GREGUSON'S NURSERY, INC.
OSHRC Docket No. 1646
Occupational Safety and Health Review Commission
February 6, 1975
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners.
OPINIONBY: MORAN
OPINION:
MORAN, CHAIRMAN: A July 30, 1973, decision of Review Commission Judge Louis J. Rubin in a proceeding initiated under the Occupational Safety and Health Act of 1970 n1 is before the Commission for review pursuant to 29 U.S.C. § 661(i). His disposition, cavating a citation and proposed penalty for a serious violation of the Act, is reversed.
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n1 29 U.S.C. § 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act."
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Respondent is a corporation engaged in landscaping work. On September 26, 1972, one of respondent's employees was electrocuted when a mechanical evidence he was operating came into contact with an energized power line. The deceased was moving boulders from a rock pile onto a truck at the time.
A representative of complainant investigated the accident and, as a result, on October 12, 1972, complainant issued a citation against respondent alleging the violation at issue in this proceeding. On the same day, complainant [*2] also issued a notification of proposed penalty against respondent, proposing a penalty of $600.00 for the alleged violation. Respondent received "notice" of the foregoing on October 13, 1972. n2
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n2 Respondent used the word "notice" at the hearing. The context suggests that "notice" meant the citation and the notification of proposed penalty.
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On October 23, 1972, respondent wrote the following letter to complainant:
I have decided to contest the proposed penalty which you enclosed with CSHO No. C-5035. I understand that this matter will be reviewed and that a hearing may be held. Please notify me of any further developments. (Emphasis added).
Complainant construed that letter to be a "notice of contest" and forwarded it to the Commission for further proceedings. n3
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n3 See 29 U.S. § 659(c).
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Though the text of this letter limits the contest [*3] to the proposed penalty, respondent subsequently filed an answer, n4 dated November 21, 1972, which also denies the violation alleged on the citation.
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n4 Pursuant to Rule 33 of our Rules of Procedure. See 29 CFR § 2200.33.
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Judge Rubin was cognizant of the fact that the notice of contest raises only the penalty issue. However, he considered the answer an attempt by respondent to expand the notice to include the citation within its scope. He granted the amendment stating that it was timely, since it has been filed within 20 days after service of the complaint and before this proceeding was placed on the trial calendar. This was an error.
Where an employer unequivocally restricts his notice of contest to the proposed penalty, the citation becomes a final order of the Commission at the end of the 15 working day period allowed by 29 U.S.C. § 659(a) for the filing of contests. Secretary v. Florida East Coast Properties, Inc., 6 OSAHRC 404 (1974).
The 15 working day period for raising those issues which [*4] the cited employer wishes to contest begins to run with that employer's receipt of the notification of proposed penalty which, pursuant to 29 U.S.C. § 659(a), must be sent to the employer "by certified mail." n5 The record here leaves the date of such receipt subject to question. However, it is certain that respondent had received it by October 23, 1972, the day on which the notice contesting the penalty proposal was written. Consequently, the citation was a final order of the Commission no later than 15 working days after October 23, 1972. This would make November 14, 1972, the last day for raising contest issues -- a date seven days before the answer was written.
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n5 In view of this requirement, we are at a loss to understand why the date of its receipt could not be established.
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Since the citation was a final order when the attempt was made to include it within the scope of the contest, Judge Rubin erred in granting the amendment.
The only issue properly before Judge Rubin was the penalty question. In assessing [*5] penalties, the Commission is required by 29 U.S.C. § 666(i) to give due consideration to the gravity of the violation, the size of the employer's business, the history of previous violations, and the good faith of the employer.
The record contains evidence thereon and our evaluation thereof convinces us that a large penalty is not warranted. Respondent is a small corporation which employs between three and ten persons, depending on the season. The business was operated at a loss during the two year period preceeding the occurrence of the violation. The purpose of monetary penalties is not to impoverish small businesses like respondent but to secure compliance with the requirements of the Act. We believe that purpose will be served in this case by the assessment of a $100.00 penalty.
Accordingly, the Judge's order is set aside. We acknowledge that the citation became a final order by operation of law and we cannot consider the merits thereof in this proceeding. We assess a penalty of $100.00 in this case.
CONCURBY: CLEARY; VAN NAMEE
CONCUR:
CLEARY, COMMISSIONER, concurring: I concur in the disposition ofthis case based on our decision in Florida East Coast Properties, Inc., [*6] No. 2354 (February 5, 1974).
I must note however, that this case antedated Florida East Coast. Moreover, in his decision and order, Judge Rubin, sua sponte and for the first time, raised the question of the applicability of the construction standards under which respondent was cited. The Judge concluded that respondent was not engaged in construction and vacated the citation and proposed penalty. Review was directed on whether respondent was engaged in construction within the meaning of 29 CFR § 1910.12(b). For these reasons, I believe it appropriate to comment on this issue.
The definition of "construction work" is contained in 29 CFR § 1910.12(b). It states that "for purposes of this section, construction work means work for construction, alteration and/or repair including painting and decorating." Respondent was engaged in landscape planning and landscaping, including supplying decorative boulders weighting up to 1,500 pounds for permanently enhancing exteriors.
Landscaping of the type involved here may be fairly characterized as "construction." For example, it is so regarded under federal prevailing wage laws that apply to federal and federally assisted construction. [*7] See 29 CFR 5.2(f) and (g). Rock movement and placement is involved, something common in construction. This is not a case involving lawnmowing or the planting of flowers. The latter would not be considered "construction" and not therefore covered by the construction standards.
Even though I would determine that respondent is engaged in construction, it could be argued that the deceased employee was not engaged in construction at the time of the accident because he was merely loading boulders on respondent's premises. This problem is resolved by 29 CFR § 1910.12(a), which states that "the standards . . . shall apply . . . to every employment and place of employment of every employee engaged in construction work." Since respondent's employees are engaged in construction work, they are covered by the standards in whatever manner or location they are working. Therefore, the standard under which respondent was cited is appropriate.
VAN NAMEE, COMMISSIONER, concurring: I concur in the disposition. Because Respondent contested only the penalty the majority is reliance on its decision in Florida East Coast Properties, Inc., 6 OSAHRC 404, BNA 1 O.S.H.C. 1532, CCH E.S.H.G. [*8] para. 17,272 (1974) affirms the citation. I would affirm for the reason that Respondent admitted the violation at the hearing.
The concurring member, however, went further than was necessary in this case. In his opinion, employers engaged in the landcape nursery business are per se engaged in construction. His statement should not go unanswered.
My view is to the contrary. The facts of this record show Respondent to be engaged in the landscape nursery business. Such businesses are usually considered to be agricultural in nature and they are so grouped in the Standard Industrial Classification Manual n6 prepared by the Statistical Policy Division of the Office of Management and Budget (1972 ed.). Businesses engaged in construction are classified elsewhere in the Manual. n7
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n6 See Division A, Major Group 07.-Agricultural Services, Group 078, Landscape and Horticultural Services, pgs. 25 and 27, 28.
n7 See Division C at pgs. 45 et seq.
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In any event, there is no evidence of record from which it may be [*9] concluded that this Respondent engages in construction activities or was so engaged at the time of the alleged violation. n8 Accordingly, and for this additional reason, a finding that Respondent was so engaged in inappropriate.
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n8 Compare Heede International Inc., Dkt. No. 1889 (Rev. Com'n., January 7, 1975); Yanco Construction Co., Dkt. No. 1888 (ALJ, 1973); West Allis Lime & Cement Co., Dkt. No. 1324 (ALJ, 1973), aff'd. for other reasons, (Rev. Com'n., December 23, 1974).
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[The Judge's decision referred to herein follows]
RUBIN, JUDGE: This is a proceeding pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. (hereafter called the Act). Respondent contests a Citation and Notification of Proposed Penalty issued by the Secretary of Labor on October 12, 1972, pursuant to Section 9(a) of the Act.
The Citation alleged that an inspection of a workplace under the ownership, operation or control of the Respondent, located at 6574 Flying Cloud Drive, [*10] Eden Prairie, Minnesota, disclosed that Respondent violated Section 5(a)(2) of the Act by failing to comply with an occupational safety and health standard promulgated by the Secretary pursuant to Section 6 thereof.
The alleged violation, abatement date and proposed penalty are as follows:
Serious Violation -- Abatement Date -- Proposed Penalty
29 CFR 1926.550(a)(15)(i) and (iv) (formerly 29 CFR 1518.500(a)(15)(i) and (iv) as adopted by 29 CFR 1910.12) -- The boom of the truck crane was operated so that it came in contact with an energized power line in rock storage area of the nursery yard. Also, no person was designated to give timely warning in operations where it is difficult to maintain required clearance. -- October 20, 1972 -- $600.00.
The case came on for hearing in Minneapolis, Minnesota, on March 8, 1973. No affected employee nor authorized employee representative has asserted party status.
ISSUES
The issues to be decided are whether Respondent violated 29 CFR 1926.550(a)(15)(i) and (iv); and if so, whether this was a serious violation within the meaning of Section 17(k) of the Act and what penalty is appropriate.
DISCUSSION
Respondent merely contested [*11] the proposed penalty in its Notice of Contest. The Answer, filed within 20 days after service of the Complaint and before the action was placed upon the trial calendar, denied a violation of the standard cited. The Answer is deemed to be a timely amended pleading under Rule 15, Federal Rules of Civil Procedure thereby placing the violation itself in issue. Moreover, the Occupational Safety and Health Review Commission is vested with jurisdiction over the entire matter if a Notice of Contest is directed to any portion of the Citation and proposed penalty ( Secretary of Labor v. Burik and Savko Lumber and Supply Company, Inc., Secretary of Labor v. Crosby & Overton, Inc.,
The first question to be decided is whether the construction standards apply in the instant case. The record shows that Respondent is a corporation engaged in the business of landscaping. An employee was electrocuted while operating a boom, loading boulders from a rock pile located on the nursery grounds. The boulders were to be used decoratively on a landscape planning job. No evidence was adduced as to whether the landscaping was to be done at a construction [*12] job in progress, one that had been completed, a private home or institution, park, or other site.
The construction standards are contained in Part 1926, formerly Part 1518, of Title 29 of the Code of Federal Regulations. 29 CFR 1910.12 entitled "Construction Work" provides in pertinent part as follows:
(a) Standards. The standards prescribed in Part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work.
(b) Definition. For purposes of this section, construction work means work for construction, alteration, and/or repair including painting and decorating. See discussion of these terms in § 1926.13 of this title.
Much the same language appears in 29 CFR 1926.10, 29 CFR 1926.13, and 29 CFR 1926.20. The identical language is also used in the Davis-Bacon Act, Section 1 (40 USC 276a), providing minimum wage protection on Federal construction contracts; and in the Miller Act, Section 1 (40 USC 270a), providing performance and payment bond protection on such contracts (see 29 CFR [*13] 1926.13(a)).
Conceivably, landscaping may be considered construction work. However, the incident giving rise to the cited violation was not construction work per se, and occurred on the nursery grounds, not at a construction site. The ultimate destination of the decorative boulders is not known. The available facts do not establish that Respondent was engaged in construction work. Therefore, it cannot be held that Respondent was in violation of the construction standards.
In view of the above finding that the standard cited is not applicable, a discussion of the specific details of the accident is unnecessary. If Respondent's activities had come within the scope of the construction standards, the undersigned would have held that Respondent failed to exercise reasonable diligence and supervision to avoid the violation, that the violation is a serious violation within the meaning of Section 17(k) of the Act, and that the proposed penalty is appropriate.
FINDINGS OF FACT
1. Greguson's Nursery, Inc., Respondent herein, is a corporation with an office and place of business at 6574 Flying Cloud Drive, Eden Prairie, Minnesota.
2. Respondent is an employer within the meaning of [*14] the Act.
3. On September 26, 1972, an employee of Respondent was electrocuted while operating a boom loading boulders from a rock pile located on the nursery grounds.
4. Respondent was not engaged in construction work within the meaning of 29 CFR 1910.12 and 29 CFR Part 1926.
CONCLUSIONS OF LAW
1. Respondent is and, at all times relevant herein, was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.
2. The Occupational Safety and Health Review Commission has jurisdiction of the Parties and subject matter herein pursuant to Section 10(c) of the Act.
3. Respondent did not violate 29 CFR 1926.550(a)(15)(i) and (iv) as charged in the Citation and Complaint.
ORDER
The Citation and proposed penalty are hereby vacated.