MERRITT ELECTRIC COMPANY

OSHRC Docket No. 77-3772

Occupational Safety and Health Review Commission

July 20, 1981

[*1]

BEFORE: CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Kenneth Hellman, Office of the Solicitor, USDOL

Jesse Merritt, President, Merritt Electric Co., Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Joseph L. Chalk is before the Commission by the direction for review of Commissioner Cleary under section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). Respondent, Merritt Electric Company, received a citation alleging that it violated section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2), by not providing a standard railing on a raised platform where employees were working or, in the alternative, by not requiring those employees to wear tied-off safety belts. The Secretary of Labor ("the Secretary") argued that the notice of contest which Respondent filed challenging this citation and its accompanying notification of proposed penalty was filed too late. n1 Judge Chalk held that the notice of contest was valid. He further concluded that Respondent had no way of knowing that its employees would be working at the point where the violation occurred. Consequently, [*2] the judge held that Respondent could not have prevented the violations, and he therefore vacated the citation. For the following reasons, we agree with the judge that the notice of contest was valid. However, we conclude that Respondent violated the Act as alleged. Therefore, we reverse this portion of the judge's decision.

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n1 Unless a written notice of contest is filed within 15 working days after the notification of proposed penalty is received, the citation and proposed penalty become final orders of the Commission and are not subject to review by any court or agency. See 10(a) of the Act, 29 U.S.C. 659(a).

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I

Respondent is an electrical contractor that was engaged in working on a site in the District of Columbia on June 29, 1977, when an Occupational Safety and Health Administration ("OSHA") compliance officer inspected the worksite. As a result of this inspection, a citation was issued to Respondent on July 19, 1977. On July 21, 1977, Respondent's president, Mr. Jesse Merritt, received the citation [*3] and immediately called the OSHA area director, Mr. Gilbert Esparza. As Mr. Merritt testfied, after reading the citation he thought he had fifteen days "to get in touch with those people," and therefore he called Esparza "to find out what was going on." At the time of this call, Merritt was, according to Esparza's testimony, "very agitated" and "upset that he had received a citation."

According to Esparza, Merritt complained about what he perceived to be a large penalty for a small company and indicated that his employees were exposed to the hazard observed by the compliance officer only because another contractor asked them to put up some lights before the contractor erected a scaffold. Merritt said he therefore wanted the compliance officer to "come out and look the situation over again." Esparza thought that Merritt was requesting a "reinspection." Since there is no such procedure under the Act, Esparza concluded that what Merritt was seeking was an informal conference. Esparza therefore informed Merritt that he had fifteen days in which to have a conference and that the conference would have to be held in the OSHA office. Esparza further testified that he told Merritt that [*4] "he also had a right to contest in that [fifteen-day] period." Esparza emphasized to Merritt that he should not delay in contacting the office to set up this conference because Esparza would soon be leaving for his vacation.

Merritt believed, according to his testimony, that Esparza told him that the compliance officer could make a reinspection if Merritt made an appointment for a conference. Merritt was hospitalized shortly after this conversation. He claimed in his testimony, however, that both during and after his hospitalization he and his superintendent tried to contact Esparza. Merritt maintains that these attempts were unsuccessful because each time the caller was told that there could be no conference with Esparza, since he was on vacation. In his testimony, Esparza disputed this, saying that "whoever was left in the office acting in my behalf could have held the informal conference with him."

On October 21, 1977, Respondent received a penalty collection letter from Esparza. Mr. Merritt immediately called Esparza, expressing concern over why he had received such a notice when no conference had yet been held. Esparza testified that he "reminded" Merritt that he only [*5] had fifteen days to contest the citation or hold an informal conference. Esparza told Merritt, however, that if he "felt . . . strongly about it," he should "write a letter of contest and it would be reviewed by the Commission." Therefore, on October 24, 1977, Merritt mailed a letter to OSHA, stating in part, "We have made several attempts to meet you on job site to contest said citation, and each time you were on vacation. We still wish to contest this citation," (emphasis added).

The Secretary argued before the judge that Merritt should have known of the 15-day limitation from the citation itself and that the area director was correct in interpreting Merritt's call as a request for an informal conference rather than as a contest. The Secretary maintains further that reason for imputing knowledge of the 15-day limit to the Respondent lies in the area director's testimony that he told Merritt during this conversation that the notice of contest had to be filed within this period. The Respondent contended that Esparza was delinquent in scheduling the informal conference, an event the Respondent believed would toll the 15-day period.

Judge Chalk decided that the Respondent's [*6] notice of contest should be considered timely under the circumstances. Judge Chalk reasoned that it should have been clear to the area director from his conversation with Mr. Merritt that the Respondent was expressing a contest. The judge noted that Merritt made this fact quite apparent, and did everything except say the words "I contest." Judge Chalk also found that it was Merritt's belief after his conversation with the area director that he had done all that was required of him "to perfect and pursue his obvious disagreement with the entire enforcement action" by calling the area director and asking for a conference. The judge found that Merritt did not know he had to file a written notice of contest within the 15-day period. n2 Instead, the judge concluded that Merritt was confused as to what action he should have taken, and the confusion was directly attributable to the area director. The judge noted that, according to the area director's testimony, he (the area director) "proceeded to inform [Merritt] of the 15 working-day period, [that] he could have a conference during that period, but he also had a right to contest in that period." Judge Chalk concluded that these remarks [*7] by the area director led Merritt to reasonably believe that either a contest or an informal conference "would accomplish what was so obviously Mr. Merritt's objective."

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n2 At the hearing, evidence was brought out concerning an informational booklet published by the Department of Labor, known as the "OSHA 3000" pamphlet. It outlines an employer's rights and duties under the Act upon receipt of a citation. Among other points, it states that a notice of contest must be in writing, and it makes clear that the scheduling of an informal conference does not toll the 15-day contest period. The area director testified that it was a matter of practice to include this pamphlet with the mailing of a citation. Indeed, the citation itself refers to the "OSHA 3000" pamphlet. In this case, Merritt testified that he never received this explanatory pamphlet. Esparza was not able to say with any certainty whether the pamphlet had in fact been included with the citation here.

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The Secretary makes essentially the same arguments on [*8] review that he made before the judge. n3 We affirm the judge's ruling.

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n3 Respondent has not filed a brief on review or otherwise responded to the direction for review.

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II

In B.J. Hughes, Inc., 79 OSAHRC 49/E6, 7 BNA OSHC 1471, 1979 CCH OSHD P23,675 (No. 76-2165, 1979), the Commission held a late-filed notice of contest timely. There, the area director and assistant area director told the employer what day was the last one of the fifteen-day period. The employer filed its notice of contest three days before that date. In fact, the date they represented to the employer was erroneous in that it was four days later than the actual deadline. The result was that the employer's notice of contest was one day late. However, because the misinformation was "given by the chief regional officials of the Secretary who appeared to have and should have had knowledge of the facts and applicable law with respect to the case," 7 BNA OSHC at 1477, 1979 CCH OSHD at p. 28,710, the Commission found the employer's reliance reasonable. [*9] The Commission therefore concluded that the Secretary was responsible for the late-filed contest and it should be deemed timely.

More recently, in Henry C. Beck Co., 80 OSAHRC 50/A2, 8 BNA OSHC 1395, 1980 CCH OSHD P24,484 (No. 11864, 1980), the Commission held a late-filed notice of contest timely because the area director did not correct the employer after the employer stated the wrong date as the deadline. The Commission found that, because of the circumstances, the area director should have stated the correct date. During an informal conference before a notice of contest was filed, the area director indicated that he intended to reconsider the citation. The Commission stated that

By mentioning reconsideration of the existing citation, the area director made the final contest date a critical fact under consideration at the informal conference. Since . . . Beck was justified in thinking that the area director was informed about the facts and law of the case, the area director was obligated to speak if Beck's safety director was wrong about the final contest date.

8 BNA OSHC at 1400, 1980 CCH OSHD at p. 29,906. Because Respondent filed its notice of contest on the date [*10] it mentioned during the informal conference, the Commission concluded that the late filing was attributable to the area director director's silence about the correct date and therefore held the notice of contest valid.

The circumstances in this case are similar. When Mr. Merritt, the president of a small contractor with no prior exposure to OSHA and its procedures, called the area director, he indicated that the company disagreed with the citation and penalty. As Judge Chalk noted, Merritt said everything short of "I contest." Merritt was confused and thought that he only had to get in touch with the area director within the fifteen-day period mentioned in the citation. Therefore he protested the citation and asked the area director to reconsider it. In these circumstances, the area director should have made it clear to Respondent that it would have to file a written notice of contest in the fifteen-day period in order to contest the citation even if Merritt and the area director held an informal conference to reconsider the citation. Although the area director stated that Respondent could file a notice of contest in the fifteen-day period, he did not make it clear that holding [*11] an informal conference was not equally effective for contesting the citation. Instead, he stated that Respondent could do either.

Moreover, the importance of the fifteen-day period was not stressed. The area director's admonitions to the Respondent concerning the deadline for the filing of the notice of contest were couched not in terms of the 15-day limit, but rather in terms of the area director's vacation. The area director also did not emphasize that the contest had to be in writing and Merritt believed, according to his testimony, that by calling the area director and asking for a ference, he had done all that was necessary to contest the citation.

By failing to advise Respondent clearly that a written notice of contest was necessary, the area director thereby confirmed Respondent's belief that holding an informal conference was enough. We therefore conclude that Respondent acted reasonably in relying on the area director's advice, attempting only to schedule an informal conference. Accordingly, we hold that Respondent's late-filed notice of contest was valid.

III

During the inspection the compliance officer, Mr. Wiseman, observed the Respondent's foreman and three employees [*12] working on an open-sided platform that was 27' 6" above a concrete floor. The platform itself measured 9' X 16' and was partially obstructed by several pieces of lumber and structural steel, as well as by two ladders. One of these ladders was in use by Respondent's foreman at the time of the inspection. All men on the platform were there without the benefit of a guardrail or personal protective equipment of any kind. The compliance officer observed these men for approximately twenty minutes during which time they had occasion to come "within inches" of the edge of the platform.

In the citation the Secretary alleged a serious violation of 29 C.F.R. 1926.500(d)(1) n4 for not providing a guardrail, or, in the alternative, 29 C.F.R. 1926.28(a) n5 for failure to provide personal protective equipment. The Secretary proposed a penalty of $450.

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n4 This standard provides

1926.500 Guardrails, handrails, and covers.

* * *

(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)(1)(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.

n5 This standard provides

1926.28 Personal protective equipment.

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

[*13]

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Before Judge Chalk, Respondent contended that it did not know of the exposure to fall hazards because the work which the employees performed on the platform was not "part of our contract" and the foreman decided to perform the work as a favor to another contractor, without consulting any supervisory employees of the Respondent. n6

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n6 At the hearing, the Respondent never claimed that it was in compliance with the cited standards, but only that it could not have prevented the violation.

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Judge Chalk relied on Hogan Mechanical, Inc., 77 OSAHRC 214/D7, 6 BNA OSHC 1221, 1977-78 CCH OSHD P22,429 (No. 15438, 1978), in finding no violation by the Respondent. He concluded that "as the employer had no reason to believe that his employee[s] would be at the location where [they were] exposed to the hazards, the employer could not realistically have prevented the violations."

The Secretary argues that the judge's reliance on Hogan Mechanical, [*14] supra, is misplaced. In Hogan, the Secretary asserts, an employee made an unscheduled visit to the site where he was later found in violation. Here, however, the Secretary alleges that the site where the violation occurred was precisely where the Respondent expected its employees to be. Thus, the Secretary concludes that adequate supervision would have discovered any violations.

In addition, the Secretary claims that the acts of the employees in this case were preventable. In support of his argument, the Secretary cites Respondent's total lack of a safety program, infrequent supervision by the superintendent over the foreman and the site, and evidence at the hearing which showed that safety belts had not been used. As compliance was not claimed by the Respondent, the Secretary maintains that the citation should be affirmed.

IV

The Commission has held that an employer is generally responsible for a violation created by its supervisory employees or within their actual or constructive knowledge. An employer, however, may defend by showing that it took all necessary precautions to prevent the occurrence of the violation, including adequate supervision of its supervisory [*15] employees. Niagara Mohawk Power Corp., 79 OSAHRC 36/A2, 7 BNA OSHC 1447, 1979 CCH OSHD P23,670 (No. 76-2414, 1979); F.H. Sparks of Maryland, Inc., 78 OSAHRC 12/C13, 6 BNA OSHC 1356, 1978 CCH OSHD P22,543 (No. 15472, 1978). To establish the defense, the employer must show that it established workrules designed to prevent the violation, adequately communicated these rules to its employees, and effectively enforced the rules when violations were discovered. Wander Iron Works, Inc., 80 OSAHRC 40/A2, 8 BNA OSHC 1354, 1980 CCH OSHD P24,457 (No. 76-3105, 1980); Asplundh Tree Expert Co., 78 OSAHRC 77/E12, 6 BNA OSHC 1951, 1978 CCH OSHD P23,033 (No. 16162, 1978).

The testimony of Mr. Barclay, the foreman's supervisor, reveals that the foreman was in charge of the work at the worksite. Mr. Barclay testified that the foreman was responsible for the work and the safety of the employees on the job. The foreman reported to Barclay twice a day when, in the morning and evening, Mr. Barclay came to the worksite to receive the foreman's report and discuss the work with him. It is thus evident that Respondent entrusted the foreman with considerable responsibility, and therefore [*16] it was incumbent on Respondent to train the foreman adequately in the hazards associated with the work being performed on the worksite. See Paul Betty d/b/a Betty Brothers, 81 OSAHRC    , 9 BNA OSHC 1379, 1981 CCH OSHD P25,219 (No. 76-4271, 1981), and cases cited therein.

Respondent failed to establish that the foreman received adequate instruction. Respondent presented no evidence of safety rules requiring the use of standard railings on platforms or the wearing of tied-off safety belts, and there is no evidence that the foreman was aware of these requirements. Thus, Respondent has failed to demonstrate that it established workrules designed to prevent the violation and adequately communicated these rules to the employees, especially to the foreman in charge of the progress of the work. Indeed, Mr. Merritt admitted that the company has no safety program.

We agree with the Secretary that this case is distinguishable from Hogan Mechanical. In Hogan, the employer could not have prevented its employee being exposed to the violative conditions because the employer had no way of knowing that the employee would go to the worksite where the conditions existed. In this [*17] case, however, Respondent knew its employees would be working on the site where the violation occurred, and it had a duty to provide for their safety while on that site. See generally Grossman Steel and Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD P20,691 (No. 12775, 1975). An employer must make a reasonable effort to anticipate hazards to which its employees may be exposed in the course of their scheduled work and must give specific, appropriate instructions to prevent exposure to these hazards. Automatic Sprinkler Corp. of America, 80 OSAHRC 47/E4, 8 BNA OSHC 1384, 1980 CCH OSHD P24,495 (No. 76-5089, 1980) and cases cited therein. Because employee exposure to fall hazards from unguarded walking or working surfaces is a frequent occurrence on construction worksites, an employer can reasonably be expected to establish and communicate to its employees workrules designed to prevent their exposure to these hazards. Accordingly, Respondent's failure to train the foreman adequately by communicating to him workrules concerning standard railings and safety belts is not justified by the fact that the foreman and the other employees were on the platform [*18] performing unscheduled work. Because Respondent failed to establish the defense that the foreman's action causing the violation was unpreventable, we impute the foreman's knowledge to Respondent and find that Respondent knew of the violation. Wander Iron Works, Inc., supra.

We also agree with the Secretary's determination that the violation was serious, as a fall of more than 27 feet is likely to cause death or serious bodily harm. See Automatic Sprinkler Corp. of America, supra. We therefore affirm the citation.

Turning to the assessment of a penalty, the Secretary proposed a penalty of $450. In assessing penalties, we consider the gravity of a violation, the size of an employer, the employer's prior history, and the employer's good faith. Section 17(j) of the Act, 29 U.S.C. 661(i). The record indicates that the Respondent is relatively small in size. There is no indication that Respondent committed any prior violations of the Act. However, the total absence of a safety program casts doubt on Respondent's good faith. Moreover, the gravity of the violation was high, as at least four of Respondent's employees were exposed to the danger of death or serious [*19] injury. Under the circumstances, a penalty of $225 is appropriate.

Accordingly, the citation is affirmed and a penalty of $225 is assessed. SO ORDERED.