HOFFMAN CONSTRUCTION COMPANY

OSHRC Docket No. 4182

Occupational Safety and Health Review Commission

January 4, 1978

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Before CLEARY, Chairman; BARNAKO, Commissioner

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Robert Friel, Assoc. Regional Solicitor

Harry S. Chandler, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Commissioner:

This case is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter "the Act").   Judge James A. Cronin, Jr. found respondent to be in repeated violation of 29 C.F.R. 1926.451(a)(4) n1 for failure to erect guardrails on scaffolds used by its employees.   Although two separate citations for violations of the same standard were issued, the judge grouped both into one citation and reduced the proposed penalty from $2170 to $500. n2 On review, the Secretary of Labor contends that the judge improperly grouped the alleged violations and seeks affirmance of each individual citation.   While conceding that the violative conditions existed, respondent excepts to the characterization of the combined citation as serious and the finding of the violation to be repeated. Respondent also asks that the penalty be reduced.   We modify the decision of Judge Cronin as discussed below, but   [*2]   affirm his penalty assessment.

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n1 29 C.F.R. 1926.451(a)(4) provides:

Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor, except needle beam scaffolds and floats (see paragraphs (p) and (w) of this section).   Scaffolds 4 feet to 10 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.

n2 Citation 3 was alleged as a repeated serious violation of the standard and citation 4 was alleged as a repeated nonserious violation of the same standard.   The citations were directed towards separate locations at the worksite and involved two different scaffolds.

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The alleged violations occurred in Toledo, Ohio where respondent was engaged in the construction of an addition to an existing mill.   The serious citation was based upon the compliance officer's observation of an employee who was welding while seated on an unguarded plank [*3]   approximately 12 inches wide and 10 feet long, situated 30 feet above the ground.   The nonserious citation concerned an employee who was working on a scaffold approximately 16 to 18 feet above ground level.   This scaffold, although equipped with top rails and a back cross-brace, did not conform to the requirements of the cited standard, which mandates the use of guardrails and toeboards. The judge concluded that, as a matter of general policy and in accordance with the provisions of the OSHA Field Operations Manual, n3 multiple violations of a single standard disclosed during the inspection of a single establishment should constitute one alleged violation and he therefore combined the two violative conditions into the serious citation, which he affirmed.   He stated that to do otherwise would disadvantage the respondent, subjecting it to an inflated history of prior violations and a doubling of the potential penalty.

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n3 The Field Operations Manual was formerly known as the Compliance Operations Manual and was cited as such by the judge.   The specific provision relied upon was Chapter X, Section B.1.a of the Compliance Operations Manual.

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Complainant argues that the provisions of the Field Operations Manual are merely guidelines and not enforceable regulations.   Alternatively, he argues that in the instant situation, the issuance of separate citations is consistent with his guidelines. We agree that the Secretary was justified in issuing separate citations.   The two citations involve entirely different and separate scaffolds. Thus, the charges are not duplicative.   Compare Stimson Contracting Co., 77 OSAHRC 38/A2, 5 BNA OSHC 1176, 1977-78 CCH OSHD para. 21,675 (No. 13812, 1977).   The Secretary chose to cite Hoffman for separate violations of the same standard, and under these circumstances, it is within his discretion as the prosecutor under the Act to do so.   Southern Bell Telephone and Telegraph Company, 77 OSAHRC 83/D1, 5 BNA OSHC 1405, 1977-78 CCH OSHD para. 21,840 (No. 10340, 1977); Wetmore & Parman, Inc., 73 OSAHRC 2/C5, 1 BNA OSHC 1099, 1971-73 CCH OSHD para. 15,400 (No. 221, 1973).   The Field Operations Manual is intended to promote internal efficency and consistency within the Department of Labor and the guidelines [*5]   provided therein do not have the force or effect of law.   FMC Corporation, 77 OSAHRC 153/D4, 5 BNA OSHC 1707, 1977-78 CCH OSHD para. 20,640 (No. 13155, 1977); see also Brennan v. Ace Hardware Corporation, 495 F.2d 368 (8th Cir., 1974).

The judge characterized the first citation as serious and we concur.   The record indicates that a potential fall of 30 feet from the unprotected scaffold could result in death or serious physical harm.   The second citation was originally issued as nonserious in that the potential fall distance was 16 to 18 feet. We therefore reverse the decision to group the violations and find respondent to be in serious violation of the standard as presented in citation 3 and to be in nonserious violation of the same standard as presented in citation 4. n4

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n4 The question of whether citation 4 considered alone is correctly characterized as nonserious is not before us.

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Respondent next contends that the judge did not consider all relevant factors in the determination of the penalty assessment.   [*6]   The factors for consideration are set forth in section 17(j) of the Act. n5 All of these factors are adequately discussed and evaluated by Judge Cronin.   Although one of the two alleged violations was serious in nature, the judge deemed that a $500 penalty for the combined violations would be appropriate.   While we find that two distinct violations occurred, we agree with the ALJ's evaluation of the penalty factors and affirm the penalty assessment.

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n5 Section 17(j) of the Act provides:

The Commission shall have the authority to assess all civil penalties provided in this section, giving 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.

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Respondent's final contention is that the Judge erred in finding the violation to be repeated. The Commission members have differing views on the necessary elements of a repeated violation.   See   [*7]   George Hyman Construction Co., 77 OSAHRC 67/C7, 5 BNA OSHC 1318, 1977-78 CCH OSHD para. 21,744 (No. 13559, 1977), pet. for review filed, No. 77-1591, 4th Cir., May 2, 1977.   Since the penalty we assess is within the limits permitted for a violation which is not repeated, n5 we need not address the question of whether the violations should be properly classified as repeated. See Penn Central Transportation Co., 77 OSAHRC 15/F4, 4 BNA OSHC 2033, 1976-77 CCH OSHD para. 21,540 (No. 13084, 1977).

Accordingly, citation no. 3 and citation no. 4 are affirmed.   A total penalty of $500 is assessed.

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n5 A penalty of up to $10,000 may be assessed for a repeated violation.   29 U.S.C. 666(a).   For serious or nonserious violation which is not repeated, a penalty of up to $1000 may be assessed.   29 U.S.C. 666(b) and (c).

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