Docket No. 725

JAMES L. BRUSSA, MASONRY

OSHRC Docket No. 725

Occupational Safety and Health Review Commission

April 19, 1973

Before MORAN, CHAIRMAN; VAN NAMEE and BURCH, COMMISSIONERS

OPINIONBY: BURCH

OPINION:

ORDER OR REMAND

BURCH, COMMISSIONER: On November 27, 1972, Judge William J. Risteau issued a proposed decision and order affirming the citation and proposed penalty issued to respondent on the grounds that it did not post a copy of the March 7, 1972, citation at or near the place of the alleged violation.

Pursuant to the authority vested in the members of this commission by section 12(j) of the Occupational Safety and Health Act of 1970, 29 USCA 651 et seq. (hereinafter referred to as "the Act"), I directed that the Judge's proposed decision and order be reviewed by the Commission. Having considered the entire record we vacate that proposed decision and order and remand it for the reasons stated below.

The Judge's proposed decision and order, in effect, grants the Secretary's motion made orally during the hearing to dismiss respondent's notion of contest for its failure to post the citation resulting in an affirmation of the citation and proposed penalty on procedural grounds.

There is undisputed evidence of record that respondent failed to post a copy of the citation issued it as required by section 9(b) of the Act and by regulations issued by the Secretary (29 C.F.R. 1903.16(a)). However, we note that the regulations requiring the posting of copies of the citation provide, inter alia:

(d) Any employer failing to comply with the provisions of paragraphs (a) and (b) of this section shall be subject to citation and penalty in accordance with the provisions of section 17 of the Act (29 CFR 1903.16(d) [Emphasis added].

The sole proviso of section 17 applicable to the instant situation reads as follows:

(i) Any employer who violates any of the posting requirements, as prescribed under the provisions of this Act, shall be assessed a civil penalty of up to $1,000, for each violation.

We find that the Act requires a monetary penalty be assessed for a respondent's failure to post a copy of a citation, and that the Judge was without discretion to substitute a different sanction therefor. Thus, the Judge's dismissal of respondent's notice of contest was an abuse of discretion and must be set aside.

Although a hearing has been held, we deem it appropriate to remand the proceedings to the Judge for findings of fact and conclusions of law as to the substantive issues of the case.

Accordingly, it is ORDERED that the case be remanded for further proceedings not inconsistent with this decision.

[The Judge's decision referred to herein follows]

RISTEAU, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting a Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act. The Citation alleges that as the result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at 100 Court Street, Reno, Nevada and described as "masonry work on 80 unit apartment motel," Respondent violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation, which was issued on March 27, 1972, alleges that the violation results from a failure of Respondent to comply with a standard set forth at 29 CFR 1926.500(d)(i) as adopted by 29 CFR 1910.12. The description of the alleged violation contained on said Citation states:

Employer failed to provide standard railing as required at open sided floors 6 feet or more above adjacent floors or ground level-in that employer removed railing and did not have them replaced at 4th and 5th floors south end center section of building.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, Respondent was notified by letter dated March 30, 1972 from M. G. Wagner for Donald T. Bickford, Area Director of the San Francisco area, Occupational Safety and Health Administration station of assessment of a penalty for the violation alleged in the amount of $150.00.

After Respondent contested this enforcement action, and a Complaint and an Answer had been filed by the parties, the case came on for hearing at Reno, Nevada, on September 27, 1972.

DISCUSSION

At the hearing, evidence was taken dealing with Respondent's status as an employer subject to the provisions of the Act and further dealing with the facts surrounding the alleged violation. In addition, Respondent admitted on the record that he had not posted the Citation at or near the site of the alleged violation. Such posting is required under Section 9(b) of the Act, and timely motion was made by the Secretary asking that Respondent's Notice of Contest be dismissed by reason of failure to comply with this mandatory statutory provision.

The undersigned believes that Respondent's failure to comply with the posting requirements deprives him of his right to contest the charges set forth in the Citation. Accordingly, no findings are made on the substantive allegations of the Citation.

FINDINGS OF FACT

1. Respondent is engaged in the business of stone masonry contracting in the State of Nevada, employing approximately four men in such work. Many of the raw materials used by Respondent in the conduct of his business have their origin in States other than Nevada and are transported into that State for such use (Tr. 4, 12-16, Secretary's Exhibits 1, 2).

2. On March 27, 1972, Respondent was issued a Citation charging certain violations of the Occupational Safety and Health Act of 1970.

3. Respondent at no time posted the Citation dated March 27, 1972 at or near the place of violation referred to in such Citation (Tr. 18-21, 72).

CONCLUSIONS OF LAW

1. Respondent is an "employer" and a person engaged in a business affecting interstate commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2. Respondent's failure to post the Citation dated March 27, 1972 at or near the place of violation referred to in such Citation constituted a violation of Section 9(b) of the Act; such violation deprived Respondent of his right otherwise granted under the Act to contest the allegations of such Citation.

ORDER

Based on the foregoing findings of fact, conclusions of law, and the entire record, it is ORDERED that the Citation issued herein on March 27, 1972, be, and the same is AFFIRMED. It is further ORDERED that the proposed penalty for the cited violation, in the total amount of $150.00, be assessed.