Docket No. 506

McCONNELL AND JOHNSON, INC.

OSHRC Docket No. 506

Occupational Safety and Health Review Commission

August 16, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: On July 26, 1972, Judge James Burroughs issued a decision in this case whereby he affirmed Complainant's citation and assessed a penalty in the amount of $300. Review of the Judge's decision was directed in accordance with the authority of section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq. ).

We have reviewed the record and find no prejudicial error therein.

Accordingly, it is ORDERED that the Judge's decision be and the same is hereby affirmed in all respects.

CONCURBY: MORAN

CONCUR:

MORAN, CHAIRMAN, concurring: I agree with the disposition of this case but I think it should be noted that the Judge's decision appears to accord an inappropriate status to the penalty proposal which was made by the Secretary of Labor at the time the citation was issued.

Judge Burroughs listed as the issue for determination, "whether the penalty of $700 proposed for the violation is appropriate."

This is an improper statement of the issue. It implies that the Secretary's proposed penalty is given evidentiary weight at the hearing and should be considered for whatever probative value it may impart. When this is done, it places the respondent in the position of having to overcome a suggestion from the complainant that the Commission should assess a certain monetary sum as the penalty to be imposed. The respondent is thus placed at a disadvantage.

The amount of money which one of the parties asks the Commission to assess as the other party's penalty has no probative value at the hearing. Such a proposal should not be allowed into evidence unless the proper evidentiary foundation has been established.

Section 10(a) of the Act authorizes the Secretary to propose penalties in those cases where he has issued citations and further provides that if the cited employer does not contest the Secretary's action within 15 working days after the receipt of the said notification of proposed penalties, "the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency." This procedure permits the employer to make an informed judgment as to whether he should contest the Secretary's action for it permits him to know, among other things, precisely what penalty he must pay if he chooses not to contest.

Once the employer has decided to contest, however, the Secretary's penalty proposal stands in different aspect. The employer, by his action, is seeking a hearing on the merits of the case before this Commission. He has a right to consideration at the hearing equal to that accorded the Secretary. The Secretary's evidence and argument on the alleged violation are, pursuant to the rules of this Commission, accorded no greater weight than that offered by the employer. The same is true with the issue as to whether a monetary penalty is appropriate and, if so, what the amount thereof should be. n1

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n1 Secretary of Labor v. Dreher Pickle Co., Secretary of Labor v. Baltz Brothers Packing Co.,

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The statute grants to the Commission the sole authority to assess penalties whenever the proposed penalty is an issue in dispute. In order to properly discharge this responsibility, the Commission must permit the introduction of relevant and probative evidence on any issue involving penalties and weigh it according to its relative merit -- not on the basis of which party presents it.

The Secretary and the respondent are both parties to a case before this Commission. they are equal before this tribunal in every respect. It is a breach of that equality to require the respondent to rebut the assertion of the Secretary on a specific amount which the Secretary believes the respondent's penalty ought to be. This is particularly true where it is the tribunal, not either party, which has the sole authority to assess penalties.

The proper statement of the issue in this case should not be "whether the penalty of $700 proposed for the violation is appropriate." It should be "what amount, if any, is an appropriate penalty for the violation?" n2

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n2 In this particular case, the respondent conceded that he had violated the Act as charged.

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[The Judge's decision referred to herein follows]

BURROUGHS, 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. (hereinafter referred to as the Act) to review the appropriateness of a $700 penalty proposed as a result of a citation issued for a serious violation.

The citation for serious violation was issued to respondent on January 24, 1972, alleging a violation of 29 CFR 1926.451(a)(2), (a)(4), (a)(12), (a)(14), and (a)(15). The alleged violation was described as follows:

Scaffolding on the north and south side of "D" building was being used that did not have standard guardrails or toe boards. Scaffolding was not secured or braced and was setting on concrete brocks. Cross supports were not secured at several locations. Platforms did not reach the end supports causing open spaces. Several of the scaffold planks extended over the end more than twelve inches.

On the same date the citation was issued, a Notification of Proposed Penalty was issued proposing a penalty of $700.00 for the alleged violation.

On February 7, 1972, which was within fifteen days of receipt of the Secretary's notice of proposed penalty and citation for serious violation, the respondent notified the Secretary that it wished to contest the alleged serious violation and the amount of proposed penalty. The Secretary advised the Occupational Safety and Health Review Commission of the notice of contest. The Commission assigned the case to this judge for purposes of holding a hearing pursuant to Section 10(c) of the Act. A hearing was held in Memphis, Tennessee, on May 12, 1972. No additional parties desired to intervene in the proceeding.

ISSUE

The only issue presented for determination is whether the penalty of $700.00 proposed for the violation is appropriate. The respondent admitted the violation at the hearing held on May 12, 1972 (Tr. 5).

FINDINGS OF FACT

The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically determined in resolving the issue presented in this case.

Respondent's correct name is McConnell and Johnson, Inc. (Tr. 6-7). It is a Tennessee Corporation, having an office at 282 Mallory Avenue, Memphis, Tennessee (Tr. 3-4). Respondent is engaged in the business of commercial painting and sandblasting and regularly enters into and performs contracts outside the State of Tennessee (Tr. 3-4, 9).

On January 13, 1972, the Secretary, by and through two of his authorized compliance officers, conducted an inspection of a workplace at 2600 Nonconnah Boulevard, Memphis, Tennessee (Tr. 9). The respondent had four employees working at the site (Tr. 9, 41). They were sandblasting a portion of the building (Tr. 10-11).

On the south side of the building, two employees were sandblasting the upper portion of the building which was approximately 34 or 35 feet above ground level (Tr. 11). On the north side of the building, respondent had one employee blasting a portion of the third level which was approximately 20 to 24 feet off the ground. They were sandblasting the outside surface of the concrete to give it a different appearance (Tr. 11-12). The employees on both sides of the building were on a scaffold (Tr. 11).

The scaffold being used by respondent's employees was owned and built by the National Dry Wall Company (Tr. 9, 13). The scaffold was approximately 460 feet in length and extended around three sides of the building (Tr. 9-10, 42). It consisted of a series of scaffolds connected together to make one continuous length of 460 feet (Tr. 19). The scaffold reached to the third level of the building and was constructed of tubular material with planking (Tr. 13-14). Only a small part of the 460 feet of scaffolding was being used by respondent's employees (Tr. 34).

Seven cross braces were missing from the scaffolding used on the south side of the building. Some of the cross braces were secured with wire and some were not secured in any manner (Tr. 13-14). The scaffold was not secured to the building (Tr. 26). While the scaffold was unsteady, there was little danger of it falling (Tr. 33). It was swaying approximately two or three inches (Tr. 42). An attempt had been made to level the scaffolding by use of concrete blocks at different locations (Tr. 17).

The scaffold had no standard railings or toe boards throughout the entire length (Tr. 15-16). A wire cable extended for approximately 20 feet in the back of the scaffold used by respondent's employees on the south side of the building (Tr. 15, 22). The cable was stretched from post to post and respondent's employees were working on the platform between the building and the cable (Tr. 16). There was no railing of any kind on the north side of the building where one employee of respondent was working (Tr. 16).

On the south side of the building respondent's employees had added to the scaffold constructed by National Dry Wall Company. They had added a working platform. The wire cable extended back of this platform. The working platform constructed on top of the existing scaffolding had no openings between the scaffold boards (Tr. 22, 35). The scaffold board on the south side, which was constructed by respondent, met the standards as o scaffold boards (Tr. 23). On the north side, the scaffold planks extended beyond the support some two-or-three feet (Tr. 23). There were also gaps in the planking on the north side (Tr. 35-36). None of the scaffold boards were secured (Tr. 23-24). They were simply laying on the end supports (Tr. 24-26).

The scaffold was close to the building so that an employee could not fall between the scaffold and the building (Tr. 43). Respondent recognized that the scaffold constructed by National Dry Wall Company was not properly constructed. It was used by respondent because it was already in place and respondent could not use its portable power swinging scaffold to accomplish their sand blasting (Tr. 45). Respondent had taken its own equipment out on the job but was unable to utilize it because the scaffold of the National Dry Wall Company had been constructed around the building. As a result, it decided to make use of the scaffold already there to accomplish the job (Tr. 56).

Due to the condition of the scaffold, the compliance officer contacted Edward J. McConnell, Jr., respondent's president, to report what he believed was an imminent danger situation (Tr. 37). McConnell immediately sent a man to the job site who agreed the scaffold was not properly constructed and he ordered the respondent's employees off the scaffold (Tr. 37-38). The scaffold had previously been inspected by a state inspector who told respondent that the scaffold would be satisfactory if a cable was put up where the scaffold had been extended by respondent (Tr. 46, 53).

A Citation for Serious Violation was issued to respondent on January 24, 1972, alleging a serious violation of 29 CFR 1926.451(a)(2), (a)(4), (a)(12), (a)(14) and (a)(15). In concluding there was a serious violation, the compliance officer relied on the fact that there were openings in the scaffolding on the north side, the lack of hand rails and cross braces and the height and instability of the scaffold (Tr. 36).

In arriving at a proposed penalty of $700.00, the compliance officer commenced consideration of the serious violation with the statutory maximum penalty of $1,000.00 and then applied a 30 percent reduction. This reduction was arrived at by allowing the respondent a 20 percent reduction on its history of previous violations and a 10 percent reduction for size. No reduction was allowed for good faith because respondent admitted that the scaffold was not constructed as it should have been and the fact that a state inspection had recently been made of the workplace (Ex. 1; Tr. 40-41).

Immediately after the citation was issued, respondent took steps to insure full compliance with the Act. An outline of pertinent provisions of the Act was prepared by respondent's president and disseminated to all employees. This outline made it clear that "[F]ailure to comply with these Standards can result in disciplinary action including dismissal from employment" (Tr. 53-54). In addition, several meetings were held with respondent's superintendents and the applicable provisions of the Act were explained to them (Tr. 54).

LAW AND OPINION

Once a notice of contest is served, the authority to assess civil penalties under the Act resides exclusively with the Commission. The Commission, in Section 10(c) of the Act, is charged with affirming, modifying or vacating citations issued by the Secretary under Section 9(a) and notifications issued and penalties proposed by the Secretary under Sections 10(a) and 10(b). The Commission, by Section 17(j) of the Act, is expressly required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer and the history of previous violations in determining the assessment of an appropriate penalty. See Secretary of Labor v. Nacirema Operating Company, Inc.,

The compliance officer testified that he commenced consideration of the alleged serious violation with the statutory maximum penalty of $1,000.00 which is authorized in the Act for a serious violation and then applied a 30-percent reduction. This reduction was arrived at by allowing the respondent a 20-percent reduction on the respondent's history of previous violations and a 10-percent reduction for size. No reduction was allowed for good faith.

In Nacirema Operating Company, Inc., supra, the Commission stated that the four criteria to be considered in assessing penalties cannot always be given equal weight. The Commission indicated that the principal factor to be considered in assessing an appropriate penalty for a violation is the gravity of the offense. The record does not indicate how much consideration was given to the gravity of the violation in determining the proposed penalty.

Respondent does not challenge the philosophy of the law of the fact that a violation occurred (Tr. 4-5, 50). It is emphasized that there was no willful intent to violate the law and that its violation emanated largely from lack of information as to the requirements of the law. The respondent's president testified that his company operated in ignorance of the law because it had not received information from the Secretary of Labor (Tr. 50-51). He emphasized that the company had been in business 17 years and had a good safety record. Evidence was offered to show that its safety record was considerably better than the national average (Ex. A; Tr. 51-52).

The respondent is particularly of the opinion that it should be allowed full credit for good faith. It is emphasized that the scaffold was approved by the state inspector except for the suggestion that a cable should be installed at the back of the platform. This recommendation was followed. In addition, it is pointed out that the situation was immediately corrected when the matter was brought to their attention by the compliance officer (Tr. 52-53).

Each of the four criteria set forth in Section 17(j) of the Act for determining the "appropriateness of the penalty" have been carefully considered in arriving at an appropriate penalty. Additional emphasis has especially been placed on the respondent's good faith and the gravity of the violation. This review leads to the conclusion that an appropriate penalty for this violation is $300.00.

"The gravity of a particular violation can range from de minimus, where there is very low potential for injury or occupational illness, to severe, where death or serious physical injury would be likely" Secretary of Labor v. Nacirema Operating Company, Inc., supra. The gravity of the admitted violation in this case undoubtedly lies somewhere between these two extremes. The respondent contends that if it had thought death or serious physical harm was likely to an employee using the scaffold, it would not have permitted its employees to use it. It is also emphasized that the state inspector did not indicate the scaffold itself was of such a danger and only suggested that a wire cable be used behind the employees.

The record indicates that the respondent is now in full compliance with the provisions of the Act. The testimony of the respondent's president was convincing that the violation was not willful and occurred principally due to the fact that it had not received information on the Act from the Secretary of Labor. As a result of the citation, respondent's president has become very familiar with the Act and has been active in seeing that the proper information is being disseminated to other similar employees through its trade association. He also took immediate steps to insure that all of respondent's employees were properly apprised of the applicable provisions of the safety standards.

The evidence is convincing that respondent has a good safety record and is committed to the objective of assuring safe and healthful working conditions. While it admitted that the scaffold constructed by National Dry Wall Company was not properly constructed, it did not believe it was of such a defective condition as to be likely to cause serious physical harm to its employees. It also had no reason to believe such to be the case since the state inspector had not determined that the scaffold was not in usable condition. Respondent had undertaken to comply with the request of the state inspector to install a wire cable. It is further noted that once the compliance officer pointed out the hazards of the scaffold, respondent immediately ordered its men to get off it, and immediate corrective action was undertaken. Certainly, the respondent deserves some consideration of these factors when arriving at the amount of the final penalty.

The principal objective of the penalty is to obtain compliance with the requirements of the Act in order to insure a safe and healthful workplace. This objective appears to have been achieved in this case, and under the circumstances, the penalty is deemed excessive.

CONCLUSIONS OF LAW

1. The respondent is, and at all times material hereto was, engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2. The respondent is, and at all times material hereto, was subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder, and the Commission has jurisdiction of the parties and of the subject matter herein.

3. Respondent violated 29 CFR 1926.451(a)(2), (a)(4), (a)(12), (a)(14), and (a)(15). The violation was a serious violation within the meaning of Section 17(k) of the Act, as there was a substantial probability that death or serious physical harm could have resulted. The amount of $300.00 is an appropriate penalty.

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is

ORDERED: That the respondent was in violation of 29 CFR 1926.451(a)(2), (a)(4), (a)(12), (a)(14), and (a)(15) as alleged in the Citation for Serious violation issued to it on January 24, 1972, and is liable for a penalty of $300.00 as a result of the serious violation.