Docket No. 401

NATKIN & CO., MECHANICAL CONTRACTORS

OSHRC Docket No. 401

Occupational Safety and Health Review Commission

April 27, 1973

Before VAN NAMEE and BURCH, COMMISSIONERS

OPINIONBY: BURCH

OPINION:

BURCH, COMMISSIONER: On July 31, 1972, Judge John J. Larkin issued his recommended decision and order in this case, affirming but modifying the Secretary's citation for serious violation, ruling that respondent had committed an other than serious violation and reducing the proposed penalty from $650 to $300.

On August 10, 1972, I directed review of the proposed decision and order pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act").

The Commission has reviewed the briefs filed by the parties and has considered the entire record. We adopt the Judge's recommended decision and order insofar as it is consistent with this decision.

Review was directed in order to determine whether the Judge properly interpreted section 17(k) of the Act. n1

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n1 Section 17(k) states as follows:

For purposes of this section, 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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Respondent was cited for failure to comply with 29 CFR 1926.552(b)(3) and (b)(5)(ii) which require that a hoist platform be enclosed overhead and that, unless the hoist tower is enclosed, all sides be enclosed and entry gates be provided.

Evidence establishes that the material hoist in question, utilized by respondent primarily to transport sheetmetal duct work to the floors of the building under construction, was in violation of the cited standard, being deficient with respect to the provision of overhead covering, side enclosures and access gates. The record demonstrates that the accident which precipitated the inspection, resulting in the issuance of the instant citation, may not have been directly related to the aforementioned violations. This circumstance, however, is irrelevant to the finding of a violation.

With respect to the issue under consideration, the seriousness of the violation as defined in section 17(k), we find that the Judge has improperly interpreted this section of the Act. Substantial probability that death or serious physical harm could result, in conjunction with the knowledge requirement of section 17(k) and the possibility of an accident's occurrence, is all that is required for a violation to be serious. The occurrence of an accident because of an existing hazard in violation of the Act need not be substantially probable in order for a violation to be serious, within the meaning of the Act.

Serious and non-serious violations are distinguished on the basis of the seriousness of injuries which experience has shown are reasonably likely to occur. Section 13(a) of the Act provides that the Secretary may petition to restrain conditions which ". . . could reasonably be expected to cause death or serious physical harm immediately . . ." [Emphasis added]. Providing for an additional means of enforcement for conditions which constitute imminent dangers distinguishes section 13 violations from those of section 17(k). The difference is the immediacy of the danger. Similarly, serious and non-serious violations are differentiated on the basis of the degree of probable injury. n2 These violations are defined primarily to provide appropriate means of enforcement. Imminent dangers may be restrained. Serious violations, unlike non-serious ones, warrant mandatory penalties. Thus, by reading these sections of the Act together, a rational distinction among the three types of violations is revealed. Ro require, in addition, that for serious violations the occurrence of accidents be substantially probable is inconsistent with the logical progression of violations and their concomitant remedies. That interpretation would make serious violations and those constituting imminent dangers practically indistinguishable.

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n2 The Act also deals with de minimis, willful, repeated, and unabated violations.

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Section 2(b) of the Act states the purpose and policy of Congress, which is ". . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources -- (1) by encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards . . ." The intent of Congress is to prevent the occurrence of injury. To require, as a pre-requisite to a serious violation, that an accident be substantially probable, rather than simply possible, is inconsistent with this purpose.

Evidence shows that employees do not normally ride the hoist, and board it only for loading or unloading. However, failure to protect employees from objects falling onto or from the hoist, constitutes a serious violation as death or serious physical harm is a substantially probable consequence of being struck by falling objects of the type usually found on a construction site.

In assessing an appropriate penalty, we are charged in section 17(j) of the Act with considering the size of respondent's business, the gravity of the violation, the good faith of respondent, and its history of previous violations.

We do not believe that these factors are necessarily to be accorded equal weight in a given case, nor do we believe that a particular factor must be given the same weight under different factual situations. Secretary of Labor v. National Realty and Construction Co., Inc.,

We believe that the proper starting point in determining the appropriate penalty is the gravity of the violation. n3 One essential element of gravity is the probability of the development of a situation, whether accident or illness, which could result in death or serious physical harm. This necessarily includes consideration of the precautions taken against such a situation arising. The second element or gravity is the extent of exposure, which includes the number of employees exposed to the hazard and the duration of exposure.

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n3 Gravity, unlike good faith, compliance history and size, is relevant only to the violation being considered in a case and therefore is usually of greater significance. The other factors are concerned with the employer generally, and are considered as modifying factors.

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In this case, we find both the exposure and the probability of an accident to be moderately high. The number of employees exposed to the instant hazard cannot be determined with a high degree of specificity, as the figure varies continually. However, the hoist was used over a period of nearly three months, during which respondent employed approximately 25 persons at the site of the violation. We also find the probability of an object being dislodged from the hoist while it is being raised or lowered to be moderately high.

As the Judge noted, respondent has an impressive safety record. There is no evidence of history of previous violations under any safety statute to which respondent is subject. Its good faith has been demonstrated by its overall safety program and its attempts to operate the hoist in a safe manner. n4

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n4 Compliance history includes experience under all relevant safety and health statutes to which an employer is subject. The extent of an employer's good faith is determined by an examination of its overall safety program. In certain cases, consideration of the precautions, if any, taken by an employer to prevent a situation from arising which could result in death or serious physical harm may be given with regard to good faith as well as with regard to the gravity of the violation.

It is noted that consideration for employer size is based upon factors extraneous to safety and health and is primarily an attempt to avoid oppressive penalties.

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In view of the high level of gravity found in this case we do not find the Secretary's proposed penalty to be inappropriate.

Accordingly, It is Ordered that the Secretary's citation for serious violation and the proposed penalty be affirmed.

[The Judge's decision referred to herein follows]

LARKIN, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (referred to as the Act) to review a "Citation for Serious Violation" and "Notification of Proposed Penalty" in the amount of $650 issued by the Secretary of Labor (referred to as the Secretary) pursuant to Sections 9(a) and 10(a) respectively of the Act.

The trial was held on May 25, 1972, in Richmond, Virginia, as a result of a citation issued on December 30, 1972, specifically alleging as follows:

29 CFR 1518.522(b)(3) 1518.522(b)(5)(ii) -- On or about 4 November 1971, the employer failed to provide his employees a workplace free from recognized hazards in that the employer failed to totally enclose, provide overhead protective covering, provide access gates on a hoist platform.

29 CFR 1518.22(b)(5)(ii), which was the only section cited by the Secretary in his complaint provides more specifically, as follows:

When a hoist tower is not enclosed, the hoist platform or car shall be totally enclosed (caged) on all sides for the full height between the floor and the overhead protective covering with 1/2-inch mesh of No. 14 U.S. gauge wire or equivalent. The hoist platform enclosure shall include the required gates for loading and unloading. A 6-foot high enclosure shall be provided on the unused sides of the hoist tower at ground level.

Respondent is a Virginia Corporation with office and place of business at 3202 Rosedale Avenue, Richmond, Virginia. It is engaged in business as a general mechanical contractor. It regularly receives material and supplies from points located outside of Virginia and is an employer "affecting interstate commerce" under the provisions of the Act (Stip., Par. 1). Respondent employs an average of 200 construction employees. It employed 19 construction employees at peak employment on the job involved in this proceeding and averaged approximately eight employees overall (Stip., Par. 10; Tr. 10). Respondent's annual dollar volume ran approximately eight million dollars during 1971 (Stip., Par. 4).

In May 1970, respondent bid and was awarded the sheet metal duct work for an air conditioning system for a five-story, 60-foot high building being constructed for the Brown and Williamson Tobacco Corporation, Perry Street Addition, Richmond, Virginia (Stip., Par. 3; Tr. 11, 14, 55, 70). The original subcontract pertained to installation of sheet metal plenums in the equipment room on the first through fourth floors of the building (Tr. 71). In July 1971, respondent was awarded the additional installation of duct work for the main floor areas on all of these floors (Tr. 71). By that time, construction was completed to that the building was enclosed with the exception of the window opening approximately six-feet wide and eight feet, seven inches high that set about two-and-one-half feet above the floor (Tr. 24, 71). The elevator was not yet in service (Tr. 71). The largest of the duct components to be installed was approximately four feet high, nine-feet long and thirty-inches wide (Tr. 22). Several alternative methods were considered including a crane for moving the components to the appropriate floor levels (Tr. 23). It was concluded that a material hoist platform would be the most feasible and safest and one was rented from Safway Steel Products and placed in operation on August 12, 1971 (Tr. 12, 23, 71, 72). The hoise platform was approximately six feet x eight feet with a waist-high, one inch iron pipe at each access end and a five-foot high screen on the other sides (Tr. 13, 19, 20). The bars were removed when the large components were lifted to provide sufficient space (Tr. 24). The hoist platform was driven by a gasoline motor and movement controlled by a pull-chain from the ground (Tr. 13). The platform edge was approximately three-and-one-half feet from the building wall and a ramp was provided to connect the platform to the building (Tr. 16, 36-38). The components were loaded at ground level onto the hoist platform from the end away from the building (Tr. 19). At the floor height, they were pulled through the window openings by employees standing inside the building (Tr. 24, 36).

The hoist was used on a daily basis after its installation on August 12, 1971 (Tr. 12). It was used also to move the smaller size duct from ground to floor levels requiring an employee to go onto the hoist platform to remove the material (Tr. 42).

On November 4, 1971, two employees were moving a desk, drawings, tools, small gang boxes and excess material from the first to the fourth floor when an employee fell to his death from the first floor level or a height of approximately 15 feet (Tr. 15, 37, 38, 41, 42). The employee was using a piece of plywood rather than the permanent-type ramp provided by respondent, and the fatality was not related to the fact the hoist did not contain access gates to enclosures (Tr. 31, 32, 38, overall record). The instructions to move the materials were given by one of respondent's foremen (Tr. 14).

Employees were specifically instructed not, to and did not, ride the material hoist (Tr. 22, 36). Following the fatality, the material hoist was not used again by respondent (Tr. 28, 30).

Safety rules were posted on the hoist (Tr. 61). The respondent's safety manual pertaining to hoists provided as follows:

Number one, all towers will be inspected once a week.

Number two, all safety gates and bars must be in place before the cage is moved.

Number three, there will be no riders on the hoist except those designated to inspect and grease the side rails.

Number four, covers will be kept on cages, and removed only when long pieces of material are to be hoisted.

Number five, all long pieces of material will be securely lashed before the cage is moved (Tr. 74).

Safety meetings were held usually once a week by the job superintendent (Tr. 38). Safety communications were sent on a regular basis to the various district safety directors by the corporate safety director (Tr. 75-76). On April 9, 1971, the corporate safety director advised the district safety officer involved herein that "[I]n reviewing the Act and talking to Royal Globe, our insurance carrier; Marsh & McLennan, our insurance agent; and the Regional Director of the U.S. Department of Labor, it is concluded that Natkin & Company and Natkin Service Company will basically be in compliance if the rules of our 'Safe Practices Manual' are followed" (Tr. 75-76). On August 20, 1971, the Associated General Contractors of America advised the respondent that copies of the Secretary's standards were available (Tr. 76). On August 30, 1971, copies were requested and distributed to the respondent's project engineers and job superintendent on November 15, 1971, immediately after having received them (Tr. 77, 79). Respondent's predecessor company has had a safety program since 1951 (Tr. 82). Due to its safety record with the Travelers Corporation, it has received as much as $91,000 in returned premiums per year (Tr. 82). Prior to the fatal accident, the division involved herein had had 685,000 man-hours without a lost-time accident and had received two plaques and two commendations for its safety record, each one exceeding 200,000 man-hours (Tr. 82). The project superintendent had worked for the company since its organization in 1951 and had one of the best safety records of the various division superintendents (Tr. 82, 83).

OPINION

Section 5(a)(2) provides that each employer shall comply with Occupational Safety and Health Standards promulgated under the Act.

Section 17(b), as pertinent, provides that any employer who has received a citation for a serious violation under any standard shall be assessed a civil penalty of up to $1,000.00.

Section 17(c), as pertinent, provides that any employer who has received a citation for a violation of any standard specifically determined not to be of a serious nature may be assessed a civil penalty of up to $1,000.00 for each violation.

Section 17(j) as pertinent, provides that the Commission shall have authority to assess all civil penalties giving due consideration to the appropriateness of the penalty with respect to the size of the business, the gravity of the violation, the good faith of the employer, and the history of previous violations.

Section 17(k), as pertinent, provides that a serious violation shall be deemed to exist 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.

Part 2200.33 of the Rules of Procedure of the Review Commission, as pertinent, provides that the burden of proof shall be on the Secretary to sustain the assertions contained in the citation and notification of proposed penalty.

The parties state the issues for decision as:

(1) whether respondent violated 29 C.F.R. 1518.552(b)(5)(ii) by its failure to totally enclose, or provide overhead protective covering for, or to provide access gates on a hoist platform; (2) if such a violation did occur, whether there was such substantial probability of death or serious physical harm so that a serious violation occurred; and (3) if a serious violation did occur, whether the proposed penalty of $650.00 is proper.

Respondent relies upon extenuating circumstances, its safety program and interest in the safety and protection of its employees and safety history. The respondent further points out that the fatality was unrelated to conditions specified in the standard and that the Secretary has failed to show a serious violation.

The Secretary contends that the fatality although unrelated, shows that death or serious physical injury can and did result from the 15-foot fall and that the condition did create a serious violation. The Secretary further contends that the extenuating circumstances are immaterial and the facts prove the penalty to be reasonable or even too low.

The record is clear that respondent was in violation of the standard. The hoist did not contain overhead protective covering. It contained a waist-high bar on each access end in lieu of an access gate. The two non-accessible sides contained five-foot high, wire mesh. Hence, the respondent was in violation of the standard.

The more troublesome aspect of the case is whether the Secretary, who has the burden of proof, has shown the violation to be of a serious nature.

As pertinent, Section 17(k) provides that a ". . . serious violation shall be deemed to exist . . . if there is a substantial probability that death or serious physical harm could result . . ."

The Secretary argues:

so, the nature of the hazards which could result from violation of the standard are identified, and one of those hazards, unfortunately, has been demonstrated (the death due to the 15-foot fall). Surely, no evidence of death or serious physical harm due to objects falling from above and striking workers on the platform, or of objects falling from the platform, is needed to establish the serious nature of the violation.

In other words, the Secretary places emphasis upon the word "could." This emphasis seems to be misplaced. It would be difficult to find any situation of human activity that cannot be cited as "could" result in death or serious physical harm. Perhaps the best example would be the "bathtub fatalities."

It is more logical to conclude that the facts must show that there was a "substantial probability" of death or serious physical harm due to the condition of the hoist because it did not comply with the specifications of the standard rather than whether a death could result because the hoist was operated at height. Otherwise, the Secretary can establish that a condition results in a serious violation merely because the work was being performed at heights.

The facts show that the hoist was not enclosed overhead. The compliance officer testified that overhead enclosure was required to prevent materials from falling from above onto someone on the hoist platform. The facts show respondent's work on its initial contract commenced about May 1970. The hoist was not installed until August 1971. The hoist was necessary because the building was enclosed above ground level except for the window openings. Such fact does not lead to an inference that employees were working with materials overhead nor that there was "substantial probability" of death or serious physical harm due to falling objects striking someone working on the hoist platform.

The Secretary points to the possibility that an employee could have fallen from the hoist platform because it contained a waist-high iron bar on each access end instead of access gates. The off sides contained a five-foot high screen. The employees did not ride the hoist and were on the platform only to load or unload materials smaller than the large duct work. The "substantial probability" of fall must be considered in light of the protection provided by the waist-high bars. Also, it would seem logical an access gate on the end next to the building would provide no protection while loading or unloading as it would have to be open. It is interesting to note that the Secretary's standards pertaining to scaffolds and floor and wall openings (see 29 CFR 1926.451 and 29 CFR 1926.500) permit wooden 2 x 4 inch-guard rails approximately 42 inches high as sufficient for heights much in excess of the maximum height in this case. As the access bars would seem comparable to the 2 x 4 inch-guard rails, it must be concluded that the Secretary has not shown that there was "substantial probability" of death or serious physical harm due to use of the waist-high bars.

The Secretary points also to the hazard of objects falling from the platform onto someone on the ground. One type of material cited as an example was ". . . wheel barrows filled with cement . . ." There is no evidence respondent was using the hoist to move cement. Respondent's superintendent testified that respondent took the hoist out of operation the day of the fatality and did not use it again. The compliance officer testified it was being used the following day by a different company. There is no showing how such fact is relevant to this respondent. The materials identified as being moved by respondent on the hoist were: large duct work that filled the platform sufficiently so there was no room left for even an employee; regular size duct work with no dimension specified; and on the day of the fatality, ". . . desk, drawings, and excess material . .," a ten-foot length of all-thread rod and tools and small gang boxes. The compliance officer testified that on the day of the inspection, materials were coming in also through the basement. Left for conjecture is the probability that the materials could be dislodged from the platform, the protection, if any, provided by the access bars, exposure of employees, if any, below the platform, potential injury to an employee wearing a safety helmet if struck and other factors showing that there was "substantial probability" that death or serious physical harm could result from the condition. A careful review of the testimony of the compliance officer indicates he based his evaluation of the possibility of "substantial probability of death or serious physical harm" upon justification or reason for the standard rather than as applicable to the facts existing in this specific condition. There are many reasons why the Secretary's burden of proof should not be lightly considered. Prior violations and safety history are most important factors to be considered in the imposition of a penalty both now and as to future inspection. Penalties can become quite severe for repetitive or willful violations under the act. Safety violations have a direct bearing on an employee's workman compensation premiums. As emphasized by respondent, safety violations have a direct bearing on its ability to compete in bidding against its competitors, especially as to cost-plus contracts. Under such circumstances, the Secretary's burden should not be lightly considered, especially as to a proposed violation of a serious nature; and more importantly, its imposition should not be based upon speculation or conjecture. When this record is so considered, it must be concluded that the Secretary has failed to show that the violation was of a serious nature as defined under the act.

The record is clear, however, that respondent is in violation of the standard. It cannot be concluded that the violation warrants no penalty. The penalty, of course, must be weighed in the light of the ". . . size of the business . . ., the gravity of the violation, the good faith of the employer and history of previous violations."

The facts pertaining to whether a serious violation exists and the gravity of the violation, of course, cannot be separated. However, the "substantial probability" requirement as to a serious violation implies a greater degree of proof. The facts as pertinent to the gravity of the violation will be considered without reiteration. As to the gravity of the violation, the additional fact that the hoist was operated from August 12 until November 4 has been considered. Respondent employs an average of 200 construction employees and grosses $8,000,000 annually. It is, therefore, a large construction employer. Respondent's safety program dates back to 1951. The record shows that safety rules were posted on the hoist, and safety posters were observed on the job site. It maintains a safety manual and had safety meetings. Prior to the fatal accident, the division involved herein had 685,000 man-hours without a lost-time accident. Its management seemed genuinely concerned with the safety and health of its employees. Considering the size of respondent's business, the gravity of the violation, respondent's good faith and safety history, it is concluded that a penalty of $300.00 for a violation not of a serious nature is appropriate for the hoist violation.

DECISION

Respondent committed a violation not of a serious nature under the act by failing to conform with the provisions of 29 CFR Section 1518.522(b)(5)(ii) and a penalty in the amount of $300 is appropriate taking into consideration the size of respondent's business, the gravity of the violation, good faith and history of previous violations.

IT IS ORDERED:

That the Secretary's citation is affirmed only as modified in the foregoing paragraph and a penalty in the amount of $300 shall be assessed against the respondent.