UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 76-944

BILL TURPIN PAINTING CO., INC.,

 

                                              Respondent.

 

 

June 9, 1977

DECISION

Before: BARNAKO, Chairman; and CLEARY, Commissioner.

BY THE COMMISSION:

            A decision of Review Commission Judge Dee C. Blythe, dated November 22, 1976, is before this Commission for review pursuant to 29 U.S.C. § 661(i). That decision affirmed a citation which alleged that the respondent failed to comply with 29 C.F.R. § 1926.28(a) in that two of its employees were not wearing safety belts while working from a scaffold.

            In essence, the respondent contends on review that the citation should be vacated because the failure of its employees to wear safety belts constituted an isolated incident which was in contravention of company policy. Judge Blythe correctly rejected this contention after an adequate discussion thereof.

            Having examined the record in its entirety, the Commission finds that the Judge properly decided the case and adopts his decision.

            Accordingly, the Judge’s decision is hereby affirmed.

 

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: JUN 9, 1977

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 76-944

BILL TURPIN PAINTING CO., INC.,

 

                                              Respondent.

 

 

November 22, 1976

DECISION AND ORDER

APPEARANCES:

U. Sidney Cornelius, Jr., Esq., of Dallas, Texas, for Complainant.

Bill Turpin, of Little Rock, Arkansas, for Respondent.

STATEMENT OF THE CASE

Blythe, J.

            This is a proceeding brought before the Occupational Safety and Health Review Commission (‘the Commission’) pursuant to § 10 of the Occupational Safety and Health Administration of 1970, 29 U.S.C. § 651 et seq. (‘the Act’), contesting a citation issued by the complainant, the Secretary of Labor (‘the Secretary’), to the respondent Bill Turpin Painting Co., Inc., under the authority vested in the Secretary by § 9(a) of the Act. As the result of an inspection conducted on February 10, 1976, by the Secretary’s compliance officer of a workplace at 710 Scott Street, Little Rock, Arkansas, where respondent was engaged as a painting contractor in repainting an existing building, two citations were issued to respondent on February 26, 1976, alleging nonserious and serious violations of § 5(a)(2) of the Act by respondent’s failing to comply with 29 CFR Part 1926 §§ 451(i)(11) and 28(a). A penalty of $500 was proposed for the serious citation (§ 1926.28(a)); no penalty was proposed for the nonserious citation, which was not contested.

            By letter dated March 1, 1976, respondent contested the penalty for citation 2. There is an issue as to whether is also contested the violation alleged in citation 2. Citation 1 has become a final order of the Commission by operation of § 10(a) of the Act. The Secretary filed a complaint with the Commission to enforce the penalty proposed for citation 2, and the respondent in its answer contended that the violation as well as the penalty was at issue.

JURISDICTION AND VENUE

            Respondent has admitted facts sufficient to establish jurisdiction. The issues remaining to be determined are:

            1. Whether the respondent has contested the violation alleged in item 1 of citation 2 as well as the penalty proposed therefor.

            2. Whether the respondent was in serious violation of 29 CFR 1926.28(a) by failing to make reasonable efforts to enforce its safety rules regarding use of safety belts.

DISCUSSION AND OPINION

            1. The Notice of Contest issue.

            In its notice of contest, respondent said in part:

We would like to exercise our right to contest the penalty for Citation No. 2 (REF: Violation of 29 CFR 1926.28(a). Although the employees were not wearing the protective equipment in question, it was provided. Strict instructions were given to all workers concerning its use.

 

Please acknowledge this request and inform me of the proper procedure to follow in this matter.

 

            In answering the complaint, respondent stated in part:

We maintain our position of disagreement with the penalty and allegations of Violation 29 CFR 1926.28(a).

 

The required safety equipment was provided. All employees were specifically instructed in the avoidance of unsafe conditions, as required and defined under employer responsibilities.

 

Therefore, we contend that all necessary and possible precautions, within the abilities of this employer, were taken.

 

            The Secretary would give effect only to the first sentence quoted above from the notice of contest. However, the remainder certainly indicates disagreement with the citation itself. The answer restates this position and clearly states that it disagreed ‘with the penalty and the allegations of violation [of] 29 CFR 1926.28(a).’

            At all times, including the hearing, the respondent was represented by its president, not professional counsel. In such situations the Commission consistently has sought to give a respondent his day in court if, by any pleading subsequent to the notice of contest, the respondent indicates an intention to contest the violation as well as the penalty. Secretary v. William W. Turnbull, dba Turnbull Millwork Co., No. 7413, 1975–1976 CCH OSHD ¶ 20,221. Here the respondent consistently indicated disagreement with the violation as well as the penalty. Additionally, in the notice of contest it requested advice on ‘the proper procedures to follow in this matter,’ and in view of its obvious disagreement with the violation allegations this should have elicited further information from the Secretary as to what was necessary to contest the violation as well as the penalty. When the notice of contest was received by the Secretary on March 3, 1976, respondent under § 10(b) of the Act still had 18 calendar days in which to give notice of contest (15 working days after its receipt of the citation on February 27).

            Under the circumstances here present, it would be manifestly unjust to limit the contest to the penalty only.

            2. The alleged safety belt violation.

            Item 1 of serious citation 2 alleges:

Employee was not wearing or utilizing appropriate personal protective equipment in an area where there was an exposure to hazardous conditions; i.e., two employees on two point suspension (swing scaffold) at height of 28 feet above ground were not wearing safety belts with lanyards.

 

            The standard at 29 CFR 1926.28(a) provides:

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.

 

            Respondent’s answer (p. 3, supra) apparently seeks to raise the affirmative defense of what is commonly called ‘isolated incident,’ that is, that the employees involved violated respondent’s safety rules.

            The undisputed evidence shows (Tr. 16, 17, 23, 31–36), and respondent concedes (Tr. 24, 39, 51) that at the time of the inspection two of respondent’s employees on a two-point suspension scaffold 28 feet above ground were not wearing safety belts, although they had been provided by respondent with safety belts, which were on the scaffold and attached to lifelines.           There is a conflict of evidence, however, regarding efforts made by respondent to induce its employees to wear safety belts under such circumstances.

            Bill Turpin, respondent’s president, testified:

[W]e furnish the equipment, instruct them to wear it and periodically try to police it . . . I assure you . . . that if we’d caught the man without the belt, he would have put the belt on or been fired. (Tr. 51, 52).

            On cross examination, Turpin said that he did not give any safety instructions ‘on this job’ to the two employees here involved and that the employees were not discharged after the inspection disclosed their failure to wear the belts (Tr. 52).

            Respondent’s superintendent, Lloyd Whitaker, testified that the two employees (Arthur Winston and Casey Henderson) were given their safety belts every morning with their tools (Tr. 40); that he had four crews working at various points around the building (Tr. 42); that he could watch Winston and Henderson from where he was working 50 feet away and was sure Winston and Henderson wore their safety belts until ‘first break time’ at 9:30 or 10:00 a.m. (Tr. 41, 43, 46), when he left the job for about 45 minutes (Tr. 42); that while he was gone he had another painter, Dave Sumpter, watch ‘the boys’; that the day before the inspection he told Henderson and Winston, ‘You’re going to get us run off if you don’t put your safety belts on’ (Tr. 43); and that Winston had worked only three days at the time of the inspection (Tr. 40).

            Winston, called as a witness by the Secretary, testified that the wearing of a safety belt was ‘just left up to me’ (Tr. 34); that he was not told that day to wear a belt (Tr. 35); that he would have obeyed if he had been so ordered (Tr. 34); that he had never attended a safety meeting before the inspection (Tr. 35); and that he and Henderson started to work about 8:15 a.m. that day (Tr. 36).

            Compliance Officer Howard B. Watkins testified that he looked out his own office window and observed respondent’s employees on the scaffold without safety belts (Tr. 16); that after securing authorization from his supervisor to make the inspection he went to the site and found two employees still on the scaffold and not wearing their safety belts (Tr. 17) and he observed them there for about 45 minutes (Tr. 25); that when he asked the two employees why he didn’t wear a safety belt one of them said, ‘Well, they just get in the way’ (Tr. 32); that there was no response when he told the two employees to put on their safety belts, but they donned them when so ordered by Sumpter, a lead man who was respondent’s representative on the walkaround (Tr. 55); that the situation required the use of safety belts1[1] (Tr. 26); and that death or serious injury probably would have resulted if the two employees had fallen 28 feet (Tr. 25).

            The elements of the ‘isolated incident’ defense are set forth in Secretary v. The Weatherhead Co., No. 8862, June 10, 1976, CCH OSHD ¶20,784:

‘The existence of an ‘isolated incident,’ or perhaps more accurately an unpreventable occurrence, is an affirmative defense wherein the employer bears the burden of proving that the actions constituting non-compliance with the standard were: (a) unknown to the employer and (b) contrary to both the employer’s instructions and a company work rule which the employer had uniformly enforced.’ (citations omitted.)

 

            Here the respondent supplied safety belts and apparently had a work rule requiring their use in such situations. The questions are whether the rule was communicated to the employees and whether it was uniformly enforced.

            One of the employees, Winston, had been on the job only three days; how many days the other, Henderson, had worked there was not established. Winston said that he was not told that day to wear a safety belt; he didn’t say he was never so instructed, but he had never attended a safety meeting on that job. He said he would have obeyed an order to wear a safety belt for fear of losing his job. His testimony is more convincing than that of Superintendent Whitaker, who had a motive to cover up his own lack of supervision. Whitaker’s testimony that the employees wore safety belts from the time they went to work (8:15 a.m.) until ‘break time’ (9:30 or 10:00 a.m.) is unbelievable in view of the compliance officer’s observation of the men without safety belts for 45 minutes during this period. Further, there is no evidence that the employees were disciplined for their infraction of the rule. The conclusion is inescapable that the work rule was not uniformly enforced.

            Respondent is a mall employer, having 13 employees (8 on the job site during the inspection) (Tr. 37). It grossed $305,000 in business the fiscal year ended November 10, 1975 (Tr. 37). It had been inspected once previously and had been found in compliance (Tr. 28). It cooperated in the inspection here involved (Tr. 26). It had a minimal safety program which consisted mainly of passing out safety information from time to time and instructing employees on how to use safety equipment (Tr. 27). The gravity of the offense was fairly high, since two employees were exposed to a 28-foot fall for at least 45 minutes. Considering all the criteria prescribed by § 17(j) of the Act, I find the proposed penalty of $500 inappropriate and that a penalty of $300 is appropriate.

FINDINGS OF FACT

            1. The respondent, Bill Turpin Painting Co., Inc., is an Arkansas corporation engaged in the business of a painting contractor in Arkansas and other states, using materials from sources outside Arkansas and making and receiving telephone calls across state lines. It is an employer engaged in a business affecting commerce which has employees.

            2. On February 10, 1976, respondent was engaged in repainting an existing building at 710 Scott Street, Little Rock, Arkansas, when said workplace was inspected by a duly authorized compliance officer of the Occupational Safety and Health Administration. Two of respondent’s employees were working from a swinging, two-point suspension scaffold which was not equipped with standard guardrails on the open side and ends. The employees were supplied by respondent with safety belts which were attached to lifelines secured to independent suspension points on the roof, but they were not wearing the safety belts. The employees were exposed to a fall of 28 feet from which death or serious physical harm could result. Respondent knew or in the exercise of reasonable diligence could have known of this hazard.

            3. Respondent had a work rule requiring the wearing of safety belts under such conditions, but this work rule was not uniformly enforced.

            4. The proposed penalty of $500 is inappropriate under the criteria prescribed by § 17(j) of the Act. A penalty of $300 is appropriate.

CONCLUSIONS OF LAW

            1. The Commission has jurisdiction of the parties and of the subject matter of this proceeding.

            2. Respondent’s notice of contest, considered together with its answer to the complaint, contests both the violation alleged in item 1 of citation 2 and the penalty proposed therefor.

            3. On February 10, 1976, respondent was in serious violation of 29 CFR 1926.28(a).

ORDER

            On the basis of the foregoing findings of fact and conclusions of law, it is ORDERED that:

            1. Complainant’s motion to affirm the violation alleged in item 1 of citation 1, issued to respondent on February 26, 1976, be and it hereby is denied.

            2. Item 1 of citation 1 for serious violation of 29 CFR 1926.28(a) be and it hereby is affirmed and that a penalty of $300 be and it hereby is assessed.

 

DEE C. BLYTHE

Administrative Law Judge

Date: November 22, 1976


[1] Item 1 of citation 1, which respondent did not contest, alleged that the scaffold did not have a standard guardrail on the open side and ends.