R.H. BISHOP COMPANY

OSHRC Docket No. 637

Occupational Safety and Health Review Commission

May 30, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with my order directing review of a decision issued by Judge Sidney Goldstein. Judge Goldstein concluded, inter alia, that Respondent did not commit nonserious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. hereinafter "the Act") by violating standards published at 29 C.F.R. 1926.401(j)(1), 29 C.F.R. 1926.350(a)(1), and 29 C.F.R. 1926.51(a)(5). n1 Judge Goldstein also found that Respondent was in non-serious violation of the standard published at 29 C.F.R. 1926.306(c)(3). n2 The Judge assessed no penalty for this violation.

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n1 29 C.F.R. 1926.401(j)(1) provides:

Temporary lights shall be equipped with guards to prevent accidental contact with the bulb, except that guards are not required when the construction of the reflector is such that the bulb is deeply recessed.

29 C.F.R. 1926.350(a)(1) provides:

Valve protection caps shall be in place and secured.

29 C.F.R. 1926.51(a)(5) provides: Where single service cups . . . are supplied, both a sanitary container for the unused cups and a receptacle for disposing of the used cups shall be provided.

n2 29 C.F.R. 1926.303(c)(3), in pertinent part, provides:

Cut type wheels used for external grinding shall be protected by either a revolving cup guard or a band type guard . . . . All other portable abrasive wheels used for external grinding, shall be provided with safety guards (protection hoods). . . .

[*2]

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We have reviewed the entire record. For the reasons stated hereinafter we adopt the Judge's decision only to the extent it is consistent with the following decision.

Citation for Violation of 29 C.F.R. 1926.401(j)(1)(Non-Serious)

Respondent was the heating and plumbing subcontractor for the construction of a dormitory at Chanute Air Force Base, Rantoul, Illinois. On February 2, 1972, Complainant's representative conducted an inspection of this jobsite. He observed the use of temporary lighting throughout the building. Over 100 light bulbs were unguarded. Deep recess reflectors were not used. All employees on the jobsite, including those of Respondent, were exposed to the aforementioned condition.

Respondent argued, and the Judge concluded, that Respondent had not violated the standard because the temporary lighting was the responsibility of, and was under the control of, another contractor on the jobsite. n3 We do not agree.

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n3 The Judge also vacated the citation for violation of 29 C.F.R. 1926.350(a)(1) on this basis. We affirm the vacation of this item. There is no evidence that any of Respondent's employees were exposed to the cited condition.

[*3]

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Section 5(a)(2) of the Act mandates employer compliance with safety and health standards that have been legally promulgated by Complainant. In the usual case an employer is in violation of section 5(a) when his employees are affected by a violative condition. It is not defense that others created the violative condition, were responsible for its existence, or had control of the site where such condition exists. We are aware that for construction projects it often happens that a prime contractor will by contract assume responsibility for certain safety aspects on a project wide basis. The prime contractor's assumption of responsibility in this regard cannot operate to relieve a subcontractor of his individual statutory responsibility. Were we to relieve the subcontractor we would necessarily create an exemption from section 5(a)(2) when the Act does not provide for an exemption. On this record Respondent's employees were exposed to unguarded light bulbs, and that establishes the violation.

Turning now to the assessment of an appropriate penalty, we have no reason to question Respondent's [*4] good faith and it has no history of previous violations. Respondent, as noted above, was engaged in construction work on a Federal military installation. It had from five to fourteen men working on the project at various times. While working on the Chanute project Respondent also had work in progress at many other locations. On these facts we conclude that Respondent is of moderate size. In addition, the evidence is not very revealing concerning the gravity of this violation. On balance, a penalty in the amount of $25 is reasonable and will be assessed. n4

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n4 This matter is distinguishable from Beall Construction Company, In Beall the statutory factors of good faith and prior history offset each other. The evidence of record concerning the gravity in Beall necessitated the assessment of a higher penalty.

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Citation for Violation of 29 C.F.R. 1926.51(a)(5)(Non-Serious)

Under this standard [*5] when disposable single service cups are supplied an employer must provide a receptacle for the disposal of used cups. Complainant, in his brief before the Commission states that "[a] review of the record reveals that as to the alleged violation of 29 C.F.R. 1926.51(a)(5), the evidence on the record does not establish a sufficient relationship to occupational safety and health in this particular case." We agree. A de minimis notice n5 in lieu of a citation should have been issued. This item of the citation should be vacated.

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n5 29 U.S.C. 658(a) authorizes issuance of a de minimis notice in those circumstances where a violative condition has "no direct or immediate relationship to safety or health."

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Citation for Violation of 29 C.F.R. 1926.303(c)(3)(Non-Serious)

The record establishes that Respondent's employee was using an unguarded grinding tool. On these facts we agree with the Judge that a violation of the cited standard was established.

Complainant proposed a penalty of $25 for the violation. [*6] Judge Goldstein vacated the proposed penalty because "no useful purpose would be served" in assessing a penalty. We find this was error.

The factors of past history, good faith, and size, as considered above, have equal application to this violation. In addition we find the evidence of record as to gravity to be as meager as that related to the unguarded light bulbs. It is apparent, however, that the use of an unguarded grinding wheel exposed Respondent's employee to possible injury from flying particles in the event the wheel exploded. We thus conclude that the violation has at the very least the level of gravity that mandates the assessment of a monetary penalty. See Hydroswift Corp., BNA 1 O.S.H.R. 591, CCH Employ. S & H. Guide para. 15,275 (1972). On balance, we think the Complainant's proposed penalty of $25 is appropriate.

Accordingly, the order of the Judge is modified as follows:

1. The citation for violation of 29 C.F.R. 1926.401(j)(1) and the proposed penalty of $25 is affirmed.

2. A penalty of $25 is assessed for violation of 29 C.F.R. 1926.303(c)(3).

In all other respects the order of the Judge is affirmed. It is so ORDERED.

CONCURBY: MORAN (In Part); [*7] CLEARY (In Part)

DISSENTBY: MORAN (In Part); CLEARY (In Part)

DISSENT:

MORAN, CHAIRMAN, concurring in part and dissenting in part: Judge Goldstein correctly decided this case and his decision should have been affirmed for the reasons stated herein. I therefore concur in so much of Commissioner Van Namee's opinion that sustains the Judge and dissent from the balance of his opinion.

CLEARY, COMMISSIONER, concurring in part and dissenting in part: I concur in the decision of Commissioner Van Namee with regard to all violations but one. I dissent from the vacation of the citation for failure to comply with the standard at 29 C.F.R. 1926.350(a)(1). J.E. Roupp & Co. and Denver Dry Wall Co., consolidated case Nos. 146 and 147 (April 14, 1974) (Cleary, Commissioner, concurring in part and dissenting in part).

My views on the multi-employer responsibilities are fully expressed in my dissenting opinions in Humphreys & Harding, No. 621 (May 9, 1974); James E. Roberts C. & Soule Steele Co., Nos. 103 & 118 (April 16, 1974); J.E. Roupp & Co. and Denver Dry Wall Co., supra, and Home Supply Co., No. 69 (March 28, 1974).

[The Judge's decision referred to herein follows]

GOLDSTEIN, [*8] JUDGE, OSAHRC: This matter arises under Section 10 of the Occupational Safety and Health Act of 1970, and involves the contest of a Citation issued by the Secretary of Labor against the R.H. Bishop Company (sometimes hereinafter referred to as the Respondent or the Company). In the Citation the Secretary alleged that the Company violated the Act by failing to comply with certain occupational safety and health standards promulgated thereunder. The Company denied the charges and submitted a Notice of Contest. In due course the Secretary filed a Complaint with this Commission, and the Company responded with an Answer. Pursuant to the Pleadings a hearing was held in Champaign, Illinois, on September 21, 1972.

The Secretary's Citation and Complaint charged the Respondent with nine violations of the statute and regulations, proposing a penalty of $350.00 for seven of these alleged infractions. Included was a $25.00 penalty proposed for each of four items: unguarded temporary light bulbs, scattered debris over the construction area, unguarded power tool, and unposted floor load capacity. The remaining $250.00 in proposed penalties covered alleged violations involving the [*9] failure to post an Information Poster and to maintain a Summary of Occupational Injuries and a Log of Occupational Injuries and Illnesses.

The Company contested the Citation on the grounds that some of the work was the responsibility of others; some deficiencies were abatted or in the process of correction; and the floor loading was not beyond the normal use of the original design of the building. In addition the Company maintained that the superintendent on the job had the required forms on his desk.

SUMMARY OF EVIDENCE

The evidence in this cause discloses that the Respondent is in the plumbing and heating business with offices in Champaign, Illinois, and that during the period in question it held a subcontract involving the construction of barracks at an air force base in Rantoul, Illinois. Accompanied by representatives of the general contractor and various subcontractors, a Compliance Officer with the Occupational Safety and Health Administration inspected the construction site. During the tour, the inspector discovered that the temporary light bulbs were unprotected, and that there were scattered debris over the general construction area. So far as the Respondent's [*10] particular operations were concerned, he also observed that a grinding tool was unguarded and that there was no sign indicating the floor load capacity of its workshop. In addition the officer noted that the Respondent did not display or have on its work site premises three Occupational Safety and Health Administration documents, namely, an Information Poster, a Summary of Occupational Injuries, and a Log of Occupational Injuries and Illnesses.

Other testimony in the record also discloses that the temporary unguarded light bulbs were installed by electricians employed by the electrical contractor; and that the Respondent had no authority or control over the lighting on this project. Furthermore, due to a recent change in building code requirements, there was a temporary shortage of light guards available.

There was in fact scattered debris over the general construction area, and all crafts contributed to this disorder. The Inspector was of the opinion that some of the debris was accumulated by the Respondent.

It appears undisputed that one of the Respondent's power tools was without a guard required by regulations, but this situation was promptly remedied when called to its [*11] attention.

The Respondent also acknowledged that there was no sign posted disclosing the floor load capacity of its workshop. However, such load restrictions could not readily be ascertained, and in any event there was in fact no abuse of floor capacity.

There was some conflict in the testimony regarding the display of the various posters required by the regulations. Without question the Informational Poster, Summary of Occupational Injuries, and Log of Occupational Injuries and Illnesses were not posted at the job site when it was inspected by the Compliance Officer. However, when these alleged infractions were called to the attention of the Respondent, it took immediate steps to comply with all requirements of the regulations. In addition the Log of Occupational Injuries and Illnesses, Form OSHA 100, was actually maintained at the main office of the Employer-Respondent.

CONCLUSIONS OF LAW

On the basis of the foregoing record the question arises whether or not the Employer did in fact violate the statute and regulations; and, if so, whether the proposed penalties were in order.

The Occupational Safety and Health Act of 1970 directed the Secretary of Labor to promulgate [*12] occupational safety and health standards which are to be complied with by all employers engaged in business which affects commerce and by their employees. In addition employers are placed under the general duty of furnishing to their employees employment free from recognized hazards that are likely to cause death or serious physical harm.

In this case, it is undisputed that temporary light bulbs were not guarded throughout the constructions site; that LPG cylinders were not capped when not in use; and that there was no receptacle for used drinking cups. However, the Employer did not install or control the lighting system utilized on this project, a matter peculiarly within the providence of the electrical contractor and the electricians. The same conclusion must be made with respect to the failure to cap LPG cylinders when not in use, a situation under the control of the welders. Also the Employer did not own or furnish the drinking water or cups, a facility offered by the general contractor. In summary, therefore, while under the Act the employer is required to furnish a safe place to work, the Respondent cannot be held responsible for the default or conduct of the [*13] general contractor or other subcontractors on the job. It is in no position to guarantee compliance of all safety regulations by other employing units.

The situation is not the same with respect to two other alleged violations, namely, scattered debris over the construction site and unguarded abrasive wheel. In these two instances, the Employer maintained control over the area assigned to it and owned the tool. Consequently it should be held responsible for the avoidable infractions. It is noted that these items were corrected when called to the attention of the Respondent.

There also was an undenied violation of the regulation referring to the posting of floor load capacity; but the Employer explained that it had no way of knowing what the correct figure should be and in any event there was no abuse of load capacity.

There remains for discussion the alleged violations in connection with the posting of various notices required by the regulations. While none of the three forms were found at the work site by the Compliance Officer, the record discloses that the Employer attempted to remedy the situation as soon as called to its attention. There does not appear to be [*14] any intention to violate the rules regarding posting, and there was complete cooperation in this regard. The evidence also reveals that a Log of Occupational Injuries and Illnesses was kept at the Employer's headquarters.

Under the Act, the Commission is charged with affirming, modifying, or vacating Citations issued by the Secretary and penalties proposed thereunder. In the assessment of penalties, the Commission must 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 prior violations, with the principal factor being the gravity of the offense. In previous cases, the Commission has ruled that relatively minor monetary penalties are of little value in effectuating the objective of the Act -- to insure a safe and healthy workplace.

In the instant matter, the inspection was not instigated as a result of an accident or upon the complaint of an employee. From my study of the record I am convinced that the Employer did not willfully disregard the regulations of the Secretary, and that it corrected the violations as soon as called to its attention. It appears also that the employer is very [*15] interested in the safety and welfare of its workers and was surprised at the neglect of its employee to post the various forms.

There are technical violations of some regulations in this case. However, in view of the fact that the infractions admittedly were non-serious in nature; inasmuch as the Employer cooperated fully in the correction of the alleged violations; and since it demonstrated a desite to comply with all regulations and standards of the Secretary, no useful purpose would be served in assessing any penalties.

FINDINGS OF FACT

On the basis of the foregoing, I find

(1) That the Respondent was subject to the provisions of the Occupational Safety and Health Act during the period in question;

(2) That on the Chanute Air Force Base construction contract the Respondent was not responsible for the failure to install or maintain temporary light bulbs; for the failure to cap LPG cylinders when not in use; and for the failure to supply a receptacle for used drinking cups.

(3) That the Respondent was responsible for some of the debris scattered about the project; for the unguarded tool; and for the failure to post the floor load capacity of its workshop.

(4) That [*16] the Respondent failed to have on display at the Chanute Air Force Base project an Informational Poster, a Summary of Occupational Injuries and Illnesses; and a Log of Occupational Injuries and Illnesses.

ORDER

Upon consideration of the record and the foregoing findings and conclusions, it is hereby ordered:

(1) That the Citation for the alleged violation of 29 C.F.R. 1926.401(j)(1); 29 C.F.R. 1926.350(a)(1); and 29 C.F.R. 1926.51(a)(5), Items 1, 2 and 4, all non-serious, be and the same are hereby vacated;

(2) That the Citation for the alleged violation of 29 C.F.R. 1926.25(a); 29 C.F.R. 1926.303(c)(3); 29 C.F.R. 1926.250(a)(2); 29 C.F.R. 1903.2; 29 C.F.R. 1904.5; and 29 C.F.R. 1904.2, Items 3, 5, 6, 7, 8 and 9, all non-serious, be and the same are hereby affirmed.

(3) That the proposed penalties for the alleged violations of Items 1, 3, 5, 6, 7, 8 and 9 of the non-serious Citation be and the same are hereby vacated.