Docket No. 4756

SLETTEN CONSTRUCTION COMPANY

OSHRC Docket No. 4756

Occupational Safety and Health Review Commission

June 25, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Henry Mahlman, Regional Solicitor, U.S. Department of Labor

Terry Hess, Safety Officer, Sletten Construction Company, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On June 19, 1974, Administrative Law Judge Erwin L. Stuller issued a decision affirming a citation for serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. The contested part of the citation alleged a violation of the standard at 29 CFR § 1926.28(a), and in affirming it Judge Stuller assessed a $700 penalty. Neither party petitioned for review of the Judge's decision.

Commissioner Moran ordered review on the following issues:

(1) Does the citation state the nature of the alleged violation as required by law?

(2) Is the regulation published in 29 C.F.R. § 1926.28(a)

(a) an occupational safety and health standard as that term is defined in 29 U.S.C. § 652(8)?

(b) unconstitutional by reason of its vagueness?

None of the issues were raised before the Judge.

Neither party has briefed the issues on review. [*2] The Secretary has filed a letter that does not take issue with the Judge's decision. The Secretary's letter, citing Puterbaugh Enterprises, Inc., 9 OSAHRC 718, 2 BNA OSHC 1030, 1973-74 CCH OSHD para. 18,158 (No. 1097, 1974), notes that the issues directed for review cannot be raised at any time in the proceeding because they are not jurisdictional in nature. n1

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n1 Concerning issue (2), my view is that the Commission does not have the power to pass upon the validity of a standard, and that at most it is an affirmative defense. See U.S. Steel Corp., 2 BNA OSHC 1343, 1974-75 CCH OSHD para. 19,047 (Nos. 2975 & 4349, 1974) (concurring opinion), petition for review dismissed, 517 F.2d 1400 (3d Cir. 1975). Cf. Atlantic & Gulf Stevedores, Inc. v. O.S.H.R.C., No. 75-1584 (3d Cir., March 26, 1976). Chairman Barnako is of the view that the Commission has the power to pass on the validity of the standard when the issue is raised as an affirmative defense.

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Under circumstances such as these, [*3] where neither party objects to the Judge's disposition and where we have many cases interpreting the standard involved, n2 we decline to rule upon the issues directed for review. See Star Circle Wall Systems, Inc., 4 BNA OSHC 1011, 1975-76 CCH OSHD para. 20,502 (No. 3271, 1976); Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Boring & Tunneling Co. of America, Inc., 3 BNA OSHC 1863, 1975-76 CCH OSHD para. 20,253 (No. 5782, 1975).

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n2 See, e.g., A.J. McNulty & Co., Inc., 4 BNA OSHC 1097, 1975-76 CCH OSHD para. 20,600 (No. 2295, 1976); Warnel Corp., 4 BNA OSHC 1034, 1975-76 CCH OSHD para. 20,576 (No. 4537, 1976); Sweetman Constr. Co., 3 BNA OSHC 2056, 1972-76 CCH OSHD para. 20,466 (No. 3750, 1976); Isseks Bros., Inc., 3 BNA OSHC 1964, 1975-76 CCH OSHD para. 20,361 (No. 6415, 1976).

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Accordingly, it is ORDERED that the Judge's decision is affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The majority's refusal to address issues directed for [*4] review in this case on the asserted ground that neither party objects to the disposition below n3 is simply another instance of the judicial broken-field running to which Messrs. Barnako and Clearly resort whenever they wish to avoid issues. They do not apply this rule uniformly, and often - on similar fact situations - ignore this "rule" and proceed to take up the case. There is no requirement that parties to a case which is pending on review before this Commission file legal briefs. Nor is there any requirement that a party which loses its case before the Judge file a petition for discretionary review with the members of this Commission. Consequently, no adverse inference - or inference of any kind - can be drawn from the failure of a party to do something it is not required to do. If either Mr. Barnako or Mr. Clear truly believed [*5] that this Commission should only take up issues when one of the parties to the case files a petition so requesting, they should call for an amendment to the Act - eliminating the power of a Commission member to direct a Judge's decision for review. They also should not direct review in the absence of such a petition. The fallaciousness of the position they state in this case is demonstrated in no uncertain terms by these two uncontroverted facts:

(1) Neither of them has ever called for - or supported - legislation to eliminate the Act's present discretionary review provision, and

(2) between them, they have issued more than 200 directions for review where neither the employer or the Secretary filed a petition seeking review.

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n3 The statutory authority conferred upon Commission members by 29 U.S.C. § 661(i) to direct review of a Judge's decision is not qualified by a requirement that the parties involved request review. Nor, I might add, is it restricted when the issues are not jurisdictional.

n4 Also, see Brennan v. Smoke-Craft, Inc., No. 74-2359 (9th Cir., February 13, 1976); Brennan v. OSAHRC & Santa Fe Trail Transp. Co., 505 F.2d 869, 871 (5th Cir. 1975); Brennan v. OSAHRC & Hanovia Lamp Div., Canrad Precision Indus., 505 F.2d 946, 948 (od Cir. 1974).

[*6]

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This case presents an issue as to whether complainant met his statutory mandate in the issuance of the citation. As provided in 29 U.S.C. § 658(a):

"Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the . . . standard . . . alleged to have been violated."

On its face, this section requires that the citation set forth the standard with which the respondent allegedly failed to comply. Additionally, we have held that § 658(a) requires that the citation must inform the employer of the specific acts upon which the charge of failure to comply with the standard is based. Secretary v. L.E. Myers Company, 16 OSAHRC 686, 687 (1975). An examination of the citation in this case indicates that it does not meet this two-prong requirement.

Respondent was charged with a failure to comply with the standard codified at 29 C.F.R. § 1926.28(a). n5 As I stated in Secretary v. Leon Marrano & Sons, Inc., 17 OSAHRC 202 (1975) (concurring opinion), and Secretary v. Island Steel & Welding, Ltd., 17 OSAHRC 143, 144 (1975) (dissenting [*7] opinion), a violation of this standard n6 will not lie unless there was a failure by respondent's employees to use personal protective equipment as required elsewhere in Part 1926 of the regulations. In other words, to satisfy the requirement of 29 U.S.C. § 658(a) that the "citation . . . includ[e] . . . a reference to the . . . standard . . . alleged to have been violation," the citation must state that the employer has been charged with (1) a failure to comply with 29 C.F.R. § 1926.28(a) and (2) another standard of Part 1926, which sets forth the personal protective equipment that should have been used. This was not done here.

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n5 This standard provides:

"The 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." (Emphasis added.)

n6 As I explain in these cases, the valid version of this standard differs from the presently published one in that it contains the word "and" in place of the word "or."

[*8]

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Additionally, the citation fails to describe the specific acts upon which the alleged charge is based. The factual description states:

"On August 28, 1973 at approximately 10:30 a.m. at a bridge demolition site Superior, Montana an employee was working on a steel beam 9 inches wide which was 34 feet above the river. [T]he employer failed to provide or require the use of personal protective equipment, or life saving equipment where employees were exposed to the hazard of a fall or where Subpart E of this part 1926 indicates the need [for] using such equipment."

The citation makes no mention of what specific equipment should have been provided. It was not until more than a month after the citation was issued that respondent was informed in the complaint that the equipment referred to in the citation was a safety harness.

Since the citation failed to meet the statutory requirements set forth in 29 U.S.C. § 658(a), it must be vacated even though respondent did not object thereto. Unlike any traditional pleading, a citation under the Occupational Safety and Health Act is a unique document to which [*9] statutory requirements for particularity have been attached. As provided in 29 U.S.C. § 659(a), n7 employers must decide irrevocably within 15 working days of receipt of the notification of proposed penalties whether or not to contest the citation or the proposed penalties, or both. If no notice of contest is filed within such time, employers, except for jurisdictional or other questions involving substantial justice, n8 are precluded from any further hearing on the validity of the citation and proposed penalties. Therefore, due process under this Act requires that employers be fully informed of the fundamental aspects of the charge. Failure to do so prejudices the employer's decisional process during this crucial period, irrespective of what clarifications may be made later.

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n7 This section provides:

"If, after an inspection . . . the Secretary issues a citation . . . he shall . . . notify the employer . . . of the penalty, if any, proposed [therefor] . . . and that the employer has fifteen working days within which to notify the Secretary that he intends to contest the citation or . . . penalty. If, within fifteen working days from the receipt of the notice . . . the employer fails to notify the Secretary that he intends to contest the citation or . . . penalty . . . the citation and the [penalty] . . . shall be deemed a final order of the Commission and not subject to review by any court or agency."

n8 Fed. R. Civ. P. 60(b).

[*10]

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It is my opinion, therefore, that the citation here should have been dismissed because of complainant's failure to comport with the mandate of 29 U.S.C. § 658(a). Neither the citation nor the standard n9 cited therein informed respondent of what equipment should have been used to avoid the citation. Accordingly, I would reverse Judge Stuller's decision. It is attached hereto as Appendix A because the majority opinion does not discuss it in any substantive manner - despite the fact that it is affirmed therein.

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n9 The second issue directed for review pertained to the vagueness of 29 C.F.R. § 1926.28(a). Because I would vacate this citation on the "particularity" issue, it is unnecessary to expound further on this issue. I am constrained to add, however, that Commissioner Cleary's viewpoint regarding our power to determine the validity of a standard is strictly his own. The Commission's official position is that it does have such power. Accord Atlantic & Gulf Stevedores, Inc. v. OSAHRC, No. 75-1584 (3d Cir., March 26, 1976).

[*11]

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There is one other point in the majority decision which merits discussion. Messrs. Barnako and Cleary as part of their justification for failing to address the directed issues state that "we have many cases interpreting the standard involved." Of course, that statement is not dispositive of the issue which I address herein. As a matter of fact, there is no decision, including those cited in footnote 2, in which they have discussed the sufficiency of a 29 C.F.R. § 1926.28(a) charge which was worded in the same indefinite manner as the one in this case.

APPENDIX A

DECISION AND ORDER

James Barkley, for the Complainant

Terrence N. Hess, for the Respondent

On August 29, 1973, the Secretary of Labor issued two citations, each charging the respondent with a serious violation of 29 U.S.C. 654(a)(2) of the Occupational Safety and Health Act of 1970 (hereinafter referred to as the Act). A notification of Proposed Penalties was issued to the respondent on September 6, 1973 proposing penalties totaling $1400 of which a penalty of $700 pertains to Citation No. 1 in issue here. A timely Notice of Contest was [*12] filed by the respondent and this Commission thereby acquired jurisdiction over the subject matter under Section 659 of the Act. A hearing was held at Missoula, Montana on March 27, 1974.

The description of the alleged violation as contained in the citation reads as follows:

"On August 28, 1973 at approximately 10:30 AM at a bridge demoltion site Superior, Montana an employee was working on a steel beam 9 inches wide which was 34 feet above the river. The employee failed to provide or require the use of personal protective equipment, or life saving equipment where employees were exposed to the hazard of a fall or where Subpart E of this part 1926 indicates the need, the using such equipment (1)."

The standard alleged violated reads as follows:

"1926.28 Personal Protective equipment. (a) The 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."

The parties have entered into stipulations by which the respondent admits that it is an employer who is engaged in business [*13] affecting commerce and therefore subject to the Act. On August 28, 1973, one employee of the respondent, to wit, Alan Milender, was working on a 9-inch beam approximately 34 feet above the adjacent water level, and he was not provided with a safety harness. The complainant has conceded that he has given full credit to the respondent for size.

The defense raised by the respondent is that the wearing of the safety equipment in this case would have created a greater hazard, in that the beam the employee was cutting on the completion of the cut may have flown into the air in the direction of the employee. Had the employee been wearing a safety harness which was tied off the harness would have impeded the employee's ability to evade the flying beam. Secondly, the respondent states that the protective equipment would have insured the death of the employee had the bridge on which the employee was working collapsed.

The credible evidence establishes, and it is found, that the respondent corporation on August 28, 1973 maintained a worksite on a bridge over the Superior River at Superior, Montana. Respondent was engaged in the demolition of this bridge. It had an employee working on [*14] a 9-inch wide steel beam of the bridge which was 30 feet above the river. The employee was cutting another beam of the bridge. The employee had not been provided with and was not wearing any protective or life-saving equipment and was therefore exposed to the hazard of falling 34 feet from the beam on which he was standing to the river below. The respondent was quite aware of the hazard to this employee.

On the morning of the day in question the complainant's compliance officer arrived at the worksite and photographed the employee as he worked on the bridge.

On cross-examination the superintendent testified that the process of removing the beam [*15] in question was to cut either end of the beam down to a point leaving only a small fraction of the beam cut on each side. At that point a crane called a boom truck is attached to the beam with a cable. He stated that the purpose of the crane is to support the beam when the final cuts are made so that it will not fall into the river; that the beam is suspended from the truck until the final cuts are made through the beam. He denied that the boom truck is used in ripping out the beam. He further denied that the employee in question was away from the beam when the beam was removed.

The compliance officer later testified that he had been at the worksite for approximately 8-1/2 hours on the date of the alleged violations and during that period observed the respondent's employees removing three beams. He indicated the procedure of removing the beams consisted of employee with a cutting torch cutting most of the way through each side of the beam. The next step would be that the workman would bring the cable from the back of the A-crane of the truck, tie it around the middle of the beam and then cut the remaining part off one side of the beam. At this point the beam is completely [*16] cut through on one side and cut through most of the remaining side. They would then use the winch truck or crane to pull the beam free. At the time the beams were pulled free the employee who was doing the cutting was back up on the deck of the bridge out of the swinging radius of the beam. He then gave the opinion that the removal of the beam posed no danger to the employee. The compliance officer, Mr. John Swaggert, testified that he had a conversation with the respondent's superintendent during the inspection, during which the superintendent passed himself off as being a laborer.

After considering the conflicting testimony of the respondent's superintendent and the complainant's compliance officer and in view of their demeanor while giving that testimony, it is determined that the testimony of the superintendent can be given little weight. It therefor follows that credible evidence does establish that removal of the beam posed no danger to the employee in question and could not excuse his failure to use the appropriate safety equipment.

In regard to the possible collapse of the structure in question it is noted that safety harnesses and lines are most often used to prevent [*17] employees from falling from structures. It is also apparent that it is vaguely possible that any structure can fall but this mere possibility does not outweigh the probability of the employee falling and the resulting severe injuries. The complainant here contends that if all of the safety standards are followed there is virtually no possibility of the structure in this case falling while an employee is on it. The evidence does not establish that the structure in question was in any danger of falling and therefore the falling structure defense is given no weight.

The evidence clearly establishes that the respondent without justification violated the standard as alleged; that the respondent was aware of the hazard; that there was a substantial probability that the employee concerned would fall, and that such a fall would result in serious injury or death to the employee. Therefore, it is concluded that the violation was serious in nature.

The evidence presented indicates that the violation concerned should have been abated upon receipt of the citation in question as alleged.

Although it was established that the respondent had a written safety program, there was strong indication [*18] that there had not been any safety meetings on the job site in question form some time prior to the inspection. There was also evidence presented indicating that the respondent did have a prior violation of the Occupational Safety and Health Act. After considering all of the credible evidence concerning the respondent's size, history of previous violations, good faith, and the gravity of the violation here in question, it is concluded that the proposed penalty was appropriate.

Based on the foregoing it is ORDERED that Citation for Serious Violation No. 1 and the corresponding proposed penalty of $700 for said violation be AFFIRMED.

Erwin L. Stuller, Judge

Dated: June 19, 1974