CLARENCE BROWN, d/b/a BROWN'S CONTRACTING
OSHRC Docket No. 7690
Occupational Safety and Health Review Commission
May 10, 1977
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Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Herman Grant, Regional Solicitor
Brandon Crawford, for the employer
OPINIONBY: MORAN
OPINION:
DECISION
MORAN, Commissioner: A December 4, 1974, decision of Review Commission Judge George W. Otto, attached hereto as Appendix A, n1 is before this Commission for review pursuant to 29 U.S.C. § 661(i). Review was directed on "[w]hether the Administrative Law Judge erred in finding respondent in compliance with the standard at 29 CFR § 1926.50(d)(1)." For reasons that follow, we affirm the Judge's vacation of item 1 of the citation which alleges noncompliance with § 1926.50(d)(1).
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n1 Chairman Barnako does not agree to this attachment.
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When an employer contests a citation, the burden of proving all elements of the alleged violation rests with complainant. Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Co., 511 F.2d 1139 (9th Cir. 1975); 29 C.F.R. § 2200.73(a). The standard of proof to be applied in such proceedings [*2] is the preponderance of the evidence rule. Olin Construction Co. v. OSAHRC, 525 F.2d 464 (2d Cir. 1975); Secretary v. Armor Elevator Co., 5 OSAHRC 260 (1973). Thus, the crucial question is not whether the evidence establishes that respondent complied with § 1926.50(d)(1) but whether a preponderance thereof establishes that respondent failed to comply with that standard. Therefore, we will assess the evidence accordingly.
Respondent, a general contractor, was engaged in reroofing and residing a residential building at the time his worksite was inspected. As a result of the inspection, he was cited for noncompliance with 29 C.F.R. § 1926.50(d)(1) which provides that:
"First-aid supplies approved by the consulting physician shall be easily accessible when required."
Complainant relies upon statements of one of respondent's employees to the effect that there were no first-aid supplies at the worksite. This same employee testified, however, that there were always "boxes of band-aids or something like that in the truck." He stated that he had none in his truck, but "what was in the other truck, I don't know." There is no indication that the inspector made any other attempt [*3] to ascertain whether or not first-aid supplies were available. n2 Under these circumstances, we find that the alleged violation has not been established by a preponderance of the evidence.
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n2 Although Mr. Brown accompanied the inspector during the inspection, he apparently was not asked about the first-aid supplies.
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Complainant argues that band-aids and bandages at a worksite would not satisfy the requirements of the standard. The standard, however, only requires that the supplies be approved by a consulting physician. It does not set forth specific items which must be accessible. We do not, therefore, accept complainant's argument that an adequate first-aid kit must include "such items as antiseptics, tournequets [sic] and splints" in order to comply with the standard. There is no indication in this record that a consulting physician had not approved of something less than that which complainant would have us require.
We are also mindful of the fact that respondent's worksite was located 6 or 7 blocks from a [*4] medical clinic. Although we agree with complainant that apparent compliance with the standard codified at 29 C.F.R. § 1926.50(c) n3 does not relieve an employer of the obligation to comply with 29 C.F.R. § 1926.50(d)(1), the nearness of the clinic could affect the type of first-aid supplies which respondent would be required to maintain at his worksite.
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n3 That standard provides that:
"In the absence of an infirmary, clinic, hospital, or physician, that is reasonably accessible . . . a person who has a valid certificate in first-aid training . . . shall be available at the worksite to render first-aid."
In regard to this standard, we note that a person trained in first-aid was available at respondent's worksite.
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We, therefore, find that complainant has not sustained his burden of proving noncompliance with the cited standard. Accordingly, the Judge's vacation of item 1 of the citation is affirmed.
DISSENTBY: CLEARY
DISSENT:
CLEARY, Commissioner, DISSENTING:
By affirming the Judge's disposition of the citation alleging a failure [*5] to comply with 29 CFR § 1926.50(d)(1), the majority has overlooked a significant aspect of the testimony adduced on this issue. In my opinion, complainant showed that respondent did not have an acceptable first-aid kit n4 on its jobsite as required by the standard.
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n4 The cited standard, § 1926.50(d)(1), refers to "first-aid supplies" rather than "first-aid kits". Referenced to § 1926.50(d)(2), however, reveals that the two terms should be read synonymously for purposes of the standard.
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Only two witnesses testified on the issue of whether respondent had a first-aid kit at its jobsite on the day of inspection. The compliance officer testified that during the course of his inspection he learned from Kenneth Young, an employee of respondent, that a first-aid kit was not available. Young, one of only two persons at the jobsite who was trained in first-aid, was the other witness testifying on the issue. He corroborated the compliance officer's account of their conversation. Young further testified that, although there [*6] was no first-aid kit on the site, "bandages and stuff like that" were generally kept in the trucks.
The majority attaches greater significance to Young's remarks regarding the general availability of bandages in the truck than to his unequivocal statement that there was no first-aid kit, as such, available on the day of inspection. I would not. Notwithstanding his statement regarding the asserted general availability of bandages, I consider Young's testimony to establish the absence of an acceptable first-aid kit in violation of the cited standard.
In the latter portion of their opinion, my colleagues suggest that the "bandages and stuff like that" alluded to by Young could be considered an adequate first-aid kit. This conjecture is supported by their reading of the cited standard in conjunction with § 1926.50(c), which requires an employer to have a person trained in first-aid available at a worksite when medical help is not "reasonably accessible". n5 Noting the proximity of a clinic to this worksite, and assuming a priori that it would be available to injured workers, they imply that bandages might be an adequate first-aid kit. I reject the application of this circuitous [*7] reasoning to suggest that bandages constitute an adequate first-aid kit under the circumstances of this case.
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n5 For the text of § 1926.50(c), see note 3 supra in the majority opinion.
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Appendix A
DECISION AND ORDER
Edward A. Bobrick, for Complainant
Brandon Crawford, for Respondent
George W. Otto, Judge, OSAHRC
This proceeding arises pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act). Clarence R. Brown d/b/a Brown's Contracting denies violations charged and disputes penalties proposed by the Secretary of Labor following inspection on March 28, 1974. Hearing was held at Superior, Wisconsin on August 30, 1974.
A citation issued April 10, 1974 charged four items of non-serious violation with penalties proposed of $25 for item 2, $125 for item 3 and $50 for item 4. Respondent denies violation as set forth in citation items 1 and 2, admits the violations under items 3 and 4 and disputes the penalties proposed for items 2, 3 and 4 [*8] (Tr. 4, 5).
Citation item 1 and paragraph IV(a)(1) of the complaint charged the respondent with violation of Section 5(a)(2) of the Act for failure to comply with 29 CFR 1926.50(d)(1) which provides that "First-aid supplies approved by the consulting physician shall be easily accessible when required." Richard Muraski, safety specialist who inspected on March 28, 1974, testified he was told there were no first-aid supplies on the job, that the workplace was within six or seven blocks of a clinic (Tr. 12, 23). Kenneth Young, employee, testified there was no first-aid kit on the jobsite, but there were band-aids or bandages or similar items (Tr. 34, 35).
There appears to have been no violation taking into consideration the first-aid supplies, although minimal, but apparently acceptable and sufficiently accessible, particularly with taking into consideration the proximity to a clinic and the respondent's apparent compliance with 29 CFR 1926.50(c).
Citation item 2 and paragraph IV(a)(2) of the complaint charge respondent with failure to comply with Section 5(a)(2) of the Act by violation of 29 CFR 1926.450(a)(10) which provides that "portable ladders in use shall be tied, blocked, [*9] or otherwise secured to prevent their being displaced." Complainant's safety specialist testified that the base of respondent's 22-foot ladder was placed in holes chopped in ice with no blocking, tying or securing and that the positioning of the ladder within a scaffold did not prevent slipping although it might have prevented the ladder from going all the way to the ground (Tr. 13, 29, 30).
Since the ladder was not tied, blocked nor did it have spike shoes, since the ladder could slip even while resting on the ground through two holes chopped in ice (Tr. 24) and since the scaffold did not function as an adequate block or instrument of securing the ladder or preventing displacement, a violation resulted. The ladder was used to a height sufficient to dermit application of siding to a gable (Tr. 36) and considering the gravity of the violation, a penalty of $25 is assessed.
Citation item 3 and paragraph IV(a)(3) of the complaint identifies a violation admitted by the respondent. The penalty is disputed. The violation involves 29 CFR 1926.451(a)(4) which provides:
Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground [*10] or floor, except needle beam scaffolds and floats (see paragraphs (p) and (w) of this section). Scaffolds 4 feet to 10 feet in height, having a minimum horizontal dimension in either direction of less than 45 inches, shall have standard guardrails installed on all open sides and ends of the platform.
The scaffold was about 18 feet high with no guardrails or toeboards (Tr. 14). It was used by respondent employees to apply siding and for tearing off old roofing and putting on new (Tr. 35, 36). Considering all statutory factors and particularly the gravity resulting from the lack of guardrails and toeboards as well as the scaffold height, a penalty of $50 is assessed.
Citation item 4 and paragraph IV(a)(4) of the complaint identify a violation admitted by the respondent. The penalty is disputed. This violation involves 29 CFR 1926.451(s)(5) which provides:
The wood platform planks shall be not less than 2 inches nominal in thickness. Both metal and wood platform planks shall overlap the bearing surface not less than 12 inches. The span between supports for wood shall not exceed 8 feet. Platform width shall be not less than 18 inches.
Two ladders leaning against the building [*11] were equipped with ladder jacks, were 13 1/2 feet apart and held one 2 by 12 plank (Tr. 14, 15). The platform was too narrow and the plank was overextended. Exhibit C-2 shows the plank at the eave-level of the two-story building. A further violation appears in Exhibit C-1 involving two scaffold platform levels (Tr. 37, 38). Considering all statutory factors, particularly the gravity of the violation, a penalty of $50 is assessed.
It is the contention of the respondent that there would have been no violation if he had been aware of the requirements of the Act and therefore no penalty should apply. The Occupational Safety and Health Act exists solely for the purpose of assuring safe and healthful working conditions for working men and women. This objective cannot be accomplished or even reasonably approached by reliance only upon monetary penalties for violations found after inspection. Employers and employees have separate but dependent responsibilities and rights with respect to achieving safe and healthful working conditions (29 USC 651(b)(2)). It is essential that violative working areas be removed so far as possible by the employer upon his own initiative without the prompting [*12] of the proposal or assessment of monetary penalties. Such penalties, however, are persuasive in accelerating the removal of barriers to a safe place of employment. The penalties assessed in this case for the above violations give due consideration to the appropriateness of the penalty with respect to the size of the respondent's business, the gravity of the violation, his good faith and history of previous violations.
FINDINGS OF FACT
1. Clarence R. Brown d/b/a Brown's Contracting, respondent, is a person engaged in a business affecting commerce with employees.
2. On March 28, 1974 his place of employment at 1623 East Fifth, Superior, Wisconsin was inspected by a representative of the Secretary of Labor, complainant. A citation and notification of proposed penalties were issued on April 10, 1974. A notice of contest was filed by the respondent by letter dated April 16, 1974.
3. Adequate first-aid supplies were provided at the place of employment and were apparently easily accessible when required.
4. The base of a 22-foot portable ladder used by respondent employees was placed in contact with the ground through two holes dug through ice. This ladder was not tied, blocked [*13] or otherwise secured to prevent displacement.
5. Respondent failed to install guardrails and toeboards on the open sides and ends of scaffold platforms more than 10 feet above the ground.
6. Respondent permitted his employees to use a ladder jack scaffold with a span between the ladder supports of 13 1/2 feet and with the platform plank width of 12 inches.
7. The citation of April 10, 1974 providing for immediate abatement of citation items 2, 3 and 4 fixed a reasonable time for the abatement of the respective violations.
CONCLUSIONS OF LAW
1. Respondent at time of inspection and prior thereto was and remains an employer within the meaning of 29 USC 652(5).
2. Respondent did not fail to comply with occupational safety and health standard 29 CFR 1926.50(d)(1) (citation item 1).
3. Respondent failed to comply with occupational safety and health standard 29 CFR 1926.450(a)(10). (citation item 2). A penalty of $25 is assessed.
4. Respondent failed to comply with occupational safety and health standard 29 CFR 1926.451(a)(4). (citation item 3). A penalty of $50 is assessed.
5. Respondent failed to comply with occupational safety and health standard 29 CFR 1926.451(s)(5) [*14] (citation item 4). A penalty of $50 is assessed.
ORDER
It is therefore Ordered that citation item 1 alleging violation of 29 CFR 1926.50(d)(1) be and the same is hereby vacated.
Further, it is Ordered that pursuant to 29 USC 666(k) respondent shall pay to the Secretary of Labor for deposit into the Treasury of the United States assessed civil penalties in the total sum of $125.
Dated: December 4, 1974
George W. Otto, Judge, OSAHRC