LIPSKY AND ROSENTHAL, INC.

OSHRC Docket No. 690

Occupational Safety and Health Review Commission

May 13, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order and Chairman Moran's separate order directing review of a decision of Judge David Harris. Judge Harris concluded inter alia that Respondent was in serious violation 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 the standard published at 29 C.F.R. 1926.500(d)(1). n1 He assessed a penalty of $250 for this violation.

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n1 The cited standard provides:

Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

[*2]

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Review was directed on the issue of whether the trial Judge lacked authority under the Act to find Respondent in serious violation when the Complainant only charged a non-serious violation of the subject regulation. n2

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n2 Review was also directed on the issues of whether the Judge erred in affirming two other items of the Complainant's citation for non-serious violation and whether the Respondent should have been given an opportunity to accompany the Compliance Officer during the inspection. The evidence of record fully supports the Judge's disposition of the other two non-serious items. As to the walk-around issue Complainant's representative held an opening conference with Respondent's foreman. One or more additional conferences were held. Complainant's representative testified that violations were in his and the foreman's plain view and were pointed out to the foreman. Respondent's foreman could not recall whether the violations had been pointed out. Under the circumstances Complainant substantially complied with the requirements of 29 U.S.C. 657(e).

[*3]

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We have reviewed the entire record. For the reasons stated herein, we adopt the Judge's decision only to the extent it is consistent herewith.

The relevant facts are as follows: Respondent is a contractor engaged in the installation of plumbing in apartment structures and some office building construction. At the time of Complainant's inspection, Respondent was performing plumbing work with respect to the construction of an apartment complex. During the inspection three of Respondent's employees were observed hauling plumbing materials up to the sixth floor of one of the buildings. They were standing at the edge of the sixth floor while engaged in this operation. The floor was opensided and unguarded.

On these facts Complainant alleged a non-serious violation of 29 C.F.R. 1926.500(d)(1). The issue was tried as a non-serious violation. Judge Harris concluded that Respondent was in serious violation. We will modify his order to find a non-serious violation.

The Judge's decision herein was made prior to our decision in Wetmore and Parman Inc., [*4] 1099, CCH Employ. S. & H. Guide para. 15,400 (1973). In that case Complainant alleged a serious violation. We said that even though the facts indicated a willful violation had taken place we could not find such violation absent a charge or in the absence of consent.

In this case the facts support Judge Harris' con clusion. Moreover, Complainant has indicated his consent on review. Nevertheless, we affirm the citation as non-serious. Respondent was not on notice that it might be found in serious violation and it was not afforded an opportunity to defend on the issue of whether it was in serious violation as defined in section 17(k). It had no opportunity to show that the likely consequences of an accident would not be serious, nor did it have an opportunity to show lack of knowledge or lack of the ability to obtain knowledge through reasonable diligence. The issue was not tried by consent. Accordingly, the Judge erred in finding a serious violation.

We turn now to the assessment of an appropriate penalty. Respondent's employees, as noted above were working at the edge of the sixth floor without the use of perimeter protection. In view of the elevation involved, [*5] a fall could result in serious injury or death. Furthermore, the proximity of Respondent's employees to the edge increased the likelihood of a fall. Therefore we find the degree of probability of occurrence of injury to be relatively high.

Turning now to the remaining criteria of section 17(j) we note the evidence of record indicates Respondent's size is large. Respondent has no history of previous violations. We have also considered the good faith of the Respondent. In these circumstances and especially in view of the gravity of the violation, we conclude that the penalty of $250 assessed by the trial Judge is appropriate. n3

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n3 The penalty assessed herein is higher than that proposed by Complainant. Respondent questions our authority to make such assessment. The United States Court of Appeals for the Sccond Circuit has recently affirmed our authority to make higher assessments. REA Express Inc., v. Brennan and Occupational Safety & Health Review Com'n., Slip op. 2960 (April 18, 1974).

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[*6] For the reasons stated above, the Judge's order is modified to find a non-serious violation of 29 C.F.R. 1926.500(d)(1) and as modified is affirmed. It is so ORDERED.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in the disposition of the case by Commissioner Van Namee.

The respondent questions the power of the Administrative Law Judge to raise the penalty proposed by the Secretary. By its contest of the penalty, the respondent put in issue the appropriateness of the penalty and upon contest the Secretary's proposals had only advisory effect. Brennan v. O.S.H.R.C. & Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). The contest of the respondent commences a de novo proceeding in which the Commission is obligated to make a decision on the whole record. The Secretary's proposal is of course based on the findings of the investigation, and is thus based on information that is earlier in time and less complete than that before the Commission. Under these circumstances, it is well settled by Commission precedent that penalties found by the Commission may exceed those proposed by the Secretary, e.g., Dixie Electric, Inc., No. 1345 (November 14, 1973). [*7] This view has received recent approval by the Second Circuit in REA Express, Inc. v. Brennan & O.S.H.R.C., No. 73-1468 (April 18, 1974).

I wish to add to the views of my colleague concerning the conclusion that the Administrative Law Judge erred in changing the character of the violation of section 1926.500(d)(1). The violation was changed from non-serious to serious. The shift in legal theory without adequate notice to the respondent was in my view prejudicial to the respondent, and therefore it cannot stand because of the notice requirements of 5(a)(3) of the Administrative Procedure Act. N.L.R.B. v. United Aircraft Corp. Hamilton Standard Division, 34 Ad. L. 2d 121 (2d Cir. 1973). A serious violation has clearly greater significance in any future case arising under the Act applying the "previous history of violation" factor under section 17(j).

The respondent argued before the Administrative Law Judge that its contract with the general contractor required the general contractor to provide perimeter guarding and that the respondent had no contractual right to erect such guarding. The Administrative Law Judge properly concluded that the respondent [*8] was not relieved of his statutory duty by private contract. It was possible for the respondent, a specialty subcontractor, to abate the hazard. Indeed, the respondent took some steps, albeit inadequate ones, to do so. It would seem, however, that the most practical arrangement for eliminating the hazard would be such a contract between the general contractor and the subcontractor providing for the installation of the perimeter guarding by the general contractor. In such circumstances, a general contractor may also be cited for any failure to install perimeter guarding. Cf. J.E. Roupp & Co. & Co. & Denver Dry Wall Co., Nos. 146 & 147, (April 15, 1974) (dissenting opinion) and James E. Roberts Co. & Soule Steel Co., Nos. 103 & 118 (April 16, 1974) (dissenting opinion). Frequently, a general contractor is in a better position to abate general hazards than his speciality subcontractors. The remaining contentions of the respondent concerning the identification of his employees on the worksite are also answered by these cited opinions.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: I dissent from the affirmance of a violation in this case because of the invalidity of the citation [*9] as the result of complainant's failure to comply with section 8(e) of the Act, 29 U.S.C. 657(e). Between February 28 and March 15, 1972, respondent had some 20 to 25 employees at work at a construction site in Brooklyn, New York, when that jobsite was inspected for compliance with the Act by a representative of the complainant.

Respondent was one of a number of subcontractors which, along with the prime contractor, was engaged at the site in construction of a high-rise structure and several garden-type apartment buildings. The site covered an area approximately two-thirds of a city block in size. During the inspection which took place on various days during a period of approximately two weeks' time, respondent had employees working at various locations within the construction site. The citation at issue in this case was based upon this inspection.

It is my view that the said citation was invalid because no representative of respondent was given the opportunity to accompany complainant's representative during his physical inspection of respondent's workplace as required by section 657(e). Although respondent's foreman testified that he talked with the complainant's [*10] representative on two occasions and knew he was on the premises on several occasions because he noticed him going about his inspection duties, respondent was not advised of the presence of complainant's representative before the inspection was initiated and was not at any time offered the opportunity, as was its statutory right, to accompany the inspector.

29 U.S.C. 657(e) provides:

Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) . . . . [Emphasis supplied]

The Act specifies that a physical inspection of an employer's workplace must be conducted before he can be cited for the existence of a violation of the Act at such workplace. This was done. The language quoted above however imposes requirements to be observed during that physical inspection which were not met by complainant in this case.

The mandatory nature of the quoted section of the Act is emphasized by the following:

First, the statutory language requires [*11] that complainant "shall" give an opportunity to a representative of the employer, as well as to a representative of his employees, to accompany the inspecting officer during the physical inspection of the workplace. The use of the word "shall" is imperative or mandatory as generally used in statutes. Black's Law Dictionary, West Publishing Co., St. Paul, Minn. (Rev. 4th ed. 1968); Boyden v. Commissioner of Patents, 441 F. 2d 1041 (D.C. Cir. 1971); Wilshire Oil Co. of Cal. v. Costello, 348 F.2d 241 (9th Cir. 1965); Taylor v. U.S., 285 F.2d 703 (1960). There have been some exceptions to this judicial interpretation to fit various special factual situations, Brown v. Hecht Co., 137 F.2d 689, 692-694 (1943), rev. in Hecht Co. v. Bowles, 321 U.S. 321 (1944). It has occasionally been held that a statutory "shall" can be construed as "may" when applied to the Federal Government, Cairo & Fulton R. Co. v. Hecht, 95 U.S. 168, 170 (1877). However, controlling in this case is the superseding proposition that where the statute is designed to guard a right created in the public or in some person or class of persons, its provisions are construed [*12] as mandatory. In Re National Mills, 133 F.2d 604 (7th Cir. 1943), Escoe v. Zerbst, 295 U.S. 490, 494, 55 S. Ct. 818, 820, 79 L. Ed. 1566 (1935).

Second, legislative history of the Act shows that the presence of the employer's representative, and the presence of the employees' representative, was thought by Congress to be necessary during the inspection to protect the interests of both. S. 2193 was introduced in the U.S. Senate May 16, 1969, and reported by committee on October 6, 1970. It contained the mandatory language, quoted above, which today remains a vital part of this legislation. Legislative History of the Occupational Safety and Health Act of 1970 251, U.S. Government Printing Office, Washington, D.C. (June 1971).

On October 13, 1970, Amendment No. 1056 to this Bill was offered. This explanation furnished with the proposed amendment stated it would have deleted the requirement that the complainant must give the employer and the authorized employee representative an opportunity to accompany him while conducting inspections, and it would have left accompaniment by the employer or employee representative during inspection to the discretion of [*13] the inspector. However, the amendment would have provided for a meeting of the inspecting officer with employees or their representative to receive any information they desired to furnish. Id. at 370-372. This amendment was tabled and never brought up. On November 17, 1970, S. 2193 was passed with the original mandatory language. Id. at 528, 549.

On January 3, 1969, H.R. 843 was introduced in the U.S. House of Representatives without the abovequoted mandatory language regarding the presence of an employer or employee representative at the inspection. On January 16, 1969, H.R. 3809 was likewise introduced without such mandatory language appearing therein. On January 23, 1969, H.R. 4294 was also introduced without such language; and on August 6, 1969, H.R. 13373 was introduced without said language. Id. at 599, 629, 659, 679. On April 7, 1970, H.R. 16785 was introduced. It was submitted with the absolute language added by amendment in section 9(e):]

A representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany any person who is making an inspection under subsection (a) of any workplace. [Emphasis [*14] supplied] Id. at 737.

On September 15, 1970, H.R. 19200 was introduced which provided only the following, regarding accompaniment, in its section 9(b):

If the employer, or his representative, accompanies the Secretary or his designated representative during the conduct of all or any part of an inspection, a representative authorized by the employees shall also be given an opportunity to do so. [Emphasis supplied] Id. at 782-783.

These last two quoted sections represent the two opposing views in the House on this matter. On the one hand there was the absolute right to an opportunity to accompany the inspector, and on the other hand the word "if" implied something less than a mandatory situation. On July 9, 1970, H.R. 16785, containing less than a mandatory situation. On July 9, 1970, H.R. 16785, containing the mandatory language, was reported by the Committee on Education and Labor. In its report accompanying this proposed Bill the Committee stated:

The Committee is aware of widespread concern that under present safety and health legislation, the results of a Federal or state inspection are never revealed to the workers and that much potential benefit from an inspection [*15] is never realized. If an inspector determined that a danger to health and safety exists, he should be able to advise a worker's representative or be able to question workers, who ought to be permitted to disclose their concern with an alleged dangerous work area.

Correspondingly, an employer should be entitled to accompany an inspector on the tour. The employer's presence should be helpful to the inspector and educational to the employer. For these reasons, H.R. 16785 provides that a representative of the employer and representative authorized by his employees shall be given an opportunity to accompany any person who is making an inspection of any workplace under subsection 9(a) [Emphasis supplied] Id. at 852.

On November 23, 1970, the House voted to substitute by amendment virtually all the provisions of H.R. 19200 for those of H.R. 16785. Thus H.R. 16785 was passed, as amended, without the mandatory language. Since this differed materially from S. 2193, which was passed in the Senate, the Bills were sent to a Conference Committee. Id. at 1112-1118, 1124, 1141. After somewhat lengthy deliberations the Conference Committee reported out the final version [*16] containing section 8(e) with the mandatory language as it is in the Act today. Id. at 1164, 1239. The Conference Report to accompany S. 2193 clearly stated as follows:

The Senate bill required that both a management and an employee representative be given an opportunity to accompany an inspector conducting an inspection of the workplace. . . . The House amendment did not require such an opportunity for either. . . . The House receded [Emphasis supplied].

The seesaw inclusion and exclusion of the mandatory language, along with the Committee reports, show that Congress gave considerable, detailed attention to creating the absolute right in the employer and the employees to have the opportunity to be present at the inspection of the workplace. The final result is the deliberate use of mandatory language, which, appearing in the same clause and dependent upon the same "shall", creates this right in both the employer and the employees.

Thirdly, section 657(e) begins: "Subject to regulations issued by the Secretary, . . . ." An examination of the complainant's regulations made pursuant to the authority granted in the Act and published in the Federal Register on September [*17] 4, 1971 (36 F.R. 17850 et seq. ) 29 C.F.R. 1903.1 et seq., shows that the complainant has recognized, reiterated and reimposed the legal duty of section 657(e) upon himself. See 29 C.F.R. 1903.8(a), where the following language is again found:

A representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Compliance Safety and Health Officer during the physical investigation of any workplace . . . . [Emphasis supplied]

Under these regulations the inspecting officer may allow additional persons to accompany him during the inspection tour, 29 C.F.R. 1903.8(a), (b), (c). However, the only section relating to discretion to deny "the right of accompaniment" [Emphasis supplied] appears in section 1903.8(d), where accompaniment may be denied to a person whose conduct actually interferes with a fair and orderly inspection, a sensible exception to prevent an employer or employee representative from obstructing or harassing the inspecting officer during inspection. It should be noted that in his own regulations the complainant recognizes "the right" of accompaniment.

Where the complainant [*18] pursues his cause of action under the Act, he must comply with his own rules of procedure for enforcement, which he has established pursuant to the authority granted in that same Act. This rule has been applied by the United States Court of Appeals, Seventh Circuit, so that where the National Labor Relations Board fails to follow its own regulations, it will be denied the relief it seeks, Madden v. International Organization, etc., 259 F.2d 297 (7th Cir. 1958); Madden v. International Hod Carriers, etc., Union, 277 F.2d 688 (7th Cir. 1960); and the Board will not be allowed to establish an alleged violation of section 8(b)(4)(D) of the National Labor Relations Act, 29 U.S.C. 158(b)(4)(D), National Labor Rel Bd. v. United Brotherhood of Carp., 261 F.2d 166 (7th Cir. 1958).

Other circuits have made similar rulings, National Labor Relations Board v. Guy F. Atkins Co., 195 F.2d 141 (9th Cir. 1952) (where petition for enforcement was denied for failure to properly adopt formal substantive rules; and Building & Construction Trades Coun. of Met. Dist. v. Alpert, 302 F.2d 594 (1st Cir. 1962) where an alleged violation was dismissed for [*19] the Board's failure to make a proper preliminary investigation as provided for under its own rules).

In the leading case, Madden v. International Organization, etc., supra, Judge Finnegan ruled that the NLRB must comply with its own Statements of Procedure, as well as statutory mandates. The Board had failed to conduct the preliminary investigation required by 10(1) of the National Labor Relations Act, 61 Stat. 136, 29 U.S.C. 141, et seq., and further required by the Board's own Statements of Procedure, section 101.4, which preliminary investigation is required prior to filing a petition for injunction. The District Court for the Northern District of Illinois, Eastern Division had dismissed the Board's petition for injunctive relief and the Court of Appeals dismissed the Board's subsequent appeal.

Thus, we see that the statute has imposed a legal duty upon the complainant to give the employer the opportunity to accompany the inspecting officer during the inspection of the premises, and the complainant, in recognition of this legal duty, has incorporated it (perhaps redundantly) in his own regulations.

The same right accrues to the employees, or their representative. [*20] The right as to both employer and employee is created by the same statute, the same sentence in that statute, the same clause within the sentence and the same "shall." It is not logical to say that language could be mandatory to one and directory as to the other and, in view of the above, it is contrary to statute to allow accompaniment to be discretionary in the inspecting officer as to either.

The employer's presence provides elements of fair play and due process which help to better identify the transgressions with which the employer may be charged, and help to make it possible for the employer to adequately prepare his defense. The employee representative's presence also will aid in the inspection, will assure the employees an opportunity to identify hazards, will allow employees to be better informed so they can decide whether to become parties in possible litigation, and will provide to the employees knowledge of those conditions they may expect to be abated. A very practical effect of ensuring the presence of employer during inspection would be the greater likelihood of speedy, if not immediate, abatement of obvious hazards. n4

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n4 The record of this case contains a number of examples of the wisdom of having the employer's representative present during the inspection. Less than 10% of the 300 or more persons at work during this inspection were employees of respondent. The inspector observed employees allegedly exposed to hazards but he did not always correctly identify them or their employer. Of the 8 charges contained in the citation, 2 of them were dismissed by the Judge for lack of proof of identification of employees. It is noted that there have been a number of cases brought to the attention of this agency where the wrong employer has been cited. A recent example is Secretary v. Farr Guarino Contracting Corporation (undocketed case, 1974). That case went to judgment by operation of law 29 U.S.C. 659(a) causing the complainant to later seek relief from the judgment against the respondent because, as his attorney stated in a letter of this Commission dated February 7, 1974, "it was determined [subsequent to the inspection] that the cited corporation was not the employer of the employees who were or may have been exposed to the hazards cited." This kind of problem could not happen if complainant observed the requirements of the law and allowed the employer and employees their walkaround rights.

[*22]

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Concurrently, whenever this legal right is denied to an employer, the inspection becomes the sort of poison tree that can bear only poison fruit in the form of inadmissible evidence and inoperative citations, as to the employer who has been excluded from the inspection process.

It should be noted that the requirement is to give the employer and employee representative an opportunity to be present during the inspection. Common sense tells us this means inquiring whether either party desires to accompany the inspection tour.

The fact that neither the employer nor the employees were offered the opportunity to be present during complainant's inspection of the workplace violates (a) the employer's right, (b) the employees' rights, (c) the complainant's statutory duty, and (d) complainant's own regulations. I would conclude that a citation based upon evidence gathered under such circumstances is null and void. The Secretary's authority to issue citations is a limited one and must be carried out in accordance with the statutory scheme if the citation is to be valid. The exercise of powers under [*23] this statute must strictly adhere to statutory limitations. Florida Peach Growers Association v. U.S. Department of Labor, 489 F.2d 120 (5th Cir. 1974). n5

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n5 In this connection, see also United States v. McCord, 233 U.S. 157, 162; 34 S. Ct. 550, 58 L. Ed. 893, 897, (1914) and Simon v. United States, 224 F.2d 703, 705 (1957).

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The Commission's assessment of a penalty in this case in an amount higher than that proposed by the Secretary of Labor is also error. In an attempt to justify this action, two decisions which did not consider the issue have been cited, the REA Express case, supra, and the Interstate Glass case, supra. In the latter case, there was no penalty increase -- the Commission decreased the Secretary's proposed penalty and our authority to do so was appealed by him. The former case did include a penalty increase but neither party raised the issue either at the hearing or on appeal.

Neither the statutory nor constitutional basis for so doing has ever been [*24] decided by an appellate court although penalty-raising dispositions have resulted from split decisions of this Commission many times. n6

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n6 See, for example, Secretary v. Beall Construction Company,

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To increase a penalty proposal under this Act is contrary to the equal protection clause of the fourteenth amendment and the due process provision of the fifth amendment since the threat of increased penalties falls solely on those who seek a just disposition of the charges against them by asserting their right to a hearing under 29 U.S.C. 659(c). Those who do not contest the charges filed by complainant cannot have their proposed penalty increased. 29 U.S.C. 659(a). This creates an irrational basis for selection of the class upon whom this burden falls and an irrational means of effectuating any valid legislative policy.

[The Judge's decision referred to herein follows]

HARRIS, JUDGE, OSAHRC: This is an action under Section 10(c) of the [*25] Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. (hereinafter the Act), to review a citation issued by the Secretary of Labor (hereinafter Secretary) pursuant to Section 9(a) of the Act and a proposed assessment of penalty thereon issued pursuant to Section 10(a) of the Act.

The citation herein, which was issued on March 16, 1972, alleges that at a workplace under its ownership, operation or control, located at 1165 Carroll Street, in Brooklyn, New York, wherein Respondent was engaged in plumbing installations, it was in violation of the Act in the following respects.

Item 1 charges a violation of the standard at 29 CFR 1926.500(d)(1) by "Failure to guard employees from opensided floor by use of a standard railing or equivalent. Three employees exposed on the edge of the 6th floor on the N.E. corner of the building 'A'." Immediate abatement is required.

Item 2 charges a violation of the standard at 29 CFR 1926.102(a)(2) by "Failure to provide and have employees use eye and face protection chipping concrete on 6th floor of 'A' building."

Item 3 charges a violation of the standard at 29 CFR 1926.100(a)(1) by "Failure to provide and have employees [*26] use head protection from falling or flying objects. Five employees, 1st floor west end of 'B' building."

Item 4 charges a violation of the standard at 29 CFR 1926.451(a)(4) by "Failure to provide guard rails and toe boards on 16 foot high pipe scaffolding, north end of 'A' building."

Item 5 charges a violation of the standard at 29 CFR 1926.451(a)(13) by "Failure to provide access ladder to reach the top of the 16 foot scaffold, north end of 'A' building."

Item 6 charges a violation of the standard at 29 CFR 1926.25(a) by "Failure to keep work areas and passageways free of lumber and debris and pipes, 1st floor north end of 'A' building."

The violations alleged in Items 2, 3, 4, 5 and 6 are required to be abated by March 31, 1972.

Item 7 charges a violation of the regulation at 29 CFR 1903.2 by "Failure to post informational notice on Occupational Safety and Health Act furnished by O.S.H.A."

Item 8 charges a violation of the regulation at 29 CFR 1904.2 by "Failure to maintain an OSHA No. 100 Form. Log of Occupational Injury."

Abatement of the violations alleged in Items 7 and 8 is required by April 28, 1972.

A Notification of Proposed Penalty, issued on the same [*27] date as the citation, proposes penalties as follows: Item 1, $160; Item 2, $30, Item 3, $30; Item 4, $30; Item 5, none; Item 6, $65; Item 7, none and Item 8, none.

Respondent filed a Notice of Contest dated March 23, 1972 by which it contested both the citation and the proposed penalties and the within matter was referred to the Occupational safety and Health Review Commission (hereinafter Commission) for hearing pursuant to Section 10(c) of the Act on March 29, 1972.

The Secretary filed his complaint herein on April 3, 1972 and in paragraph IV, subparagraphs (a) through (f) charges the violations alleged in Items 1 through 3 and 5 through 8, respectively, in the said citation. There are actually two subparagraphs IV(f), the first alleging a violation of the regulation at 29 CFR 1903.2 (Item 7) and the second a violation of the regulation at 29 CFR 1904.2 (Item 8). The lettering of the latter subparagraph was amended to read IV(g) without objection (Tr. 18). The complaint failed to allege the violation charged in Item 4 of the citation. This allegation was added as paragraph IV(h) by motion of the Secretary to which no objection was made (Tr. 18-19).

A copy of the said complaint [*28] was served upon Local 1, Plumbers Union, the authorized employee representative of Respondent's affected employees.

The citation, Respondent's notice of contest and a copy of the said complaint were posted at the job site.

Respondent's answer, filed on April 17, 1972, denies the allegations in paragraph IV of the complaint.

On April 24, 1972, the undersigned was appointed and the within matter assigned to him for hearing pursuant to Section 12(e) of the Act and pursuant to notice and by agreement of the parties, a prehearing conference and the hearing were held on June 28, 1972, in New York, New York.

The Secretary's motion to amend paragraph III of the complaint to refer to Section 9(a) of the Act rather than 9(s), was granted (Tr. 12).

The Secretary's motion to amend each subparagraph in paragraph IV of the complaint to charge that the violation alleged took place "sometime during the period of February 28, 1972 to March 15, 1972" rather than "on February 28, 1972" was taken under advisement (Tr. 14-17).

After hearing the testimony of the witnesses and having considered the same together with the exhibits and the stipulations, representations and admissions of the [*29] parties, it is concluded that the substantial evidence, on the record considered as a whole, supports the following findings of fact and conclusions of law.

The proper title of Respondent is Lipsky and Rosenthal, Inc., it is a corporation organized under the laws of the State of New York and maintains its principal office at 155 Utica Avenue, in Brooklyn, New York (Tr. 19; 25). Respondent regularly employs a daily average of between 150 to 200 workers and in busy times up to 400 (Tr. 20; 129). Respondent has been in business for more than 20 years (Tr. 128) and has installed plumbing in high rise apartment structures and in some office building construction (Tr. 128-129).

Respondent's annual sales for 1971 approximated $5 million (Tr. 20) and it regularly purchases substantial quantities of materials used by it in the conduct of its business "from without the State of New York" (Respondent's Findings of Fact, page 4, No. 2) and the Commission has jurisdiction of the parties and of the subject matter herein.

Respondent has no prior history of violation of the Act (Tr. 20) and the number of employees affected by the violations alleged herein is 23 (Tr. 13; 108). However, [*30] no injuries have been reported (Tr. 55).

Local 1 did not appear at the hearing nor did any of the affected employees (Tr. 107).

The Respondent was one of a number of sub-contractors performing construction work on the job site herein under a general contractor (Tr. 33; 68) who was engaged in the construction of several garden type apartment buildings three or four floors high and an 18 story high rise structure, upon an area approximately two-thirds of a city block in size (Tr. 33; 64). The inspection, which commenced on February 28, 1972 and was completed on March 15, 1972 (Tr. 23; 70) was not confined to Respondent's operation but covered all of the trades engaged in the work as well as the operation of the general contractor (Tr. 53; 65; 66; 68; 82). Each trade had its foreman (Tr. 66) and approximately 300 to 400 men were daily engaged in performing the tasks of their various trades on the job site (Tr. 33; 66; 68; 70-71; 122; 123).

While it is not clear whether the inspection continued on each working day during the period from February 28 to March 15, or whether the inspection continued during the entire day, the Compliance Officer spent several hours on the job site on [*31] February 28 (Tr. 66) and returned to the site several times thereafter until he completed his inspection on March 15 (Tr. 69-70). At the conclusion of the inspection the Compliance Officer discussed his findings with Respondent's foreman (Tr. 42; 83; 111; 113-114; 123).

As to the charge in Item 1 of the citation herein (Compl. para. IV(a)), three men were observed hauling up material to the 6th floor of building "A" the floors of which were not enclosed (Tr. 26; 77; 83; 85; 86) without a guard rail being provided around the perimeter of the said 6th floor (Tr. 27). These employees were hauling plumbing equipment (Tr. 29). The observation was made from Respondent's foreman's shanty, a distance of 60 or 70 feet from building "A," in the presence of the foreman while the men were in view (Tr. 83; 85-86). These workers were identified as employees of Respondent (Tr. 34). Respondent, during the period from February 28 to March 15, 1972, was in violation of Section 5(a)(2) of the Act in the manner alleged in Item 1 of the citation, aforesaid.

As to the charge in Item 2 of the citation (Compl. para. IV(b)), one man was observed in "A" building, chipping concrete who was [*32] not equipped with or wearing goggles or a faceshield (Tr. 28; 86). The name of this worker was not secured (Tr. 78) although the man was pointed out to the Respondent's sub-foreman (Tr. 87; 88).

Similarly, concerning the charge in Item 3 of the citation (Compl. para. IV(c)), the failure to wear head protection was observed from time to time during the period of the inspection (Tr. 31). Although the citation and complaint allege that five of Respondent's employees at the west end of "B" building were involved, their names were not taken (Tr. 72) in spite of the fact that perhaps six other men in one or two other trades were also present (Tr. 73). The Compliance Officer did not secure the names of any of Respondent's employees who were observed participating in any of the violations described in the citation (Tr. 74). In the single instance wherein the name of a worker was recalled and identified by the Compliance Officer as one of Respondent's employees, the fact of his employment by Respondent is refuted (Tr. 77; 110). The Compliance Officer's identification in these instances appears to depend entirely upon the statement of the worker involved that he was an employee [*33] of the Respondent (Tr. 74) and the officer's recollection relating a particular worker to a specific violation or event is not clear, as well it might under the circumstances of this case when it is considered that the observations were made at intervals over a period of two weeks on a site where more than 300 men, engaged in more than 10 different trades, with their necessary machines and machinery, were performing the myriad tasks involved in the building of the structures hereinabove referred to (Tr. 76-80). It is proper to note that the Compliance Officer's notes and report (Tr. 67; 69; 79) were not relied upon by him to refresh his recollection (Tr. 81-82). For these reasons I find that the violations alleged in Items 2 and 3 of the citation herein have not been established.

As to the charges in Item 4 in the citation (Compl. para. IV(h)) and in Item 5 (Compl. para. IV(d)) the allegations involve the same structure and are dealt with together.

The standard involved in Item 4 and in effect at the time of the inspection hereinabove, formerly designated as 29 CFR 1518.451(a)(4), adopted pursuant to Section 6(a) of the Act on May 29, 1971, 36 F.R. 10469, and numbered as 29 CFR [*34] 1926.451(a)(4) since February 17, 1972, 37 F.R. 3512, provides:

Guardrails and toe boards shall be installed on all open sides and ends of platforms more than 6 feet above the ground or floor, . . . .

The standard involved in Item 5 in effect at the times mentioned hereinabove, similarly formerly known as 29 CFR 1518.451(a)(13) and now designated as 29 CFR 1926.451(a)(13), provides:

An access ladder or equivalent safe access shall be provided.

A scaffold was observed at the north end of "A" building. This scaffold was 16 feet high and had neither guard rails, toe boards or access ladder. Two men identified to be Respondent's employees, were working upon this structure (Tr. 32; 34). Two other scaffolds were erected in the same vicinity which were 22 feet high, had ceilings of sheeted plywood, had three sides and were built of steel sections with 18-inch rungs which could be used for climbing (Tr. 115-118), however Respondent's foreman was not with the inspector when the observation was made (Tr. 113; 124). Here, as in Item 1, supra, the evidence is sufficient to support the allegation that Respondent, during the period from February 28 to March 15 was in violation [*35] of Section 5(a)(2) of the Act as is alleged in Items 4 and 5 of the citation herein.

With reference to the charge in Item 6 of the citation (Compl. para. IV(e)), the standard at 29 CFR 1926.25(a) (formerly 29 CFR 1518.25(a)) provides:

During the course of construction, alteration, or repairs, form and scrap lumber with protruding rails, and all other debris shall be kept cleared from work areas, passageways, and stairs, . . . .

According to the Compliance Officer, on various days during the inspection period it was observed that scrap lumber, lumber with nails in it, concrete chips and various kinds of rubble were scattered about on the ground floor of "A" building where there was pipe end plumber's supplies (Tr. 36; 38).

The fact that Respondent does not use lumber or paper in its work or that ten other trades are actively engaged upon the same site or even in the same area (Tr. 121-122) cannot operate to relieve the Respondent of the duty to keep its work areas cleared of scrap lumber and other debris. The Act in Section 5, and the standard in question, in implementation of the plain requirement that each employer "shall furnish to each of his employees employment [*36] and a place of employment which are free from recognized hazards . . ." is not concerned with the source of the lumber or debris, or with the identity of those who placed it upon the workplace; it is concerned only with keeping that workplace clear of such material in the interest of assuring "so far as possible . . . safe and healthful working conditions . . . ." (Section 2(b)). Respondent, during the period from February 28 to March 15, 1972, in violation of Section 5(a)(2) of the Act failed to comply with the standard as alleged in Item 6 of the within citation.

The allegations in Items 7 and 8 in the within citation (Compl. para. IV(f) and (g)) that Respondent failed to post the notice required by the regulation at 29 CFR 1903.2 and to keep the log of occupational injuries prescribed in the regulation at 29 CFR 1904.2 (Tr. 38-39) are not seriously disputed (Tr. 126) and I therefore find that Respondent, during the period from February 28 to March 15, 1972 failed to post the aforesaid notice and to keep the said log.

The Commission is clothed with exclusive authority and charged with the duty of assessing all civil penalties provided in Section 17 of the Act, Secretary v. [*37] Nacirema Operating Company, Inc., This section divides violations of the requirements of Section 5 of the Act into two classes; serious violations as defined in Section 17(k) end violations which are specifically determined not to be of a serious nature i.e., which do not create a substantial probability that death or serious physical harm could result from the existing condition. The definition contained in Section 17(k), aforesaid, and use of the mandatory "shall" in Section 17(b) as opposed to the permissive "may be assessed a civil penalty of up to $1000 for eech such violation" in Section 17(c), are clear indications that the Congress intended that violations of a serious nature should carry with them greater civil penalties than violations which are not of a serious nature as defined in Section 17(k), supra.

It is equally clear in the light of the express authority granted the Commission in Section 17(j), that the phrase in Section 17(b), "Any employer who has received a citation for a serious violation," can only mean an employer who has received a citation and who has been determined to have committed a violation of Section 5 which [*38] is a serious violation as defined in Section 17(k), supra. It is significant that the Act speaks only of a citation to be issued by the Secretary to the employer. No reference appears therein to a citation for a serious violation or a citation for a violation of other than a serious nature. Such descriptive phrases in citations issued by the Secretary pursuant to Section 9(a) can be intended only to put the employer on notice that it is or is not the Secretary's intention to establish that the violation alleged in the citation is a serious violation as defined in Section 17(k). The use of such warning language in the citation, additionally, is in aid of due process in those instances where the employer determined not to file a notice of contest and elects to allow the citation and the assessment of penalty, as proposed by the Secretary, to become a final and non-reviewable order of the Commission pursuant to Section 10(a) of the Act.

In contested cases however, it becomes necessary to first determine, upon the evidence adduced, whether or not the violation alleged is one which meets the definition set out in Section 17(k), supra, as one of the ingredients of the [*39] gravity of the violation referred to in Section 17(j), Secretary v. Nacirema Operating Company, Inc., supra. A determination that a violation is a serious violation of the requirements of Section 5 may be made where the evidence warrants it, notwithstanding that the citation fails to refer to the violation as a serious violation within the meaning of Section 17(k), supra, so long as the citation describes "with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated" (Section 9(a)).

In the instant case, the citation describes "with particularity" the nature of the violation alleged and includes a reference to the standard alleged to have been violated (Item 1; Compl. para. IV(a)). The evidence established that at the time of the inspection herein, 14 or 15 of the floors of an 18 story high rise apartment structure had been erected (Tr. 33) and that Respondent's employees were hauling plumbing materials up to and over the edge of the sixth floor of this structure and that the perimeter of this open sided floor was unguarded by a guardrail of any kind (Tr. 26-27). Shortly [*40] after the inspection herein Respondent put up a rope guard (Tr. 96; 118) and thereafter the general contractor erected cables around the perimeter of the floor (Tr. 120).

The standard in question, 29 CFR 1926.500(d)(1) provides:

(d) Guarding of open-sided floors, platforms, and runways.

(1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toe-board wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

Subsection (f) describes the standard railing specified in subsection (d)(1) and gives the minimum requirements for standard railings under various types of construction (Subsections (f)(1)(i) through (1)(v)). Subsection (f)(1)(vi) describes the conditions which must be met by other types, sizes and arrangements of railing construction. One of these conditions is that protection must be afforded [*41] between the top rail and the floor at least equivalent to that afforded by the standard intermediate rail, subsection (f)(1)(vi)(e). The meager testimony touching the installation of the rope of the Respondent and the cables of the general contractor militates against a conclusion that the violation was abated. Furthermore, beyond the stringing of the rope around the sixth floor perimeter, there is no indication in the record that the Respondent took any other steps to abate the condition existing on the sixth floor, aforesaid. Neither the Respondent's rope nor the cables strung by the general contractor, on the record herein, appear to meet the specifications required by the standard in subsections (f)(1)(vi), supra. Bearing in mind that twenty three of Respondent's employees were exposed to the conditions described hereinabove, it is clear that there was a substantial probability that death or serious physical harm could have resulted therefrom or from the practice of hauling plumbing supplies from the ground level up to and over the edge of the sixth floor, aforesaid, without the protection of a guardrail and that Respondent was aware of such practices and thereby committed [*42] a serious violation of the requirements of Section 5 of the Act.

Respondent maintains that its contract with the general contractor required the latter to provide perimeter protection on open-sided floors and that Respondent had no contractual right to erect a guardrail (Tr. 100-102). The Act requires each employer, subject to its provisions, to furnish each of his employees employment and a place of employment which are free from recognized hazards and to comply with occupational safety and health standards promulgated under the Act for the expressed purpose of assuring, so far as possible, every worker safe and healthful working conditions in order to alleviate the substantial burden imposed upon interstate commerce by lost production, wage loss, medical expenses, and disability compensation payments produced by personal injuries and illnesses arising out of work situations (Section 5; Section 2). This purpose may not be frustrated or impeded by private contractual arrangement.

The Respondent, which for the past several years has employed between 300 and 400 men daily, has no safety officer and, until the advent of safety education initiated by the passage of the Act, [*43] appears to have had no program directed at safety instruction and the use of protective equipment (Tr. 129; 130). Indeed, beyond being directed to "look at" safety literature obtained at a course in safety taken by his superiors, the job foreman received no further instructions (Tr. 131). It seems to me therefore that this Respondent does not merit consideration for good faith in complying with and furthering the expressed purposes of the Act, Secretary v. Nacirema Operating Company, Inc., supra, and the penalty proposed by the Secretary for the violation alleged in Item 1 of the citation herein is not appropriate.

In the light of my determination that the Respondent does not merit consideration for its good faith, the proposed penalties for violation of Items 4, 5, and 6 are similarly held to be not appropriate. With regard to Item 6 however, in view of the presence on the same job site of 10 or more other trades and the great number of workers involved therein, consideration should be extended based upon the obvious difficulty of strictly complying with the standard at any given point in time. The proposal to assess no penalties for violation of Items 5, 7 [*44] and 8 is, under the circumstances of this case, not unreasonable.

No prejudice appearing, the Secretary's motion to amend paragraph IV of the complaint so that each subparagraph shall begin "Sometime during the period of February 28, 1972 and March 15, 1972" is granted (Tr. 15).

The Respondent having agreed thereto, the Secretary's motions to amend paragraph IV(c) of the complaint to charge a violation of the standard at 29 CFR 1926.100(a); to redesignate the second paragraph IV(f) of the complaint as IV(g); to amend paragraph III of the complaint to refer to section 9(a) of the Act; and to add paragraph IV(h) of the complaint to read:

Sometime during the period from February 28 to March 15, 1972, the Respondent Corporation violated the standard at 1926.451(a)(4) in that it failed to provide guard rails and toe boards on 16 foot high pipe scaffolding on the north and of the "A" building.

are granted (Tr. 16; 18). Item 3 of the citation herein is amended to conform therewith.

In view of the foregoing and having duly considered the gravity of the violation, the good faith of Respondent, its size, and its history of previous violations and good cause therefore appearing, it is [*45]

ORDERED that:

1. Paragraph III of the complaint is amended to refer to Section 9(a) of the Act.

2. The second paragraph IV(f) in the complaint is designated as IV(g).

3. Paragraph IV(h) is added to the complaint to read:

Sometime during the period from February 28 to March 15, 1972 the Respondent Corporation violated the standard at 1926.451(a)(4) in that it failed to provide guard rails and toe boards on 16 foot high pipe scaffolding on the north end of the "A" building.

4. Paragraphs IV(a) through and including IV(g) of the complaint, as amended, are amended to commence:

Sometime during the period of February 28, 1972 and March 15, 1972

in the place and stead of "On February 28, 1972."

5. Paragraph IV(c) of the complaint be and the same is hereby amended to allege a violation of the standard at 29 CFR 1926.100(a).

6. Items 4, 5, 6, 7 and 8 alleged in the citation herein charging violations of the standards, respectively, at 29 CFR 1926.451(a)(4); 1926.451(a)(13) and 1926.25(a) and the regulations at 29 CFR 1903.2 and 1904.2 all in violation of Section 5(a)(2) of the Act, be and the same are hereby affirmed.

7. Item 2 in the citation herein (Compl. para. [*46] IV(b)) which alleges that Respondent was in violation of the standard at 29 CFR 1926.102(a)(2) and Item 3 in said citation (as amended by Compl. para. IV(c), as amended) which alleges that Respondent was in violation of the standard at 29 CFR 1926.100(a), be and the same are hereby vacated.

8. Respondent be and it is hereby adjudged in violation of Section 5(a)(2) of the Act in that during the period from February 28, 1972 to March 15, 1972, at a workplace at 1165 Carroll Street, Brooklyn, New York, said Respondent committed a violation of the standard at 29 CFR 1926.500(d)(1) which was a serious violation within the meaning of Section 17(k) of the Act.

9. Respondent be and it is hereby assessed and required to pay the following civil penalties: the sum of $250 for its violation of the standard at 29 CFR 1926.500(d)(1), aforesaid; the sum of $50 for violation of the standard at 29 CFR 1926.451(a)(4) (Item 4 of the citation herein); and the sum of $25 for its violation of the standard at 29 CFR 1926.25(a) (Item 6 of the citation herein).

10. The Secretary's proposal that no penalty be assessed against Respondent for its violation of the standard at 29 CFR 1926.451(a)(13) [*47] (Item 5 of the citation herein) and for its violation for the regulations at 29 CFR 1903.2 and 1904.2 (Items 7 and 8 of the citation herein; Notice of Proposed Penalty, Items 5, 7 and 8) be and the same is hereby affirmed.