METRO-MECHANICAL, INC.

OSHRC Docket No. 3518

Occupational Safety and Health Review Commission

July 7, 1975

[*1]

Before MORAN, Chairman; CLEARY, Commissioner

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On January 17, 1974, Judge J. Paul Brenton issued his decision and order in this case, vacating two alleged non-serious violations, affirming one alleged non-serious violation, and vacating all proposed penalties.

On February 19, 1974, it was directed that the Judge's decision and order be reviewed by the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act").

The Commission has reviewed the entire record, including the briefs filed by the parties. Based upon this review, for the reasons stated below, we affirm the Judge's decision and order only to the extent that it is consistent with the following determination.

Respondent, a plumbing contractor, engaged in the installation of plumbing at its worksite on a 12-story building in Dallas, Texas was inspected by a compliance officer for the Secretary of Labor on May 23 and 24 and June 1, 1973.

A citation alleging eight non-serious violations was issued to respondent on June 19, 1973. Respondent timely contested three of the alleged violations.

Items 7 and 8 of [*2] the citation alleged respectively that at least one of respondent's employees was making use of a scaffold that was not equipped with standard guardrails as required by the standard at 29 CFR 1926.451(a)(4) or casters with a positive locking device as required by the standard at 29 CFR 1926.451(e)(2).

The inspecting compliance officer testified that during his inspection, and from a distance of approximately 25 feet, he observed a workman upon a scaffold. He further testified that upon his inquiry to the union steward and respondent's job foreman who were accompanying him, he was told that the man on the scaffold was an employee of respondent. The compliance officer then closely inspected the scaffold, finding the conditions for which respondent has been cited and the existence of which respondent does not deny.

Judge Brenton held that the compliance officer's testimony should be given no probative value because it was uncorroborated hearsay that was contradicted by other evidence at the hearing. We do not agree.

The evidence of record demonstrates that the compliance officer's testimony as to the exposure of one of respondent's employees to the admitted non-complying [*3] conditions was not contradicted. Respondent's president did testify that there was little work remaining to be done on the floor where the violations occurred but that the workman on the scaffold "could have" been performing some job function of respondent. Further, the vice president of respondent testified that:

It is very possible that one of our employees could have done some function, climbed up on the scaffold. We can't deny that.

Such testimony does not contradict that of the compliance officer. It is not inconsistent in any manner with the compliance officer's statement that the workman on the scaffold was identified to him as one of respondent's employees.

Thus, the question to be resolved in this case is whether complainant's reliance upon hearsay evidence in order to show that at least one of respondent's employees was exposed to non-complying conditions is sufficient for it to meet its burden of proof on the issue.

Hearsay evidence is admissible in administrative hearings. Richardson v. Perales, 402 U.S. 389 (1971); Davis, Administrative Law Treatise, 14.03, 14.08 (1958). The question here, as in B & K Paving Company, No. 59 (September 5, 1974), [*4] is to what extent such evidence may be relied upon in finding a violation.

In this case, while the compliance officer's testimony is uncorroborated it is not inconsistent with the other testimony of record, including that of both the president and vice president of respondent. There is nothing in this record that would raise a question as to the veracity or reliability of the officer's testimony. Further, as in Perales, supra, and in B & K Paving Company, supra, respondent could have called its foreman to testify and also had the opportunity to cross-examine the compliance officer.

The Commission has held that it will not allow a citation to stand solely on the basis of hearsay evidence where such evidence is contradicted. Milprint, Inc., No. 513 (October 18, 1973). Such is not the case here. The compliance officer's testimony that the workman seen on the scaffold was an employee of respondent, while hearsay evidence, remains uncontradicted and thus is an acceptable basis upon which to find respondent in violation of section 5(a)(2) of the Act.

Upon examination of the evidence of record as to respondent's size, good faith, and history we conclude that [*5] the penalties of $30 for each of items 7 and 8 are appropriate.

Accordingly, it is ORDERED that items 7 and 8 of the citation and penalties proposed therefor are affirmed.

CONCURBY: MORAN

CONCUR:

MORAN, CHAIRMAN, concurring: I agree with affirming items 7 and 8 of the citation, but not for the reasons given in the lead opinion.

The compliance officer testified that respondent's job foreman identified the person on the scaffold as an employee of respondent. Whether viewed as within the admission exception to the hearsay rule or as nonhearsay, this testimony constitutes credible evidence which may be accorded probative weight. Rules of Evidence for United States Courts and Magistrates, 801(d)(2); C. McCormick, Handbook of the Law of Evidence 262 and 267 (2d ed. 1972); Wigmore, Evidence 1048 and 1078 (Chadbourn rev. 1972).

[The Judge's decision referred to herein follows]

BRENTON, JUDGE: This is a preceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 561 et seq. hereafter called the Act) contesting a Citation issued by the Complainant against the Respondent under the authority vested in Complainant under Section 9(a) of the Act.

The Citation [*6] alleges that as the result of the inspection of a workplace under the ownership, operation, or control of the Respondent, located at 2423 Fort Worth Avenue, Dallas, Texas, and described as follows: "Housing for the Elderly (12-Story Reinforced Concrete Building)," the Respondent has 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.

The Citation, which was issued on June 19, 1973, alleges that the violation results from a failure to comply with Standards promulgated by the Secretary by publication in the Federal Register in December 16, 1972, (37 F.R. 243, and codified in 29 CFR Part 1926).

The description of the alleged violations as contested herein contained on said Citation states:

Item 3. During the course of construction, scrap lumber with protruding nails, and all other debris were not kept cleared from work areas, in and around the building, causing poor housekeeping.

Item 7. No guardrails were provided for the mobil scaffold 6' X 29" X 6' high. Located on the 1st floor. The minimum horizontal dimension was less than 45 inches. [*7]

Item 8. Casters were not provided with a positive locking device to hold the scaffold in position for the 6' X 29" X 6' high mobile scaffold. Located on the first floor.

The Standards as promulgated by the Secretary provide as follows:

Item 3. 29 CFR 1926.25(a)

During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures.

Item 7. 29 CFR 1926.451(a)(4)

Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 6 feet above the ground or floor, except needle beam scaffolds and floats. Scaffolds 4 feet to 6 feet in height, having a minimum horizontal dimension in either direction of less than 45 inches, shall have standard guardrails installed on all open sides and ends of the platform.

Item 8. 29 CFR 1926.451(e)(2)

Casters shall be properly designed for strength and dimensions to support 4 times the maximum intended load. All casters shall be provided with a positive locking device to hold the scaffold in position.

Pursuant to the enforcement procedures set [*8] forth in Section 10(a) of the Act, the Respondent was notified by letter dated June 19, 1973, from Charles J. Adams, Area Director of the Dallas, Texas Area, Occupational Safety and Health Administration, U.S. Department of Labor, proposed to assess a penalty for the violations alleged and as contested herein in the amount of $125.00.

After Respondent contested this enforcement action, and a Complaint had been filed and the Notice of Contest considered as an Answer of the Respondent, the case came on for hearing at Dallas, Texas, on October 11, 1973.

FINDINGS OF FACT

1. Respondent has, at no time during the course of these proceedings, denied that, at the time of the inspection of it's workplace alleged, it was not engaged in a business affecting commerce.

2. Respondent is a plumber and at the time of the inspection was engaged in performing its part of the work under a subcontract in the erection and construction of a 12 story reenforced concrete building.

3. Boards with protruding nails and other debris were scattered in and about the work area and passageways encountered by Respondent's 6 employees on the job site.

4. A mobile scaffold on the first floor, 6 feet [*9] in height and a minimum horizontal dimension of less than 45 inches, was not equipped with guard rails nor with casters of the positive locking device type.

5. Respondents did not own this mobile scaffold nor did it furnish it to it's employees for use on the job site.

6. The Compliance Officer, the Inspector for the Secretary, maintained that he observed a workman on this mobile scaffold, but, in answer to a direct question failed to state the job function this workman was performing, if any, at the time of his observation. The Inspector was told by others on the job that this workman was an employee of the Respondent and that this employee owned the scaffold.

7. At the time of the inspection, Respondent had completed its plumbing work on the ceiling of the first floor of the construction project.

8. Respondent furnished it's employees with ladders for use in performing work otherwise inaccessible by a workman from the floor.

9. At the time of the inspection, seven separate contractors had workmen upon the job site; each performing his particular skill.

10. The mobile scaffold was furnished by the insulation contractor.

11. In proposing the penalties the Secretary [*10] claimed he gave consideration to seven factors: 1) possibility of accident, 2) severity, if it occurred, 3) extent of exposure, 4) good faith, 5) size of the company, 6) history of previous violations, and 7) correction or abatement.

12. The employees of Respondent were Union and not one of its workmen on the job refused to work because of poor housekeeping. Further, there were no injuries to any workmen of the seven crafts on the job subjected to this alleged hazard.

ISSUES

The evidence adduced at the hearing makes an issue as to whether an employee of the Respondent was in fact exposed to the hazards alleged as to the mobile scaffold.

Also, from the evidence, an issue arises as to the appropriateness of the penalty proposed by the Secretary.

DISCUSSION

I

Upon the finding and the admission of Respondent that there were boards with protruding nails and other debris within the work site and that six employees of the Respondent encountered this condition in the performance of their work, it is selfevident that Respondent's employees were exposed thereto.

Accordingly, there is always a risk of a trip and fall coupled with the chance that some minor injury may result therefrom. [*11] In consequence thereof, it must be concluded that Respondent has violated the housekeeping standard, 29 CFR 1926.25(a), as alleged.

This is so even though Respondent did not create the hazard. It is enough that Respondent exposed his employees thereto regardless of who created the hazard.

II

At first blush it may appear that the hazards emanating from the mobile scaffold should be viewed in the same light as the housekeeping condition. The fallacy of that argument precludes the question of whether Respondent in fact exposed an employee to the alleged hazards. In this situation, however, there is obviously no hazard until a workman climbs upon the scaffold to perform and carry out a part of his work assignment.

The Secretary bottoms his case for exposure of an employee of the Respondent upon hearsay. First the Compliance Officer states that he saw a workman upon the scaffold at a distance of 25 feet away. He made no further investigation or inquiry concerning this situation until he reached the position of the scaffold. At this point, apparently upon inquiry, it is contended that Respondent's foreman and the union steward indicated that the man on the scaffold was [*12] an employee of Respondent. The Compliance Officer then made measurements and looked over the scaffold in determining that it was absent the guardrail and locking device casters.

The testimony of the Compliance Officer, narrated above, followed a direct question as to what plumbing work was being performed by the alleged workman as he was observed on the scaffold. Obviously, the question was not answered. Moreover, there is nothing in the record by way of explanation as to why an evasive answer was given.

Respondent's evidence indicates rather conclusively that there was no plumbing work to be performed on the ceiling at the location of the mobile scaffold at the time of the inspection, that Respondent did not furnish the scaffold for the use of its employees engaged in plumbing, and thus no reason for any one of its employees to be engaged in the use of it for any purpose, even though Respondent voluntarily conceded that one might have used it to turn on a valve.

From the maze of testimony on this issue of exposure several inferences may be drawn. Each one, however, is confronted with a conflicting inference. The Complainant failed to corroborate his hearsay evidence with [*13] any direct or circumstantial evidence. Hearsay standing alone may well suffice to place the Complainant over his hurdle in his quest to sustain his burden of proof. But when this evidence is countered by direct and circumstantial evidence of equal or greater weight the Complainant has failed to sustain his burden of proving his case for exposure by a preponderance of the reliable, probative and substantial evidence.

Accordingly, Item 7 and 8 of the Citation should be vacated together with each corresponding penalty.

III

The penalty proposed for Item 3 of the Citation is inappropriate. The violation of the housekeeping standard has been found to exist, which is a non-serious violation, however, it just seems from the facts found that there existed only a possibility of a trip and fall that might result in injury. The probability of that occurring from all the facts and circumstances is exceedingly unlikely. As a consequence of such findings, the gravity of the violation is so low that any penalty assessed would serve no useful purpose in promoting the purpose and policy of the Act.

Moreover, Respondent's good faith and forthrightness is so exceedingly high coupled [*14] together with its most excellent past safety record, and its good intentions for compliance in the future, that all thereof renders any penalty proposed pertinacious rather than appropriate.

Thus the penalty proposed for housekeeping violation should be vacated.

CONCLUSIONS OF LAW

1. A sub-contractor may not escape liability for the violation of a standard predicated on the proposition that he did not create it. If he exposes his employees to a hazard on the job site, he has violated the Act.

2. Where the evidence on a material issue is conflicting, and the truth of the fact alleged cannot be ascertained by a preponderance of all the facts and circumstances in evidence, the proponent of that issue fails to make his case.

3. Uncorroborated hearsay testimony fails to establish the truth of the fact alleged in light of contrary facts and circumstances.

4. A penalty is inappropriate for a non-serious violation where the evidence supports findings that an employer has met or surpassed the tests for due consideration thereof as prescribed by Section 17(j) of the Act.

ORDER

Wherefore: It is Adjudged and Ordered that:

1. Item 3 of the Citation be and it is hereby affirmed. [*15]

2. The proposed penalty for Item 3 of the Citation be and it is hereby vacated.

3. Item 7 and 8 of the Citation, together with the proposed penalties therefor, be and they are hereby vacated.

It is so ORDERED.