UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 14899
OTIS ELEVATOR CO.,
Respondent.

February 19, 1980

DECISION

BEFORE CLEARY, Chairman, BARNAKO and COTTINE, Commissioners.

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 Edward V. Alfieri is before the Commission for review under section 12(j) of the Act, 29 U.S.C. § 661(i). Judge Alfieri concluded that Otis Elevator Co., Respondent, committed two nonserious violations of the Act by failing to comply with 29 C.F.R. §§ 1926.100(a) (Citation No. 1, Item No. 1) and 1926.50(d)(1) (Citation No. 1, Item No. 5 as amended sua sponte by the judge in his decision). He assessed penalties of $70 and $55, respectively. The judge vacated the three remaining items in Citation No. 1. In addition, the judge affirmed Citation No. 2 to the extent that it alleged a serious violation based on noncompliance with section 1926.28(a), but he vacated that portion of the citation characterizing the violation as repeated. He assessed a penalty of $800.

We affirm the judge’s disposition of Citation No. 1, Item No. 1 and Item No. 5 as amended. We also affirm the judge’s disposition of Citation No. 2. However, our reasons for concluding that the violation alleged in Citation No. 2 was not repeated differ from those enunciated by the judge.

On July 21, 1975,[1] two compliance officers, Tomich and Appleman, from the Occupational Safety and Health Administration [OSHA] inspected a multi-employer worksite in Tarrytown, New York where a pumping station was under construction. The pump house consisted of one ground level and two basement levels. At the time of the inspection, the building had progressed to a point where the walls were up, the roof was on, and the exterior work had been completed. However, much of the work on the structure’s interior was not yet finished. As a result of the inspection, Respondent was issued two citations. Citation No. 1 alleged five nonserious violations. In Item Nos. 1 and 5, the Secretary alleged noncompliance with sections 1926.100(a) and 1926.50(d)(2), respectively. Proposed penalties were $70 and $55, respectively. Citation No. 2 alleged a repeat serious violation for failure to comply with section 1926.28(a). A penalty of $3,200 was proposed for Citation No. 2.

Respondent filed a notice of contest challenging all six alleged violations. In response to the Secretary’s complaint, Respondent filed its answer which generally denied the alleged violations and also presented an ‘affirmative defense’ to each item in Citation No. 1 except Item No. 1.

At the beginning of the hearing, the Secretary moved to withdraw Item Nos. 2 and 3 in Citation No. 1 as well as their respective proposed penalties. Judge Alfieri granted the motion.

Following the issuance of the judge’s decision the Secretary filed a petition for discretionary review in which he takes exception to the judge’s determination that the serious violation based on noncompliance with section 1926.28(a) was not repeated. Commissioner Barnako directed review on the issue raised in the Secretary’s petition for review. Former Commissioner Moran directed review for error to determine whether the judge’s findings and conclusions were justified by the record. The Secretary then submitted a letter stating that, in lieu of filing a brief on review, he relies on the arguments presented in his petition for review. Respondent subsequently filed a letter stating that, instead of submitting a brief on review, it relies on the issues and law presented in its post-hearing brief[2] and the judge’s decision. Accordingly, the following are before us on review: Citation No. 1, Item No. 1 and Item No. 5 as amended, and Citation No. 2.[3]

Respondent had two employees at the worksite—a foreman, Lomiento, and his helper, Seipel. On the morning of the inspection, Lomiento and Seipel were lowering an elevator cylinder from the top floor, or grade level, of the pumpint station to the lower of the two basement levels. The cylinder was approximately 21 feet long and weighed 1,400 pounds. The two employees attached the cylinder to a chain fall, a hoist device belonging to Respondent. The employees then lowered the cylinder one flight down the stairway to the intermediate landing. During the afternoon, Lomiento and Seipel hand carried elevator equipment and parts from the general contractor’s shanties or trailers, where the equipment had been temporarily stored, into the pumping station building. They placed the material on each of the three levels at or near the floor’s shaftway opening, with the grade level receiving most of the material.

The compliance officers held an opening conference with the general contractor and then proceeded with their inspection while accompanied by the general contractor’s superintendent.

A. Citation No. 1, Item No. 1

Item No. 1 in Citation No. 1 alleged that Respondent failed to comply with section 1926.100(a)[4] in that:

Employees observed working in areas of this job site where there was a possible danger of head injury from impact, or from falling or flying objects, electrical shock and burns, and were not protected by hard hats.

Tomich and Appleman were the only two witnesses presented by the Secretary at the hearing.[5] Tomich testified that, while looking for the general contractor’s trailer upon arrival at the worksite the morning of July 21, they saw as yet unidentified personnel not wearing hard hats. When they started their inspection following an opening conference with the general contractor, they observed two workers who were not wearing hard hats entering and leaving the pumping station. The general contractor’s superintendent, who accompanied the compliance officers during their inspection, told them that those employees worked for Respondent, and he summoned foreman Lomiento. An opening conference with Lomiento was then held, at which time Lomiento told the compliance officers that their hard hats were in the ‘job truck,’ which was at the jobsite.

After lunch, the compliance officers entered the pumping station where they saw overhead electrical work being done, which involved dropped pendants. Tomich noted that the temporary lighting was sometimes low, thus presenting the hazard that an employee could suffer injury by striking his head.

They saw that, at grade level, a four-or five-foot wide walkway formed the perimeter of a stairway opening approximately 20 feet by 20 feet. The opening was in the center of the floor. The walkway they observed was obstructed with materials, including wood debris with protruding nails. Inasmuch as Respondent’s two employees were working at the next lowest level while lowering the elevator cylinder down the stairway that morning, Tomich contended that the employees were exposed to the hazard of head injury from material being kicked or knocked over the edge of the walkway. Tomich further noted that materials and tools were stored in the stairwell that led from the grade level to the two lower levels. Tomich stated that, because of the absence of a toeboard, Respondent’s employees working below were exposed to the hazard of head injury from objects falling from the stairwell.

Both of Respondent’s witnesses, Lomiento and Seipel, denied seeing or meeting with the compliance officers on the morning of July 21. Both witnesses also denied the allegation that they were working in the building that morning without wearing hard hats.

In that part of his decision immediately preceding his discussion of each alleged violation Judge Alfieri stated that, given the conflicting testimony of the witnesses for the two parties, the question of witness credibility was paramount in disposing of this case. The judge said that he ‘carefully scrutinized’ the evidence. He further noted that, in making his credibility determinations, he considered the demeanor of the witnesses and their interest in the outcome of the trial.

With regard to this particular item, the judge expressly credited the testimony of the compliance officers. He noted that their testimony established that Respondent’s employees were not wearing hard hats during the morning of the inspection as charged. He stated that the Secretary further proved that Respondent’s employees, in going in and out of the building during the course of their work, would have occasion to pass through an area with low-hanging temporary lighting, thus being exposed to the hazard of head injury. Consistent with the Secretary’s evidence, the judge also found that Respondent’s employees were exposed to the hazard of head injuries from falling materials and debris while they were working at the first and second lower levels.

Judge Alfieri noted that, in accordance with Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975–76 CCH OSHD ¶20,448 (No. 504, 1976), and Public Improvements, Inc., 76 OSAHRC 140/E8, 4 BNA OSHC 1864, 1976–77 CCH OSHD ¶ 21,326 (No. 1955, 1976), the Secretary need not show actual employee exposure, but rather he must prove only that Respondent’s employees have access to the hazard at issue and can reasonably be expected to come into danger, considering such factors as the nature of the work performed, the activities and movements required by the work, and the routes of approach to and departure from work areas. The judge thus concluded that the Secretary sustained his burden of proof and assessed that $70 penalty proposed by the Secretary.

On review, Respondent relies upon the same contention raised before the judge, arguing only that the citation item and penalty should be vacated because the Secretary failed to sustain his burden of proof by a preponderance of the evidence. We reject Respondent’s factual contention and affirm the judge. The judge clearly set forth his analysis of the evidence. We conclude that he properly considered the evidence of record and the arguments of both parties.

‘It is the policy of the Commission to ordinarily accept an Administrative Law Judge’s evaluation of the credibility of witnesses, . . . for it is the Judge who has lived with the case, heard the witnesses, and observed their demeanor.’ C. Kaufman, Inc., 78 OSAHRC 3/C1 at C7–8, 6 BNA OSHC 1295 at 1297, 1977–78 CCH OSHD ¶ 22,481 at p. 27,099 (No. 1429, 1978). We accept Judge Alfieri’s finding that the Secretary’s witnesses gave the more credible testimony. C. Kaufman, Inc., supra. We therefore adopt the judge’s factual determinations and conclusions of law, and we affirm Item No. 1 in Citation No. 1. See Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD ¶22, 737 (No. 14281, 1977). Due to the low gravity of this violation, we agree with the judge that a penalty of $70 is appropriate.

B. Citation No. 1, Item No. 5

In Item No. 5 of Citation No. 1, the Secretary alleged that Respondent did not comply with section 1926.50(d)(2),[6] charging it with:

Failure to provide first aid kit and supplies approved by a consulting physician for the type work and exposures that this job presents. The said supplies shall be checked at least weekly on each job site.

In its answer, Respondent raised what it characterized as the ‘affirmative defense’ that either Lomiento or Seipel ‘had and carried with him a first-aid kit and supplies approved by a consulting physician’ for their type of work.

Tomich testified at the hearing that, in response to his request at the opening conference for production of the requisite first-aid kit, Lomiento told him that he did not have one on the job or in his truck and that he relied mainly on the general contractor’s first-aid kit. Tomich further testified that, in calculating a penalty for the violation, he considered that the worksite was in a remote area of Tarrytown, therefore lacking proximity to the local hospital.

Lomiento testified that he did not have a first-aid kit on the morning of July 21, but he knew that Seipel had one in his car. He stated that he had been issued a first-aid kit, but that he had lost it. On cross-examination, Lomiento testified that he told Tomich that Seipel had a first-aid kit.[7] Both of Respondent’s employees testified that their personal safety equipment was carried in their trucks or cars because Respondent did not maintain a work shanty at the small jobsite.

In his post-hearing Memorandum of Law, the Secretary argued that Respondent failed to comply with section 1926.50(d)(2), which, according to the Secretary, requires that an approved first-aid kit must be kept on every job. He stated that the testimony indicated that Respondent’s employees maintained so such kit at the jobsite.

In his decision, Judge Alfieri sua sponte amended the citation item, pursuant to Fed. R. Civ. P. 15(b), to allege noncompliance with what he considered to be the more applicable standard, section 1926.50(d)(1).[8] He explained that Respondent came prepared to and did present relevant defenses to the alleged absence of a first-aid kit. The judge noted that the underlying facts upon which the alleged violation is based are the same, just as the ultimate issue is the same. He thus concluded that alleged noncompliance with section 1926.50(d)(1) was tried by implied consent. The judge stated that, in the absence of a showing of prejudice, the pleadings were thereby amended to allege noncompliance with section 1926.50(d)(1).

Judge Alfieri expressly found the Secretary’s evidence to be more credible than Respondent’s. He stated that the Secretary established that Respondent did not have a first-aid kit available on the jobsite and thereby did not comply with section 1926.50(d)(1). He assessed the proposed penalty of $55.

Again Respondent’s contention on review is the same as that argued before the judge, i.e., the citation and penalty should be vacated because the Secretary did not meet his burden of proof by a preponderance of the evidence.[9] We reject Respondent’s factual argument and affirm the judge. The judge clearly set forth his evaluation of the evidence and analysis. We conclude that he properly considered the evidence of record and the contentions of both parties. We accept the judge’s finding that the testimony of the Secretary’s witnesses was more credible than that of Respondent’s witnesses. C. Kaufman, Inc., supra. We therefore adopt Judge Alfieri’s factual determinations and conclusions of law. We affirm Citation No. 1, Item No. 5 as amended. See Gulf Oil Co., supra. We consider the $55 penalty assessed by the judge to be appropriate given the low gravity of the violation.

III

Citation No. 2 alleged that Respondent failed to comply with section 1926.28(a)[10] in that:

Employee observed working in the grade level elevator shaft and not wearing a safety belt or other equivalent protection. The shaft opening at the next lower basement level was not fully planked over. A minimum drop of 16 feet would result.

The employer is responsible for requiring the wearing of appropriate personal protective equipment in all hazardous conditions.

Tomich testified at the hearing that early in the afternoon on the inspection date, while he was on the grade level a few feet from the shaftway, he saw Lomiento in the elevator shaft. Tomich stated that Lomiento was not wearing a safety belt or other protective gear and that he was standing on what Tomich believed was a structural member, such as structural iron or a plank. There were no door bucks installed, nor was there any protection on the face of the elevator shaft. According to Tomich, Lomiento told him that he was working on the cables and that the safety belt issued to him by Respondent was at his home rather than at the worksite. Tomich testified that Lomiento told him that neither he nor his helper would continue to work without their safety belts and that Lomiento then did stop working in the shaft. Tomich also stated that the elevator shaft opening at the grade level was not planked over, and that, at the next lower level, about 70% of the shaft opening was covered by planking that was not tightly laid. The distance between each of the three levels was about 16 feet.

Tomich stated that the openings at the grade level and first basement level should have been fully planked over to prevent an object or person from falling through to a lower level. He concluded that Lomiento was exposed to a fall of approximately 16 feet from the grade level to the first basement’s floor or a fall of about 30 feet from the grade level, through the inadequately planked first basement’s floor, to the second basement’s floor. Tomich characterized the violation as serious because death or serious physical harm could result from a fall.

At the hearing, both Lomiento and Seipel denied that they had entered the elevator shaftway on the inspection date. Furthermore, Seipel testified that he had worked with Lomiento all that day and never observed him in the shaftway. Both witnesses stated, however, that they observed the condition of the shaftway at both the grade and first basement levels while they were working near the shaftway earlier that day. Lomiento testified that the shaftway at each floor level was planked over except for no more than 10 inches on each side, through which the guiderails came.[11] He said that the general contractor had laid the planking some days before the inspection date. Lomiento testified that he had a safety belt or lanyard supplied by Respondent in his truck on the day of the inspection. He denied telling Tomich that his safety belt was at home. Lomiento testified that he received safety equipment, along with instructions and literature on safety, from Respondent free of charge.

Seipel testified that the shaftway at the grade level and the first basement level had been almost entirely planked, with 4 feet by 8 feet plywood panels placed over the planking. He stated that an open space of about 10 inches was on the right and left sides of the shaftway where the guiderails came up. Seipel testified that he had a safety belt issued by Respondent in his car on the inspection date.

After considering the demeanor of all the witnesses and their interest in the case’s outcome,[12] Judge Alfieri concluded that the Secretary’s witnesses gave the more credible and persuasive testimony. The judge found that the evidence demonstrated the following facts: Lomiento and Seipel did not have safety belts or equivalent protective equipment at the jobsite; Lomiento was in the elevator shaft without wearing any safety gear; and the elevator shaft was not fully protected.

Respondent contends on review that the Secretary failed to prove by a preponderance of the evidence that it did not comply with section 1926.28(a).

We accept Judge Alfieri’s determination that the Secretary’s witnesses gave the more credible testimony. C. Kaufman, Inc., supra. We therefore adopt his finding that Lomiento was in the partially unprotected elevator shaft without wearing any safety equipment. In determining if a ‘hazardous condition’ under section 1926.28(a) exists, the critical question is whether a reasonable person familiar with the factual circumstances surrounding the allegedly hazardous condition, including facts unique to a specific industry, would recognize a hazard warranting the use of personal protective equipment. Industry custom and practice is relevant but not conclusive. S & H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD ¶ 23,480 (No. 15855, 1979), appeal filed, No. 79–2358 (5th Cir. June 7, 1979). The judge’s affirmance of this citation is consistent with our holding in S & H Riggers, supra.[13] No evidence specifically relating to industry custom was offered at the hearing. Based on the testimony of the witnesses, we conclude that a reasonable person would recognize that working in the elevator shaft at issue, which was only partially protected, posed the hazard of falling 16 to 30 feet, thereby warranting the wearing of a safety belt or equivalent protection.

The citation and complaint alleged that the violation was serious under section 17(k) of the Act, 29 U.S.C. § 666(j).[14] Tomich testified that the violation should be characterized as serious because an employee could suffer death or serious physical harm as a result of a fall of 16 to 30 feet down the elevator shaftway.

Judge Alfieri concluded that Respondent’s noncompliance with section 1926.28(a) was a serious violation based in part on Tomich’s testimony. The judge determined that Respondent knew or should have known of the hazardous condition in the elevator shaftway because of the nature of the work performed by Respondent’s employees. The judge noted that Respondent issued safety belts to its employees, but inadequately enforced its safety program to assure that safety belts are worn when the circumstances so warrant.

We agree with the judge that the violation was serious for the reasons he gave. In addition:

There can be little doubt that the hazard of a fall is a hazard well known in the construction industry and that safety belts are commonly provided and attached to structures or secured lifelines as protection against this hazard.

PPG Industries, Inc., 77 OSAHRC 196/E5 at Ell n. 10, 6 BNA OSHC 1050 at 1052 n. 10, 1977–78 CCH OSHD ¶22,344 at p. 26,930 n. 10 (No. 15426, 1977), petition denied, No. 77–2608 (3d Cir. September 11, 1978), quoting Hoffman Construction Co., 75 OSAHRC 31/E12 at F1, 2 BNA OSHC 1523 at 1525, 1974–75 CCH OSHD ¶19,275 at p. 23,052 (No. 644, 4975), rev’d on other grounds sub nom. Hoffman Construction Co. v. OSHRC, 546 F.2d 281 (9th Cir. 1976).

“Repeat” Characterization

The citation and complaint further alleged that the violation was repeated under section 17(a) of the Act, 29 U.S.C. § 666(a).[15] At the hearing, the parties stipulated that a number of citations were issued to Respondent for noncompliance with section 1926.28(a).[16] No copies of these citations were offered into evidence. In response to the Secretary’s request at the hearing, the judge gave the Secretary permission to submit more particular information about some of the citations to which the parties had stipulated. The Secretary subsequently filed an explanatory letter, which became part of the record.

Judge Alfieri concluded that this serious violation was not repeated. He set forth the two elements that he considered necessary in order for a violation to be deemed repeated: 1) the Secretary must establish that Respondent had previously failed to comply with the same standard and that those violations became final orders, and 2) the record must show, in accordance with Bethlehem Steel Corp. v. OSHRC, 540 F.2d 157 (3d Cir. 1976), that the violation was committed in a way that ‘flaunts’ the Act’s requirements.

With regard to the first element, the judge noted that the record established that Respondent had failed to comply with section 1926.28(a) on five previous occasions. He stated that some of the violations became final orders before the inspection in this case, while others became final orders after the inspection but before the hearing on this case. Based on those violations that he believed became final orders before the inspection here, the judge determined that the first test had been met.

However, Judge Alfieri concluded that the second test had not been met. He quoted that portion of General Electric Co., 75 OSAHRC 50/A2, 3 BNA OSHC 1031, 1974–75 CCH OSHD ¶19,567 (No. 2739, 1975), in which the Commission stated that, in determining if an employer has ‘flaunted’ the Act’s requirements, each case must be decided on its own merits with emphasis given to the nature and extent of the violation. In determining whether flaunting occurred, the judge considered the size of Respondent, the safety equipment it supplies to its employees, its safety program in general, and the size of the crews working at its jobsites. He concluded that, on the basis of this case’s record, no flaunting by Respondent was shown, and therefore the violation was not repeated.

The Secretary argues on review the judge erred in not concluding that Respondent’s noncompliance with section 1926.28(a) was a repeated violation. The Secretary states that the record established that the violation in this case involved conditions similar to those in the five earlier violations, i.e., each of these violations resulted from Respondent’s failure to require its employees to use safety belts or equivalent protection when working inside unprotected elevator shafts. The Secretary further notes that each violation involved the same general hazard, i.e., a fall down the elevator shaft to a lower level. The Secretary expresses his disagreement with the court in Bethlehem Steel Corp. v. OSHRC, supra, and urges the Commission to reject that decision.

In Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD ¶ 23, 294 (No. 16183, 1979), we held that ‘(a) violation is repeated under section 17(a) of the Act if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation.’[17] Under Potlatch Corp., in a case such as the instant one in which the Secretary alleges a repeat violation due to noncompliance with a specific occupational safety or health standard, the Secretary can make a prima facie showing of substantial similarity by establishing that the previous and present violations resulted from noncompliance with the same standard. This prima facie showing may be rebutted by evidence of disparate conditions and hazards associated with the violations of the same standard.

After examining the evidence in this case, we conclude that the violation is not repeated because the Secretary failed to prove that any of the six citations to which the parties stipulated at the hearing had become final orders by July 21, 1975, the date of the alleged repeated violation.[18]

We therefore affirm Citation No. 2 insofar as it alleges a serious violation of the Act based on noncompliance with section 1926.28(a). We assess a penalty of $800 in view of the gravity of the violation.

Accordingly, it is ORDERED that Item No. 1 of Citation No. 1 is affirmed; as amended, Item No. 5 of Citation No. 1 is also affirmed. We assess penalties of $70 and $55, respectively. We affirm Citation No. 2 to the extent that it alleges a serious violation, and we assess a penalty of $800.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: FEB 19, 1980

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 14899
OTIS ELEVATOR CO.,
Respondent.

February 7, 1977

Appearances:

Francis v. Laruffa, Regional Solicitor

United States Department of Labor

1515 Broadway, Room 3555

New York, New York 10036

Attorney for complainant by Stephen D. Dubnoff, Esq., of counsel

Commette Quencer & Annunziato

60 East 42nd Street

New York New York 10017

Attorney for respondent by Emil R. Annunziato, Esq., of counsel

DECISION AND ORDER

Alfieri, Judge:

This case presented difficult questions of law and fact. Able counsel represented both parties.

STATEMENT OF THE CASE

This case arises under section 10(c) of the Occupational Safety and Health Act (29 U.S.C. 651, et seq.) involving a nonserious citation and a repeat serious citation resulting from a July 21, 1975[19] inspection conducted by the Secretary of Labor (complainant) at the Otis Elevator’s (respondent) workplace, the construction site of a pumping station, Tarrytown, New York.

The citations were issued August 18, 1975 and were timely contested by respondent.

Citation number 1, nonserious, alleged respondent violated five named standards relating to the use of personal protective equipment, posting, removal of guardrails and availability of an approved first aid kit. Respondent’s affirmative defense states that the railing was removed in order to allow equipment to be brought to the workplace.[20]

Serious repeat citation number 2 alleged respondent violated the standard relating to the use of safety belts or the equivalent. Respondent’s answer contained no affirmative defenses to this charge. The allegation was denied.

At the hearing, held in New York City, New York, the complainant moved to vacate the alleged posting violations, items numbered 2 and 3 of citation number 1 and further moved to amend both citations by deleting July 22, 1975 as an inspection date. Both motions, unopposed, were granted.

The parties stipulated that the respondent, the largest elevator manufacturing company in the United States, is engaged in a business that affects commerce, it employs 12,000 people. Two employees were at the subject worksite.

It was further stipulated that respondent has been previously in violation of 29 CFR 1926.28(a) in Commission cases numbered 1184, 16178, 15427 and one other instance not contested by the respondent.[21]

The standards allegedly violated and the descriptions of the alleged violations remaining in issue follow.

Citation number 1—nonserious

Item number 1

The standard 29 CFR 1926.100(a), entitled Head Protection, requires that:

(a) Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, shall be protected by protective helmets.

The violation reads:

Employees served working in areas of this job site where there was a possible danger of head injury from impact, or from falling or flying objects, electrical shock and burns, were not protected by hard hats.

The proposed penalty is $70.00 and immediate abatement was required.

Item number 4

The standard 29 CFR 1926.500(e)(1)(ii) relating to stairway railings and guards requires that:

(1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified below, the width of the stair to be measured clear of all obstructions except handrails.

(ii) On stairways less than 44 inches wide having one side open, at least one stair railing on the open side;

The violative condition is described as:

Failure to replace the removable standard stair railings on the main stairway on grade level leading to the first basement level. This stairway is the primary means used by all trades to get to the lower levels. Every flight of stairs having four or more risers shall be equipped with standard stair railings at all times.

The abatement was to be immediately taken care of and a penalty of $160.00 is proposed.

Item number 5

The respondent is charged with:

‘Failure to provide first aid kit and supplies approved by a consulting physician for the type work and exposures that this job presents. The said supplies shall be checked at least weekly on each job site.’

It is alleged that such failure is in violation of 29 CFR 1926.50(d)(2) which requires that:

(2) The first-aid kit shall consist of materials approved by the consulting physician in a weatherproof container with individual sealed packages for each type of item. The contents of the first-aid kit shall be checked by the employer before being sent out on each job and at least weekly on each job to ensure that the expended items are replaced.

The abatement date was August 26, 1976 and a penalty of $55.00 is proposed.

Citation number 2—repeat serious

The cited standard 29 CFR 1926.28(a) relating to personal protective equipment reads:

(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.

The alleged violation is described as follows:

Immediate abatement was required and the penalty proposed is $3,200.00.

ISSUES

1. Whether respondent violated the standard 29 CFR 1926.28(a) and if so is it a repeat violation.

2. Whether respondent violated the standards 29 CFR 1926.100(a), 29 CFR 1926.500(e)(1)(ii) and 29 CFR 1926.50(d)(2).

3. If the respondent did violate any of the standards what penalties, if any, are appropriate.

SUMMARY OF THE EVIDENCE

Complainant’s case

The Secretary produced two witnesses, John Tomich and Nathan Appleman, compliance officers employed by the Occupational Safety and Health Administration.[22] Tomich testified that with his co-worker he arrived at the jobsite on July 21, 1975 between 9:15 and 9:30 a.m. (Tr. 35). While looking for the general contractor’s trailer they observed personnel around the jobsite not wearing hard hats. No identification of the personnel was obtained at this time (Tr. 11). An opening conference was held in the general contractor’s tractor’s trailer (Tr. 12). trailer (Tr. 12). superintendent for the general contractor, the compliance officers commenced their inspection of the jobsite. At this time they noted personnel entering and leaving the pumping station not wearing hard hats. The superintendent for the general contractor acknowledged that the employees so noted worked for Otis, at which time the ‘foreman’, identified as James Lomiento, was summoned (Tr. 13). After conferring with Lomiento and announcing to him that they were conducting an OSHA inspection, an opening conference was held with the Otis employees in the general contractor’s trailer (Tr. 14). Tomich testified that he was told by Lomiento that the hard hats were in their job truck which was at the jobsite (Tr. 15). Tomich further testified that he questioned Lomiento with respect to a first-aid kit and was advised that Lomiento did not have one and relied on the first-aid equipment of the general contractor (Tr. 19).

At this time the inspection terminated for a lunch break. In the afternoon the compliance officers continued with their inspection and entered the pumping station itself. Tomich observed in the interior of the building that overhead electrical work was being done with temporary dropped pendants and ‘the temporary lighting is sometimes low . . .’ (Tr. 16). A worker could strike his head and according to Tomich be injured. At the grade level a four or five foot passageway was a perimeter walkway around a 20 by 20 foot opening in the center of the floor. The walkway was obstructed by materials and wood debris with protruding nails. Tomich expressed the view that falling debris and other materials could hit a man working below (Tr. 17). Respondent’s material was at the level below (Tr. 17, 19).

Upon entering, Tomich also noted a stairwell leading from the ground or first floor to the two sub-level floors. The stairwell at the ground level did not have a standard railing. Tomich further testified that he noted what purported to be elevator equipment on the stairway itself. Tomich further stated that at the intermediate platform, which was one landing down, the railing had also been removed. The superintendent for the general contractor claimed the railings had been removed by Otis employees to enable them to bring materials into the building (Tr. 21, 22). At this time, which was about 1:40 p.m., Tomich sought out Lomiento. He testified that he found him in the grade level elevator shaft purportedly working on cables and not wearing a safety belt or other protective equipment (Tr. 22, 23, 25). Tomich testified that he was told by Lomiento that his safety belt was at home (Tr. 25). Tomich further testified that he examined the elevator shaftway which was not completely planked over at the grade level opening or at the first basement level, a drop of 16 feet (Tr. 26, 27). At the conclusion of the day no conference was held with the employees of Otis.

The following day, July 22, Tomich testified, sometime around 9 o’clock in the morning, he was proceeding to the Tarrytown Railroad Station to pick up his co-worker, at which time he noted Lomiento in his car driving to the worksite. Tomich alleged that Lomiento was unaware of his presence in the area. They did not converse (Tr. 52). At the conclusion of the inspection on July 22nd, there was no closing conference with Otis. Tomich alleged that Otis employees had left the jobsite during the day and it was impossible to hold a closing conference (Tr. 52).

Relative to the failure to wear hard hats the compliance officer foresaw the hazard of head injuries from low hanging temporary lighting and falling tools and debris. With regard to the absence of the guardrail the potential hazard was tripping over debris and falling down the stairwell 8 or 9 feet to an intermediate level and further to a lower level. The remoteness of the area was considered in reference to the lack of a first aid kit.

In arriving at the proposed penalties for items numbered 1, 4 and 5 of the nonserious citation the compliance officer considered the likelihood, extent and severity of the potential injuries. Ten percent credit was given for size and ten percent for good faith. Because of prior citations and violations under the Act, no credit was given for history.

Directing his testimony to the serious citation, the use of safety belts or the equivalent, Tomich considered the gravity of the violation to be very high and foresaw the resulting accident as causing death or serious physical harm. Giving consideration to size and good faith, a credit of 20% was allowed—none for history—a penalty of $800.00 was arrived at. However, according to Tomich, this was considered to be a second repeat violation. Therefore the penalty was multiplied by 4 and the final proposed penalty of $3,200.00 was arrived at.

Respondent’s case

Otis produced two witnesses, James Lomiento, an elevator mechanic employed by Otis for 19 years (Tr. 53) and Robert Seipel, construction helper employed by Otis for 6 1/2 years (Tr. 79). The testimony of both witnesses was substantially similar. In the morning of July 21st they were advised by the superintendent for the general contractor that on OSHA inspection was imminent (Tr. 64). At no time during that morning did they see or were they confronted by OSHA compliance officers. During the noon break, at about 12:15, while eating their lunch at a spot approximately 100 feet from the building, they were confronted by two men, whom they later learned to be Tomich and Appleman, who asked for directions to the general contractor’s trailer (Tr. 61).

During the morning of July 21st the two employees were involved in moving an elevator cylinder from its storage location into the building and eventually to the second sub-basement. This cylinder was approximately 21 feet long and weighed 1,400 pounds. Once the cylinder had been moved from its storage spot to the entrance to the building by equipment of the general contractor, it was the job of the two Otis employees to lower the cylinder into its resting place in the second sub-basement. While the building contained a crane or hoist, it was inoperative because electricity had not as yet been furnished to the building (Tr. 68). Therefore, it was necessary to use Otis equipment consisting of a chain fall (Tr. 59). The cylinder was hooked to the chain fall and then moved down the first stairway to the intermediate landing. This stairway was so constructed so that the right side was against the building wall and the left side was open, with a temporary wooden railing. The witnesses testified that at no time did they remove this railing (Tr. 69, 84). According to Lomiento at the intermediate landing it was physically impossible to swing this twenty-one foot long cylinder around so it was necessary to temporarily remove the railing at the landing and lower the cylinder to the next floor. Since the floors were approximately 16 feet apart and the cylinder was 21 feet in length, once it had been landed, the top end extended over the intermediate landing (Tr. 60, 62). At this time the Otis employees broke for lunch.

After lunch the Otis employees were requested by the general contractor to remove the remaining elevator equipment and parts which were temporarily stored in various shanties or trailers of the general contractor. For the remainder of the afternoon Lomiento and Seipel hand carried this equipment into the building, storing it at the various levels or near the openings into the shaftway (Tr. 71, 87, 88). Lomiento and Seipel deny entering the elevator shaftway on July 21st. Lomiento stated on direct and cross-examination that at no time during the work day of July 21st was he in the elevator shaftway. Seipel stated that he was working with Lomiento all day and never observed him in the shaftway (Tr. 72, 88).

Lomiento testified that flooring had been laid in the shaftway some days before July 21st by the general contractor. This consisted of placing planking and then plywood sheets in the shaftways to make a floor. The only openings were approximately 10 inches wide and located on the right and left sides of the shaftway. The witnesses testified that as they loaded or stored the material during the afternoon of July 21st they were close enough to note the shaftways and the fact that they were as previously described, that is, completely floored with only two 10-inch openings, one on either side (Tr. 64, 65, 88, 89).

Both witnesses denied seeing or talking to the compliance officers in the morning and specifically disputed having a pre-inspection conference in the general contractor’s trailer (Tr. 62, 86). Both witnesses denied working in the building without hard hats (Tr. 86). Lomiento admitted that in the afternoon while he was talking to the compliance officers he removed his hard hat in order to mop his brow. The temperature on July 21st was in excess of 90o (Tr. 72, 73).

Lomiento testified that his first-aid kit had been lost but he knew that his co-worker, Seipel, had one in his work truck (Tr. 72). On cross-examination he said he told Tomich he had a first aid kit and later testified he told Tomich Seipel had the kit (Tr. 77). Since this was a small jobsite, Otis did not maintain a work shanty. Both employees testified that all of their work equipment, including hard hats, safety belts and lanyards and other tools, were carried in their vehicles (Tr. 58, 59).

Seipel testified that at the end of the work day on July 21st he inquired of Tomich as to whether or not the compliance officers had found any violations against Otis and the answer was in the negative (Tr. 92).

Lomiento testified that on July 22nd at about 7:30 approximately a fifth of a mile from the jobsite and adjacent to the railroad station while stopped in his car, he was approached by Tomich who was coming out of the jobsite and given a warning. Both Otis witnesses testified that they were at the jobsite for the entire day of July 22nd and had talked to Tomich at some time during that day (Tr. 66, 67, 92, 93).

DISCUSSION

We are confronted with a record replete with conflicting testimony of opposing witnesses. Thus paramount in this case is the question of credibility and the reliability of the witnesses who testified and the weight which should be given to the testimony of each witness.

The evidence has been carefully scrutinized. The demeanor of the witnesses and the interest they may have in the result of the trial have been considered in weighing their evidence and in determining how far, or to what extent, if at all, it is worthy of credit.

Section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)), commonly referred to as the ‘special duty clause’ obligates an employer to comply with the occupational safety and health standards promulgated under the Act. The Administrative Procedure Act, 5 U.S.C. 556(d) puts the onus of proving alleged violations of the Occupational Safety and Health Act upon the complainant.

Citation number 1, item number 1

The complainant alleged that respondent’s employees were observed without hard hats working in an area where they could possibly sustain head injuries. Respondent denies it.

I credit the testimony of complainant’s compliance officers. That evidence demonstrates that the respondent’s employees, Lomiento and Seipel were not wearing their hard hats during the forenoon as charged.

Complainant’s evidence further demonstrated that respondent’s employees, in the course of their work, when going in and out of the building would have occasion to pass through the area that had low overhead temporary lighting and thus be exposed to head injuries. Further respondent’s employees were working at the first and second lower levels where they were exposed to head injuries from falling materials and debris.

Complainant need not prove that employees actually have been exposed prior to or during the inspection. He need only show they have access to the hazards in question and may reasonably be expected to come into danger considering such factors as the nature of the work to be performed, activities and movements required during the work, and routes of approach to and departure from work areas. Secretary v. Gilles and Cotting, Inc., No. 504 (February 20, 1976); Secretary v. Public Improvements, Inc., No. 1955 (November 23, 1976). Complainant has sustained the burden of proof.

Citation number 1, item number 4

With respect to the alleged failure to replace the removable stair railings in violation of 29 CFR 1926.500(e)(1)(ii) respondent denies removing it.

Respondent readily admits, however, that it did remove the railing from the intermediate stairway landing[23] and urges the defense that it was not possible for its employees to lower a large cylinder to the second sub-basement. Impossibility is a valid defense. Secretary v. Loden & Co. 14 OSAHRC 667, 671 (1974).

In support of this defense respondent’s witnesses, experienced elevator construction workers, gave clear, credible, convincing and persuasive testimony. Their testimony was unrebutted. Thus the record shows that the work could not be accomplished with the railing in place at the landing. It is now well established by Commission rulings that non-compliance with the requirements of an occupational safety and health standard is justified when necessary to do the work. Secretary v. Setterlin and Sons, No. 7377 (May 11, 1976); Secretary v. W. B. Meredith II, Inc., 9 OSAHRC 245 (1974).

There remains for disposition, however, whether the respondent’s employees removed the section of the railing from the side of the stairway which leads down to the landing area. I am persuaded that they did not.

There is no evidence to show that if the railing was in place at the time it would have interfered with the lowering of the cylinder to the sub-basement. If it would have interfered then it is logical to assume that respondent would have admitted removing the railing and included its action in its defense of impossibility of performance. It does not appear from the evidence that respondent would have any other reason to take that railing down since the other material the respondent’s employees brought into the building from the general contractor’s shanty were small enough to be hand carried down the stairs. Clearly that did not require the removal of the stair rail in question.

Furthermore respondent’s evidence that at the time an ironworker was preparing the section of the stairway in question for the installation of permanent railings was unrebutted. Lending credence to that testimony is the evidence that the general contractor immediately had the railings installed. Considered within that framework it is reasonable to conclude that the general contractor’s statement made to compliance officer Tomich referred only to the railings removed from the landing area—a fact readily admitted by respondent. Complainant has failed to sustain the burden of proof.

Citation number 1, item number 5

The respondent is charged with violating 29 CFR 1926.50(d)(2) which relates to the contents of and packaging of medical supplies for a first-aid kit; the type of container needed for a first-aid kit and the periodic inspection of the kit by the employer.

The complainant’s evidence, which was more credible than respondent’s showed that respondent did not have a first-aid kit available on the jobsite. Its proof therefore established a violation not of 29 CFR 1926.50(d)(2) as charged but rather 29 CFR 1926.50(d)(1) which reads:

First-aid supplies approved by the consulting physician shall be easily accessible when required.

Complainant did not ask that, pursuant to Federal Rules of Civil Procedure, 15(b)[24], the pleadings be amended to conform to the evidence and respondent did not move to dismiss. Respondent however came prepared to and did give relevant defenses to the alleged absence of a first-aid kit. Furthermore the underlying facts upon which the violation is alleged are the same and the ultimate issue is the same. From the foregoing it is concluded that an alleged violation of 29 CFR 1926.50(d)(1) by respondent was tried by implied consent.

Rule 15(b) of the Federal Rules of Civil Procedure permits the adjudicator to amend the pleadings to conform to the evidence on its own motion. Not only does an adjudicative agency have the right to amend the pleadings on its own motion, it has an affirmative duty to consider issues raised by the evidence, even if not specifically pleaded. American Boiler Mfrs. Ass’n v. N.L.R.B., 366 F.2d 815, 821 (8th Cir. 1966); Michigan Consol. Gas Co. v. F.P.C., 283 F.2d 204, 224 (D.C. Cir. 1960); Underwriters Salvage Co. v. Davis & Shaw Furn. Co., 198 F.2d 450, 453 (10th Cir. 1952).

Accordingly, in the absence of any prejudice from such an amendment the pleadings are deemed to conform to the evidence.[25]

There remains for consideration the proposed penalties for items numbered 1 and 5 of citation number 1. Pursuant to section 17(j) of the Act (29 U.S.C. 666(i)), the Commission is obliged 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 arriving at a suitable penalty. Secretary v. Nacirema Operating Co., Inc., 1 OSAHRC 33 (1972).

After due consideration of the said four criteria it is determined that the proposed penalties for items numbered 1 and 5 are suitable.

It is appropriate to note that the respondent emphatically denied that it advised the compliance officer that it was relying on a first-aid kit available to it in the general contractor’s trailer.

Thus, that factor is not to be considered in determining the appropriateness of the penalty for item number 5.

Citation number 2—repeat serious

The complainant’s evidence is that the respondent’s employee, Lomiento was observed working in an unprotected elevator shaft without wearing a safety belt or equivalent protection. Lomiento denies being in the shaft or that the shaft was unprotected. He claims that he did have a safety belt on the jobsite and denies telling the compliance officer it was at home. His fellow employee, Seipel, supports this testimony but admits not being with Lomiento at all times during the day.

Elsewhere in this opinion I enumerated the various factors to be weighed in assessing credibility of testimony. Giving consideration to those factors and the manner of respondent’s witnesses while testifying, which raised doubts and created the impression they were giving the wrong coloring to material facts I conclude that the complainant’s witnesses, on this issue, gave the more credible and persuasive testimony.

Accordingly, I find the evidence demonstrates that respondent’s employees did not have safety belts or the equivalent at the jobsite; that the employee Lomiento was in the elevator shaft without safety equipment and that the shaft was not fully protected.

We consider next the classification of the violation as ‘repeat serious’. It is challenged by respondent’s answer.

In order for a respondent to be found to have committed a repeat violation two tests must be met. First it must be shown that the respondent had previously violated the same standard and that such violation had been established by a final order or operation of law.[26] Secretary v. Lucky Stores, Inc., 4 OSAHRC 725 (1974); Secretary v. Southwest Paving, Inc., 13 OSAHRC 464 (1974); Secretary v. Karsten Equipment Co., 14 OSAHRC 23 (1974); Secretary v. George A. Odien, Inc., 14 OSAHRC 23 (1974). Here the record shows that the respondent has been on five prior occasions in violation of 29 CFR § 1926.28(a), the standard in issue. Some of the violations became final orders prior to the inspection in this case and others subsequent to the inspection but prior to the hearing herein. From this past history it is clear that respondent has a record of prior violations of the standard that ripened into final orders before the subject inspection.

Secondly, the record must also establish the violations were committed in a manner which flaunts the requirements of the Act if it is to be validly termed a violation that was done ‘repeatedly’ within the Congressional intendment. Bethlehem Steel v. OSAHRC 540 F.2d 157 (3rd Cir.) 1976; Secretary v. General Electric, 17 OSAHRC 49 (1975); c.f. Frank Irey, Jr., v. OSAHRC, 519 F.2d 1200 (3rd Cir. 1974); Cert. Granted, on other grounds, 98 S.ct. 1458 (1976).

The Review Commission in the General Electric case noted that in determining whether the Act has been ‘flaunted’, ‘Each case must be decided upon its own merits and turn upon the nature and extent of the violations involved.’ 17 OSAHRC 49, 65 66 (1975). The circuit Court of Appeals in the Bethlehem case citing the Commission’s ruling in the General Electric case with approval, augmented the factors the Commission should consider when determining whether a course of conduct is flaunting the requirements of the Act.

The respondent is the largest company in the industry. It supplies its employees with safety equipment and has a safety program for its 12,000 employees. Many of its employees work in small crews at jobsites.

I have considered all of the pertinent factors for determining whether the respondent’s course of conduct flaunts the requirements of the Act.

Although the respondent has violated the standard in question more than once, I am unable to conclude on the basis of this record that it was committed ‘in a manner which flaunts the requirements of the Act’. See Bethlehem Steel and General Electric cases (supra). Thus, respondent will not be found to have ‘repeatedly’ violated the standard within the meaning of Section 17(a) of the Act (29 U.S.C. 666(a)).

There remains for disposition the respondent’s challenge to citation numbered 2 being classified as ‘serious’ violation.

Under the Occupational Safety and Health Act of 1970[27] a serious violation exists if there is a ‘substantial probability’ that a death or serious injury could result unless the employer did not, and could not, with the exercise of reasonable diligence know the hazard was present.

Here the respondent’s employees were exposed to the hazards of falling from 16 to 30 feet. The likelihood of injury is high and death or serious injury could result.

Relative to the element of knowledge of the existence of the hazardous condition there is compelling evidence to hold that the respondent had knowledge of the condition. The very nature of the work performed by respondent’s employees encompasses hazardous conditions. Although safety equipment was provided by respondent the fact that its employee Lomiento reported for work without his safety belt demonstrates a lesser degree of effort by respondent to enforce its safety program than circumstances warrant. Complainant has established that the violation of 29 CFR 1926.28(a) under the circumstances here constitutes a serious violation as contemplated by the Act.

We come now to the appropriateness of the penalty for violating 29 CFR § 1926.28(a). Complainant has found that respondent is in good faith, has a good safety program and was cooperative.[28] Considering its size and good faith 20% credit was allowed reducing the $1,000 unadjusted penalty to $800.00. The proposed penalty of $3,200 was predicated on this being a second repeat violation using the formula of 4 times the adjusted amount. In view of the finding that this is not a repeat violation the penalty proposed must be reduced to $800.00.

In assessing what I consider to be an appropriate penalty for this violation, I have applied the criteria set forth in section 17(j) of the Act (29 U.S.C. 666(i)) and the fact that the complaint erroneously considered the violation to be a ‘repeat’ with the meaning of the Act.

In conclusion, based on the credible evidence, I find that the complainant’s compliance officer did have an opening conference with respondent as alleged. I further find that whether or not the representatives of the parties had an early morning conversation on July 22, 1976, bears only on the question of credibility—a factor resolved in favor of the complainant.

Having heard the testimony and observed the demeanor of the witnesses, and having considered the same, together with the citations, notification of proposed penalty, notice of contest, pleadings, representations, stipulations and admissions of the parties, it is concluded that the preponderance of evidence, on the entire record, supports the following:

FINDINGS OF FACT

1. That respondent’s employees were observed during the forenoon of July 21, 1975 working at the jobsite without wearing hard hats.

2. That the said employees in the course of their work would have occasion to be in areas on the grade level and the first and second lower levels where they would be exposed to head injuries.

3. That the respondent did remove the guardrail at the landing and that it was not possible for its employees to do the work with the rail in place.

4. That the respondent did not remove the railing along the open side of the stairway—as distinguished from the landing to which it leads.

5. That the respondent did not have a first-aid kit at the jobsite which would be easily accessible when required.

6. That respondent’s employee Lomiento was in the elevator shaft and at that time was not wearing a safety belt or the equivalent.

7. That the elevator shaft within which Lomiento was working was not fully protected.

8. That respondent’s employee did not have a safety belt or the equivalent at the jobsite.

9. That the complainant’s compliance officers did in fact hold an opening conference with respondent’s employee Lomiento.

10. That complainant’s compliance officer Tomich and respondent’s employee Lomiento did not have a conversation at the railroad station during the morning of July 22, 1975.

CONCLUSIONS OF LAW

1. The respondent was at all times material hereto subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter herein.

[No 2 in original]

3. That on July 21, 1975, the respondent was in violation of section 5(a)(2) of the Act (29 U.S.C. 654(a) by failing to comply with 29 CFR 1926.100(a).

4. That complainant has not established that on July 21, 1975 respondent was in violation of 29 CFR 1926.500(e)(1)(ii).

5. That on July 21, 1975 respondent was in violation of section 5(a)(2) of the Act (29 U.S.C. 654(a)) by failing to comply with 29 CFR 1926.50(d)(1).

6. That respondent on July 21, 1975 was in violation of section 5(a)(2) of the Act by failing to comply with 29 CFR 1926.28(a).

7. That the violation of 29 CFR 1926.28(a) was a serious violation within the meaning of section 17(j) of the Act (29 U.S.C. 666(1)).

8. That the respondent did not ‘flaunt’ the Act in violating 29 CFR 1926.28(a) and that such violation was not repeatedly done within the meaning of section 17(a) of the Act (29 U.S.C. 666(a)). Appropriate penalty is $800.00.

ORDER

Citation number 1, items numbered 2, 3 and 4 and their proposed penalties are vacated and items numbered 1 and 5 thereof are affirmed.

Citation number 2, as modified by deleting the word ‘repeat’ is affirmed.

The following penalties are assessed:

Citation number 1

Item number 1 $70.00

Item number 5 $55.00

Citation number 2

Item number 1 $800.00

The total penalty assessed is $925.00.

EDWARD V. ALFIERI

JUDGE, OSHRC

Dated: February 7, 1977

New York, New York

[1] Both citations state that the inspection was conducted on July 21–22, 1975. At the hearing, the Secretary moved to amend the two citations to provide that the inspection took place only on July 21. The judge granted the motion.

[2] In its post-hearing brief, Respondent presented only the general argument that the Secretary failed to sustain his burden of proof by a preponderance of the evidence with regard to all the citation items before the judge at the hearing. Respondent stated that the witnesses for the Secretary and for Respondent were equally credible. Respondent argued that, as a result of their irreconcilable conflicting statements, none of the alleged violations could be established by a preponderance of the evidence.

[3] The Secretary, the party aggrieved by the judge’s vacation of Item No. 4 in Citation No. 1, has not filed any exceptions on review to that part of the judge’s decision and order. Finding no compelling public interest that would warrant Commission review of the judge’s decision to vacate Item No. 4, we will not now consider the judge’s disposition of that issue. Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976–77 CCH OSHD ¶20, 780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975–76 CCH OSHD ¶20,428 (No. 9507, 1976). Such unreviewed dispositions are not precedent binding on the Commission. Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975–76 CCH OSHD ¶20,387 (No. 4090, 1976), appeal withdrawn, No. 76–4070 (2d Cir. May 17, 1976).

[4] The section provides:

Subpart E—Personal Protective and Life Saving Equipment

§ 1926.100 Head protection.

[5] Tomich testified first, giving his answers in considerable detail. When he was subsequently called to testify, Appleman stated that his answers would be the same as Tomich’s.

[6] The section reads as follows:

Subpart D—Occupational Health and Environmental Controls

§ 1926.50 Medical services and first aid.

(d) . . . (2) The first-aid kit shall consist of materials approved by the consulting physician in a weatherproof container with individual sealed packages for each type of item. The contents of the first-aid kit shall be checked by the employer before being sent out on each job and at least weekly on each job to ensure that the expended items are replaced.

[7] On redirect examination, Tomich testified that Lomiento did tell him that a first-aid kit was available in his co-worker’s car.

[8] The section provides:

Subpart D—Occupational Health and Environmental Controls

§ 1926.50 Medical services and first aid.

(d)(1) First-aid supplies approved by the consulting physician shall be easily accessible when required.

[9] We note that Respondent does not challenge the amendment.

[10] The section reads as follows:

Subpart C—General Safety and Health Provisions

§ 1926.28 Personal protective equipment.

[11] Lomiento stated that it was impossible to place the planking up to the wall because the guiderails were already installed.

[12] The judge noted in his discussion of this particular citation that the demeanor of Respondent’s witnesses while testifying ‘raised doubts and created the impression they were giving the wrong coloring to material facts . . ..’

[13] In S. & H Riggers and Erectors, Inc., supra, Commissioner Barnako stated that he would require the Secretary to prove the feasibility of the personal protective equipment which the Secretary recommends to be used. This position reiterates the Secretary’s burden of proof as set forth and adopted by a majority of the Commission in Frank Briscoe, Inc., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976–77 CCH OSHD ¶21,162 (No. 7792, 1976). In the instant case, the record does not contain any evidence concerning the feasibility of safety belts. However, since this case was tried before S & H Riggers and Frank Briscoe, the Secretary was unaware of his burden of proof to establish feasibility. Accordingly, Commissioner Barnako would remand this case to the judge to permit the introduction of evidence concerning the feasibility of safety belts.

[14] The section provides:

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.

[15] The section reads as follows:

Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of not more than $10,000 for each violation.

[16] The parties stipulated to these citations:

1) OSHRC Docket No. 1184;

2) OSHRC Docket No. 16178;

3) OSHRC Docket No. 15427;

4) Inspection No. R6891 No. 57;

5) Inspection conducted August 1974; and

6) Inspection conducted July 1, 1975.

[17] In Potlatch Corp., we declined to follow Bethlehem Steel Corp. v. OSHRC, supra, and held that an employer’s ‘flaunting,’ or flagrant disregard, of the Act has no bearing on whether a certain violation is repeated. The Commission will, however, review such evidence in considering what penalty to assess.

[18] Docket No. 1184 became a final order on November 19, 197. Docket No. 16178 became a final order on April 2, 1976. Docket No. 15427 became a final order in December 1975. With regard to the August 1974 inspection, the citation is irrelevant because it was vacated by an administrative law judge and not reviewed by the Commission.

The citation and penalty resulting from the July 1, 1975 inspection also did not become a final order until after the date of the inspection in this case. The Secretary did not provide the date that Respondent received the citation and notice of proposed penalty. Under section 10(a) of the Act, Respondent has 15 working days after receipt of the notice of proposed penalty within which to contest the violation. Even if Respondent could have received the citation and notice of proposed penalty on the same day as the inspection, Tuesday, July 1, 1975, the citation would not have become a final order until 2 days after Monday, July 21, 1975, taking into account the July 4 holiday.

With regard to Inspection No. R6891, No. 57, the Secretary supplied the date of October 31, 1973, but he did not explain the significance of the date, i.e., whether that was the inspection date or the final order date. The Secretary presented no further evidence regarding that inspection.

Having decided this issue on the basis of final order dates, we need not reach the question of whether the earlier and later violations were substantially similar.

Commissioner Barnako’s views with respect to repeated violations are set forth in his separate opinion in Potlatch Corp., supra, (concurring in part and dissenting in part). In the event that the Secretary were to establish the feasibility of safety belts on remand, see note 13, supra, Commissioner Barnako notes that he agrees with his colleagues that the violation is not repeated since the Secretary failed to establish that any prior citations for a substantially similar violation had become final orders by the date of the alleged repeated violation herein.

[19] Amended by motion deleting reference to July 22, 1975 (Tr. 9).

[20] Affirmative defenses were raised to the posting violations. However complainant’s motion to vacate the violations was granted.

[21] See J 4.

[22] Appleman testified that his testimony would be substantially the same as Tomich’s (Tr. 130).

[23] Subsection (i) of 29 CFR 1926.500—DEFINITIONS reads:

(i) ‘Stairs, stairways’—A series of steps leading from one level or floor to another, or leading to platforms, pits, boiler rooms, crossovers, or around machinery, tanks, and other equipment that are used more or less continuously or routinely by employees or only occasionally by specific individuals. For the purpose of this subpart, a series of steps and landings having three or more rises constitutes stairs or stairway. (Emphasis added)

[24] The Federal Rules of Civil Procedure govern Commission proceedings. See section 12(g) of the Act and Rule 2(b) of the Commission’s Rules of Procedure. Rule 15(b), in pertinent part, provides:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such an amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect result of the trial of these issues. . . .

[25] Rule 72 of the Commission’s Rules of Procedure provides in part that ‘(h)earings before the Commission and its Judges shall be in accordance with § 554 of Title 5 U.S.C. . . .’ (the Administrative Procedure Act) Under the APA, an agency may find that the respondent’s conduct violates a different provision of law than that specified in the complaint as long as the underlying facts have been alleged in the complaint and the shift in legal theory does not prejudice respondent.

[26] Section 10(a) Act; 29 U.S.C. 659(a).

[27] Section 17(k) (29 U.S.C. 666(j)).

[28] Tr. 29.