ALPHA MASONRY, INC.
OSHRC Docket No. 15021
Occupational Safety and Health Review Commission
March 11, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
T. A. Housh, Jr., Regional Solicitor, USDOL
David Ghilino, Alpha Masonry, Inc.
OPINION:
DECISION
This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.
In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.
The Judge's decision is accorded the significance of an unreviewed Judge's decision. [*2] Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).
It is ORDERED that the decision be affirmed.
CONCURBY: MORAN
CONCUR:
MORAN, Commissioner, Concurring:
I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.
APPENDIX A
DECISION AND ORDER
DEBORAH BOODY, Office of the Solicitor, U.S. Department of Labor, for the Secretary of Labor
MR. DAVID GHILINO, for the Respondent
Wienman, Judge, OSAHRC:
STATEMENT OF THE CASE
This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting a citation issued to respondent August 28, 1975. The citation for serious violations alleged on the basis of an inspection of a worksite at 11601 West 90th, Overland Park, Kansas, that the respondent violated occupational safety standards 29 CFR 1926.451(a)(4) and 29 CFR 1926.451(a)(13). [*3] n1 A combined penalty of $500 was proposed in connection with the alleged violations which were set forth on the citation as follows:
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Standard, regulation |
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Item |
or section of the Act |
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No. |
allegedly violation |
Description of alleged violation |
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1a |
29 CFR 1926.451 |
Guard rails were not provided on the |
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(a)(4) |
open ends of the work platform of the |
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Morgan scaffold, exposing employees to |
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a drop of approximately 41 feet to |
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ground level. |
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1b |
29 CFR 1926.451 |
Employees were not provided a safe |
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(a)(13) |
access to the Morgan scaffold in that |
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|
a two-foot horizontal and three-foot |
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|
vertical step over the 4th floor of |
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the building up to the scaffold plat- |
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form was required, exposing employees |
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to a drop of approximately 38 feet to |
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the ground below. |
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Regulation 29 CFR 1926.451(a) provides:
"(1) Scaffolds shall be erected in accordance with requirements of this section.
* * *
(4) Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor, except needle beam scaffolds and floats (see paragraphs (p) and (w) of this section). Scaffolds 4 feet to 10 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.
* * *
(13) An access ladder or equivalent safe access shall be provided."
[*4]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Respondent gave timely notice of its intention to contest the citation. After complaint and answer were filed, hearing was held on December 16, 1975, in Kansas City, Missouri.
THE ISSUES
The general issues for resolution are whether the respondent violated occupational safety regulations as alleged in the citation, and, if so, what penalty, if any, is appropriate.
SUMMARY OF THE EVIDENCE AND DISCUSSION
The sole witness at the hearing was Carl D. Kinney, OSHA Compliance Officer, who inspected the construction site at 11601 West 95th Street, Overland Park, Kansas, on August 26, 1975. Respondent introduced no testimony in rebuttal of the Compliance Officer's observation. Rather, David Ghilino, respondent's representative, made an oral summary in which he indicated that respondent was primarily taking issue with the amount of the proposed penalty (T. 24-26).
Mr. Kinney testified that he inspected a Stix, Baer and Fuller construction site where respondent, one of the subcontractors, was engaged in laying brick. Respondent's employees were working on the roof, the perimeter wall around the [*5] roof, on the penthouse, and from a scaffold at the fourth floor level on the south side of the building (T. 8). Kinney first observed three people on a Morgan scaffold at a time when it had only one guardrail, the top rail on the back side (T. 8). Later a midrail and a toeboard were installed on the backside of the scaffold but the open ends were still unguarded (T. 9). At that time the one employee on the scaffold was exposed to a fall of approximately 41 feet. Kinney photographed the condition (Exhibit G-3).
Kinney also observed an employee step from the scaffold to the fourth floor, moving two feet horizontally from a scaffold approximately three foot higher than the floor level (T. 11). It was Kinney's belief that the platform should have been built closer to the building or a runway or ramp with guardrails provided for safe access (T. 13).
Since the violation could have resulted in death or permanent physical disability, Kinney classified the violation as serious (T. 14). He also explained the basis for the $500 penalty proposal as follows:
"By law, we have to start with the minimum of $1,000.00 on the serious citation. Then we can reduce that 20 percent for good faith, [*6] 10 percent for size of the company and 20 percent for past history." (T. 14)
Complainant offered no testimony with respect to the likelihood or probability of an accident resulting from the violative conditions.
Mr. Ghilino commenced his summary by admitting "that this scaffold probably is not in compliance as far as guardrails are concerned." (T. 24) He stated that respondent had supplied the material for the railings but "my foreman and my people that work on these will not use them consistently unless I am on top of them all the time." (T. 25) He said it was very difficult to see that the employees kept the railings up all the time and that railings were a nuisance when handling material (T. 25-26).
He pointed out that respondent had no lost time accidents in almost a year and no serious accidents in the last two or three years. For all these reasons he believed the $500 proposed penalty excessive (T. 26).
The foregoing record amply supports a finding that respondent was in violation of regulations 29 CFR 1926.451(a)(4) and 29 CFR 1926.451(a)(13) when inspected August 26, 1975. The violations were serious within the meaning of section 17(k) of the Act because there was a [*7] substantial probability that death or serious physical harm could result from a fall from a 38 to 41 foot height, and respondent with the exercise of reasonable diligence could have known of the violative conditions.
However, we are not persuaded by the complainant's presentation that $500 is an appropriate penalty despite the serious nature of the violation.
Respondent pointed out that working at heights on scaffolds was an everyday routine to his employees (T. 25), and we find no testimony in the record indicating how probable a falling accident was under the conditions existing at the jobsite. We do not accept the Secretary's formula for computing proposed penalties in the case of serious violation wherein no heed is paid to either the amount of employee exposure to the hazards or to the probability of an accident resulting from such exposure. Under the circumstances we corsider the $500 proposed penalty excessive and rule that the citation be affirmed with a penalty of $250 imposed thereon.
FINDINGS OF FACT
Having held a hearing and considered the entire record herein, it is concluded that a preponderance of the reliable, probative, and substantial evidence supports the [*8] following findings of fact:
(1) Respondent, Alpha Masonry, Inc., is a corporation with an office and principal place of business located at 120 South 56th Terrace, Kansas City, Kansas, where it is engaged in masonry contracting.
(2) Respondent at all times relevant hereto employed approximately 12 employees at a worksite at 11601 West 95th Street, Overland Park, Kansas.
(3) At the aforesaid worksite on August 26, 1975, respondent failed to provide guardrails and toeboards on the open ends of the work platform of a Morgan scaffold exposing employees to a drop of approximately 41 feet to ground level.
(4) On August 26, 1975, respondent failed to provide a safe access to and from the Morgan scaffold; access was gained by a two-foot horizontal and a three-foot vertical step from the fourth floor of the building to the scaffold platform, thereby exposing employees to a drop of approximately 38 feet to the ground.
CONCLUSIONS OF LAW
(1) Respondent is and at all times material hereto was an employer within the meaning of section 3 of the Act.
(2) The Occupational Safety and Health Review Commission has jurisdiction over the parties and of the subject matter under section 10 of [*9] the Act.
(3) On August 26, 1975, respondent violated occupational safety and health standards 29 CFR 1926.451(a)(4) and (13) as alleged in the citation for serious violations issued to respondent August 28, 1975.
(4) There was a substantial probability that death or serious physical harm could result from the violative conditions, and the aforesaid violations were serious within the meaning of section 17(k) of the Act. Due consideration having been given to the gravity of the violations, respondent's good faith, size, and history of previous violations, it is concluded that a penalty of $250 is appropriate.
ORDER
Based on the above findings of fact and conclusions of law, it is ORDERED that the citation for serious violations (citation number 2) issued to respondent August 28, 1975, is hereby affirmed and a penalty in the sum of $250 assessed thereon.
Alan M. Wienman, Judge, OSAHRC
DATE: May 10, 1976