Docket No. 1049

AUTOMATIC ELEVATOR CORPORATION

OSHRC Docket No. 1049

Occupational Safety and Health Review Commission

July 20, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On February 13, 1973, Judge John J. Larkin issued his decision and order in this case, modifying the Secretary's citation for serious violation by ruling that it constitutes a non-serious violation and assessing a $100 penalty, and affirming the Secretary's citation for non-serious violation and vacating the proposed penalty.

On February 26, 1973, former Commissioner Burch directed that the decision be reviewed by the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as "the Act"), in order to determine whether section 17(k) of the Act was properly interpreted.

The Commission has considered the entire record and adopts the Judge's decision insofar as it is consistent with the following determination.

Respondent was cited for a serious violation of 29 CFR 1926.451(a)(4), (10) and (16) for providing nonconforming scaffolding in a third level elevator shaft without guardrails or overhead protection.

Judge Larkin has erroneously concluded that the violation is not serious within the meaning of section 17(k) of the Act. He misinterprets that section to require substantial probability that an accident occur as well as substantial probability that death or serious physical injury could result in for a violation to be serious. n1 The Commission has held that only the latter circumstance is relevant to the seriousness of a violation. The probability of an accident occurring (or of contracting a disease) is relevant only to the gravity of the violation and is considered in the process of assessing an appropriate penalty. See, Secretary of Labor v. Baltz Brothers Packing Company Secretary of Labor v. Standard Glass and Supply Company, Secretary of Labor v. Crescent Wharf and Warehouse Company, Secretary of Labor v. Natkin and Company, Mechanical Contractors,

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n1 Judge Larkin states, ". . . the question is not limited to whether the fall would seriously injure or kill, but must also include whether there was substantial probability of an accident as a result of the condition."

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In the instant case the violation, which involves the hazard of falling approximately 20 feet, was properly cited by the Secretary as being a serious violation, within the meaning of section 17(k) of the Act. In view of the limited exposure to the violation and the moderate probability of the occurrence of an accident, and in consideration of respondent's size, good faith and the absence of evidence regarding previous violations of safety and health regulations we assess a penalty of $100.

With respect to the non-serious violation, the Judge's decision is affirmed.

It is ORDERED that the Judge's decision be modified in accordance with this opinion, that the citations for serious and non-serious violations be affirmed and that respondent be assessed a penalty of $100.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: The Commission, by taking up cases of this nature, is wasting its time and energy on an academic exercise which will have no practical effect on the parties in this case or in any future cases.

From the standpoint of respondent, what is the difference between a serious and a nonserious violation? Both incur the possibility of civil penalties of identical scope. The maximum assessment of such a violation whether labeled "serious" or "nonserious" is $1,000, and neither requires any minimum. n2 The inconsequential effect of this decision upon complainant is demonstrated by his response to the direction for review:

. . . complainant . . . states that, while he does not agree with the judge's interpretation of section 17(k) of the Act, he does not wish to further litigate that issue in this case.

Therefore, complainant moves that the direction for review be revoked and that the judge's decision be allowed to stand as the final order of the Commission.

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n2 Although the statute's plain wording states that a penalty "shall be assessed" which means to me to require a penalty of at least one cent when a "serious" violation is established (section 17(b)), the Commission appears to have gotten around this by "assessing" a penalty of "zero dollars" for a serious violation in Secretary of Labor v. Thorleif Larsen & Son, Consequently, there is not a cent's worth of difference between a "serious" and a "nonserious" violation.

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A debate proposition could be framed on whether a "serious" violation requires a penalty assessment of one cent or zero dollars or the effect of a different burden of proof for "serious" violations n3 but these distinctions are virtually meaningless in the real world.

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n3 There is a distinction in the burden of proof but its ultimate effect is a distinction without a difference since complainant, upon failing to establish the employer's knowledge of a danger likely to cause death or serious harm as required in section 17(k), could still prevail if a nonserious violation of the Act were found. Such a finding would permit the assessment of a penalty in the exact same amount as that proposed for the allegedly "serious" violation.

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In a system where an employer can be penalized $100 for a "serious" offense and $600 for an offense which is not serious, I am thoroughly unfamiliar with the advantages to be gained by calling a Judge's decision for review simply in order to expound upon the "differences" between the two. As Shakespeare wrote long ago:

"What's in a name? That which we call a rose By any other name would smell as sweet." n4

In my opinion this is another example of a propensity within the Commission to stir up what the Fifth Circuit Court of Appeals has recently characterized as "an administrative whirlwind." n5

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n4 Romeo and Juliet, Act II, Sc. 2, Line 43.

n5 Brennan v. OSAHRC and Brent Towing Co., Inc., U.S. Court of Appeals (5th Cir.), decided July 3, 1973.

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[The Judge's decision referred to herein follows]

LARKIN, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. (referred to as the Act) to review a "Citation for Serious Violation" and "Notification of Proposed Penalty" in the amount of $600 and "Citation" and "Notification of Proposed Penalty" in the amount of $45 issued by the Secretary of Labor (referred to as the Secretary) pursuant to Section 9(a) and 10(a) of the Act.

The proceeding grows out of issuance of a citation on June 6, 1972, as a result of an inspection on June 1, 1972, citing an alleged violation of the Act for failure to conform with Sections 29 CFR 1926.451(a)(4), (10) and (16); 29 CFR 1926.28(a) and 1926.100(a) and (b), and 29 CFR 1903.2. This latter standard was not placed in issue. More specifically, the Citation provides, as to the standards placed in issue, as follows:

An inspection of a workplace under your ownership, operation, or control located at Harborside West, Gulf Shore Boulevard, Naples, Florida, and inspected on June 1, 1972 and described as follows -- elevator installation and service -- has been conducted.

Description of alleged violation -- Abatement date

29 CFR 1926.28(a) and 1926.100 (a) and (b) -- An employee was wearing inadequate head protection: a "bump" cap head protection, while performing elevator installation duties on Phase I building, Harborside construction site.

Abated June 1, 1972.

29 CFR 1926.451(a)(4), (10) and (16) -- Employee standing on two, two-by-four boards serving as scaffolding at third level in elevator shaft of Phase I building, Harborside West site, with no fall protection, guardrails, safety nets, or life lines in use, and no overhead protection in shaft or toe boards in use at higher elevation elevator door openings.

Abated June 1, 1972.

More specifically, the standards provide:

29 CFR 1926.28(a) -- Personal protective equipment. The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions and where this part indicates the need for using such equipment to reduce the hazards to the employees.

1926.100(a) -- Head protection. Employees working in areas where there is a danger of head injury from impact, or from falling of flying objects, or from electrical shock and burns, shall be protected by protective helmets.

1926.100(b) -- Helmets for the protection of employees against impact and penetration of falling and flying objects shall meet the specifications contained in American National Standards Institute, Z89.1-1969, Safety Requirements for Industrial Head Protection.

29 CFR 1926.451(a)(4) -- Scaffolding. Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 6 feet above the ground or floor, except needle beam scaffolds and floats. Scaffolds 4 feet to 6 feet in height, having a minimum horizontal dimension in either direction of less than 45 inches, shall have standard guardrails installed on all open sides and ends of the platform.

1926.451(a)(10) -- All planking shall be Scaffold Grade as recognized by approved grading rules for the species of wood used. The maximum permissible spans for 2- X 10-inch or wider planks shall be as shown in the following:

TABLE L-3
MATERIAL

Full thickness	Nominal
undressed	thickness
lumber	lumber n1
Working load (p.s.f.)	25	50	75	25	50
Permissible span (ft.)	10	8	6	8	6

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n1 Nominal thickness lumber not recommended for heavy duty use.

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1926.451(a)(16) -- Overhead protection shall be provided for men on a scaffold exposed to overhead hazards.

On July 3, 1972, the Secretary filed a complaint in response to Respondent's Notice of Contest by telegram sent on June 19, 1972. On December 11, 1972, the Secretary filed a Motion to Dismiss due to Respondent's failure to file an answer to the Complaint as required by 29 CFR 2200.33(b). By letter received on December 29, 1972, Respondent denied the charges brought by the Secretary. As Respondent was not represented by counsel at that time, the Secretary's motion to dismiss has been denied. The trial was held on January 11, 1973, at Orlando, Florida.

FINDINGS OF FACT

1. Respondent is a corporation located at 1010 Woods Avenue, Orlando, Florida (Tr. 1; Complaint, Par. I). On June 1, 1972, Respondent was engaged in the alignment of a cylinder for the installation of an elevator at Harborside West, Gulf Shore Boulevard, Naples, Florida (Tr. 1-2, 5, 12, 13). Respondent is an employer engaged in a business affecting commerce under the provisions of the Act (Tr. 1).

2. Respondent has been in business for two years and prior to that, its President had been in the elevator installation business approximately 12 years (Tr. 6-7). Respondent employed three employees on the project including its foreman (Tr. 12-13).

3. On June 1, 1972, the Secretary's Compliance Officer inspected the facility (Tr. 12). The Compliance Officer observed Respondent's foreman working inside the elevator shaft at the third level of the structure and two other employees in close proximity but not in the shaftway (Tr. 12-13). The work platform consisted of two 2 X 4's extending from the access floor into the shaftway and braced by a unit nailed into the shaftway wall that come in at a 90-degree angle (Tr. 13, 14, 15). A toe-bracing member tied the four pieces together (Tr. 15; Ex. 1). The two by fours were 16 feet above ground level and over a 4-foot concrete pit or a total height of 20 feet (Tr. 29-31). The elevator shaft contained no overhead protection nor rails or toeboards at the open shaftway entrances (Tr. 16-17, 23). Two of the employees were wearing hardhats but Respondent's foreman was wearing only a bump cap (Tr. 17, 20).

4. Respondent had not instructed its employees on how to construct the scaffolding (Tr. 9). Hardhats were provided by Respondent at the job site (Tr. 5). Respondent was cooperative during the inspection and immediately abated the conditions (Tr. 21, 24).

5. Respondent had not had an on-the-job injury since its inception (Tr. 8).

OPINION

Respondent concedes that it was in violation of the standards and questions only the reasonableness of the penalties. The Secretary has asserted a $600 penalty as to the scaffold violation based upon a contention that the violation is of a serious nature. The other penalty proposed is $45.

As pertinent, Section 17(f) of the Act provides that ". . . 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. . . ."

The Secretary who has the burden of proof has shown only that one employee was working at a height of 20 feet over a concrete floor on a platform that the Respondent concedes did not meet the requirements of the standard. This proof raises the question of whether these facts alone are sufficient to meet the statutory language defining a serious violation. If this proof is sufficient, it means that the Secretary can prove a serious violation by showing only the violation of a standard above a specified height. It is concluded that Congress intended more than proof of only these two facts to charge an employer with a serious violation. The language provides there must be a "substantial probability that death or serious physical harm could result from . . . ." the condition. In other words, the question is not limited to whether the fall would seriously injure or kill, but must also include whether there was "substantial probability" of an accident as a result of the condition. The record is silent as to the possibility of fall, and it is concluded that "substantial probability" requires more than mere speculation or conjecture that this employee may have fallen. The conclusion that the Secretary has not carried his burden of proof is even more justified where the Respondent, as in this case, has shown a history of no accidents during its existence. Absent proof of the likelihood of fall, it must be concluded that the Secretary has not shown a serious violation as required by the provisions of Section 17(k) of the Act.

This conclusion leaves for determination the appropriate penalty for a violation not of a serious nature.

Section 17(j) of the Act provides that the appropriateness of the penalty must be determined in the light of the size of the employer's business, the gravity of the violation, the good faith of the employer, and history of previous violations.

The record contains little help as to the size of Respondent's business. It shows only that Respondent had three employees on the project.

As to the gravity of the violation, one employee was exposed to a fall from a height of 20 feet. The duration of the exposure, the degree of probability of fall and other facts as to the gravity of the violation are left to speculation.

Respondent's President testified that Respondent had had no accidents during its two years of existence. This evidence was not refuted.

Considering the foregoing facts, in the light of the criteria set forth in Section 17(j), it is concluded that a penalty of $100 is appropriate.

There are even less facts of record showing the gravity of the violation as to the safety helmet standard. One employee, was exposed to whatever hazard, if any, that existed. There is no showing that other employees were working above, what objects, if any, were above that could have fallen on the employee, the duration of the exposure, or any other concrete facts that this employee could have been injured. The circumstances are left to speculation and conjecture. The Act requires that specified criteria must be considered in determining the appropriateness of the penalty. Mere proof of a violation of a standard without the facts required to determine the penalty leaves the Commission in an impossible situation to perform its statutory obligation as required by the Act. Although the violation is the type that normally justifies some penalty, in the light of this record, it is concluded that the facts are insufficient to determine a penalty and that no penalty can be assessed.

CONCLUSIONS OF LAW AND DECISION

1. Respondent committed a violation not of a serious nature under the provisions of Section 5(a)(2) of the Act, in that it failed to confirm with the provisions of 29 CFR 1926.451(a)(4), (10), and (16), and a penalty of $100 is appropriate.

2. Respondent committed a violation not of a serious nature under the provisions of Section 5(a)(2) of the Act in that it failed to conform with the provisions of 29 CFR 1926.28(a) and 1926.100(a) and (b), but no penalty is appropriate.

3. Respondent committed a violation not of a serious nature under the provisions of Section 5(a)(2) of the Act in that it failed to conform with the provisions of 29 CFR Part 1903.2, but no penalty is appropriate.

Wherefore, it is ORDERED:

The Citation is affirmed as to alleged violations of 29 CFR 1903.2 and 29 CFR 1926.28(a) and 1926.100(a) and (b), but no penalties shall be assessed.

The "Citation for Serious Violation" is modified and affirmed only to the extent that Respondent committed a violation not of a serious nature for its failure to conform to the provisions of Sections 29 CFR 1926.451(a)(4), (10) and (16), and a penalty in the amount of $100 shall be assessed.