of Respondent's three foremen, Charles Johnson.
16. Mr. Vaughn's testimony with respect to Item No. 1 is inconclusive. He stated that he put an occupational safety and health notice in the glove compartment of the truck at the Turk Street job site and gave another copy to the foreman on the job. He thought too that all of his employees would be shown any notice and "most of the safety equipment, too . . ."
17. Mr. Vaughn said it was necessary to rely on his foreman to keep his employees informed as to safety procedures. He does undertake to keep them informed of safety standards, but he must supervise more than one job at a time ("I could not be at all those places [*34] at one time to make sure everybody was up to the standards"). At the time of the inspection Respondent had four different jobs going. He further explained that his jobs and employees are usually short term: there is "a high turnover of personnel," and "you move from job to job." Foreman Johnson had "about 4 new employees" on the Turk Street job.
18. According to Mr. Vaughn, "my knowledge, as far as any of the alleged violations is concerned is practically nil . . . ." However, "all the necessary equipment, safety apparatus, and so forth" were available to his workmen. He personally checks equipment over before it goes on a job to see that it is in good working order. He put "full" fire extinguishers on the truck in use at the Turk Street worksite in late December 1972. Even so, after receiving the OSHA citations he instructed his foreman to buy new fire extinguishers and "make the corrections." He did not know what an "approved" gasoline container was before the hearing. After the inspection he said he learned that a high voltage line had severed the wire rope on the hoist. He said he was not aware of whether the loading hoist had a guard on or not; nor did he know [*35] whether the men working on the roof were using personal protective equipment or not. Mr. Vaughn explained that he had sought to comply with OSHA requirements by purchasing safety belts, lanyards, hard hats, fire extinguishers, etc. before and after the OSHA inspection (RXs, 1-7). He has encouraged employees to comply with safety rules at safety meetings and has discharged non-complying employees. He did express the view that the law should place more responsibility on employees; also that the Secretary should give an employer time to achieve compliance rather than summarily issue citations and assess penalties.
C. Discussion
The standard relevant to Item No. 1, 29 CFR 1903.2, states that notices informing employees of the provisions of the Occupational Safety and Health Act are "to be furnished" by the Secretary. Respondent does not contend that copies of the required notice were not furnished and in fact indicated in his testimony that he had copies. Respondent did not rebut the evidence of record indicating that he had failed to have the OSHA notice posted. The nature of the violation, however, was not one warranting imposition of any penalty. Therefore, the Secretary's [*36] determinations with respect to Item No. 1 -- that there was a violation but no penalty was called for -- are sustained by the evidence of record.
Violation of 29 CFR 1926.552(a)(3)(1) as charged in Item No. 4 was established. The testimony of the two OSHA inspectors indicates that there was a violation of the cited standard but gives very little information about the strength of the rope lay that was still intact and in use on the Marco loading hoist. Without knowing more about the size and condition of the rope lay in use it is impossible to assess the risk involved in the violation and thus its "gravity." See National Realty and Construction Company, Inc., Docket No. 85, dated September 6, 1972 (pending D.C. Cir.) The Commission has stated in a number of cases that gravity is the crucial element in assessing civil penalties under the Act. Under the circumstances, the Secretary has not established a basis for the $120.00 proposed penalty -- or a penalty for any other amount.
The Secretary also established violation of 29 CFR 1926.219(f)(3), as alleged in Item 5, and a basis for the $30.00 penalty proposed therefor. Respondent has no "history" under the Act, and [*37] his "size" is relatively small under the Act. The nature of Respondent's business and the turn-over of his employees no doubt make it difficult for Respondent to effectively teach job safety to his employees, but the undersigned believes that Respondent could have improved upon his safety program. It is apparent that there was a definite risk that the operator of the hoist could have got part of his body or his clothing caught in the chain and sprocket drive as he operated the hoist.
Item No. 2 must be dismissed, however, for failure of the Secretary to satisfy the "particularity" requirement of Section 9(a) of the Act. That section requires that the Secretary's citation inform a cited employer with detailed information as to any charge against it: "each citation . . . shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated." The "standard" referred to in the citation, 29 CFR 1926.150(c)(1)(viii), does not apprise Respondent of the charge against him but simply refers to an industry standard. Respondent had not seen the industry standard and did not know [*38] which part of the industry standard being relied upon until the hearing. Alsea Lumber Company, Docket No. 1228, final Order dated April 4, 1973 (pending 9th Cir.).
The allegations contained in Item No. 3 and the "serious" citation must be dismissed because the "standards" relied upon are too vague to be enforceable. It can also be argued that both charges are lacking in "particularity," but the real defect in both charges of the Secretary is really inherent in the particular "standards" that the Secretary is seeking to enforce.
Section 3(8) of the Act provides that an occupational safety and health standard "requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment." The concurring opinion in Grayson Lumber Co., Inc., Docket No. 793, dated June 14, 1973, after considering this statutory prescription as applied to the general personal protective equipment standard appearing at 29 CFR 1910.132, points out:
The subject standard does not meet this test and is therefore not properly promulgated under this Act. [*39] What "practices, means, methods, operations or processes" does it require?
To meet the requirements of this Act, an occupational safety and health standard must specify, as a minimum, exactly what the employer is required to do and the circumstances under which, or at the time when it is to be done.
The standard cited in this serious citation (29 CFR 1926.28(a)) is no less broad than the standard relied upon in Grayson Lumber, supra. It neither tells Respondent what equipment his employees must use or wear nor when they must use or wear it. Paraphrasing Grayson Lumber, if the Secretary believes it would serve the objectives of the Act to require wearing of safety belts or any other specific item of personal equipment, he should say so plainly. Again, the language used is so broad as to be meaningless. n7
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n7 Actually, the cited standard appears to be introductory in nature and not a regulation intended to be enforced as a standard itself. The next subsection, 29 CFR 1926.28(b), refers the reader to another part of the Secretary's regulations ("E") for regulations governing the selection and use of specific equipment (which includes provisions for the use of safety belts, safety nets as well as other equipment).
[*40]
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The standard relied on in Item No. 3 is likewise deficient. The OSHA inspector stated that the gasoline can used by Respondent's employees did not comply with the cited stardard because it had no flame arrester or self-enclosing spout. The cited standard, however, gives no hint as to what an "approved" container is. Definitions for "approved" equipment and "safety can" do appear in a later part of subpart F of the Secretary's regulations for construction, but neither has been referred to by the Secretary. The former definition, appearing at 29 CFR 1926.155(a) includes equipment listed or approved by a nationally recognized testing laboratory, but the record does not indicate which testing laboratory the Secretary was relying on for approval of gasoline cans. n8
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n8 29 CFR 1926.155(1) defines "safety can" as an "approved" closed container of five gallon capacity or less "having a flash-arresting screen, spring-closing lid and spout cover and so designed that it will safely relieve internal pressure when subject to fire exposure."
[*41]
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CONCLUSIONS OF LAW
1. Respondent is now and at all times material herein an "employer" within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and the subject matter.
2. The Secretary established that Respondent violated the standards appearing at 29 CFR 1903.2, 29 CFR 1926.552(a)(3)(i) and 29 CFR 1910.219(f)(3).
3. The Secretary did not establish that Respondent violated either the standard appearing at 29 CFR 1926.150(c)(1)(viii) or the standard appearing at 29 CFR 1926.152(a)(1).
4. The Secretary did not establish that Respondent violated 29 CFR 1926.28(a) in a "serious" or in any other manner.
Based on the foregoing, it is ORDERED that:
1. Items 1, 4 and 5 of Citation No. 1 issued against Respondent on January 12, 1973 are AFFIRMED.
2. The penalties proposed for Items 1 (none) and 5 ($30.00) of said Citation No. 1 are AFFIRMED.
3. The penalty proposed for Item No. 4 of said Citation No. 1 ($120.00) is VACATED.
4. Items 2 and 3 of said Citation No. 1 are VACATED. n9
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n9 No penalty was proposed for either Item 2 or 3.
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