NORMAN R. BRATCHER COMPANY
OSHRC Docket No. 83
Occupational Safety and Health Review Commission
March 1, 1973
Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners
OPINIONBY: MORAN
OPINION:
MORAN, CHAIRMAN: On February 18, 1972, Review Commission Judge Harold A. Kennedy issued a decision in this case holding that the respondent had violated section 5(a)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act), as alleged in a citation served upon it on October 4, 1971, pursuant to section 9(a) of the Act. He assessed a penalty of $500. Thereafter, pursuant to section 12(j) of the Act, I directed that the decision be reviewed by the Commission.
The Commission has reviewed the record in this case and the briefs of the parties. On the basis of such review, the Commission finds that the Judge erred in holding that the respondent had violated the Act as charged.
Respondent is a painting contractor. On August 17, 1971, it had employees engaged in the exterior painting of selected buildings at Fort Wolters, Texas. Four of them had driven in Respondent's van to the front of Building 600, which was to be painted that day. Loaded on the van was equipment for use in this job including both wood extension ladders and aluminum extension ladders. They removed an 18 foot aluminum extension ladder from the van and two of the employees began to set it up against the building. For reasons which do not appear in the record, the ladder proved impossible to extend to its required working height. The ladder was removed some distance from the building and some work was done on it. At this location, the two employees raised the ladder and tried its extension mechanism. In the process it came in contact with an overhead electrically-charged cable and the two employees received a severe electrical shock. One of them died. The other was injured but subsequently survived.
These facts caused the complainant to issue the citation which is in dispute in this case. It alleges a violation of section 5(a)(1) of the Act, in that
Employees were using an aluminum ladder in the vicinity of a 7200 volt electrical line.
Complainant subsequently amended the above by filing a complaint which alleged a violation of section 5(a)(1) of the Act, in that
respondent used a portable metal ladder where it could contact electrical conductors.
Section 5(a)(1) provides that each employer
shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.
There was uncontroverted evidence that just prior to the occurrence above-described, Norman R. Bratcher had examined the job site and the building near which it happened and concluded that the work could be safely performed with the equipment available, that there was no condition existing that would be considered uncommon in the trade, that the wires were distant enough to be out of the way, and that there was no reason for any ladder to come in contact with the wires.
After a close examination of the evidence on the location of the wires in relation to the building to be painted, the Commission concludes that there was only a remote possibility that respondent's furnishing of either type ladder, or the employees' use of the same, in this specific situation would cause death or serious physical harm.
This was an unforeseen occurrence and the respondent could not reasonably anticipate that his employees would use the aluminum ladder, or any other ladder which was on his van and available for their use, in any way that it might come in contact with, or in close proximity to, the electrical line.
The evidence is not sufficient to sustain a finding that the facts present in this case constituted a violation of section 5(a)(1).
The Judge's decision and order is set aside. Respondent did not violate the Act as charged.
DISSENTBY: VAN NAMEE
DISSENT:
VAN NAMEE, COMMISSIONER, dissenting: It is the opinion of the majority that the evidence in this case will not support a conclusion that Respondent violated section 5(a)(1) of the Act (the "general duty"). For the reasons given hereinafter, I dissent.
The facts are as follows:
On August 17, 1971, Respondent's employees were preparing to scrape paint from the front gable of building 600 at Fort Wolters, Texas. To that end they placed an 18 foot aluminum extension ladder on the ground in front of the building and extended it almost to its maximum useable length of 32 feet. The ladder was laid parallel to the front of the building and parallel to a number of electrical conductors. Its location was approximately 5 feet in front of the building's front steps (two risers) and almost directly beneath a conductor energized at 7,200 volts to ground.
Building 600 is two stories high with the gable portion constituting a third story extending forwardly of the building to the front steps and is supported there by columns. The energized conductor is supported at a height that does not exceed the height of the gable.
After extending the ladder Respondent's employees attempted to raise it and turn it toward the building. It came in contact with a conductor and one employee died by electrocution.
Thereafter, on August 20, 1971, the Secretary through his representative conducted an accident investigation at the worksite. On the day of the investigation, he found Respondent's employees engaged in painting activities at another building located on the grounds of the Fort. He observed a metal extension ladder being used within six feet of an electrical conductor.
By his complaint in this cause the Secretary alleged that on these facts Respondent violated the general duty provision on both August 17 and August 20. The gravamen of the charge was that Respondent used metal ladders where they could contact electrical conductors.
There is no question in this case that the use of metal ladders in places where they can contact electrical conductors is a recognized hazard that can cause death or serious physical harm. Respondent's owner, Norman R. Bratcher, admitted that it was common knowledge that a metal ladder (or for that matter a wood ladder) should not ever contact an electrical line. In addition, it's a matter of record that both the National Safety Council and the Corps of Engineers, United States Army, have long had rules prohibiting the use of metal ladders in places where they may contact electrical conductors. And, as if this were not enough, it is also a matter of record that aluminum ladders are routinely provided with warning decals by the manufacturers thereof advising their purchasers not to use the ladders where they might contact electrical conductors.
Similarly, there is no question that Respondent's employees used a metal ladder where it could contact an electrical conductor. Accordingly, the majority's decision can only be predicated on the legal proposition that given the circumstances of the case Respondent discharged its general duty obligation. No other explanation can support their conclusion that ". . . the respondent could not reasonably anticipate that his employees would use the aluminum ladder . . . in any way that it might come in contact with, or in close proximity to, the electrical line." The majority also states that after ". . . a close examination of the evidence . . . there was only a remote possibility . . ." that the furnishing and use of the ladder on the facts of the case could produce death or serious physical harm.
I might have agreed with the majority's conclusion had the facts been as are stated in the majority opinion or as one is led to believe them to be by that opinion. They say that after the employees experienced trouble in extending the ladder they removed it ". . . some distance from the building . . . [and] [a]t this location, the employees raised the ladder and tried its extension mechanism."
There is no evidence to support a finding that the employees had raised and were in the process of extending the ladder when it contacted the line. The only evidence of record on this point is that the ladder had been extended almost 32 feet on the ground and was then raised. Moreover, the words "some distance from the building" are, at best, imprecise. The distance was about five feet in front of the area where the work of paint scraping was to be performed. As said in my statement of facts, this location brought the ladder almost directly beneath the electrical line.
A portable ladder of the type used on this job when in place forms a right angled triangle. The base leg of the triangle is the horizontal distance the base of the ladder is displaced from the vertical leg of the triangle. The vertical leg in this case is formed by the front gable of the building and includes an imaginary line extending from the bottom of the gable two stories downwards to intersect the base leg. Finally, the ladder comprises the inclined leg of the triangle. From the evidence we know that the base was about six feet long (five feet plus the length of the building's steps) and that the inclined leg was about 32 feet long. With these two measurements simple mathematics dictates that the vertical leg be about 30 feet high. This last figure is verified by the fact that the front gable portion of the building was its third story.
From these facts it is clear that the base of the ladder had to be located beneath the wires if the paint scraping job was to be performed from a ladder. If the base had been any closer to the building the incline or pitch of the ladder would have been too steep to perform the job safely. Indeed, on the facts a base leg of six feet is too short and pitches the ladder at an unsafe angle. The common rule is that the base of the ladder should be a distance from the vertical wall equal to one-fourth of the working length of the ladder. American National Standards Institute 14.2-1956, Portable Metal Ladders (29 C.F.R. 1910.26(c)(3)(i)), and 14.1-1968, Safety Code for Portable Wood Ladders (29 C.F.R. 1910.25(d)(2)(i), and 29 C.F.R. 1926.450(a)(7)). In this case the rule indicates that the base of the ladder should have been located eight feet in front of the gable. It is clear from the evidence that such location would have put the base of the ladder directly beneath the energized conductors.
Under these circumstances there was a very real possibility that the furnishing and use of a metal ladder could produce death or serious physical harm. Mechanical devices such as extension mechanisms for extension ladders do stick and do require employees to extend ladders on the ground as was the case here. This condition may reasonably be anticipated by an employer. Similarly, it is more reasonable to anticipate that the employees will raise the fully extended ladder in these circumstances rather than to expect them to shorten the ladder (once extended), then raise it, and then extend it. Finally, when employees are given a free choice (as in this case) to select between wood and metal ladders it is as reasonable to expect them to select the metal as the wood. Indeed, it may be expected that they will select an aluminum ladder over an equivalent wood ladder since the former is lighter in weight.
On consideration of the facts in this case I must conclude that a reasonably prudent employer would have anticipated the recognized hazard involved and taken steps to eliminate it. My conclusion in this regard is supported additionally by the fact that this Respondent also used a metal ladder on August 20 where it could contact an electrical line. This event, occurring three days after the fatality, makes it crystal clear that this Respondent acted not as a reasonably prudent employer would but rather in careless disregard for the safety hazard involved. I would affirm Judge Kennedy's decision and order.
[The Judge's decision referred to herein follows]
KENNEDY, JUDGE, OSAHRC: This is a proceeding under Sec 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1601; 29 U.S.C. 651 et seq. ) to review a "Citation for Serious Violation" and Notification of a Proposed Penalty (for $500) issued by the Secretary of Labor against Respondent Norman R. Bratcher Company of Wichita Falls, Texas. The citation, dated October 4, 1971, asserts that an inspection of Respondent's workplace at Fort Wolters-Mineral Wells, Texas on August 20, 1971, disclosed violation of Section 1518.450(11) n1 of the Secretary's Safety and Health Regulations for Construction and Section 5(a)(1) of the Act. The citation described the violation as follows:
Employees were using an aluminum ladder in the vicinity of a 7200 volt electrical line.
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n1 The Secretary intended to cite the standard appearing at 29 C.F.R. 1518.450 (a) (11) (Tr. 10-11).
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By letter dated October 6, 1971, Respondent, through its counsel, notified the Secretary that it wished to contest the citation and the proposed penalty. The case was filed with the Review Commission on October 14, 1971.
The Secretary's complaint was filed with the Commission on October 25, 1971, and Respondent's answer was filed on November 1, 1971. Respondent filed an amended answer on November 29, 1971 so as to deny jurisdiction (H.E. Ex 12). An amended complaint was filed on December 8, 1971 (H.E. Ex 12).
The case came upon for hearing, after due notice, in Wichita Falls, Texas, on December 13, 1971. The Secretary and Respondent were represented by counsel. Parties were afforded opportunity to present evidence, examine and cross-examine witnesses. No affected employee or employee representative sought to participate, although given opportunity to do so. Proposed findings, conclusions and order were filed by the Secretary and Respondent. Upon the entire record, the Hearing Examiner makes the following:
FINDINGS OF FACT
I. THE PLEADINGS -- JURISDICTION
The Secretary's amended complaint alleges that Respondent is an "employer" within the meaning of the Occupational Safety and Health Act of 1970, and that an inspection of Respondent's workplace at Fort Wolters, Texas, on August 20, 1971 disclosed that Respondent had violated Section 5(a)(1) of the Act on August 17 and August 20, 1971, through the use of "a portable metal ladder where it could contact electrical conductors." The amended complaint further alleges that the violation was a "serious" one under Section 17(k) of the Act and that Respondent's (approximately) eight painters are "affected employees." The complaint prays affirmation of the citation and the proposed penalty of $500.
Respondent's amended answer admits that aluminum ladders were used, along with wooden ladders, for exterior painting at Respondent's workplace at Fort Wolters up until the Secretary's inspection on August 20, 1971. According to the answer, ladders were not to be used where they could come in contact with electrical conductors but that on August 17, 1971, two employees permitted an aluminum extension ladder to come in contact with an electric line "lower than the legal height specified in the National Electrical Safety Code" in the vicinity of Building 600 at Fort Wolters. It is admitted that Respondent's employees are "affected" by the proceedings, but it is denied that there was a violation of the Act or that the proposed penalty is appropriate.
The original complaint alleged violation of the safety standard set forth at 29 C.F.R. 1518.450(a)(11) as well as a "serious" violation of Section 5(a)(1) of the Act. Respondent's original answer admitted the jurisdictional allegations, but Respondent amended the answer to deny jurisdiction on the "basis" that the work performed by Respondent at Fort Wolters was pursuant to a contract negotiated with the Department of the Army prior to the publication of the cited standard (H.E. Exs. 10 and 12). At the hearing counsel for the Secretary stated that he agreed that the cited standard did not apply to Respondent at the time of the alleged violation and that the Secretary would rely only on the general duty clause of the Act (i.e., Section 5(a)(1). Section (a) of the Act requires that each employer --
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
Section 17(b) provides:
(b) Any employer who has received a citation for a serious violation of the requirements of section 5 of this Act, of any standrd, rule, or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, shall be assessed a civil penalty of up to $1,000 for each such violation.
Sections 17(j) and (k) read:
(j) The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.
(k) For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is 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 processes 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.
The Hearing Examiner finds that Respondent Norman R. Bratcher Company is a painting contractor and an "employer" within the meaning of Section 3(5) of the Act. He is, therefore, a "person engaged in a business affecting commerce who has employees" as defined in such section. Such employees were employed by Respondent to perform exterior painting and related work in August 1971 at a workplace at Fort Wolters, Texas. Upon these facts, the Hearing Examiner finds and concludes that there is jurisdiction over the subject matter and the parties. n2
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n2 The pleading of jurisdiction even in the amended complaint is minimal, but it is sufficient in law. The Federal Rules of Civil Procedure requires only "a short and plain statement of the grounds upon which the court's jurisdiction depends." (Rule 8(a)).
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Respondent "denies the jurisdictional allegations in Paragraph I of the Complaint" in the amended answer. (Respondent asked that the amended answer stand as the answer to the amended complaint (Tr. 8).) It is apparent, however, that Respondent raised issue as to jurisdiction only on the basis that the standard relied upon in the citation and the original complaint could not apply to Respondent because of the terms of the contract negotiated with the Department of the Army. However, the Occupational Safety and Health Act of 1970 became effective one hundred and twenty days after the enactment (i.e. on April 28, 1972), and application of the Act to Respondent's business was not disputed during the proceeding.
II. THE EVIDENCE
The Secretary called as witnesses three of Respondent's employees, the Fort Wolters electrical foreman, and the Secretary's compliance and safety officer who inspected Respondent's workplace on August 17, 1971. The defense called Mr. Norman Bratcher and recalled briefly one of the employee witnesses who had testified for the Secretary.
MR. BRATCHER testified that after contracting for the exterior painting of certain buildings at Fort Wolters, he inspected the buildings and found them 90% vacant with "no utilities as far as water and electricity" (Tr. 99). He observed that some buildings had signs warning of "Danger High Voltage" while others did not. He determined that his equipment, which included a van, a scaffold (built on wheels) and several ladders, including two wood extension ladders and approximately 20 wood step ladders, were adequate for the job. Three of the ladders were aluminum extension ladders -- one 10-foot ladder which would extend to 18 feet; one 14-foot that would extend to about 26 feet, and one 18-foot which would extend to 32 feet. According to Mr. Bratcher, the tallest aluminum ladder (18 feet) was involved in the accident that occurred on August 17, 1971, in front of Building 600. Mr. Bratcher testified that the job was closed down for about two days after the accident and that Bratcher employees were then told not to take the aluminum extension ladders out of the van. According to Mr. Bratcher, it is common knowledge that ladders, whether metal or wood, should not come in contact with an electrical line (Tr. 102). He felt that painting of Building 600 presented no particular hazard and that there was no need to get equipment up into the wires that ran in front and above the building.
Respondent's Employees ROBERT JERRY DICKERSON and TERRY LEE DICKERSON testified that they went to Building 600 on August 17, 1971, along with Foreman Pete (R.P.) Kyle and Carl Willhoit to prepare the building for painting. Carl, who was to die shortly, at first tried to set up the aluminum ladder with Robert's help. Foreman Kyle then endeavored to help Carl raise the ladder. It is evident that the ladder was raised into the highest of three lines that ran in front of Building 600 (the lowest was a telephone cable and the middle wire was either a television or neutral cable (Tr. 46-55), although neither Robert nor Terry Dickerson saw precisely what happened. Robert testified (Tr. 23):
Pete and Carl finally got it pulled apart and I went to my pickup to get another ladder so I could go on the other side and start comparin' and Pete and Carl started putting the ladder up and I turned around and seen Carl and Pete laying on the ground.
Terry Lee gave this account (Tr. 28-29):
I got out of the pickup with Pete and Gary and Carl were over there trying to stretch a ladder up and he went over there, Pete went over to help Carl and I turned back around, went back to the pickup and was mixing my paint and got my brush out and then I heard, I guess, the sparks fly and stuff and I looked up and seen Pete and Carl electrocuted and the ladder fell over.
Terry Lee pointed out that Carl fell left of the sidewalk and Foreman Kyle fell on the right (see photographs in evidence as Secretary's Exhibits 1 and 2). According to Terry Lee, Carl was "just barely breathing" and was carried away by an ambulance.
FOREMAN KYLE explained that he recovered. He considered the incident as an "accident" (Tr. 43) and gave this description of the occurrence (Tr. 36):
Well, Gary, Carl and myself was messing with this ladder trying -- we had it up against the building attempting to raise it up but it was hanging, so we laid the ladder down and Gary walked off and me and Carl got down and finally got it unhung to where it would raise and we extended it out nearly all the way and then raised the ladder up and then when it hit that electricity, it happened.
He was not certain whether the ladder hit an electrical wire or the electricity "jumped to it." He assumed, however, that the ladder was raised up into the wire (Tr. 39-40). He conceded that the electrical wires were obvious, that certain warning signs were on the building and he knew that ladders were not to be put up against an electric wire (Tr. 40-42).
WILLIAM C. COLLINS, the electrical foreman at Fort Wolters, testified that the top wires running in front of Building 600 carried 7200 volts (Tr. 47).
PAUL FICZERI, JR. testified that he conducted the Secretary's inspection of Respondent's workplace on August 20, 1971 after a newspaper reported an electrocution at the Army base. He took two pictures in front of Building 600 (Secretary's Exs. 1 and 2). He stated that he found certain of Respondent's employees on that date working on another building with two metal stepladders and a metal extension ladder within the vicinity of a service electric line (Tr. 60-62, 71, 81). The upper parts of two of the metal ladders were being used within six feet of such service line, according to Mr. Ficzeri (Tr. 81-84). n3 He also stated that the metal ladders that Respondent's employees were using bore no visible decals or other signs warning against use near electrical circuits (Tr. 62, 71).
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n3 Mr. Bratcher testified that the aluminum extension ladders were left in the van after the August 17, 1971 accident, and Respondent never had any metal step ladders. Terry Lee Dickerson also testified that Respondent had no metal step ladders on the Fort Wolters job.
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Mr. Ficzeri, who has been employed for 29 years in the health and safety field, either as engineer or compliance officer (Tr. 16-17, 62-63), testified that metal ladders should not be used in the vicinity of electrical circuits. He pointed out that U.S. Army Corps of Engineers Manual of General Safety Requirements and the Industrial Manual of the National Safety Council are recognized safety manuals and that both refer to the danger of using metal ladders near electrical conductors. Section 30.B.07 of the Engineers Manual provides (Secretary's Ex. 3):
Portable metal ladders shall not be used for electrical work or where they may contact electrical conductors.
The following appears at pp. 15-19 of the Fifth Edition of the National Safety Council's Accident Prevention Manual for Industrial Operations (Secretary's Ex. 4):
Electrical Hazards and Metal Ladders. Since metal ladders are electrical conductors, they should not be used around electrical circuits or in places where they may come in contact with such circuits.
The importance of these electrical hazards cannot be overemphasized and those using metal ladders should be warned of the danger. In addition to this warning, metal ladders should be marked with signs or decals reading 'Caution! do not use near electrical equipment.' These decals may be placed on the inside of the side rails near the bottom of the ladder.
Finally, Mr. Ficzeri testified that he prepared the citation and determined the proposed penalty. (It was stipulated that the Area Director of Occupational Safety and Health Administration concurred in Mr. Ficzeri's recommendations as to the issuance of the citation and the proposed penalty (Tr. 96). Mr. Ficzeri determined that use of an aluminum ladder in the vicinity of 7000 volts of electricity was a "serious" violation because of the "extreme exposure" and "possibility of somebody coming in contact with this wire" (Tr. 72). He agreed that the use of a metal ladder in the circumstances created a "substantial probability that death or serious physical harm could have resulted" (Tr. 73).
In assessing the penalty Mr. Ficzeri said he followed the Secretary's compliance manual and arrived at a figure of $500 after allowing 20% for good faith, 10% for size and 20% for history (73-78, Secretary's Ex. 5). He said that he started with an unadjusted penalty of $1,000, supposedly the minimum penalty for a serious violation (but see Sec. 17(b)), and that the allowance for history, size and good faith reduced the amount 50% or $500. Twenty percent was allowed for good faith, the maximum allowable for this factor by the Secretary, he said, "simply because after I spoke to him (Foreman Kyle) he immediately removed the metal ladders" (Tr. 77). Ten percent allowance was given for size, again the maximum allowable by the Secretary, because there were less than twenty "people exposed." Twenty percent was given for history "because we checked and found that he had no history of previous accidents, injuries that may or have or could have occurred in any federal contract or any other contract that he may have been exposed to" (Tr. 77-76).
III. DISCUSSION
A. As to a Violation
The record clearly establishes that the use of metal ladders in the vicinity of an electric conductor is a "recognized hazard" likely to cause death or serious physical harm. The manuals issued by the Army Corps of Engineers and the National Safety Council vouch for as much.
Respondent concedes that use of metal ladders where it might come in contact with electric lines is a hazardous condition. In fact, Respondent argues that the risk is so well known and the hazard here was so "open and obvious" that only the neglect or carelessness of employees could have produced the unfortunate accident on August 17, 1971. Respondent states (Respondent's Br. p. 2):
The employer could reasonably anticipate that the equipment appropriate to the circumstance would be selected by the employees. It was a matter of common knowledge that ladders, and particularly metal ladders, should not be inserted into an electrical line. However, by furnishing scaffolding, and wood extension ladders, the employer furnished all of the equipment necessary for the safe conduct of the work, and thus did not maintain a hazardous place of employment which was likely to cause death or serious physical injury.
Of course, it is entirely possible that Respondent's employees did not exercise the highest degree of care, but this fact does not exonerate Respondent from responsibility under the Occupational Safety and Health Act. The record here demonstrates to the Hearing Examiner that the aluminum extension ladders, especially the 18-foot one furnished to Respondent's employees, were so likely to result in serious injury that there was in fact a "substantial probability" that serious physical harm or death could occur. Thus, the Hearing Examiner is persuaded that Respondent violated Section 5(a)(1), and that the violation was a "serious" one. The fact that Respondent furnished the employees with wooden ladders does not negate the fact that by furnishing them with a metal ladder that could be used near an electrical conductor Respondent failed to furnish "employment . . . free from recognized hazards . . . likely to cause death or serious physical harm to his employees."
B. As to the Penalty
Respondent points out that the Secretary's guidelines for computing penalties does not allow for any penalty of less than $500, even "giving maximum credit to the employer involved, and thus on its face would not permit the leeway given by the Act" (Respondent's Br. p. 4). The Review Commission recently had occasion to comment on the method used by the Secretary in determining the penalty under the Act in Occupational Safety and Health Review Commission Docket Number 4, Nacirema Operating Company, Inc. (decided February 7, 1972). The Secretary followed the same formula in computing the penalty in that case starting with a penalty of $1,000 with percentage reductions for size, history and good faith. In that case, the Commission concluded that the gravity of the violation is to be considered the principal factor in assessing the penalty. All four factors referred to in Section 17(j) of the Act are to be considered, but they are not always to be given equal weight necessarily. Section 17(b) of the Act does prohibit assessment of a penalty in excess of $1,000 in this case. Here Respondent furnished aluminum ladders to employees to use in painting a building with a transmission line in fairly close proximity. This fact gives rise to the probability that employees using such ladders could come into contact with the wires and suffer serious injury or death. Such probability warrants assessment of a penalty close to the maximum allowable under the statute in the Hearing Examiner's view on the basis of gravity of the violation. The record does establish that Respondent has a favorable safety record and is a small business man. n4
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n4 As to Respondent's size, however, the record shows little more than the fact that Respondent employed eight painters.
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The Hearing Examiner has given consideration to all the factors referred to in Section 17(j) and has concluded that the $500 penalty is an appropriate penalty even though he does not agree with the methodology employed by the Secretary in assessing the same figure. In the Hearing Examiner's view, the record provides very little information on the issue of good faith. n5 Accordingly, in assessing the penalty, the Hearing Examiner has given primary consideration to the gravity of the violation, but he has also given weight to factors of size and history. Based upon the foregoing, and the entire record of the case, the Hearing Examiner makes the following:
CONCLUSIONS OF LAW
1. Jurisdiction of this proceeding is conferred by Section 10(c) of the Occupational Safety and Health Act of 1970.
2. Respondent is an "employer" and a person engaged in "business affecting commerce who has employees" within the meaning of Section 3(5) of the Act.
3. Respondent violated Section 5(a)(1) of the Act by furnishing employees with aluminum ladders on or about August 17, 1971, for use where they might come in contact with electric circuits and, thus, failed to furnish employees with employment and a place of employment free from recognized hazards that could cause or likely cause death or serious physical harm to employees.
4. Such violation was a "serious violation" within the meaning of Section 17(k) of the Act as there was a substantial probability that death or serious physical harm could have resulted.
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n5 The Secretary's compliance officer gave Respondent maximum credit for good faith even though he reportedly had observed employees using metal ladders three days after the fatal accident had occurred. Respondent contends that the Secretary's official had to be mistaken, at least as to the use of any metal stepladders (Respondent's Br. pp. 3-4).
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ORDER
Upon the basis of the foregoing, it is ORDERED that the citation issued herein on October 4, 1971, and the proposed penalty assessed thereon be, and the same are, AFFIRMED.