PULLMAN POWER PRODUCTS, INC.  

OSHRC Docket No. 78-4989

Occupational Safety and Health Review Commission

July 31, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Counsel for Regional Litigation, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

John A. Alogna, Pullman Power Products, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   A decision of Administrative Law Judge Cecil L. Cutler, Jr., is before the Commission for review under section 12(j) of the Act, 29 U.S.C. §   661(i).   In his decision the judge, adopting the stipulations of the parties, found that employees of Respondent, Pullman Power Products, Inc., used an unguarded walkway and were exposed to both a falling and a tripping hazard. Nevertheless, the judge concluded that the "inspection of Respondent's work site on July 7, 1978, did not constitute an inspection within the meaning of the Act." Judge Cutler vacated both citations arising out of the inspection. We set aside the judge's decision and affirm the citations.

I

A.

At the time of the inspection, Respondent was one of seventeen subcontractors involved in the construction of a cooling tower for the Appalachian Power   [*2]   Company ("Appalachian") in New Haven, West Virginia.   The Secretary of Labor's ("Secretary") compliance officer, Good, originally arrived at the worksite on April 12, 1978.   He met with the representative of Appalachian, Combs, and conducted an opening conference with the various subcontractors, including representatives of Respondent.   This meeting included the presentation of the compliance officer's credentials and a discussion of the purpose and scope of the inspection. The inspection continued until April 27, 1978, when Good was called away to take part in another investigation.   Good held a closing conference with Springer, a representative of Respondent, before he left.   He returned to the site on June 13 and June 22, 1978, at which time he held another opening conference.   This meeting involved only employers working in the cooling tower. Respondent, whose work was confined to the powerhouse, was not included in this meeting.   During the cooling tower inspection, Good received an oral complaint regarding opensided catwalks in the powerhouse from an employee of Union Boiler.   Upon completion of the cooling tower inspection, he proceeded to Union Boiler's office, presented   [*3]   his credentials to Union Boiler's superintendent and informed him of the complaint.   The superintendent designated Combs as his representative on the inspection. During the course of this inspection Good observed a worker, later determined to be one of Respondent's employees, on an opensided catwalk and other employees of Respondent in the vicinity.   They identified Parrish, who was sitting at a desk on the next level, as their foreman.   Good testified that he presented his credentials to Parrish, noted the employees' exposure to the hazard, informed him of the need to abate the nazard and requested that he pass on the information to his supervisor on the site.   On July 20, 1978, while preparing his report on the investigation, Good contacted Respondent's representative at the worksite, Springer, to make sure that Respondent knew of the condition.   The citation for the opensided catwalks was issued on September 27, 1978.

At the hearing before Judge Cutler, Parrish testified that on July 7, 1978, he was approached by three men wearing white hats, one of whom asked him if he had anything to complain about.   Parrish did not recall being shown any credentials or hearing an inspection [*4]   mentioned.   Nor did he recall being told to abate the hazard. Combs, who represented Union Boiler on the inspection, testified that he recalled Good speaking to someone seated at a writing desk, but he had no indication as to what was said.

As we have noted the judge found that Respondent's employees were exposed to a falling and tripping hazard. He vacated both citations arising out of the inspection, however, because he concluded that Respondent's foreman was unaware that an inspection took place and that the "inspection of Respondent's work site on July 7, 1978, did not constitute an inspection within the meaning of the Act."

B.

The Secretary petitioned for review of the judge's decision.   Citing to Accu-Namics, Inc. v. OSHRC, 515 F.2d 828 (5th Cir. 1975); Marshall v. Western Waterproofing Co., 560 F.2d 947 (8th Cir. 1977); and Able Contractors, Inc., 77 OSAHRC 184/A2, 5 BNA OSHC 1975, 1977-78 CCH OSHD P22,250 (No. 12931, 1977), the Secretary contends that an employer must demonstrate actual prejudice to the preparation or presentation of its defense before a citation will be vacated because the Secretary failed to comply with the requirements of section 8(e) of [*5]   the Act, 29 U.S.C. §   657(e). n1 The Secretary contends that since Respondent did not claim that its defense was prejudiced, the judge's decision should be reversed.   The Secretary also argues that since Respondent stipulated to the existence of the hazardous conditions and the exposure of its employee to those conditions, the Commission should affirm the citation for noncompliance with the standards at 29 C.F.R. §   1926.500(d)(2) and §   1926.25(a). n2 The Secretary's petition for discretionary review was granted by Chairman Cleary as to all the issues raised by the petition.

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n1 Section 8(e) of the Act provides:

(e) Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection. Where there is no authorized employee representative, the Secretary or his authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace.

n2 29 C.F.R. §   1926.500(d)(2) requires the guarding of open-sided floors, platforms, and runways; §   1926.25(a) requires the clearing of debris and other materials from work areas, passageways, and stairs.

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On review, Respondent argues that the judge properly vacated the citation because (1) the Secretary failed to comply with the provisions of section 8(a) of the Act, 29 U.S.C. §   657(a), n3 which, among other things, requires him to present his credentials to the appropriate persons at the worksite; and (2) the Secretary also failed to comply with section 8(e) of the Act, which requires the Secretary to give an employer the opportunity to have his representative, selected by the employer, accompany the Secretary or his representative during the physical inspection of the workplace. In Respondent's view a failure to comply with these sections of the Act compels the conclusion that an inspection or investigation within the terms of sections 9(a) n4 and 10(a) n5 of the Act, 29 U.S.C. § §   658(a), 659(a), did not take place.   Therefore, Respondent contends, a citation cannot issue.   Respondent did not argue that its defense was prejudiced by what it views as the Secretary's failure to comply with the Act.

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n3 Section 8(a) of the Act provides:

(a) In order to carry out the purposes of this Act, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized --

(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and

(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.

n4 Section 9(a) of the Act provides:

(a) If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of this Act, of any standard, rule or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a citation to the employer.   Each citation shall be in writing and shall describe 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.   In addition, the citation shall fix a reasonable time for the abatement of the violation.   The Secretary may prescribe procedures for the issuance of a notice in lieu of a citation with respect to de minimis violations which have no direct or immediate relationship to safety or health.

n5 Section 10(a) of the Act provides:

(a) If, after an inspection or investigation, the Secretary issues a citation under section 9(a), he shall, within a reasonable time after the termination of such inspection or investigation, notify the employer by certified mail of the penalty, if any, proposed to be assessed under section 17 and that the employer has fifteen working days within which to notify the Secretary that he wishes to contest the citation or proposed assessment of penalty.   If, within fifteen working days from the receipt of the notice issued by the Secretary the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty and no notice is filed by any employee or representative of employees under subsection (c) within such time, the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency.

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II

Respondent's argument that the Secretary failed to comply with section 8(a) of the Act in that the compliance officer failed to present his credentials at the commencement of the inspection is without merit.   The compliance officer presented his credentials to and was on the worksite with the permission of a representative of the owner of the project, Appalachian.   Moreover, he was engaged in an inspection with a representative of Union Boiler of a work area common to both Union Boiler and Respondent.   Accordingly, the compliance officer was in the worksite with the permission of persons who controlled the area and were capable of giving consent. n6 See Marshall v. Western Waterproofing Co., supra. Nevertheless, even if we were to find that the Secretary failed to comply with section 8(a) of the Act, that failure could not operate to exclude evidence where, as here, Respondent does not claim that the preparation of its defense was prejudiced by the Secretary's action.   See Marshall v. Western Waterproofing Co., supra; Accu-Namics, Inc. v. OSHRC, supra.

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n6 In the Commission's view, section 8(a) of the Act is co-extensive with the 4th Amendment.   Marshall v. Western Waterproofing Co., 560 F.2d 947 (8th Cir. 1977); Accu-Namics, Inc. v. OSHRC, 515 F.2d 828 (5th Cir. 1975); Laclede Gas Co., 79 OSAHRC 94/E13, 7 BNA OSHC 1874, 1979 CCH OSHD P24,007 (No. 76-3241, 1979).

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In determining that the inspection was not "meaningful" and vacating the citation on that basis, the judge applied an improper legal test.   The test to be applied in determining whether to grant relief to an employer because of the Secretary's failure to meet the walkaround requirements of section 8(c) of the Act is whether the employer suffered projudice in the preparation and presentation of its defense.   S & H Riggers & Erectors, Inc., 80 OSAHRC    , 8 BNA OSHC 1173, 1980 CCH OSHD P24,336 (No. 76-1104 & 76-1739, 1980), appeal filed, No. 80-7297 (5th Cir. April 21, 1980); Titanium Metals Corp. of America, 80 OSAHRC    , 7 BNA OSHC 2172, 1980 CCH OSHD P24,199 (No. 14080, 1980), appeal filed, [*9]   No. 80-1333 (3d Cir. March 10, 1980).   In this case Respondent has not claimed that its ability to prepare or present its defense to the violations was prejudiced. Indeed, Respondent stipulated to the existence of the hazards, to the exposure of its employees to the hazards, and to the presence of its supervisory employee near the violative conditions.   Since we find no indication on the record that Respondent was prejudiced in any way, we reverse the judge's decision vacating the citations issued to Respondent. n7

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n7 In view of our resolution of the claims raised by Respondent with regard to sections 8(a) and 8(e) of the Act, we need not reach Respondent's contention that the Secretary did not conduct an inspection within the meaning of sections 9(a) and 10(a) of the Act.

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Ordinarily, we would remand this case to the judge.   In this case, however, Respondent stipulated to the elements necessary for the finding of a violation of the Act.   Therefore, a remand is unnecessary and would only serve to prolong the resolution [*10]   of this case.

Accordingly, there being no dispute as to the facts, we find (1) that Respondent's employees were exposed to falling and tripping hazards resulting from conditions which did not comply with the cited standards; (2) that Respondent had supervisory personnel near the violative walkway such that it knew, or with the exercise of reasonable diligence could have known, of the violative conditions; and (3) that there was a substantial probability that death or serious physical harm could result from the hazard presented by the lack of standard guardrails on a walkway fifty to sixty feet above a floor.   We thus conclude that Respondent's failure to comply with 29 C.F.R. §   1926.500(d)(2) was a serious violation of the Act within the meaning of section 17(k), 29 U.S.C. §   661(j), and that Respondent was in nonserious violation of the Act for its failure to comply with 29 C.F.R. §   1926.25(a).

The parties did not stipulate to the appropriateness of the proposed penalty. Having considered the Secretary's proposed penalty in light of the penalty criteria set out in section 17(j) of the Act, 29 U.S.C. §   666(i), we conclude that penalties of $560 for the serious violation and $0 for [*11]   the nonserious violation, as proposed by the Secretary, are appropriate.

Accordingly, the judge's decision is set aside, the two citations are affirmed, and the penalty proposed by the Secretary is assessed.

SO ORDERED.