UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

ORDER OF REMAND

February 22, 1973

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

VAN NAMEE, COMMISSIONER:

On January 23, 1973, Judge David H. Harris issued an order vacating Complainant’s citation in the above-captioned matter. He based his order on the ground that the Complainant had failed to forward Respondent’s notice of contest to the Commission within seven days of receipt as required by Commission Rule 32 (29 CFR 2200.32).

Pursuant to the authority vested in the members of the Commission by Section 12(j) 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’), I am herewith directing that the Judge’s Order be reviewed by the Commission. For the reasons given hereinafter we reverse and remand.

We have reviewed the record and note that the Respondent was issued a citation and notification of proposed penalty dated December 7, 1972. Thereafter Respondent filed a notice of contest which was received by the Complainant’s Area Director on December 15, 1972. The notice of contest was not received by the Commission until January 12, 1973 and thus was received outside the period prescribed by Rule 32.

Complainant has now filed a motion for reinstatement of the above-captioned matter, as well as a petition for discretionary review of the Judge’s ruling. It represents that the subject notice of contest was properly transmitted to the Commission by placement in the United States mail on December 15, 1972, the same day it was received by the Area Director. Attached to its motion is a supporting affidavit executed by the employee of the Complainant who mailed the subject notice of contest. She attests to the fact that the notice of contest was timely mailed to the Commission on December 15, 1972.

It is further represented that the reason said notice of contest failed to reach the Commission until January 12, 1973 is unknown to the Complainant. Complainant offers the suggestion that the only reasonable and plausible explanation for such a mailing delay would appear to be a Christmas seasonal misdirection.

The Commission is of the opinion that the Complainant has established, by sworn statement, that the subject notice of contest was transmitted to the Commission within seven days of receipt thereof and was thus timely filed. The delay in receipt of said notice of contest by the Commission may be attributed to the vagaries of mail handling.

Accordingly we find that the extreme sanction of vacation of the citation is inappropriate in the circumstances of this case.

It is therefore ORDERED that the Judge’s Order be and the same is hereby set aside and the case is remanded for further proceedings consistent with this Order.

[The Judge’s decision referred to herein follows]

HARRIS, JUDGE, OSAHRC:

The citations herein are dated December 7, 1972, one serious seeking $700.00 and the other non-serious seeking $105.00. The notice of contest, dated December 14, 1972, was served on OSHA on December 15, 1972. OSHA filed its complaint on January 4, 1973, but did not forward the notice of contest until January 12, 1973. No excuse is offered. The citations are ordered vacated since the notice of contest was not filed as required by the Act and the Commission’s Rules. The complaint is likewise ordered dismissed.

Footnotes

1

Respondent also operated a small real estate firm in which he netted $2,000.00 for 1972. The net for his combined operations was a loss of $7,000.00 in 1972.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

August 30, 1973

OSTERMAN, JUDGE, OSAHRC:

This is a proceeding initiated pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. (hereafter the Act) to contest Citations and a Notice of Proposed Penalty issued by the Secretary to Respondent on December 7, 1972. A hearing in the matter was held in Hartford, Connecticut, on April 5, 1973.

The record discloses that Respondent was charged as follows:

A Notice of Contest timely filed on December 15, 1972, challenged both the alleged violations and the proposed penalties.

At the hearing the parties stipulated that Respondent is engaged in the business of installing sewer pipe; that Respondent regularly handles and works with goods which have moved in interstate commerce such as sewer pipe which comes from Ohio and is thus engaged in a business affecting commerce within the meaning of Section 3 of the Act (Tr. 5–6).

Testimony by witnesses at the hearing, including that and a local sewer inspector for the Town of Plymouth, Connecticut, and a police officer of the Plymouth Police Department, disclosed that on November 21, 1972, one John Langer an employee of the Respondent was assisting Respondent in laying a sewer pipe on South Eagle Street, Terryville, Connecticut. Respondent Stephen Adamowich was operating a back-hoe while Langer’s job was to get into the ditch being dug and lay the pipe in the correct position (Tr. 10–11, 24). The ditch in which Langer worked was approximately 20 feet long and 9 feet in depth (Tr. 11, 25, 43, 55, Exh. C–4, C–5); 3 feet wide at the bottom and 4–6 feet wide at the top (Tr. 11–20, 43, 55). Water seeped into the excavation from the sides (Tr. 11, 44); the soil was loam and clay with some gravel (Tr. 11, 25); and unstable in character (Tr. 56). The sides of the trench lacked any kind of support and were not sloped to prevent a cave-in (Tr. 13–14, 25, 43). There was no ladder provided for escape from the excavation (Tr. 12, 25, 44).

During the pipe-laying operation the sides of the trench collapsed burying Langer, the Respondent Adamowich, and Robert Draper, the sewer inspector up to their chins in soil (Tr. 13–14, 27). They remained buried in this position for approximately 35 minutes and were rescued by members of the Terryville Police who worked more than an hour to free them (Tr. 13–14, 43). All three were taken to the local hospital for examination (Tr. 14, 27). Respondent was severely injured.

The uncontradicted testimony given by Respondent indicates that his sewer construction work is primarily a one-man operation in which the Respondent personally performs most of the necessary labor (Tr. 76); that Respondent’s gross income from his sewage construction work amounted to $40,000.00 in 1972; and that his expenditures in this activity were $49,000.00 for a net loss of $9,000.00.

The evidence is conclusive that on November 21, 1972, the Respondent violated the safety standards in question and that the Citation is fully supported by the evidence. With respect to the proposed penalty, however, I find that it is excessive when measured against the Respondent’s size and ability to pay.

FINDINGS OF FACT

1. Respondent, STEPHEN ADAMOWICH d/b/a TERRYVILLE SANITATION SERVICE is engaged in business which involves the installation of sewer pipe. Respondent’s principal office is located at 40 Allen Street, Terryville, Connecticut.

2. Respondent regularly purchases, handles and works with goods which have moved in interstate commerce.

3. On November 21, 1972, Respondent had in his employ one John Benjamin Langer who assisted Respondent in a sewer pipe installation job at a worksite located at 45 South Eagle Street, Terryville, Connecticut.

4. At various times in the summers Respondent has employed his son to assist him in his sewer construction activities.

5. On November 21, 1972, Respondent was engaged in digging a trench and laying a sewer pipe in that trench. He was assisted by John Langer.

6. Langer’s duties included getting into the trench and locating the sewer pipe properly at the bottom thereof.

7. The dimensions of the trench dug by Respondent were approximately 20 feet long, 9 feet deep, 3 feet wide at the bottom, and 4 to 6 feet wide at the top.

8. The soil in which the said trench was dug consisted of gravel, clay and loam and was made further unstable by water seepage from a nearby well.

9. On November 21, 1972, Respondent failed to shore, sheet, brace, slope or otherwise support the sides of the said trench as required by 29 CFR 1926.652(b).

10. On November 21, 1972, Respondent failed to provide a ladder extending from the floor of the trench excavation to at least three (3) feet above the top of the trench.

11. On November 21, 1972, while Respondent, an employee, and a sewer inspector were standing inside of the trench, a cave-in occurred which required rescue operations by the local police department and which injured all three persons.

12. Respondent’s gross income from his sewer construction business amounted to $40,000.00 in 1972. In the same year his business expenses were $49,000.00.

13. As a result of an inspection of a worksite located at 45 South Eagle Street, Terryville, Connecticut, by an authorized representative of the Complainant, Respondent on December 7, 1972, was issued a Citation charging a serious violation [29 CFR 1926.652(b)] and a second Citation charging a non-serious violation [29 CFR 1926.652(h)]. A Notice of Proposed Penalties was also issued on the same day proposing a $700 penalty for the serious violation and a $105 penalty for the non-serious violation.

14. The penalties proposed by the Complainant, while giving due consideration to the criteria set out in Section 17(j) of the Act are excessive in view of Respondent’s size and financial status.

CONCLUSIONS OF LAW

1. Respondent, Stephen Adamowich, d/b/a Terryville Sanitation Service is engaged in business as a sewer contractor.

2. Respondent at all material times was an ‘employer’ engaged in a business ‘affecting commerce’ as those terms are defined by Section 3 of the Act.

3. On November 21, 1972, Respondent was in violation of 29 CFR 1926.652(b) [a Serious Violation] and 29 CFR 1926.652(h) [a NonSerious Violation].

ORDER

Pursuant to Section 10(c) of the Act and Rule 66 of this Commission’s Rules of Procedure it is ORDERED.

1. That the Citations issued by the Complainant against Respondent on December 7, 1972, be and they hereby are, AFFIRMED.

2. That the penalty of $700.00 proposed for violation of 29 CFR 1926.652(b) and the penalty of $105.00 proposed for violation of 29 CFR 1926.652(h) be, and they hereby are, VACATED.

3. That a penalty of $350.00 be assessed for violation of 29 CFR 1926.652(b) and a penalty of $50.00 be assessed for violation of 29 CFR 1926.652(h).