GENERAL BRONZE ARCHITECTURAL PRODUCTS
OSHRC Docket No. 2031
Occupational Safety and Health Review Commission
May 29, 1975
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Before MORAN, Chairman; and CLEARY, Commissioner
OPINIONBY: MORAN
OPINION:
MORAN, CHAIRMAN: A decision of Review Commission Judge David G. Oringer, dated August 22, 1973, is before the Commission for review pursuant to the provisions of 29 U.S.C. § 661(i). That decision held in part that the respondent violated 29 U.S.C. § 654(a)(2) by failing to comply with an occupational safety standard codified at 29 C.F.R. § 1926.28(a). n1 The Judge assessed a penalty of $500 therefor. For reasons that follow, we affirm.
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n1 Judge Oringer stated that the respondent contested only the proposed penalty and not the citation for this violation. Nevertheless he considered the merits and ruled on the citation. We subsequently held in Secretary v. Florida East Coast Properties, Inc., 6 OSAHRC 404 (1974), that the Commission has no jurisdiction to review the citation when only the penalty is in contest. However, while the notice of contest is facially limited to the penalty, it raises issues concerning the respondents's responsibility for supposed employee misconduct. We therefore conclude that the respondent intended to contest the citation as well as the penalty and that the Judge acted properly in deciding the merits of the citation.
The Judge also vacated that portion of complainant's citation alleging that the respondent failed to comply with the standard at 29 C.F.R. § 1904.4(a). This disposition is affirmed for the reasons stated by the Judge.
[*2]
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Review was directed on whether the above-cited standard is worded with sufficient specificity to be enforceable as an occupational safety standard. The standard provides as follows:
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 employers. (Emphasis added.)
The respondent was charged with violating this standard because it failed to require the wearing of a safety belt by one employee while he was welding on a structural steel beam far above the ground.
In order to prove this violation, it must be shown that the employee was exposed to hazardous conditions by failing to use a safety belt and that such use is required by another standard in Part 1926. Secretary v. Leon Marrano & Sons, Inc., 17 OSAHRC 202 (1975) (Moran, concurring opinion). n2
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n2 The alleged violation in this case occurred on October 20, 1972, before the standard was amended so as to change the word "and" to "or." Therefore the issue of invalid promulgation referred to in Marrano does not arise here.
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Judge Oringer properly found on the facts that the employee was not wearing a safety belt and was therefore exposed to the hazard of a fall. The standard at 29 C.F.R. § 1926.105(a) has been interpreted to require the use of safety belts for work performed at a height of over 25 feet. Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir., 1974). That standard is applicable to this case because the employee was working on the fifth floor level and thus was at a height greater than 25 feet. Furthermore, he was clearly engaged in hazardous conduct because he was standing at the very edge of the building while welding. Thus under the circumstances of this case, the standard is not unenforceably vague.
The Judge's decision is affirmed.
CONCURBY: CLEARY
CONCUR:
CLEARY, COMMISSIONER, concurring: I do not agree with my colleague's interpretation of 29 CFR § 1926.28(a). I concur in the result for the reasons given in my opinions in Hoffman Construction Company, No. 644 (January 31, 1975), and Carpenter Rigging & Contracting Corporation, No. 1399 (February 4, 1975).
In brief, I would affirm [*4] the Administrative Law Judge's application of section 1926.28(a). The case involves nothing more than the application of a general standard requiring the use of personal protective equipment rather than a specific standard. Cf. Cape and Vineyard Division of the New Bedford Gas and Edison Light Company v. O.S.H.R.C., No. 74-1223 (1st Cir., March 3, 1975).
[The Judge's decision referred to herein follows]
ORINGER, Judge: This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter referred to as "the Act") to review Citations issued by the Secretary of Labor (hereinafter referred to as "Complainant") pursuant to section 9(a), and a proposed assessment of penalties thereon issued pursuant to section 10(a) of the Act.
The Citations, (one for a serious violation and one for three (3) nonserious violations) issued on December 6, 1972, and Complaint filed on January 26, 1973, allege that General Bronze Architectural Products, the employer (hereinafter referred to as "Respondent"), on or about October 20, 1972, at a work place under its ownership, operation and control violated one (1) occupational [*5] safety and health standard promulgated pursuant to section 6 of the Act, which was described in Complainant's Citation as "serious," and violated three (3) occupational safety and health standards which were described in Complainant's Citation as "not serious," and read as follows:
CITATION NO. 1 -- (Serious)
29 CFR 1926.28(a) -- Personal protective equipment (a) 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
CITATION NO. 1 -- (Not Serious)
29 CFR 1926.352(d) -- Suitable fire extinguishing equipment shall be immediately available in the work area and shall be maintained in a state of readiness for instant use
29 CFR 1903.2 -- Posting of notice; availability of Act, regulations and applicable standards.(a) Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and [*6] that for assistance and information, including copies of the Act and of specific safety and health standards, employees shall contact the employer or the nearest office of the Department of Labor. Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to insure that such notices are not altered, defaced, or covered by other material
29 CFR 1904.4(a) -- Temporary rules. (a) Explanation. Copies of the three recordkeeping forms required under this part (OSHA Forms Nos. 100, 101, and 102) may not be available when these rules are published. Specimens of two of these forms were published in the daily issue of the Federal Register on the date of the publication of this part. One of these specimens (OSHA Form No. 101) will, in addition to its intended purpose, be used, as provided below, as an interim method of recording log-type information. The log-type information will later be transferred to the log (Form 100) when copies of that form are generally available either through direct mailing or at the local offices of the Occupational Safety and [*7] Health Administration or the Bureau of Labor Statistics
The violations as alleged by the Complainant are described as follows:
CITATION NUMBER 1 -- (Serious Violation)
Standard or regulations allegedly violated -- Description of alleged violation
Construction 29 CFR Sect. 1926.28(a) as adopted by Section 1910.12 (page 7347) -- Failure to have employees wear personal protective equipment while exposed to a hazardous condition
Employee, Prince Weir, standing on the interstitial structural steel beam while welding, not secured by a safety belt, exposed to a fatal or serious injury
Fifth floor level, west perimeter side of building
Citation Number 1 -- (Not Serious)
Item Number -- Standard or regulation allegedly violated -- Description of alleged violation
1 -- 29 CFR Section 1926, 1926.352(d) -- Failure to maintain fire extinguisher immediately available in work area while welding fifth level, west side on 10/20/72
2 -- 29 CFR 1903.2 -- Failure to post OSHA informational poster on 10/20/72
3 -- 29 CFR 1904.4(a) -- Failure to maintain OSHA 100 form "Log of Occupational Injuries and Illnesses" on 10/20/72
Notification of Proposed Penalty was issued by the Complainant [*8] on even date, to wit, December 6, 1972, proposing to assess a penalty of $650.00 for the alleged serious violation and a penalty of $150.00 for the alleged nonserious violations described above. The total proposed penalties for all alleged violations amounted to $800.00. In a letter dated September 25, 1972, the Respondent filed a notice of intention to contest the Citation and proposed penalty for item No. 3, and while it did not contest the Citation for serious violation, it did however contest the proposed penalty therefore. These were the only items contested.
This cause was referred to the Occupational Safety and Health Review Commission for hearing pursuant to section 10(c) of the Act on January 26, 1973, and the within case was assigned to the undersigned on March 22, 1973 for hearing pursuant to section 12(e) of the Act.
Pursuant to notice, the hearing was held on April 17, 1973, in New York, New York.
During the trial I indicated that, in my opinion, the Respondent was not in violation of that standard found at 29 CFR 1904.4(a), however reserved decision on the motion to dismiss this item of the Citation for other than serious violation. The Secretary however, in his [*9] proposed Decision and Order served on August 6, 1973, on page 2 and 3 therof, joined in the Respondent's motion to vacate the item in the Citation alleging a violation of that standard found at 29 CFR 1904.4(a) as well as the proposed penalty of $100.00. I herewith grant that motion, and dismiss that item of the Citation together with the penalty proposed therefore.
Having heard the testimony and observed the demeanor of the witnesses, and having considered the same, together with the Citations, Notification of Proposed Penalty, Notice of Contest, pleadings, representations, stipulations and admissions of the parties, it is concluded that substantial evidence, on the record considered as a whole, supports the following:
FINDINGS OF FACT
1. The Respondent, General Bronze Architectural Products, a division of Allied Products Corporation is a corporation organized under the laws of the State of Delaware, with principal offices located in Chicago, Illinois.
2. The Respondent ships material in interstate commerce and receives materials from outside the states in which it has work sites, and performs work in at least four (4) states and the District of Columbia.
3. The [*10] Respondent is in the five (5) top construction corporations nationally, with a total annual sales of approximately $200,000,000, and with approximately 9,000 employees nationally. The job site involved herein contained seventy (70) to eighty (80) employees.
4. As a result of an inspection of the Respondent's work site in Brooklyn, New York, commencing on October 20, 1972, and terminating on the 31st day of that month, by an authorized representative of the Secretary, the Respondent was issued one Citation for serious violation containing one item therein and one Citation for other than serious violations containing three items thereon and, in addition thereto, was issued a Notification of Proposed Penalty. (Complaint and Answer) (Citations and Notification of Proposed Penalty).
5. The Complainant failed to sustain the burden of proof that the Respondent failed to maintain an OSHA 100 form, "Log of Occupational Injuries and Illnesses" on October 20, 1972. The Respondent kept an OSHA 100 form at a central location and had available at the work site the telephone number and address whereat such form was located. (See page 2 & 3 of the Complainant's proposed decision.) [*11]
6. The Respondent failed to require an employee to wear personal protective equipment while exposed to a hazardous condition, in that an employee of the Respondent, one Prince Weir, while standing either on an interstitial structural steel beam or on a mobile stair with a platform, while welding, was not secured by a safety belt and was exposed to death or serious physical harm, on the fifth floor level of the structure. A foreman of the Respondent was within observation of the exposed employee and until alerted by the Compliance Officer, did not order the employee to utilize a safety belt.
7. Whether the employee was on a gantry type ladder or on an interstitial beam, in either case, a safety belt should have been utilized.
8. The Respondent issued appropriate safety equipment and instructed its employees on their use. The Respondent's supervisors were instructed to insist that employees utilize their safety equipment and on occasion employees were disciplined for failure to follow safety instructions.
9. The Respondent had a well developed safety program, better than most seen by the Compliance Officer.
10. The penalty proposed for the alleged serious violation, when [*12] viewing the case as a totality, was inappropriate.
DISCUSSION
In the instant cause, the Respondent was cited, inter alia, for a violation of that standard found at 29 CFR 1904.4(a), in that he did not have an OSHA Form 100 located at the work place. Prior to the day of the inspection the Secretary promulgated that standard found at 29 CFR 1904.14, which provides that a Respondent engaged in physically dispersed operations such a construction, may satisfy record keeping requirements of, among other things, the OSHA 100 form, to wit, the Log of Occupational Injuries and illnesses, by maintaining the required records for each operation in an established central place and having the address and telephone number of the central place available at each work site, as well as having personnel available at the central place, who can provide information from the records maintained there by telephone, as well as by mail.
The testimony of record clearly establishes that the Respondent complied with the requirements of that standard found at 29 CFR 1904.14, and accordingly, I am granting the motion to vacate that item of the Citation alleging a nonserious violation of 29 CFR 1904.4(a), [*13] as well as the penalty proposed therefore, in the amount of $100.00.
Insofar as the contested Citation for serious violation of 29 CFR 1926.28(a), the evidence incontrovertibly discloses that an employee, one, Prince Weir, was standing either on an interstitial steel beam or on a gantry ladder, welding far above the ground without being secured by a safety belt. Unquestionably he was exposed to a hazard that, in the event of an accident, carried a substantial probability of physical injury or death in the event of occurrence. In addition thereto there was a foreman within clearly observable distance of the employee who only sent the employee down for a safety belt after having been notified of the hazardous violation by the Compliance Officer.
The Respondent argues that under the Act an employee has a similar responsibility for safety. This is veritable, however, the primary responsibility lies with the employer and, in the instant case, the standard requires the employer to see to it that his employees utilize protective equipment such as was necessary in the instance at issue. It is my opinion, that whether or not the employee was on an interstitial beam or on a [*14] gantry ladder, he was in a hazardous position unless he was fastened to something fixed with a safety belt.
Insofar as the additional allegations of the Compliance Officer that he saw three other employees working aloft without safety belts, I find that testimony of no value whatsoever. The Compliance Officer's memory was faulty at best, regarding such findings. He could not give the times or the names of the employees or the proper name of a foreman in charge thereof, further he failed to have in his notes the name of the Respondent's representative who accompanied him at the time he observed the unknown named persons working aloft. I find this testimony of no value whatsoever in either proving the allegation insofar as Prince Weir is concerned, or of any hazardous practices by the employer. I find veritable the allegation of the Respondent that Mr. Wilson was not it's foreman, and I think that it is incumbent upon the Compliance Officer to properly record in his notes the names of employees he finds to be in hazardous situations that constitute violations and should also record the name of the Respondent's representative who accompanies him at the time he discovers such violations. [*15] This of course does not delete or weaken the uncontroverted testimony concerning Prince Weir.
I further find that in a hazardous industry such as this one, the Respondent has an excellent safety program and is working hard at fulfilling the requirements of the Occupational Safety and Health Act, and should have gotten full credit for good faith despite the fact there was one serious violation discovered in which, in my opinion, the employee, Prince Weir, was pari delicto. This does not absolve the Respondent of his primary responsibility of seeing to it that his employees either utilize safety equipment or are removed from the job. I am satisfied that on occasion, this Respondent disciplines employees when they fail to follow safety regulations, however in the case of this violation, the foreman was insufficiently alert and accordingly a violation was found. In view of all of the circumstances involved herein, I find that the penalty proposed is inappropriate, and that a penalty of $500.00 is sufficient, considering all of the circumstances found herein.
It is noted in passing that in oral argument on page 130 of the transcript, the Respondent stated that "The employer [*16] must instruct his employees. He must issue them equipment or give them access to equipment. He must supervise them and he must act in good faith, but he cannot be expected to be on a one-to-one ratio and be . . ." I took that quote to mean that the Respondent likens this situation to the one found in Secretary of Labor v. Hanovia Lamp Division, Canrad Precision Industries, I do not find that case analogous to the one at bar, and am of the opinion that no employer is required to have such close supervision or a one-to-one ratio. However, this proposition does not fit the facts found herein. The endangered employee was within observation of the foreman and should have been ordered to wear a safety belt.
Based on the foregoing considerations, the Judge makes the following
CONCLUSIONS OF LAW
1. At all the times herein mentioned, the Respondent was engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.
2. The Respondent was, on the dates of the inspection at its work site herein concerned, and at all other times mentioned [*17] herein, an employer subject to the safety and health regulations promulgated by the Secretary of Labor.
3. The Respondent was not in violation of that standard found at 29 CFR 1904.4(a), and the penalty proposed therefore is inappropriate.
4. The Respondent was in violation of that standard found at 29 CFR 1926.28(a).
5. The penalty proposed for the serious violation found proven in conclusion No. 4, above, in the sum of $650.00 is inappropriate. The appropriate penalty is $500.00.
In view of the foregoing; having given due deliberation to the gravity of the violation, the size of the Respondent's business, the presence or absence of good faith of the Respondent, and its history; and good cause appearing therefore, it is
ORDERED, that
1. The Citation for nonserious violation bearing item No. 1, alleging violation of that standard found at 29 CFR Section 1926.352(d), was affirmed by operation of law, in that it was not contested by the Respondent, however no penalty was proposed therefore.
2. The allegation that Respondent violated that standard found at 29 CFR 1903.2, was affirmed by operation of law, and the penalty proposed therefore, in the amount of $50.00 [*18] was similarly affirmed by operation of law, in that Respondent did not contest such allegation of violation or proposed penalty therefore.
3. The allegation of violation by the Respondent of that standard found at 29 CFR 1904.4(a) and the penalty proposed therefore, in the sum of $100.00, are herewith and hereby vacated.
4. The allegation of violation by the Respondent of that standard found at 29 CFR 1926.28(a), is herewith affirmed.
5. The penalty proposed in the sum of $650.00 for the violation found in No. 4, above, is herewith vacated, and a penalty of $500.00, for that serious violation is herewith assessed.
SO ORDERED.