LUTHER MARVIN ROBBINS d/b/a Robbins Painting Service
OSHRC Docket No. 789
Occupational Safety and Health Review Commission
December 14, 1973
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioner
OPINIONBY: CLEARY
OPINION:
CLEARY, COMMISSIONER: On September 19, 1972, Judge J. Marker Dern issued his decision and order in this case holding that respondent had violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as "the Act"), in that it failed to comply with Occupational Safety and Health Standards at 29 CFR 1926.450(a)(11) and 29 CFR 1904.8. He assessed a penalty of $900 for the former violation and no penalty for the latter.
On October 18, 1972, that decision was directed for review by the Commission pursuant to section 12(j) of the Act.
The Commission has reviewed the entire record in this case including the briefs filed by the parties. Based upon that review we affirm the decision and order of the Judge.
In our opinion the Judge properly raised the penalty proposed by the Secretary of Labor from $750 to $900, giving heavy weight to the gravity of the violation -- use of an aluminum ladder close to an energized power line and making no effort to eliminate the electrical hazard. When a proposed penalty is contested, the Secretary's proposed penalty has advisory force only. The Commission is not bound by the advisory action of the Secretary. Brennan v. Occupational Safety and Health Review and Interstate Glass Company, No. 73-1029 (8th Cir. October 26, 1973). See also Secretary of Labor v. Dixie Electric, Inc.,
Accordingly, the Judge's decision and order are affirmed in all respects.
DISSENTBY: MORAN
DISSENT:
MORAN, CHAIRMAN, dissenting: The Court of Appeals citation contained in this decision does not support the Commission's conclusion that a penalty can be assessed in an amount higher than proposed by the Secretary of Labor. On the contrary, it holds only that the Commission can reduce or vacate the proposed penalty.
I submit that nothing in this decision refutes the arguments against penalty increases which I made in two prior decisions: Secretary v. M. A. Swatek & Company, Secretary v. California Stevedore & Ballast Company,
When an employer contests an enforcement action initiated against him under this Act, he is seeking relief from a certain penalty which will inexorably and automatically be imposed upon him if he fails to contest within the 15-working-day period prescribed in the Act. If the facts of the matter developed at a hearing do not warrant any relief, then the penalty proposed by complainant should stand unchanged. An employer who exercises his statutory and constitutional right to a hearing should not thereby subject himself to a larger penalty than could be imposed upon him had he not invoked his rights.
What has happened here is very simple. Respondent was told he must pay a $750 fine which would become final and binding unless he availed himself of his right to a hearing. He chose the latter option because he apparently felt the $750 fine was unjust. Now he has had his hearing and is told that the fine will be $900. His exercise of his statutory and constitutional rights has cost him $150 which he would never have had to pay if he had remained silent.
Any result such as this, which tends to discourage citizens from exercising their rights, is clearly in error.
[The Judge's decision referred to herein follows]
DERN, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq., (hereafter referred to as the Act) to review citations issued by the Secretary of Labor (herein referred to as the complainant) pursuant to Section 9(a) of the Act, and a proposed assessment of penalty in the amount of $750.00 pursuant to Section 10(a) of the Act.
A citation for serious violation was issued to respondent on April 13, 1972, alleging that he was in violation of the safety standards at 29 CFR 1926.450(a)(11) (formerly 29 CFR Section 1518.450(a)(11) as adopted by 29 CFR Section 1910.12) and a citation for nonserious violation, alleging violation of Standard 29 CFR Section 1904.8, said standards being promulgated pursuant to Section 6(a) of the Act.
A notification of proposed penalty was also issued on the same date proposing the penalty of $750.00 for the alleged violation of 29 CFR Section 1926.450(a)(11). No penalty was proposed for the non-serious violation citation.
On April 18, 1972, respondent notified the complainant through Area Director, Occupational Safety and Health Administration, Birmingham, Alabama, that he wished to contest the citations and the proposed assessment of penalty.
The complainant advised the Occupational Safety and Health Review Commission of the notification of contest by respondent and filed a complaint with the Commission on May 1, 1972.
The citations and the complaint described the contested alleged violations as follows:
CITATION NO. 1
Failure to give notification of fatal accident within 48 hours.
CITATION FOR SERIOUS VIOLATION NO. 1
Portable aluminum ladder was used in close proximity to energize electrical conductors.
After proper notification, a hearing was held in Birmingham, Alabama, on July 26, 1972. The respective parties were represented by counsel and no additional parties desired to intervene in the proceedings.
ISSUES
The primary issue for determination is whether there was a violation by respondent of safety standard 29 CFR 1926.450(a)(11), since respondent admitted violation of Standard 29 CFR 1904.8. If a violation did occur, then a determination must be made as to whether there was such a substantial probability of death or serious physical harm so that a serious violation occurred. In the event a serious violation occurred, a further determination must be made as to whether the proposed penalty of $750.00 was appropriate under the Act.
THE LAW
Section 5(a)(2) provides that each employer shall comply with Occupational Safety and Health Standards promulgated under the Act. Section 17(b), as pertinent, provides that an employer who has received a citation for a serious violation under any standard shall be assessed a civil penalty of up to $1,000.
Section 17(j), as pertinent, provides that the Commission shall have authority to assess all civil penalties giving due consideration to the appropriateness of the penalty with respect to the size of the business, the gravity of the violation, the good faith of the employer, and the history of previous violations.
Section 17(k), as pertinent, provides that a serious violation shall be seemed to exist if there is a ". . . substantial probability that death or serious physical harm could result from a condition which exists . . ." or is in use in a place of employment, "unless the employer did not and could not with the existence of reasonable diligence, know of the violation.
FINDINGS OF FACT
The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically determined in resolving the issues presented in this case.
1. Respondent is a corporation engaged in the painting contracting business in Birmingham and the surrounding area and it does a yearly volume of business of approximately $84,000. It employs approximately 25 employees, depending upon the needs of the jobs on which they are engaged.
2. Ski Lodge Apartments are located at 175 West Valley Avenue, Homewood, Alabama. This is an apartment complex which has been under construction since December 1971. This apartment complex is made up of buildings or units, each unit having several apartments of varying sizes. The respondent had contracted with the owners of Ski Lodge Apartments to perform certain painting operations on the outside of the apartments, as well as painting and acoustical applications on interior walls.
3. Unit F-4 is an apartment housing 20 two-bedroom apartments. It is 2 1/2 stories and the distance to the roof is approximately 30 feet from the ground level. Construction is stone from the ground to eight feet above the ground. The area of the building walls is constructed of wood from eight feet above the ground to the eaves.
4. The apartment building unit is approximately a short block in length. A sidewalk was being constructed which ran parallel to the building and was approximately ten to twelve feet from the front outside wall of the building. There was approximately a 40-inch drop from the ground adjacent to the building to the sidewalk.
5. Also running parallel to the building and on the inside of the sidewalk at a height of approximately 21 or 22 feet was an energized electrical power line. The line was attached to the electrical poles located at each end of Unit F-4. This power line had been in place more than two weeks prior to the date on which the violations were charged. This power line was a primary source of power for the construction complex and carried 7,620 volts.
6. On April 5, 1972, an employee engaged in painting work for respondent was permitted to work on, and occasionally move in a vertical position, a 28-foot aluminum extension ladder in close proximity to the said energized electrical line.
7. Prior to the occurrence of the violation, James Mayes, respondent's on-the-job foreman, was discussing the close proximity of the power line to the apartment unit. He and a carpenter visited the apartment balconies and determined the position of the electrical wire to the building. The uncontradicted testimony established that Mayes, standing on the balcony, could have, by reaching out, touched the 7,620-volt electrical wires with his hand.
8. It is clear that the respondent, through his supervisor, had absolute knowledge of the potentially dangerous hazard. Having such knowledge of the dangerous wire, it was the respondent's duty to take the necessary steps to safeguard against possible death or serious bodily harm to his employees.
9. All violations have been abated by the respondent.
LAW AND OPINION
Section 5(a)(2) of the Act provides:
Section 5(a) Each employer
(2) Shall comply with Occupational Safety and Health Standards promulgated under this Act.
Section 29 CFR 1926.450(a)(11) provides:
Portable metal ladders shall not be used for electrical work or where they may contact electrical conductors.
The evidence supports a finding that respondent's employees performed work in close proximity to high voltage lines which were not denergized, that respondent, through the acts of his on-the-spot supervisory personnel knew the hazard and that he failed to take all necessary measures to insure the safety of the employees.
The facts of the case were principally established by the testimony of the respondent, Luther Marvin Robbins and James Mayes, the respondent's foreman on the job site at the time the violations were alleged to have occurred.
Luther Marvin Robbins owns and operates a painting business under the name and style of Robbins Painting Service, Birmingham, Alabama, and has operated as such for approximately one and one-half years (Tr. p. 9).
He contracted to perform painting services for the Ski Lodge Company in December 1971, and employed from 16 to 20 men. During the period for which the serious violation was charged, the respondent had crews working on the inside as well as the outside of apartment building designated as F-4. This unit houses twenty two-bedroom apartments (Tr. p. 13), and two and one-half floors (Tr. p. 14). Its length roughly covers one block. The construction of the building consists of stone from the ground level to a height of approximately 8 feet, and wood, from the stone to the eaves which is approximately 22 feet. The total height of the completed structure from the ground level to the eaves is 30 feet (Tr. p. 42). Unit F-4 sits on ground which is two or three feet above the sidewalk. The width from the front of F-4 to the sidewalk is approximately ten feet from the unit (Tr. p. 27). Running in front and parallel to unit F-4 was an electrical power line, which line ran parallel to the inside edge of the sidewalk at a height of 20 to 22 feet (Tr. p. 78). The two floors above the ground on unit F-4 had for each apartment a balcony which extended out towards the sidewalk and power lines. The distance from the balcony to the power line was 4 feet 7 inches (Tr. p. 79), so that an individual could stand at the edge of the balcony and with a little effort could touch the electrical power line that carried 7, 620 volts (Tr. p. 48, 86).
It was stipulated that the 7,620 power line which ran parallel and adjacent to F-4 had been in place during the construction period of the said unit (Tr. p. 163). Mr. Robbins, referring to the time he took to construct the shell from base to roof, stated that it would take "about a week, a week and a half from ground" (Tr. p. 164).
On the afternoon of April 5, 1972, the date the alleged violation took place, Mr. Airhart and Mr. Word were assigned by Mr. Mayes to start painting on the outside of unit F-4 (Tr. p. 41). They had painted underneath the eave and on the side of F-4. The eaves were approximately 30 feet above ground level (Tr. p. 42). Mr. Airhart and Mr. Word had painted down to the sidewalls (stone) which was approximately eight feet above ground. They had used in the course of painting an aluminum extension ladder, 28 feet long. According to foreman Mayes, the workable length of the ladder was 24 feet (Tr. p. 44). To be more specific, Airhart and Word were painting the wooden portion of F-4 on the side nearest to the power line and sidewalk. According to the statement of Airhart to foreman Mayes, Word was moving the ladder with no assistance and was having some difficulty (Tr. p. 62). Mr. Airhart had turned to check his painting rig and he heard the power line snap (Tr. p. 62), and when he looked around, he saw Word on the ground. Airhart thought he had stumbled and fallen. Mr. Airhart observed that Word was conscious at the time since he made the statement, "you know I could have been in Heaven right then." Seconds later Airhart observed that Word's face was flinching and tightening up and after that, he appeared unconscious. During this occurrence, the foreman Mayes, working inside of unit F-4, saw a flash and observed the loss of power on his spray rig. Mr. Mayes went to one of the lower balconies of Unit F-4 and noticed the power line laying in the wet concrete that was being poured to form the sidewalk. The power line was "spewing a ball of fire" and made a "crackling sound." In looking down from the balcony above where Word fell, Mayes could see the back of a man's legs and could tell it was one of his men (Tr. p. 53, 119).
It is obvious from the testimony of Mayes and the information of Airhart that Word was moving the aluminum ladder on the side of F-4 between the building and the power line, a distance of approximately ten feet. The metal ladder, being 28 feet in length, came into contact during the moving with the overhead power line, thereby sending an electrical shock into Word, knocking him to the ground. The ladder had two black marks and indentations, one approximately a foot and the other approximately two feet from the end of the extension, which were caused by the heat generated on contact with the power line. Word's body was lying at an angle between the sidewalk and the building. One end of the ladder was in the wet cement being poured for the sidewalk. The other end of the ladder lay across Word's leg (Tr. p. 122). While of no import, it was concluded by those present at the scene that the first contact of the ladder being moved knocked Word to the ground and the second shock was conducted by the wet cement through the metal ladder to the legs of Word possibly causing the fatal shock.
Respondent contends that he did not commit a "serious violation of the Act." Section 17(k) of the Act specifically requires, in order for there to be a "serious violation" that:
A substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or process which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence know of the presence of the violation.
Respondent refers to the testimony of John Erwin (Tr. p. 127) that he had warned Erwin regarding the power lines "in the area and I was working with the ladder at that time." This is accepted as a fact. However, these instructions appear to have been given to only Erwin and not to the other employees. The foreman Mayes knew of the presence of the power lines running parallel to F-4, and in such proximity that he could have almost, by extending his arm touched the power line (Tr. p. 48).
Respondent argues that he had every right to expect that any electrical wiring the Ski Lodge Apartment project would be insulated wiring (secondary) and not bare wiring (primary) and that there is not "a substantial probability that death or serious physical harm could result from contact of a portable metal ladder with a secondary or insulated electrical source." Foreman Mayes was well aware and, by exercising reasonable diligence, could have ascertained whether the power line was either a primary (bare wiring) or secondary (inculated wire) line. In fact, standing on the balcony within five feet of the power line he could have ascertained readily whether the line was insulated or not. He did not do so!
Ordinarily, the respondent is not responsible for an employee disobeying instructions of management, but the respondent is responsible for the actions, or the failure to act, where obviously there is an affirmative duty to do so, of its supervisory personnel. Mr. Mayes, at the time of the said accident, was a supervisor (foreman) of the respondent, acting as management and his failure to act is the responsibility of management. The conclusion is inescapable that the respondent must be held accountable for the failure of his on-the-job supervisor to take necessary action to provide for the safety of employees. Therefore, it is concluded that the respondent violated Standard 29 CFR 1926.450(a)(11).
APPROPRIATENESS OF THE PENALTY
A serious violation of the Act did occur so there arises the question the appropriateness of the proposed penalty.
Once a notice of contest is served, the authority to assess civil penalties under the Act rests exclusively with the Commission. The Commission in Section 10(c) of the Act, is charged with affirming, modifying, or vacating citations issued by the Secretary of Labor under Section 9(a) and notifications issued and penalties proposed by the Secretary of Labor under Section 10(a) and 10(b). The Commission, by Section 17(j) of the Act, is expressly required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer and the history of previous violations in determining the assessment of an appropriate penalty. See Secretary of Labor v. Nacirema Operating Company, Inc.,
Mr. Frazier, the Compliance Officer, testified that he considered a serious violation had occurred and that the statutory maximum penalty of $1000 is authorized under the Act for a serious violation. He then applied percentage reductions for history, for good faith and for size of respondent's business and proposed a penalty of $750.00
In Nacirema Operating Company, Inc., Section 17(b) of the Act prohibits an assessment of a penalty in excess of $1,000.00 for a serious violation. "The gravity of the particular violation can range from de minimis, where there is very low potential for injury or occupational illness, to severe, with death or serious physical injury would be likely." Nacircma Operating Company, Inc., supra. The facts clearly indicate that a fatality did occur in this case. The foreman Mayes was aware of the hazardous conditions, an aluminum ladder being used in close proximity to an energized power line, and made no effort whatsoever to eliminate the condition. If the foreman, acting on behalf of the respondent, had exercised reasonable diligence to ascertain the hazard in all probability, the tragic accident would have been avoided. Therefore, due to the high gravity of the violation and considering the criteria provided by Section 17(j) of the Act, it is concluded that a penalty of $900.00 for the serious violation of 29 CFR 1926.450(a)(11), is appropriate and reasonable.
CONCLUSIONS OF LAW
1. At all times mentioned herein, respondent was and is an employer within the meaning of Section 3 of the Act and the Commission has jurisdiction of the parties and the subject matter herein.
2. On April 5, 1972, respondent violated 29 CFR 1926.450(a)(11) by permitting an employee to use a portable aluminum ladder in close proximity to an electrical conductor carrying 7,620 volts, constituting a recognizable operation and practice from which there was a substantial probability that death or serious physical harm could result from the condition that existed and the respondent knew, or could have known of the presence of the violation.
3. The respondent violated 29 CFR 1904.8, in that it failed to give notification of a fatal accident within a 48-hour period.
ORDER
Accordingly, based upon the above findings of fact and conclusions of law, it is hereby ordered that:
1. The citation for serious violation No. 1 is hereby affirmed.
2. The citation for non-serious violation No. 1 is hereby affirmed.
3. A penalty of $900.00 for a serious violation of 29 CFR 1926.450(a)(11) is hereby imposed against the respondent.