I United States of America OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1120 20^th Street, N.W., Ninth Floor Washington, DC 20036-3457 SECRETARY OF LABOR, Complainant, v. OSHRC Docket No. 09-1511 MARTORELL CONSTRUCTION COMPANY and its Successors, Respondent. APPEARANCES: Christopher L. Green, Attorney; Michael Schoen, Attorney; James E. Culp, Regional Solicitor; Joseph M. Woodward, Associate Solicitor of Labor for Occupational Safety and Health; Carol A. De Deo, Deputy Solicitor of Labor for National Operations; U.S. Department of Labor, Washington, DC For the Complainant John C. Viggiano, Martorell Construction Company, Galveston, TX For the Respondent DIRECTION FOR REVIEW AND REMAND ORDER Before: ROGERS, Chairman; THOMPSON, Commissioner; and ATTWOOD, Commissioner. BY THE COMMISSION: In a Decision and Order dated March 15, 2010, Administrative Law Judge Patrick B. Augustine affirmed a serious citation issued to Martorell Construction Company (“Martorell”) and assessed the proposed penalty of $4,500. Martorell timely contested the citation, but failed to appear at the hearing as scheduled for February 10, 2010. At the hearing, the judge heard evidence from the Secretary and found in his decision that she had established the alleged violations, without receiving any evidence or argument from Martorell. Alternatively, the judge found Martorell in default “in accordance with Commission Rule[s] 64 and 101” based on its failure to appear at the hearing “without good cause being established[.]” On April 6, 2010, Martorell, appearing /pro se/, filed a timely Petition for Discretionary Review (“PDR”) claiming that its failure to appear at the hearing should be excused because: (1) it never received any of the written notices of the hearing date that were sent to an address where “[it] does not receive mail”;^Footnote and (2) it “does not remember having received verbal notice of any trial date” nor does it “remember participating in any pre-trial conference.” For the following reasons, we direct this case for review and remand it to the judge for further proceedings. As an initial matter, because the remedy Martorell seeks is to excuse its failure to appear, we construe its PDR as a request for reinstatement governed by Commission Rule 64, 29 C.F.R. § 2200.64, which pertains generally to the failure of a party to appear at a hearing. /See New Age, Inc./, 1998 WL 863596 (No. 98-0415, 1998) (construing PDR as request for reinstatement under Rule 64 where /pro se/ employer failed to appear for hearing and judge affirmed citation based solely upon Secretary’s evidence). Under Rule 64(b), “[r]equests for reinstatement must be made, in the absence of extraordinary circumstances, within five days after the scheduled hearing date.” /See also Phila. Const. Equip. Inc./, 16 BNA OSHC 1128 n. 1 (No. 92-899, 1993) (waiving 5-day filing requirement for Rule 64(b) request for reinstatement pursuant to procedure set forth under Commission Rule 107). In addition, even if a request is timely, a party still must establish good cause for its failure to appear as set forth under Rule 64(c) (“The Commission or the Judge, upon a showing of good cause, may excuse such failure to appear.”). Here, Martorell did not request reinstatement “within five days after the scheduled hearing date.” Commission Rule 64(b), § 2200.64(b).Thus, on remand, the judge should provide Martorell with an opportunity to address its failure to timely request reinstatement and, if appropriate, also provide Martorell with an opportunity to establish good cause for its failure to appear at the hearing. /See New Age, Inc./, 1998 WL 863596 (remanding case to judge to determine whether /pro se/ employer is entitled to a new hearing under Rule 64);/Phila. Const. Equip. Inc./, 16 BNA OSHC at 1129 (same); Commission Rule 107, 29 C.F.R. § 2200.107 (“In special circumstances not contemplated by the provisions of these rules and for good cause shown, the Commission or Judge may, upon application by any party or intervenor or on their own motion, after 3 working days notice to all parties and intervenors, waive any rule or make such orders as justice or the administration of the Act requires.”). In addressing these issues, the judge should clarify an inconsistency that appears in the record. In the Complainant’s Stipulation Statement dated January 29, 2010, the Secretary states that “[r]espondent’s lack of participation is further evidenced by its failure to appear for either of the Pretrial Telephone Conferences /held on December 1, 2009/ and January 28, 2010.” (Emphasis added.) Yet, in his decision, the judge states that “on /December 1, 2009/, the date of the [first] pretrial conference . . . . /both parties were present/.” (Emphasis added.) Moreover, the judge noted that during the December 1 pretrial conference, (1) “this case was set for trial with the agreement of the parties for February 10, 2010 with the trial to be held in Houston, Texas”;^Footnote and (2) Martorell, when asked, verified its address as the one currently on record. Accordingly, we direct this case for review and remand the case to the judge for further proceedings consistent with this opinion. SO ORDERED. /s/_______________________ Thomasina V. Rogers Chairman /s/_______________________ Horace A. Thompson III Commissioner /s/_______________________ Cynthia L. Attwood Dated: 4/16/2010 Commissioner ------------------------------------------------------------------------ UNITED STATES OF AMERICA OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION DENVER REGIONAL OFFICE SECRETARY OF LABOR, § Complainant, v. OSHRC DOCKET NO.: 09-1511 MARTORELL CONSTRUCTION COMPANY, and its successors, Respondent. § DECISION AND ORDER Appearances: Mr. Christopher L. Green U.S. DEPARTMENT OF LABOR OFFICE OF THE SOLICITOR 525 Griffin Street Suite 501 Dallas, Texas 75202 Office: (972) 850-3119 Fax: (972) 850-3101 E-mail: green.christopher.l@dol.gov For Complainant No appearance at trial for Respondent Before: Administrative Law Judge, Patrick B. Augustine I'll ask the court reporter to reflect my decision and order that I will dictate onto the record, and my dictation onto the record will constitute the official findings of the court relating to this case. The record will reflect that Christopher Green is present on behalf of the Secretary of Labor. The record will also reflect that Mr. Viggiano, on behalf of the Respondent, is not present, nor is there any authorized representative of the Respondent present. It is 24 minutes after nine o'clock Central Standard Time in Houston, Texas. Number 1, jurisdiction of this action is conferred upon the Occupational Safety and Health Review Commission pursuant to Section 10(c) of the Occupational Safety Act of 1970, 29 U.S.C. 51 /et seq/., hereinafter, referred to as "the Act." Number 2, the Court finds that the Respondent is an employer engaged in the business affecting interstate commerce within the meaning of Section 3(5) of the Act, specifically engaging in residential construction. The residential construction standards, as cited, will be applicable to this case. Number 3, the Occupational Safety and Health Administration, hereinafter, referred to as "OSHA," conducted an inspection of the Respondent's work or job site on August 12, 2009. Number 4, as the result of the inspection, OSHA issued a citation and notification of penalty on August 13, 2009, to the Respondent alleging the violation of Section 1926.20(b)(2), Section 1926.501(b)(13), and 1926.1053(b)(1) with a proposed cumulative penalty of $4,500. Number 5, the Respondent, in a communication dated September 2, 2009, contested the citations and the penalties. Number 6, the citation and notification of penalty was sent to the following address: P.O. Box 239, 1718 35th Street, Galveston, Texas 77550. The Respondent received the notice of citation and notification of penalty at that address in light of the fact that the Respondent contested the citation and notification of penalty. Number 7, in the Respondent's notice of contest, it is noted that the street address used by the Respondent is 2517 Winnie, Galveston, Texas 77550. All future correspondence by this Court was sent to that address. Pursuant to the offer of proof of the Secretary of Labor's attorney, all correspondence sent by the Solicitor's office was also sent to that address. Number 8, this case was assigned to OSHRC Judge, Patrick B. Augustine, on October 15, 2009. Number 9, all notices and orders sent by OSHRC -- by the OSHRC judge were sent to the same address noted in the return of contest, which is the Winnie Street address, and it is further noted that none of the notices or orders have been returned undeliverable by the United States Postal Service. Pursuant to the offer of proof of the Secretary of Labor's attorney, they also testified that all correspondence and communication sent from the Solicitor's office to the Respondent at that address was also not returned undeliverable by the United States Postal Service to the Solicitor's office. Number 10, on October 26, 2009, the Court issued a pretrial conference call order indicating that a pretrial conference was set for December 1, 2009. Number 11, on December 1, 2009, the date of the pretrial conference, Michael Schoen, representing the Secretary of Labor and Mr. Viggiano connected into the conference phone call. So both parties were present. Number 12, during the conference call, this case was set for trial with the agreement of the parties for February 10, 2010, with the trial to be held in Houston, Texas. Thus, the Respondent obtained notice and actively participated in this pretrial conference call. During the pretrial conference call, the judge asked the Respondent to verify his address, and the Respondent did not indicate that there was a different address on file except the Winnie Street address. Also pursuant to the offer of proof of Mr. Green today of the Solicitor's office, on behalf of the Secretary of Labor, he indicated that he advised Mr. Viggiano of the date and time of the hearing to be held in Houston, Texas. Number 13, pursuant to the pretrial conference call, the Respondent had verbal notice of the time and place of the trial. He also had verbal notice of the time and place of the trial pursuant to his telephone conversation with Mr. Green as set forth in Mr. Green's offer of proof to the Court. Number 14, this Court sent a notice to of trial to the parties on December 2, 2009, and a notice of place of trial to the parties on February 2, 2010. Neither the notice of trial nor the notice of location of the trial was returned undeliverable by the United States Postal Service to the Judge. Number 15, on January 15, 2010, the Court scheduled a final pretrial conference on this case prior to it going to trial. A notice of the pretrial conference was sent to the parties on January 15, 2010, and the notice to the Respondent was not returned as undeliverable. Number 17 [/sic/], the Respondent failed to participate in the final pretrial conference call. Madeleine Li from the Solicitor's office attended via telephonically in that pretrial conference call and indicated that all attempts to contact Mr. Viggiano, either by phone or by mail, were to no avail. Number 17, the Court is now in session on February 10, 2010, Houston, Texas, pursuant to the notice of trial and the notice of trial location. Number 18, to establish a prima facie violation of the Act, the Secretary must prove, 1, the standard applies to the cited condition; 2, the terms of the standard were violated; 3, one or more of the employer's employees had access to the cited condition; and 4, the employer knew or with the exercise of reasonable diligence could have known of the violent conditions. /Ormet/, O-r-m-e-t, /Corporation/ 13 BNA OHSC 2134, 1991 CCH OSHD Page 29,254 (No. 85-0531, 1991). In regards to Citation 1, Item 1, the Secretary has charged that the employer did not maintain an inspection program conducted by competent persons that examined job sites, materials, and equipment on a frequent and regular basis. Specifically, the regulation states that such programs shall provide for frequent and regular inspections of the job sites, materials, and equipment to be made by competent persons designated by the employers. There is testimony that Mr. Hernandez was the foreman on this project. The testimony of the compliance officer also indicates that the employees were exposed to fall hazards of greater than 30 feet. He also testified that the ladders did not extend more than 3 feet above the landing. The compliance officer also indicated in his communications with Mr. Hernandez that he conducted no safety inspections of the work site on a daily basis, nor was he aware of the requirement to do so. The compliance officer also testified that there was no evidence of a safety and health policy. His attempts to secure a copy of the safety and health policy was unsuccessful and has not been produced by either Mr. Hernandez or Mr. Viggiano. In communications, the compliance officer indicates that the extent of the safety program was that they talked to the guys as to the requirements, but there was no written documentation as to a formal health and safety plan produced by Mr. Viggiano. The evidence indicates that there was six employees on site that day. At various times, four or more were exposed to the cited conditions. Therefore, as to Citation 1, Item 1, the Secretary's undisputed evidence established all of the elements necessary for a prima facie violation of 29 C.F.R. 1926.20(b)(2). The activity engaged in could undoubtedly result in serious injury or death. In relation to Citation 1, Item 2, the Secretary alleges that each employee engaged in residential construction activities 6 feet or more above lower levels was not protected by guardrail systems, a safety net system, or personal fall protection system. Specifically, Section 1926.501(b)(13) defines residential construction, which is applicable in this case as requiring each employee engaged in residential construction activity as 6 feet or more above lower levels shall be protected by guardrails, a safety net system, or a personal fall arrest system unless another provision in paragraph (b) of this section provides for an alternative fall protection measure. Exception is noted when the employer can demonstrate that it is infeasible or creates a greater hazard to use those systems. The employer shall develop and implement a fall protection system which meets the requirements of paragraph "k" of section 1926.502. The regulation also notes that there is presumption that it is feasible and will not create a greater hazard to implement at least one of the above listed fall protection systems. Accordingly, the employer has the burden of establishing that it is appropriate to implement a fall protection plan which complies with section 1926.502(k) for a particular workplace situation in lieu of implementing any of those systems. The evidence indicates that residential construction activities were being performed at heights greater than 6 feet. The compliance officer set forth the measurements and how he obtained those measurements in the record upon which the administrative law judge will give great weight to. He also indicated that -- Mr. Donnelly indicated that four employees were working on the roof at the time of the inspection. He also noted in his conversations with Mr. Hernandez that the equipment necessary to provide fall protection was not on the premises but was at a different location on the day of the inspection. The Respondent has not claimed infeasibility or provided proof or documentation that an alternative personal fall protective system was in place. Therefore, the Secretary's undisputed evidence established all the elements necessary for a prima facie violation of 29 C.F.R. 1926.501(b)(13). In regards to Citation 1, Item 3, the Secretary alleges a violation of that -- of Section 29 C.F.R. 1926.1053(b)(1) by indicating that portable ladders were not used for access to an upper landing surface and the ladder side rails did not extend at least 3 feet above the upper landing surface to which the ladder was used to gain access. Specifically, that regulation requires when portable ladders are used for access to an upper landing surface, the ladder side rails shall extend at least 3 feet above the upper landing surface to which the ladder is used to gain access. Or, when such an extension is not possible because of a ladder's length, then the ladder shall be secured at its top to a rigid support that will not deflect in a grasping device, such as a grab rail, shall be provided to and assist employees in mounting and dismounting the ladder. In no case shall the extension be such that the ladder deflection under a load would, by itself, cause the ladder to slip off of its support. The testimony indicated that the compliance officer observed and assessed that portable ladders were being used for access to the upper landing surface. One of the exhibits of the Secretary indicates that an employee was actually climbing either up or down the ladder on the day of the inspection. Also, the compliance officer testified that the ladder side rails did not extend at least 3 feet above the upper landing. He indicated, based upon his visual inspection and also Exhibit C-1 and C-2, that the ladder did not extend at least 3 feet simply because each rung on the ladder is approximately 14 inches and there is no documentation in the record which indicates that at least two steps are visible in the photographs which would indicate that the ladder was in excess of 3 feet above the upper landing surface. Also, it was observed that there were two employees on the roof so, therefore, they would have used the ladder to gain access to and also to get down from the roof. So, therefore, the Secretary's undisputed evidence established all of the elements necessary for a prima facie violation of 29 C.F.R. Section 1926.105(b)(1). The activity engaged in could undoubtedly result in serious injury or death. As alternative findings, the Court will find, A, pursuant to Commission Rule 64, the failure of the party to appear at the hearing may result in a decision -- in a decision against the party at the hearing; B, the Court finds that the respondent had notice of the time, date, and place of the hearing both from written orders and notices issued which had not been returned as undeliverable by the Postal Service and from the Respondent's participation in the pretrial conference in which the trial was set and, also, based upon a conversation that he had with Mr. Green approximately one week before the trial; C, attempts by the Secretary of Labor as set forth in these proceedings indicate that the Respondent has not returned phone calls or responded to communications from the Secretary of Labor. There is no indication that the Respondent has not received the notices and orders of this Court or the written communications from the Secretary of Labor as such no -- as no such orders, notices, or communications have been returned as undeliverable. And, D, the Respondent has failed to appear and to proceed pursuant to an order of the Court without good cause being established. The Court deems that the Respondent has abandoned its position and is therefore in default; E, Therefore, in accordance with Commission Rule 64 and 101, the Court finds the Respondent's failure to appear at the hearing justifies vacating the Respondent's notice of contest and affirming the proposed citations as issued. /Philadelphia Construction Equipment, Inc./, 16 BNA OSHC 1128, 1993 CCH OSHD Page 30,051 (No. 92-0899, 1993). The Respondent is therefore declared in default. Therefore, the notice of contest is dismissed and the following citations are affirmed. Section 17(j) of the Act requires the Commission to give due consideration to four criteria when assessing penalties: 1, the size of the employer's business; 2, the gravity of the violation; 3, the good faith of the employer; and 4, the employer's prior history of violations. 29 USC 666(j) gravity is the primary consideration and is determined by the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood of an actual injury. /J.A. Jones Construction Co./, 15 BNA OSHC 2201, 1993 CCH OSHD Page 29,964 (No. 87-2059, 1993). Based upon the Secretary's undisputed evidence, the Court finds the proposed penalties for each violation are appropriate. Based upon the above findings of fact and conclusions of law, it is ordered that Citation 1, Item 1, is affirmed and a penalty of $1,500 is assessed. Citation 1, Item 2, is affirmed and a penalty of $1,500 is assessed. Citation 1, Item 3, is affirmed and a penalty of $1,500 is assessed. The time is now 9:46 a.m. and the Respondent has not appeared at any time during these proceedings. The Court directs that the foregoing constitutes its findings of fact and conclusions of law and its decision and order in this case. The Court directs the court reporter to submit an official certified transcript of this proceeding, which will serve as the decision and order of the Judge pursuant to Commission Rules 90(a) and Sections 209(f). It is so ordered. The Court is adjourned. 3/15/2010 /s/ Date HONORABLE PATRICK B. AUGUSTINE Judge, OSHRC