HOME SUPPLY COMPANY; ALJ. SCHNEIDER COMPANY, INC.; & ALJ. SCHNEIDER AND ASSOCIATES, INC.; A JOINT ENTERPRISE

OSHRC Docket No. 69

Occupational Safety and Health Review Commission

March 28, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission upon Chairman Moran's order directing review of a decision made by Judge Herbert E. Bates. Among other things, the Judge concluded that Respondent had committed four violations of section 5(a)(1) n1 of the Occupational Safety & Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). He assessed a penalty of $1,000 for each violation. We have reviewed the record, and we affirm.

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n1 29 U.S.C. 654(a)(1): Each employer -- (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

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The direction for review stated as follows:

The issues to be discussed, but not limited to, are whether the citations issued by the Secretary were proper, and did the evidence in this case establish a violation of 5(a)(1) of the Act?

Both [*2] parties responded to this direction by filing briefs. Complainant presented arguments concerning the propriety issue insofar as it had been raised and tried before the Judge. Respondent, who was ably represented by counsel, presented no argurnent on the issue. The fundamental issue argued in both briefs related to the evidentiary issue.

PROPRIETY OF THE CITATIONS

The citations herein were originally issued to A.J. Schneider Construction Co., Inc., d.b.a. Home Supply Co., Inc. At the commencement of trial the parties stipulated that the citations and notification of proposed penalties be amended by adding Al J. Schneider Company, Inc., and Al J. Schneider and Associates, Inc., as named employer respondents. The stipulation was made subject to Respondent's retention of the right to move to strike upon conclusion of the trial.

Thereafter, Respondents Al J. Schneider Construction Co., Inc., and Al J. Schneider and Associates, Inc., moved for dismissal of the citations on the ground that the evidence of record did not establish them as being employers of any employees affected by the alleged violations. Judge Bates granted the motion as to Schneider Construction and [*3] denied it as to Schneider and Associates. The parties have neither raised, tried, or briefed any other question with respect to the first issue raised in the direction for review.

The evidence supports the Judge's disposition. On August 26 and 27, 1971, Complainant's representative inspected a building construction site in Louisville, Kentucky. Respondent Home Supply Company was the general contractor on the site and was engaged in constructing a 24 story building known as the Louisville Trust Building. In June of 1971, Al J. Schneider Company, Inc., merged with Home Supply Company and lost its individual identity. Schneider Company retained employees after the merger and the merged companies were both engaged in the construction of the building. The companies are large; their net worth is in the millions; they employ more than 600 workers.

Schneider and Associates is also a large construction company employing more than 100 workers and having a net worth in the millions. This company was engaged in constructing a hotel on a site adjacent to the Louisville Trust Building site.

Judge Bates found that both construction projects were contemporaneous and integrated. [*4] Employees were switched as needed between all three corporations and the building projects. There was one superintendent for both projects, and he did not know which corporation employed him. There was one engineer for both projects, and he was employed by Schneider and Associates. The Judge's findings are fully supported by the record. Accordingly, his conclusion that the three named companies operated as a joint enterprise in constructing the Louisville Trust Building was correct, and it was therefore proper for all three to be named in the citations and notification of proposed penalties.

The Judge's dismissal as to Schneider Construction was also proper. The company was inoperative during 1971 and had no employees.

THE EVIDENTIARY QUESTIONS

Respondent was cited for five serious violations of section 5(a)(1) for failing to provide standard railings and toeboards (1) at the outer perimeters on 10 of 14 floors; (2) at elevator shaft openings within the building; (3) at stairway floor openings within the building; (4) at cantilevered material platforms extending from the building's exterior walls on its upper floors; and (5) on multilift scaffolds.

Judge Bates vacated the [*5] scaffolding citation for the reason that the scaffolds were owned and maintained by subcontractors and used by their employees. On review, Complainant agrees with the Judge's findings of fact but argues for affirmance because toeboards would have provided protection to employees working below the scaffolds. He argues that tools and materials could, absent the provisions of toeboards, fall from the scaffolds. The record is void of facts concerning the use of tools and materials on the scaffolds, and there is no evidence that Respondent's employees were in the vicinity of the scaffolds. We affirm the Judge's disposition.

Judge Bates affirmed the remaining citations. On review, Respondent does not seriously argue the existence of the violations. Indeed, it agrees that a serious hazard did exist with respect to the material platforms and agrees that death or serious physical harm could have resulted. As to the remaining violations Respondent's arguments are largely directed to gravity for penalty assessment purposes. The Judge assessed $1,000 per violation. We affirm.

The gravity of each violation is high. As to the unguarded floor perimeters employees were working [*6] at the edges, and other employees were sitting at the edges. There is no question that a fall could result in death or serious physical harm. Similarly, employees were working near the elevator and stairway openings. Numerous tripping hazards were present and the fall distances ranged from as little as 10 feet to distances measured by several floor levels. Death or serious physical harm almost certainly would have resulted in the event of a fall. The likelihood of an accidental occurrence was increased by the tripping hazards. We find the gravity of both violations to be high and as being sufficient to warrant the maximum penalties.

Accordingly, the Judge's decision and order are affirmed. It is so ORDERED.

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

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

DISSENT:

CLEARY, COMMISSIONER, concurring in part and dissenting in part: I concur with Commissioner Van Namee in the affirmation of four serious violations of section 5(a)(1) of the Act and the penalties assessed therefor. I do not agree, however, with the vacation of Citation Two to the effect that standard guardrails and toeboards were not provided on multilift scaffolding platforms ranging from six [*7] feet to about thirty feet above the ground or floor, because employees of respondent were found not actually exposed to the hazards involved. The scaffolds were found to be owned ans maintained by subcontractors and used by their employees.

The respondent's general superintendent knew of these conditions, and had authority to enforce safety rules regarding the subcontractors. Accordingly, the respondent had sufficient means for abating the hazard and controlling the worksite to be considered an "employer" of the employees of the subcontractors involved for purposes of section 5(a) with respect to the violation, Cf. Gilles & Cotting, No. 504 (October 9, 1973).

As my colleague states, the record is void of facts concerning the use of tools and materials on the scaffolds. It may be inferred, however, that at least some tools and materials were used on the scaffolds, because workmen were observed on them. The respondent had employees of its own on the premises who were peforce subject to the potential hazard of being hit by any objects that might fall from a scaffold that was unguarded by guardrails or toeboards.

The Act affords protection from potential as well as actual [*8] hazards. Section 5(a)(1) itself speaks of recognized hazards that are not only causing but are "likely to cause" death or serious physical harm to one's employees. The word "likely" is of course addressed to an expectation or potentiality rather than the actual existence of physical harm or death. Also, the Act recites in section 2 that its purpose is to relieve interstate commerce "so far as possible" of the burden of job-related injuries. n2 Section 8(f) of the Act further provides that employees may request federal inspections if they believe that a hazard exists which "threatens . . . harm," and section 17(k) defines a serious safety violation as one which creates a likelihood that serious harm "could result" from its presence. n3 These provisions contemplate clearly that potential exposure of an employer's employees to a safety hazard will make the employer responsible for the abatement of that hazard. The legislative history indicates clearly that Congress intended such responsibility. The objective was to assure safety by requiring employers to discover and correct hazards before either an accident or an immediate danger to their employers occurred. [*9] n4

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n2 See, Committee Print, Legislative History of the Occupational Safety and Health Act of 1970, 92nd Cong. 2d Sess. 142, 193, 844-845, passim (June 1971).

n3 Cf. section 13, empowering the Secretary to enjoin imminent hazards "which could reasonably be expected to cause * * * serious physical harm immediately or before the immence of such danger can be eliminated" through normal enforcement procedures. See also Eastern Associated Coal Corp. v. Interior Board of Mine Operations Appeals, F.2d, 2 CCH Safety and Health Guide, para. 17,275 (C.A. 4, No. 73-1859) (Feb. 12, 1974).

n4 E.g., Legislative History 142-144, 149-150, 152-154, 161-162; 851-853, 855-856; 865; 991-992, 1186, 1217. That Congress considered it necessary to enact a special provision affording extraordinary relief against hazards posing an "immediate danger" to employees is further evidence that it believed hazards that possibly endanger employees to be prohibited by the Act as a matter of course. See section 13; Legislative History 152-153, 855.

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MORAN, CHAIRMAN, concurring in part, dissenting in part: I concur with only so much of the lead opinion as holds that respondent violated 29 U.S.C. 654(a)(1) at the time and place alleged. There cannot however be more than one violation of this provision at any one place of employment at any one point in time.

The duty created by Congress in 654(a)(1) n5 is unequivocally to provide a place of employment free from recognized hazards. Where a fact situation shows only a single place of employment, as is the case here, there cannot be more than one violation of this subsection. n6

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n5 See note 1 supra.

n6 Indeed, the fact that the word "hazards" is used in the plural in the general duty clause indicates that Congress intended that the existence of multiple instances of various hazards would constitute a single violation thereof.

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The statutory requirement of this section of the law is that "All preventable forms and instances of hazardous conduct must [*11] . . . be entirely excluded from the workplace." National Realty and Construction Company, Inc., v. Occupational Safety and Health Review Commission, 489 F.2d 1257, 1266-1267 (D.C. Cir. 1973) (emphasis added). The provision that a particular place must be kept free of all instances of certain types of hazards is a single requirement and, at any single point in time, can be breached only once, regardless of the number of such hazards then existing.

[The Judge's decision referred to herein follows]

BATES, 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 citations issued by the Secretary of Labor pursuant to section 9(a), and proposed penalties assessed thereon, pursuant to section 10(c) of the Act. The Respondents admit that they are engaged in a business affecting commerce with employees as defined by section 3(5) of the Act, and that the Occupational Safety and Health Review Commission (hereinafter the Commission) has jurisdiction of the matter under section 10(c) of the Act.

On September 2, 1971, the Secretary issued five separate [*12] Citations for Serious Violations against the "A.J. Schneider Construction Co., (DBA Home Supply Co., Inc.)," each citation charging a violation of section 5(a)(1) of the Act (which requires each employer to furnish to its employees employment and a place of employment free from recognized hazards, causing or likely to cause death or serious physical harm to said employees) as follows:

Citation No. -- Description of Alleged Violation -- To be Corrected By

No. 1 -- Floor exterior perimeters on 10 of 14 floors were observed not provided with standard railings or equivalaent to prevent employees falling from the building. Employees were observed working on the exposed edges without any protection to guard against falling. -- Without delay but not later than September 13, 1971.

No. 2 -- Standard guardrails and toeboards were not provided on multilift scaffolding platforms ranging from 6 to approximately 30 feet above the ground or floor. Employees were observed working on the unguarded platforms -- Without delay but not later than September 7, 1971.

No. 3 -- Elevator shaft floor openings were not provided with standard railings and toeboards or enclosing screen, or equivalent protection. [*13] Employees were observed working in the vicinity of the openings. These openings would permit employees to fall 20 or more feet to solid surfaces below -- Without delay but not later than September 7, 1971.

No. 4 -- Stairway floor openings were not provided with standard railings and toeboards, or enclosing screens, or equivalent protection. Employees were observed working in the vicinity of the openings, which would permit a fall of 10 or more feet to solid surfaces below -- Without delay but not later than September 7, 1971.

No. 5 -- Cantilevered material platforms protruding from exterior walls of the building on upper floors were not provided with standard railings and toeboards on open sides. Employees were observed working on these platforms, exposed to the hazard of falling from the building -- Without delay but not later than September 7, 1971.

The Secretary proposed a penalty of $800.00 for each of the above alleged violations, deducting 20% of the statutory maximum of $1,000.00 for the Respondents' previous safety record.

The Respondents through a Notice of Contest received by the Occupational Safety and Health Administration on September 24, 1971, asserted [*14] that they believed the proposed total penalty of $4,000.00 was excessive under the circumstances and desired a hearing in regard to same.

The case was assigned to the undersigned on December 9, 1971, and after some unavoidable delay, the issues having been joined by Complaint and Answer, the hearing was held in Louisville, Kentucky, on April 18, 1972.

The matters at issue included the existence of the violations. Propriety of the abatement periods and reasonableness of the penalties. At the commencement of the hearing the Complainant noted a "stipulation" adding two more respondents, the Al J. Schneider Company, Inc., and the Al J. Schneider and Associates, Inc., to the previously captioned respondents (the Home Supply Co., Inc., and the Al J. Schneider Construction Co., Inc.). The Respondents Al J. Schneider Construction Co., Inc., and Al J. Schneider and Associates, Inc., based upon the testimony later adduced at the hearing, moved that they be dismissed as respondents since neither of them are the employer of any employees affected by the violations charged in the various citations. By order dated July 25, 1972, (Docket Item No. H-19) the undersigned dismissed the [*15] Al J. Schneider Construction Company, Inc., as a respondent in this action, leaving the presently captioned corporate entities (who are inter-related and operate jointly) as the Respondents herein.

Mr. Norbert Stitch, Business Representative of Local No. 1, Bricklayers, Masons and Plasterers International Union, Louisville, Kentucky, which union represents affected employees, was present at the hearing, in the role of an observer.

Having observed the witnesses and having heard and considered their testimony together with the exhibits, stipulations, representations and admissions of the parties, it is concluded that substantial evidence, on the record considered as a whole, supports the findings of fact listed under the appropriate heading below.

FINDINGS OF FACT

1. On August 26 and 27, 1971, Mr. Fred Dempsey, a compliance officer with the United States Department of Labor, conducted an official investigation under the Occupational Safety and Health Act of 1970 (hereinafter referred to as the Act) of a site in Louisville, Kentucky, where a twenty four story building known as the Louisville Trust Building was under construction. At this time the standards issued pursuant to section [*16] 6 of the Act were not in effect. However, the general duty clause of section 5(a)(1) of the Act was in effect. The said standards went into effect in relation to this type construction work on September 27, 1971 (Tr. 21, 23, 24, 28, 78, 183, 186, 187, 220, 221).

The general contractor for the aforesaid construction work was the Respondent, Home Supply Company, a corporation organized and existing under the laws of Kentucky. Home Supply Company is a large corporation engaged in the building supply business, in the operation of a large motel known as Executive Inn and in construction work (including the construction of the said Louisville Trust Building) through a division known as Al J. Schneider Company, Inc., also a Respondent in this action (Tr. 346, 347, 348, 355-360, 36; Exs. C-8, C-4, C-5).

3. The Al J. Schneider Company, Inc., had been a separate Kentucky corporation until June 1971, at which time it merged with Home Supply Company, with Home Supply Company as the surviving corporation (Tr. 346-348; 355-360; Exs. C-8, C-4, C-5).

4. Also on August 26 and 27, 1971, the Respondent Al J. Schneider and Associates, Inc., a Kentucky corporation, was constructing a [*17] large hotel, known as the Galt House, on land adjacent to the Louisville Trust Building. The construction work on both the Louisville Trust Building and the Galt House was contemporaneous and integrated. The engineer for both buildings was Johannes Schmaz who was and is employed by Al J. Schneider and Associates, Inc. The General Superintendent for both buildings was John Greer who was not sure by which corporation he was employed. In the inspection of the Louisville Trust Building Mr. Greer designated his assistant, James Greathouse, to go with Mr. Dempsey. Mr. Greathouse was employed by Al J. Schneider and Associates, Inc. Employees were switched as needed between the corporations and between construction work on the Louisville Trust Building and the Galt House (Tr. 23, 24, 299, 307, 308, 309, 310, 370, 371, 388, 394).

5. The Al J. Schneider Construction Company, a Kentucky corporation, was inactive during the year of 1971 with no employees. The compliance officer had been informed by Mr. Greer and Mr. Al J. Schneider, Jr., that the work on the Louisville Trust Building was being performed by the Al J. Schneider Construction Company, which is also indicated on [*18] the notice of protest and answer (Tr. 35, 308, 351, 352; Joint Ex. 3, Ex. C-8).

6. Home Supply Company has a net worth in the millions and at the time of the investigation had over 600 employees including the employees of Al J. Schneider Company, Inc. On August 26, 1971, the Al J. Schneider Company, Inc., had 35 employees working at the construction site. The Al J. Schneider and Associates, Inc., had a net worth in the millions and normally has in excess of 100 employees (Tr. 427, 428, 430, 347, 349, 350; Joint Exs. 1, 2, 4, 6, 5).

7. The Respondents, Home Supply Company, Al J. Schneider Company, Inc., and Al J. Schneider and Associates, Inc., are inter-related and operate as a joint enterprise (Tr. 201-210, 299, 307-316, 371, 388, 394, 361; C. Ex. 18, 19).

Note: Mr. Schmaz was the principal corporate official concerned with the corrections of the violations found in the Louisville Trust Building and although he was employed by Al J. Schneider and Associates, Inc., he mainly worked with the Louisville Trust Building (Tr. 394).

8. The following conditions existed at the Louisville Trust Building on August 26, and 27, 1971:

(a) As charged in citation #1, the floor exterior [*19] perimeters on 10 of 14 floors had no railings and were completely unguarded. Employees were working near and around the unguarded perimeters. General employee traffic was moving throughout the building and ployee traffic was moving throughout the building and going to the exterior perimeters for any purpose whether to work, to eat lunch on the edges or just for the view (Tr. 44-57, 88-90, 124, 125, 121, 122, 126, 127, 129, 131, 134, 138, 139, 151, 172, 173, 177, 215, 216, 305, 306, 315, 378; Exs. C-1, C-2, C-10, C-11 C-12, C-15).

(b) As charged in citation #2, standard guardrails and toeboards were not provided on multilift scaffolding platforms ranging from 6 to approximately 30 feet above the ground or floor. Employees were observed working on the unguarded platforms. However, these scaffolding platforms were owned and maintained by subcontractors and the employees observed on the platforms were employees of the subcontractors rather than of the Respondents.

(c) As charged in citation #3, nine elevator shaft floor openings were completely unguarded. Employees were working near and around the openings through which employees could fall 20 or more feet to solid surfaces [*20] below (Tr. 75-80, 154, 155-159; Exs. C-1, C-4).

(d) A charged in citation #4, three stairway floor openings were completely unguarded. Employees were working near and around the openings through which employees could fall 10 or more feet to solid surfaces below (Tr. 80-82, 144, 160-161; Exs. C-1, C-5)

(e) As charged in citation #5, three cantilevered material platforms on the 6th, 7th and 8th floors had no guards or rails around the three outer edges of each platform. These platforms extended from the exterior perimeters of the building and were used to enable the crane to move materials to and from the particularfloors. Employees were working on and near these platforms and materials were present on the platforms (Tr. 83-92; Exs. C-1, C-6, C-11, C-14).

9. (a) The conditions described in findings 8(a) and 8(e) are recognized as hazardous by standard A 12.1-1967 issued by the American National Standards Institute, by Chapter 16.6.2 and 16.7.1 of the Commonwealth of Kentucky Industrial Safety Standards issued under Kentucky Statutes, and by 29 C.F.R. 1518.500(c)(2) and (d)(1), all of which require adequate guarding for such exterior perimeters as are involved here (Tr. [*21] 65-70, 90, 91).

(b) The conditions described in finding 8(b) are recognized as hazardous by section 3.3 of the scaffold requirements issued by the American National Standards Institute, by paragraph 22.A.23 of Engineer Manual 385-1-1 of the U.S. Army Corps of Engineers, by Chapter 11.17.20 of the Kentucky Standards, and by 29 C.F.R. 1518.451(a)(4) and (d), which standards require adequate planking, guardrails and toeboards (Tr. 71-75).

(c) The conditions described in findings 8(c) and 8(d) are recognized as hazardous by paragraph 4.1 of standard 12.1-1967 issued by the American National Standards Institute, by Chapter 16.6.2 of the Kentucky Standards, and by 29 C.F.R. 1518.500(b) and (c), which standards required proper guarding around floor and wall openings (Tr. 79-82).

(d) The American National Standards Institute, U.S. Corps of Engineers and Kentucky Standards became effective prior to August of 1971. The 1518 standard issued under section 6 of the Act became effective September 27, 1971, and has been renumbered 1926 (Tr. 68, 69, 72, 74, 75, 79, 180, 191, 92).

10. In addition to the conditions described in finding 8, the Louisville Trust Building had numerous conditions [*22] on August 26 and 27, 1972, which were contrary to the standards issued pursuant to section 6 of the Act, including stairway openings and elevator shaft openings which were inadequately guarded (Tr. 88-96, 27-30, 186, 187, 201, 202; Exs. C-1, C-17).

11. The conditions described in finding 8 are recognized hazards. There was a substantial probability that any employee who fell from the extended loading platforms, from the exterior perimeters, from the scaffolding, through the elevator shaft openings, or through the stairway openings would receive injuries that would cause death or at the very least serious physical harm. These hazards were readily apparent and the Respondents knew of them (See finding 9; Tr. 65, 71, 78, 79, 81, 89, 90, 318, 319, 386, 387; Exs. C-10, C-14).

12. Housekeeping throughout the building on August 26 and 27, 1971, was extremely bad and presented many trip hazards which made the conditions described in finding 8 even more dangerous (Tr. 87, 90, 94; Exs. C-10, C-14, C-1, C-17).

13. On September 1, 1971, the compliance officer returned to the construction site to secure certain administrative data. Although he did not go into the building he [*23] could see that the Respondents had begun no effort to correct the conditions which were apparent from outside the building (Tr. 95-96).

Note: The first pictures were taken by the compliance officer on August 27, after he had informed Mr. Greathouse and Mr. Greer on August 26 of the dangerous conditions and that corrections should begin without delay. The pictures show employees still working on the edges and numerous trip hazards in the vicinity of the edges (Tr. 95-96; Exs. C-14, C-10).

14. On September 2, 1971, five citations were issued to Respondents charging serious violations of section 5(a)(1) of the Act. Citations 1 through 5 related to the conditions stated in findings 8(a) through 8(e), respectively. On the same date Respondents were notified of a proposed penalty of $800 for each citation, with a total proposed penalty of $4,000. On September 24, 1971, the Respondents duly filed a notice of protest of the citations and proposed penalties (Tr. 96-100, 200, 201; Exs. C-2, C-6, C-16, C-8).

Note: The complaint and citations were amended at the hearing to add Respondents and the above finding assumes the amendment relates back to September 2, 1971 (Tr. 5, 6). [*24]

15. On September 7, 1971, the Area Director of the Occupational Safety and Health Administration, U.S. Department of Labor, in a telephone conversation with Mr. Schmaz expressly discussed the requirement for adequate guarding (Tr. 207-210; Ex. C-20).

16. On June 29, 1971, the Respondents had employees working on the Louisville Trust Building near and around exterior perimeters and floor openings without guardrails where an employee could have received serious injury or death (Tr. 210-215; Ex. C-21).

17. On September 28, 1971, the following conditions were present in the Louisville Trust Building: Employees were working over six feet above the surface on scaffolding without guardrails, midrails or toeboards. Employees were also working near unguarded exterior perimeters and floor openings (Tr. 218-222; Ex. C-22).

18. On September 28, 1971, the following conditions were present in the Galt House: Employees were working near and around roof openings and exterior perimeters which were not guarded. Employees were also working near and on loading platforms which had no guardrail protection (Tr. 222, 228-233; Ex. C-22).

19. On October 17, 1971, employees on both the Galt House [*25] and Louisville Trust Building were working near and around exterior perimeters which were not provided with guard rails (Tr. 239, 238, 240, 241; Ex. C-23).

20. On April 17, 1972, the following conditions were present in the Galt House: Employees were working on improperly guarded scaffolding over six feet above the surface. Employees were working near and around unguarded exterior perimeters and loading platforms. One such platform with an employee working on it was being raised and lowered along the side of the building by a crane (Tr. 266-284; Exs. C-24, C-25, C-26, C-27).

21. It is specifically found that the record shows a complete absence of good faith on the Respondents' part in relation to the serious and dangerous conditions that existed. The Respondents had no effective safety program (See findings 17-21; Tr. 100).

DISCUSSION

Although the main thrust of the Respondents' pleadings indicated their emphasis on contesting the proposed total penalty of $4,000.00 as being excessive under the circumstances, and while their Answer to the Complaint appeared somewhat ambiguous and contradictory (Compare paragraphs V and VII of the Answer herein) nevertheless the [*26] question of whether the cited hazardous conditions in fact existed was also at issue in this matter (Tr. 19, 20).

The Secretary amply sustained the burden of proving the allegations as set forth in Citations 1, 3, 4, and 5 as reflected in the findings of fact based on substantial evidence, set forth under the appropriate heading, particularly items 8(a), (c), (d) and (e) of such findings.

While the facts as alleged in Citation 2, on their face at least, constitute a serious violation, the Respondents under the Act, cannot be held in violation of section 5(a)(1), because the unsafe scaffolding conditions alleged in Citation 2 were permitted to exist not by the Respondents herein, but by subcontractors of the Respondents; said subcontractors owning the scaffolding equipment, and effectively controlling those specific areas of the overall work environment where the scaffold work was underway. The employees immediately affected by these hazards were in the employ of the subcontractors and not the Respondents, and thus it was the subcontractors as "employers" who were susceptible to a citation for violating section 5(a)(1) of the Act [(if in fact a violation or violations [*27] occurred)], and not the Respondents herein.

Even so, it might be noted that the hazardous scaffolding conditions were known to the Respondents' general superintendant, Mr. John Greer, and while the evidence does not clearly indicate that he actually had authority to enforce safety rules in regard to subcontractors, there is no evidence that he even gratuitously brought the unsafe conditions to the subcontractor's attention in any manner, formally or informally, officially or unofficially, such failure on his part adding to the overall picture of safety derelictions which permeates unfortunately, the overall picture reflected by the evidence in regard to the construction of the Louisville Trust Building by the Respondents.

Since the Secretary has failed to prove that the Respondents violated the Act as charged in Citation No. 2, the remaining total penalty in controversy amounts to $3,200.00, for the four serious violations which were proven, and which the Respondents attack as being excessive. This total penalty (consisting of $800.00 for each of the four violations cited in Citations 1, 3, 4 and 5) was computed pursuant to a formula utilized by the Secretary, which was found unacceptable [*28] by the Commission in Secretary of Labor v. Nacirema, The Commission there noted that the Secretary's fixed formula failed to achieve the required "just result" in all cases because it in effect provided that all serious violations were of equal gravity and it contemplated the setting of a $1,000.00 maximum penalty as a starting point, with fixed percentage deductions based on the criteria of history of previous violations, size of the business involved, and "good faith" [(as gauged by evidence demonstrating the existence and effectiveness of the Respondent's safety programs, their commitment to assuring safe and healthful working conditions to their employees and their cooperation with other persons and organizations (including the Departments of Labor)].

In Nacirema, the Commission further noted that the factors of gravity, good faith or past history standing alone, if gross enough could result in the maximum penalty.

Under the Secretary's formula, the Respondents were granted a 20% reduction from the statutory maximum of $1,000.00 based on their previous safety record.

That the violations found here are extremely grave is patent from a [*29] mere reading of the pertinent citations coupled with the findings of facts supported by the visual exhibits.

The evidence demonstrating the Respondents' lack of good faith (as depicted in findings of fact No. 18 through 21) is convincingly clear and points up the Respondents' failure to correct the hazardous conditions under which their employees were working compounded by what appears to be a repetition of similar hazards by the Respondents in the Galt House, another building being constructed by the Respondents herein. These apparent hazardous situations are portrayed vividly in the exhibits relating to the testimony referred to in the said findings and need not be further described here. The undersigned notes in passing, that the existence of Galt House safety violations per se was not at issue in the instant case, but evidence relating thereto was admitted only as such evidence pertained to the issue of the Respondents' "good faith," since the Respondents were engaged in the construction of the Galt House in addition to the Louisville Trust Building, on which latter site the violations involved here occurred.

The Complainant concluded his proposed findings of [*30] fact with a submission that the Respondents' "complete failure" to correct the hazardous conditions must have resulted from their hope to complete the construction before this matter could be decided. While this is purely conjecture on the Complainant's part, it remains however crystal clear that the Respondents' inaction in this regard at the very least displayed their lack of "good faith," regardless of the Respondents' motivation under the premises.

Bound by the principles annunciated by the Commission in Nacirema supra, as well as in Secretary of Labor v. Hidden Valley Corporation of Virginia, (OSHRC Docket #11), (in which latter case the Commission asserted that the gravity of the violations plus the lack of good faith, two elements present in the captioned case and discussed above, may serve to overide any consideration which can be accorded to the size and previous safety history of the Respondent or Respondents involved) the undersigned, in an effort to more closely approximate the desired "just result" within statutory limitations, holds that the proposed penalty of $800 for each of the violations alleged in Citations 1, 3, 4 and 5 should be re-assessed at the [*31] statutory maximum of $1,000 per violation.

CONCLUSIONS OF LAW

Based upon all of the foregoing, and on the preponderance of the evidence in the record as a whole, the undersigned concludes that:

1. At all times herein mentioned the Respondents, Home Supply Company, Inc., Al J. Schneider Company, Inc., and Al J. Schneider and Associates, Inc., were and still are employers engaged in a business affecting commerce within the meaning of section 3 of the Act, and the Occupational Safety and Health Review Commission has jurisdiction of the parties and of the subject matter herein. The Respondents were and are joint employers of the employees who worked on the Louisville Trust Building.

2. On August 26 and 27, 1971, the Respondents violated section 5(a)(1) of the Act by permitting the existence of the conditions alleged in Citations 1, 3, 4 and 5, as found in paragraphs 8(a), (c), (d) and (e) of the findings of fact supra. These violations were serious violations in that there was a substantial probability that death or serious physical injury could result from the conditions and practices at the worksite as heretofore stated in the findings. The Respondents knew and [*32] should have known of the violations due to the active presence and observation of many of their supervisory personnel.

3. The Complainant has failed to establish that the Respondents violated section 5(a)(1) of the Act as alleged in Citation No. 2.

4. Under the circumstances of this case, the proposed penalties of $800.00 for each of the four serious violations alleged and proven by the Complainant, are inappropriate.

ORDER

In view of all the foregoing, and good cause appearing therefore, it is ORDERED that:

1. Citations No. 1, 3, 4 and 5 are affirmed in all respects, except that the proposed penalties of $800.00 for each of the violations alleged therein are hereby assessed at $1,000.00.

2. Citation No. 2, and the attendant proposed penalty of $800.00 assessed therefor are hereby vacated.