JOHN J. GORDON COMPANY
OSHRC Docket No. 25
Occupational Safety and Health Review Commission
March 16, 1973
Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners
OPINIONBY: MORAN
OPINION:
MORAN, CHAIRMAN: On May 2, 1972, Review Commission Judge David H. Harris issued a decision in this case holding that Respondent was in violation of Section 5(a)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act) because its employees worked on an improperly rigged scaffold. He assessed a penalty of $750.00. Thereafter, pursuant to Section 12(j) of the Act, I directed that the decision be reviewed by the Commission.
After a review of the record of this case and the briefs submitted by the parties, the Commission finds that the Judge erred in holding the Respondent in violation of the Act.
This case was commenced by the Secretary of Labor on August 12, 1971, with the issuance of two citations. These were subsequently consolidated into a single citation by the Judge who held that the allegations, in effect, charged only one violation: failure to comply with Section 5(a)(1) by virtue of using an improperly rigged scaffold.
The hearing began October 12, 1971. It was not finished that day, but was reconvened and completed October 21, 1971. During the course of this hearing, it was stipulated that Respondent was at all relevant times a corporation incorporated under the laws of the State of New York. Its principal office was at 220 Broadway Buffalo, New York, and it was at the time of the alleged violation engaged in the business of sand blasting, painting, masonry work, window cleaning and the furnishing of janitorial services in and upon industrial and commercial buildings wholly within the State of New York.
It was further stipulated, and the evidence shows that on August 6, 1971, two employees of the Respondent were engaged in painting a building located at 721 Seneca Street, Buffalo, New York. While the employees were working from a scaffold thirty feet above the ground, it fell resulting in the death of one employee and serious injury to the other. Just prior to the fall, the scaffold had been suspended from two wooden outrigger beams. It was rigged without safety belts, life lines, a midrail or toe board.
On October 21, 1971, after both parties had been given full opportunity to introduce evidence and argue their case, the Judge concluded the hearing saying, "the record is now closed." At a later date, Respondent submitted proposed Findings of Fact and Conclusions of Law to the Judge in accordance with the Judge's instructions. They included inter alia, the following:
FINDINGS OF FACT
1. The employer John J. Gordon Company was not, at the time of the violations described in the citations, engaged in interstate commerce, nor in commerce as the same is defined in Section 3(3) of the Statute.
2. The employer John J. Gordon Company was not, at the time of the violations described in the citations, such an employer as is defined in Section 3(5) of the Statute, with reference to the term "commerce" as defined in Section 3(3) of the Statute.
3. The government failed to establish by proof sufficient to confer jurisdiction that the employer John J. Gordon Company was, at the time of the violations described in the citations, engaged in interstate commerce, or in commerce as the same is defined in Section 3(3) of the Statute; or was such an employer as is defined in Section 3(5) of the Statute, with reference to the term "commerce" as defined in Section 3(3) of the Statute.
CONCLUSIONS OF LAW
1. The Commission has no jurisdiction of the employer in respect of the violations described in the citations.
On January 19, 1972, three months after the close of the hearing, the Judge, on his own motion, ordered that the record be opened and further evidence relevant to the question of whether the Respondent was engaged in a business affecting commerce be received at a new hearing.
At this new hearing which took place on February 29, 1972, the record was reopened and evidence was taken which showed that the Respondent had performed under a number of personal service contracts over the past several years for various business firms, some of which had operations in more than one State. All of Respondent's services, however, were performed within the State of New York.
We do not decide whether complainant, as the result of the evidence adduced on February 29, has borne its burden of proof to show that Respondent was in a business affecting commerce for we hold that the reopening of the record for this purpose, under these circumstances, was improper. The evidence received at that time should not have been considered in deciding this case.
Complainant was given a full opportunity to prove his case against Respondent during the hearing which was concluded on October. He did not subsequently move to reopen the hearing. The Judge did so on his own motion after respondent raised the question of failure of the complainant to prove one essential element of the case. The action by the Judge case him in the role of assisting in establishing complainant's case. This is so contrary to the impartiality required of persons presiding at adversary proceedings as to amount to a denial of due process of law. It is an undue burden upon the Respondent to be faced with a new hearing each time the Judge discovers that the complainant failed to prove some essential element of its case. Failure to reject such a practice would lead to protracted legal proceedings, undue legal expense to all parties and could well encourage a lack of diligence on the part of complainant. This is a precedent which the Commission will not establish. The complainant's failure to prove during the October hearing that Respondent was an employer engaged in a business affecting commerce, as is required in the Act, is both jurisdictional and an element of the cause of action.
It is discretionary with an administrative tribunal whether to reopen the record after a trial-type hearing has been completed. Interstate Commerce Commission v. Jersey City, 322 U.S. 503, 64 S. Ct. 1129, 88 L. Ed. 1420 (1944); Kentucky Broadcasting Corp. v. Federal Communications Commission, 84 U.S. App. D.C. 383, 174 F. 2d 38 (1949). It is therefore within the discretion of the Commission whether to consider the evidence produced on February 29, 1972. For the reasons given herein, we decide not to consider it.
In addition to being contrary to basic principles of fairness and impartiality, the reopening of the case as it occurred here raises a serious public policy consideration involving expeditious disposition of alleged violations of this Act. This Commission is concerned that the practice of delaying final decisions by unwarranted rehearings should not be established. Justice Jackson noted in the Jersey City case cited above that indiscriminate rehearings lead to the undesirable result of delay in the decision-making process. The avoidance of delay is a primary objective in all judicial proceedings, but it should be of even greater importance when the case involves the interpretation and application of an Act with purposes such as those sought to be achieved by the enactment of this law.
Also pointing up problems resulting from such practices, Professor Davis comments thus in his treatise:
One of the supposed advantages of the administrative hearing processes is speedy disposition of controversies. But the unfortunate fact is that many administrative proceedings are slower than comparable judicial proceedings. Davis, C.D., Administrative Law Treatise, � 8.08 at 549 (1958).
Had there been newly discovered evidence in February, the existence of which could not reasonably be known to the complainant at the time of the October hearing, our ruling might have been different. All evidence adduced at the February hearing, however, was available and could have been produced at the October hearing. The action which occurred in this case denied the Respondent of the fair and impartial hearing he had a right to expect when he contested the Department of Labor's action against him and brought this case before the Commission.
It would only compound the error further to remand this case for a new hearing. The Commission finds that the only just disposition of this case is a reversal of the Judge's decision and the entry of an order dismissing complainant's action.
So ordered.
CONCURBY: VAN NAMEE
CONCUR:
VAN NAMEE, COMMISSIONER, concurring: I concur that Complainant's citations and proposed penalties should be vacated for failure of proof at the October hearing that Respondent is subject to the Act.
I similarly agree that it is discretionary with an administrative tribunal whether to reopen a hearing for the purpose of taking additional evidence concerning an element of the cause of action and that the Judge in the present case abused this discretion. However I do not believe that the second conclusion can be reached without first determining whether there are reasonable grounds why the subject evidence was not adduced at the October hearing.
Section 11(a) of the Act provides the applicable standard on appellate review of an order of the Commission with regard to reopening of a Commission hearing to adduce additional evidence. Section 11(a) specifies in pertinent part that the reviewing court shall have authority to order the Commission to reopen a hearing and take additional evidence if "any party . . . shall show to the satisfaction of the Court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the hearing before the Commission. . ."
I am of the opinion that the aforementioned standard is equally applicable in the instant matter. It provides an established and workable guideline which allows the Commission, in exercising its discretion, to afford substantial justice to all parties based on the facts and circumstances of each case. Indeed this standard has been consistently applied by reviewing courts when an administrative agency has exercised its discretion as to whether a hearing should be reopened. ICC v. Parker, 326 U.S. 60 (1945); Kentucky Broadcasting Corp., Inc. v. FCC, 174 F.2d 38 (D.C. Cir. 1949).
Accordingly I now turn to the facts and circumstances of this case to determine if reasonable grounds exist for the failure of the Complainant to adduce the evidence in question at the October hearing.
On September 14, 1971, the Judge sent a letter to the parties which read, in pertinent part, as follows:
Please be prepared, at the commencement of the hearing, to stipulate the admission of facts and documents about which there can be no reasonable dispute, including but not limited to the following:
. . . 2. Facts and circumstances which would indicate whether the respondent was engaged in a business affecting commerce at the time of the alleged violation.
At the October hearing the parties agreed to a stipulation that respondent "is engaged in sandblasting, painting, masonry, contracting, window cleaning and janitorial work on industrial and commercial buildings, and was so engaged at the time of the alleged violations." (Transcript at page 20).
Subsequently, the parties exchanged findings of fact and conclusions of law, the Complainant asserting that the stipulation established that Respondent was engaged in a business affecting commerce and the Respondent proposing a conclusion to the contrary. Nothing in the record indicates that counsel for either party misunderstood either the meaning of the Judge's prehearing directive or the substance of the stipulated facts. n1
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n1 Since this proceeding was initiated prior to the effective date of the Commission's Rules of Procedure, no Complaint and Answer were filed.
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I find that the stipulation entered into by the parties provided sufficient notice to Complainant that Respondent had not admitted it was subject to the Act. It was incumbent upon the Complainant to offer additional evidence on this essential element of its cause of action or be bound by the legal sufficiency of the stipulated facts. Complainant had ample opportunity throughout two days of hearings in October to carry its burden on this point through its own witnesses or through Respondent's witness, an officer of the corporation.
The only additional evidence presented on this issue were two passing references to a "Blue Cross Building" and a "Bethlehem Steel Plant." These references consisted of Complainant's witness, one of Respondent's employees, testifying on direct examination that he had previously seen life lines rigged on the Blue Cross Building on Main Street. Respondent's witness while testifying mentioned that when they worked on the Bethlehem Steel Plant and several plants on River Road they followed the company rules.
Complainant failed to obtain more detailed testimony on the relationship between Respondent and these companies. It had ample opportunity to do so during examination of its own witness, after the aforementioned statement, as well as on re-cross examination of Respondent's witness.
In view of the above, I conclude that the record reveals no reasonable grounds for the failure of Complainant to adduce additional evidence at the October hearing as to whether Respondent is subject to the Act. Therefore, the Judge's reopening of the hearing, sua sponte, which unquestionably prejudiced Respondent, was clearly an abuse of his discretionary powers.
Accordingly, I agree with my colleague Chairman Moran that the question of whether Respondent is subject to the Act must be determined on the basis of the record established at the October hearing.
Complainant contends in its brief upon review, inter alia, that Respondent is subject to the Act since it engages in an activity which is included within a class of activities which Congress intended to regulate because the class affects commerce. Primary reliance is placed upon Perez v. United States, 402 U.S. 146 (1971).
Perez involved a provision of Title II of the Consumer Credit Protection Act (18 U.S.C. 891 et. seq. ) that extortionate credit transactions "directly affect" interstate and foreign commerce. However, the statute also explicitly defined the term "extortionate extension of credit." n2 Consequently the Court held that, "Petitioner is clearly a member of the class which engages in 'extortionate credit transactions' as defined by Congress and the description of that class has the required definiteness" (402 U.S. at 153).
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n2 "An extortionate extension of credit is any extension of credit with respect to which it is the understanding . . . that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means . . ." 18 U.S.C. 891(6).
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On the other hand, Section 2 of the Occupational Health and Safety Act provides that:
The Congress finds that personal injuries and illnesses airsing out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments.
Under this statute, it is apparent that Congress has not delineated "work situations" as a specific, defined class of activity so as to meet the criteria of Perez. Indeed, Section 3(5) of the Act requires that the interstate character of any employer be proven on an individual, ad hoc basis: "The term 'employer' means a person engaged in a business affecting commerce who has employees." Since the nature of a particular employer's business must be examined, it is clear that Congress did not intend a finding that Respondent is subject to the act to be based upon "class" membership conferred by operation of law.
In the alternative, Complainant contends that where a Respondent has dealings with a company which has extensive activities in interstate commerce, the Respondent affects commerce within the meaning of Section 3(5) of the Act. Complainant cites N.L.R.B. v. Vulcan Forging Co., 188 F.2d 927 (6th Cir. 1951) and Butler Bros. v. N.L.R.B., 134 F.2d 981 (7th Cir. 1943) in support of its position.
Vulcan Forging did hold that an employer may be subject to the National Labor Relations Act, although not himself engaged in interstate commerce, in the aforementioned factual situation. Both the Board and the Sixth Circuit Court of Appeals took judicial notice of the fact that Ford Motor Company carries on extensive activities with regard to its products in interstate commerce.
However, Vulcan Forging involved a stipulation that the company bought its single raw material from Ford Motor Company and sold its entire finished product to the Ford Motor Company. Similarly Butler involved a detailed evidentiary record of the relationship between the two companies involved in that case.
These cases teach that a condition precedent to the application of the aforementioned principle is a complete evidentiary record concerning the specific relationship between the companies involved. In the instant case this relationship would have to be established between the Respondent, John J. Gordon Co., Inc., and the subject "Blue Cross Building," or "Bethlehem Steel Plant." As noted above, the record of the October hearing is silent as to what relationship, if any, existed with these establishments.
Therefore I cannnot conclude that Respondent performed services for companies engaged in interstate commerce so as to be subject to the Act. In addition I find no other basis in the record of the October hearing to conclude that Respondent is engaged in a business affecting commerce. Accordingly, I am in agreement with Chairman Moran's disposition of this case.
However, I do not agree with my colleague Chairman Moran's characterization of the trial Judge's actions as assisting Complainant in the proof of its case so as to deny Respondent due process of law.
Such criticism is inappropriate in this case when one reviews the entire record. It indicates that Judge Harris conducted a fair and impartial hearing in one of the first proceedings to be fully litigated under the Act. The reopening of the case, sua sponte, was of course improper and a greater abuse of discretion than if it had been in response to a proper motion after all parties had an opportunity to be heard. Nevertheless, I am of the opinion that the trial Judge's actions should only be characterized as an abuse of discretion constituting reversible error and nothing more. I therefore do not join in the aforementioned criticism of his actions.
DISSENTBY: BURCH
DISSENT:
BURCH, COMMISSIONER, dissenting: I cannot agree with my colleagues that this Commission and its Judges should close its eyes to evidence before it. To hold, as the majority does, that "the reopening of the record for this purpose, under these circumstances was improper" is not only to limit our vision, but also to misconstrue the role of this Commission in the enforcement of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., hereinafter referred to as "the Act").
The primary issue before us is whether evidence adduced at the February hearing should be considered in the determination as to whether respondent was engaged in a business affecting commerce. I am greatly disturbed that the majority appears to say that where the Secretary's case lacks an essential element of proof n3 it is subject to dismissal even though the omission is discovered prior to the issuance of the Judge's report. The basic administrative principle that once a case is assigned to a Judge, he retains (in the absence of extraordinary circumstances) jurisdiction until such time as he issues his report, is recognized by our own Rules of Procedure. Commission rule 90(b). Further, the Commission's Rules place upon the Judge the duty to ". . . assure that the facts are fully elicited. . .," Commission Rule 66, and grant him the authority to, inter alia, ". . . order hearings reopened. . . ." Commission Rule 66(h). Even though this case arose under the Commission's Interim Rules, the Rules of Procedure cited herein were adopted after considerable consultation among the Commissioners and the solicitation of opinions by those affected. The present Rules make explicit what was implicit in the interim rules.
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n3 While the majority opinion declares the evidence adduced at the February hearing to be inadmissible, it blithely and without discussion concludes in one phrase that the complainant at the October hearing failed to prove that respondent was an employer within the meaning of the Act. It is distressing to note that such short shrift is given the issue in spite of an excellent and persuasive brief to the contrary submitted by the Secretary. For it is this undiscussed legal conclusion upon which the dismissal of the citations must ultimately rest.
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I find the majority's assertion that due process has been denied respondent unacceptable. The essence of due process in administrative proceedings is to afford the parties an opportunity to be heard on justiciable issues. In the instant case respondent was apprised of the issues on which evidence was to be taken at the February hearing, it prepared for the hearing and filed a post-hearing brief on the issue.
Further, although it had the opportunity to do so, respondent did not assert or attempt to demonstrate that reopening the record resulted in prejudice to it. Clearly, upon these facts, respondent was not denied its day in court. To dismiss the citations because the Judge, while retaining jurisdiction over the case, reopened the hearing sua sponte to adduce further evidence is to subscribe to a "game theory" of administrative adjudication.
I find the majority opinion is based, at least in part on an incorrect statement of the facts and is internally inconsistent. That opinion states, "He [complainant] did not subsequently move to reopen the hearing." The record demonstrates otherwise. Complainant requested just such relief in writing which was mailed to the Judge prior to the issuance of his order. It is ironic that the request for reopening the record and the order to that end crossed in the mails. The majority decision argues that to reopen a hearing upon a sua sponte order by the Judge is a denial of due process while stating that to do so is within the discretion of the Commission. Can we thus exercise our discretion to deny a party due process?
I cannot subscribe to the conclusion that because reopening the record is discretionary the Commission has the discretion ". . . whether to consider the evidence produced [at the later hearing]." It is our duty to consider the record as a whole and the fact that part of the record was produced at a discretionary rehearing does not allow us the option to ignore evidence which is relevant and material. Finally, I consider the position taken in the majority opinion regarding delay due to reopening the record to be specious. The same rationale might be applied to any case which the Commission orders remanded. The Commission has, in the past, acceded to such dispositions.
As an administrative agency charged with adjudicating a law whose purpose is to protect all working men and women we cannot avoid our role in achieving that purpose. To join in the majority opinion would be to retreat to some presumed judicial sanctuary, ignoring our duty to represent the public interest. I will not join in such evasion.
I would affirm the Judge's proposed decision and order as substantial evidence adduced at the hearings demonstrates that respondent is an employer within the meaning of the Act, that the violations existed as alleged, and that the penalty proposed to be assessed therein is not inappropriate.
[The Judge's decision referred to herein follows]
HARRIS, JUDGE, OSAHRC: This is an action under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. (hereinafter the Act), to review two citations issued by the Secretary of Labor (hereinafter Secretary) pursuant to Section 9(a) of the Act and a proposed assessment of penalty thereon issued pursuant to Section 10(a) of the Act.
Citation Number 1 (P-1), issued on August 12, 1971, alleges that John J. Gordon Company, Inc., the employer, (hereinafter Gordon), in a workplace under its ownership, operation or control, namely, a two-point suspension swinging scaffold on a building at 721 Seneca Street, Buffalo, New York, violated Section 5(a)(1) of the Act. Under the column headed "Description of alleged violation" appears the following statement, "There was no intermediate rail nor toe board on the two-point suspension scaffold as called for in the Standards."
Citation Number 2 (P-2) issued on the same day, alleges that Gordon violated Section 5(a)(1) of the Act in that, on the same scaffold, "the workmen on the scaffold (2) were not protected by a safety life belt attached to a safety belt as called for in the standards. The life line shall be securely attached to substantial members of the structure (not scaffold) or to securely rigged lines which will safely suspend the employees in case of a fall."
Each citation alleges that the violation charged is a serious violation within the meaning of Section 17(k) of the Act and requires immediate abatement thereof.
A "Notification of Proposed Penalty" (P-3), issued on the same date, August 12, 1971, proposed assessment of a penalty in the sum of $650 against Gordon. Also, on the same date, August 12, 1971 an amended "Notification of Proposed Penalty" was issued (P-4) which proposes a penalty of $650 each on Citation Number 1 and Citation Number 2 (P-1 and P-2).
Gordon filed a Notice of Contest dated August 10, 1971 (P-5) by which it contested both citations and the proposed penalties.
The within matter was referred to the Occupational Safety and Health Review Commission for hearing pursuant to Section 10(c) of the Act on August 30, 1971, and on September 13, 1971, the undersigned was appointed and the within matter assigned to him for hearing pursuant to Section 12(e) of the Act.
Pursuant to notice and by agreement of the parties, a prehearing conference and the hearing were held on October 12 and 21, 1971, in Buffalo, New York.
Thereafter and for the reasons expressed in an order dated January 19, 1971, and issued sua sponte by the undersigned, additional testimony and documentary evidence was received on February 29, 1972, in Buffalo, New York, relevant to the issue of whether or not the Respondent was engaged in a business affecting commerce within the meaning of Section 3 of the Act.
Gordon acknowledged that it received the citations (P-1 and P-2) and the Notifications of Proposed Penalty (P-3 and P-4) and it was stipulated that the same were posted on the bulletin board in Gordon's office together with the notice of the time and place of the hearing from the date of their receipt by Gordon until at least October 12, 1971 (Tr. 21).
The recognized bargaining agent of Gordon's employees, Local 43, International Union of Painters and Paperhangers, did not appear (Tr. 10).
Two affected employees of Gordon were given leave to participate in the proceedings and to be represented by their attorneys (Tr. 11).
It was also stipulated by the parties (Tr. 18; 23) as follows: the correct name of the Respondent is John J. Gordon Company, Inc. and it is a corporation organized under the laws of the State of New York with its office at 220 Broadway, in Buffalo, New York (Tr. 19-20); that Gordon is engaged in the business of sandblasting, painting, masonry work, window cleaning and the furnishing of janitorial services in and on industrial and commercial buildings and was so engaged at the time of the alleged violations (Tr. 20); that Gordon owns and controls the scaffolding and all other equipment referred to in the citations herein (Tr. 20); that at 10:15 a.m. on August 6, 1971, at 721 Seneca Street, Buffalo, New York, the west end of a scaffold holding two of Gordon's employees fell and the said employees fell 30 feet to the ground as a result of which one employee was killed and the other seriously injured (Tr. 19; 22-23; P-6); that Gordon is a company of medium size with an approximate net worth of $75,000 to $100,000 and employed an average of 35 employees daily during 1971 (Tr. 20); that between 5 and 8 years ago Gordon was cited for failure to install toe boards on scaffolding and that no fine was imposed therefor (Tr. 20-21); that John J. Gordon, Jr. is President of Gordon, Clifford Anderson is its estimator who, among other things is responsible for setting up all of Gordon's equipment to be used on a job, and Michael J. Coleman is Gordon's foreman and supervised the employees at the above mentioned job site; that the contents of a report by the Erie County Medical Examiner are true (P-6) and that the authenticity of the documents proposed to be introduced in evidence by the Secretary is admitted (Tr. 22).
It was also stipulated that the scaffold involved herein did not have a horizontal mid-rail; that no tie-back lines were available; that the scaffold was not anchored by being tied back; that no life lines were rigged although they were available on the job site; and that no safety belts were in use or available on the job site, at the time of the accident herein (Tr. 25-26).
After hearing the testimony of the witnesses and having considered the same together with the exhibits and the stipulations, representations and admissions of the parties, it is concluded that the substantial evidence, on the record considered as a whole, supports the following findings of fact.
FINDINGS OF FACT
1. Gordon, at all of the times involved in this matter, owned and controlled the scaffold and equipment in use by its employees at the job site at 721 Seneca Street in Buffalo, New York.
2. Gordon was duly notified of the charges herein pursuant to Section 9(a) of the Act by proper service of the Citations for Serious Violation (P-1 and P-2) and further, pursuant to Section 10(a) of the Act was notified of the proposed penalty by service of a Notification of Proposed Penalty (P-3) and the amendment thereof (P-4).
3. Gordon timely noted its intention to contest the violation alleged in the said Citations and the penalties proposed to be assessed in the said amended Notification of Proposed Penalty (P-5).
4. Two of the affected employees of the Respondent appeared at the hearing of this matter through their attorneys and participated as parties to the proceedings until their voluntary withdrawal therefrom (Tr. 93).
5. Gordon, in accordance with and in the manner prescribed by the provisions of the Act, posted copies of the said Citations and Notifications of Proposed Penalty for the period specified by the Act.
6. Gordon is a "medium" size company which during 1971 employed an average of 35 employees per day. It had a net worth of approximately $75,000 to $100,000 (Tr. 20-21). It is organized as a corporation under the laws of the State of New York with its offices in Buffalo, New York.
7. For the past 51 years (Tr. 19; 20; 183) and at all times herein mentioned Gordon has been engaged in the business of sandblasting; interior and exterior painting; masonry work, including pointing and repairing brickwork; window cleaning and providing janitorial services in and upon industrial and commercial buildings (Tr. 20; 215; 227; 240-241; 246; 247; 251; 278).
8. During the year 1971 Gordon entered into written maintenance and service contracts under the terms of which its employees performed brick pointing, brick repair, interior renovation of rest room areas, painting upon machinery, painting of interior sales and conference rooms, exterior painting, exterior weatherproofing, window cleaning and general maintenance work in and upon industrial and office buildings owned or occupied by McDonald Products Corporation, a division of Insilco Corporation; Hydraulics Division of Houdaille Industries, Inc.; Chevrolet Motor Division of General Motors Corporation; Dunlap Tire and Rubber Company, and by Blue Cross of Western New York, among others, all of which are corporate organizations engaged in the production of goods and products or services all of which are in and for interstate commerce (Tr. 171; 188; 215-219; 222-227; 229-241; 244-246; 248-251; 253; 256-257; 263-264; 279; 287; P-15; P16A-I; P18; P-19 A-E; P-20).
9. On August 6, 1971, pursuant to a written contract between Gordon and McDonald Products Corporation (P-15) two of Gordon's employees were engaged in painting an exterior wall of a building at 721 Seneca Street in Buffalo, New York. At approximately 10:00 a.m. the west end of their scaffold fell and both employees fell approximately 30 feet to the ground as a result of which one was killed and the other seriously injured (Tr. 20; 22; 23; 25; 114-116; 124-126; 167).
10. The scaffold upon which said employees were suspended had been rigged the day prior to the accident by one of Gordon's foremen (Tr. 129) who was present on the job site when the scaffold fell (Tr. 124). The scaffold was of the swing bed type, 22 feet long, suspended by two block and falls from two outriggers, also called lookouts, which are 4X4X16 pieces of lumber located at the top of the building (Tr. 123; 125).
11. The said scaffold was not anchored by being tied back with tie back lines (Tr. 25; 97-98; 105), was not provided with a mid-rail (Tr. 25; 118; 128; 175) nor with a toe board (Tr. 118; 128; 130; 174) and was not rigged with life lines nor were the employees thereon provided with safety belts by Gordon (Tr. 25-26; 129; 130; 170).
12. The said scaffold fell in the manner in which it did because one of the outriggers or lookouts had broken (Tr. 125-126).
13. The said scaffold was not provided with a toe-board, or mid-rail nor had lifelines been rigged, safety belts provided and the outriggers tied back on August 10, 1971. However, Gordon did abate the conditions described in the citations herein on August 12, 1971, the date upon which said citations were issued (Tr. 110-113).
14. A mid-rail is a piece of lumber either 1X6 or 2X4 inches extending horizontally along the outside length of the scaffold mid-way between the platform and the top rail (Tr. 59-60; P-7). The top rail, according to Occupational Safety and Health Standards is positioned 42 inches above the platform while the New York State Code requires that it be 36 inches above the platform (Tr. 61). The purpose of the mid-rail is to provide a barrier against falling between the top-rail and the platform (Tr. 60; 176).
15. A toe-board is a piece of lumber 1X4 or 1X6 inches (Tr. 58; P-7) fastened along the front of the working surface of the bed of the scaffold to provide a sure footing for the men on the scaffold and to prevent the kicking or falling of materials and tools therefrom (Tr. 58; P-7; P-14; p.19, at 10.5; P-176).
16. A life line is a line securely attached to the building independently of the scaffold and hung on the building so that a workman on the scaffold could grab the lifeline to prevent himself from falling in the event the scaffold fell or he lost his balance (Tr. 48-49; 173).
17. A safety belt is attached to a life line which is securely fastened to the building, independently of the scaffold, which will safely suspend a workman in the event of a fall (Tr. 85; 173; P-14, pp 19-20; at 10.9).
18. A tie back line is a rope, at least 5/8 inches in diameter, securing the scaffold to the building in such a manner as to support the scaffold in the event an outrigger or lookout should give way (Tr. 63; 73-74; P-14, p.19, at 10.4).
19. Standards for scaffolds were approved, as revised, on June 7, 1969 by the American National Standards Institute (P-14) and these standards are generally recognized and accepted as minimum safety standards by each affected industry or trade (Tr. 134; 158-159).
20. Part 23 of Title 12 of the official compilation of Codes, Rules and Regulations of the State of New York (R-2), requires that a handrail or backrail and a mid-rail and toe-board be provided on all two-point suspension scaffolds (12 NYCRR 23.16(d)).
21. Safety and Health Regulations for construction promulgated by the Secretary of Labor on April 17, 1971 pursuant to Section 6(a) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq. ), which were not effective as against Gordon at the time of the occurrence herein, require that tie-back lines, hand and mid-rail and toe boards be installed on all two-point suspension scaffolds (29 CFR 1518.451(i)(4), (8) and (11); R-1).
22. A two-point suspension scaffold, suspended more than six feet above the ground, which is not provided with a mid-rail, a toe-board and which does not have available for use by workmen required to work thereon, safety belts attached to life lines which are securely fastened to the building independently of the scaffold constituted a hazard which is generally and commonly recognized as such in the industry in which Gordon was engaged.
23. Gordon was familiar with the American National Standards Institute provisions affecting minimum safety standards for scaffolds (Tr. 188-189; 190-192).
24. Clifford Anderson, Gordon's estimator, who was responsible for the equipment issued to and used by Gordon's employees and who was responsible for instructing such employees in the use thereof (Tr. 22; 192) did not appear as a witness nor was his absence explained (Tr. 201).
25. Michael Coleman, Gordon's foreman who was responsible for the supervision and instruction of Gordon's employees on the job site herein did not appear as a witness and his absence was unexplained (Tr. 22).
26. No evidence appears of record that regularly occurring safety education and instruction for its employees in connection with safe procedures were furnished or required by the Respondent (Tr. 193).
27. No evidence was offered concerning a compact or agreement between the United States Government and the State of New York by the terms of which the State of New York is given the exclusive right to enforce safety and health regulations concerning working conditions (Tr. 8; 194).
28. Gordon's failure to require the installation of tie-back lines on the scaffold in question enhanced the gravity of the violation described herein to a substantial degree. See, Hodges v. Nacirema,
CONCLUSIONS OF LAW
1. At all times mentioned herein Gordon was and is an employer engaged in a business affecting commerce within the meaning of Section 3 of the Act and the Occupational Safety and Health Review Commission has jurisdiction of the parties and of the subject matter herein pursuant to Section 10(c) of the Act.
2. Section 5(a)(1) of the Act (29 U.S.C. 654(a)(1)), imposed a general duty requirement on Gordon. That requirement is that each employer "shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."
3. For the purpose of Section 5(a)(1), a hazard is "recognized" if it is a condition that is, (a) of common knowledge or general recognition in the particular industry in which it occurs, and (b) detectable, (1) by means of the senses (sight, smell, touch, and hearing), or (2) is of such wide, general recognition as a hazard in the industry that even if it is not detectable by means of the senses, there are generally known and accepted tests for its existence which should make its presence known to the employer (1970 U.S. Code Cong. and Adm. News at 5222-5223).
4. Gordon was cited under Section 9(a) of the Act (29 U.S.C. 659(a) for two separate violations of Section 5(a)(1) of the said Act (P-1 and P-2) and while it may well be that under other circumstances any one of the complained of acts of omission could support a finding that a violation of Section 5(a)(1) had occurred, under the circumstances of this case, the aggregate of the acts of omission herein combine to support a single violation of the Act limited to the condition of the scaffold herein and its equipment on the date of the occurrence herein described.
5. Gordon violated Section 5(a)(1) of the Act in that on or about August 6, 1971, at 721 Seneca Street, Buffalo, New York, it provided its employees employment and a place of employment which presented a recognized hazard that was likely to cause death or serious physical harm, to wit, a two-point suspension scaffold at an elevation in excess of 6 feet above the ground, which was not provided with a mid-rail, or a toe-board and that Gordon did not provide its employees upon said scaffold with safety belts attached to securely rigged life lines.
6. The said violation of Section 5(a)(1) of the Act constituted a serious violation of the Act within the meaning of Section 17(k) thereof.
7. Gordon knew or, with the exercise of reasonable diligence, could have known of the existence of the said conditions constituting the said violation.
8. Regulations promulgated by the Secretary governing the establishment and supervision of programs for the education and training of employers in the category of Gordon and of their employees, had not been made effective at the time of the occurrence herein.
9. The penalties proposed by the Secretary herein, to wit, $650 on citation number 1 and $650 on citation number 2 (P-4), are, under the circumstances herein, not appropriate.
ORDER
In view of the foregoing and having duly considered the gravity of the violation, the good faith of Gordon, its size, and its history of previous violations and good cause therefore appearing, it is
ORDERED, That:
1. Gordon's motion to dismiss the citations herein on the ground that a compact between the United States and the State of New York grants the latter exclusive right to enforce safety and health regulations governing conditions of employment be and the same is hereby dismissed.
2. The Secretary's motion for the direction of a verdict in his favor be and the same is hereby denied.
3. The allegations contained in citation number 1 and in citation number 2 (P-1 and P-2) be and they are hereby consolidated and that as consolidated they be and hereby are confirmed.
4. Gordon be and it is hereby assessed and required to pay a civil penalty in the sum of $750.