GUMINA BUILDING AND CONSTRUCTION COMPANY
OSHRC Docket No. 6048
Occupational Safety and Health Review Commission
April 28, 1976
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Francis V. LaRuffa, Regional Solicitor, U.S. Dept. of Labor
Carmen J. Gumina, GUMINA BUILDING CONSTRUCTION COMPANY, for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Commissioner:
On June 21, 1974, Administrative Law Judge Joseph Chodes issued a decision affirming three items of the citation for violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, n1 and vacating another item. He sua sponte amended the citation and complaint as to a fifth item so as to allege noncompliance with a different standard, relying on Fed. R. Civ. P. 15(b), and affirmed the citation as amended.
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n1 29 U.S.C. § 651 et seq.
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Neither the Secretary nor respondent filed petitions excepting to the Judge's decision. On his own motion, Commissioner Moran directed review of the Judge's decision as follows:
This direction for review is limited solely to the finding that respondent violated 29 U.S.C. § 654(a)(2) by its failure to comply with the requirements [*2] of 29 C.F.R. § 1926.651(t).
Submissions are requested on whether the Judge acted properly when, in the absence of any motion, he amended an item of the citation charging failure to comply with the requirements of 29 C.F.R. § 1926.500(b) and substituted a charge of failure to comply with the requirements of 29 C.F.R. § 651(t)?
The Administrative Law Judge held that section 1926.651(t) rather than section 1926.500(b)(8) was the applicable standard for the alleged failure to guard the hole involved; the crucial factual issue was tried; and respondent was not prejudiced by the amendment to section 1926.651(t).
In response to the direction for review, the Secretary states that he did not intend to file a brief. He also represents from a conversation with Mr. Gummina, that respondent does not intend to file a brief in response to the direction for review. The Secretary also asserts that the direction for review was inappropriate and subjects the proceeding to unnecessary delay at the expense of the entry of a final order protecting respondent's employees.
Since the parties express no objection to the Judge's action and since the subject of amended pleadings has been discussed in many [*3] cases, we decline to pass upon the issues. Electrical Contractors Associates, Inc., BNA OSHC , CCH OSHD para. (No. 10108, February 24, 1976).
Accordingly, it is ORDERED that the decision of the Judge is affirmed.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
Despite the appearance of reversible error on the face of this record, my colleagues are once again affirming the decision of an Administrative Law Judge without any consideration whatsoever of the merits of the issue before this Commission. Therefore, I must once again reiterate that the statutory authority conferred upon members of this Commission by 29 U.S.C. § 661(i) to direct review of a Judge's decision is not qualified by any requirement that the parties involved request such review. n2
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The Commission has previously held in Secretary v. Wetmore & Parman, Inc., 2 OSAHRC 288 (1973), that in the discharge of its statutory duties, it should perform as an appellate court within the traditional sense. n3 If appellate courts may, under the "plain error" doctrine, on their own motion notice errors to which no exceptions have been taken but which are obvious on the face of the record or would seriously affect the fairness of the judicial process, n4 our power is certainly no less. The sua sponte amendment by the Judge in this case to find respondent in noncompliance with 29 C.F.R. § 1926.651(t), instead of the safety standard charged and tried, constituted "plain error" of which we should take notice and correct.
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n3 My colleagues subsequently recognized this principle when, in Secretary v. Francisco Tower Service, supra at n. 3, they likened our review process to the certiorari procedure at law.
n4 United Brotherhood of Carpenters and Joiners of America v. United States, 330 U.S. 395, 412 (1947); United States v. Atkinson, 297 U.S. 157 (1936); 5 CJS Appeal & Error § 1239; 4 CJS Appeal & Error § 245.
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In Wetmore & Parman, the Commission wisely concluded that courts "do not and cannot supervise the prosecutor by dictating the charges that he must bring before them" because to do so would do violence to the concepts if fairness and impartiality. 2 OSAHRC at 293. That decision also noted in footnote 5 that:
"[I]t is the function of the prosecutor, in his sole discretion, to decide when and under what circumstances a violation will be charged, and the exact nature of the charge." 12 OSAHRC at 292.
In the case before us, respondent was charged with violating 29 U.S.C. § 654(a)(2) because of a failure to comply with the occupational safety standard codified at 29 C.F.R. § 1926.500(b)(8). n5 Respondent appeared pro se and defended against this charge. Having decided that the cited standard was inapplicable to alleged violative condition, the Judge, after trial and on his own motion amended the charge to what he considered to be a more applicable standard upon which to base liability.
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n5 The cited standard provides as follows:
"Floor holes, into which persons can accidentally, walk, shall be guarded by either a standard railing with standard toeboard on all exposed sides, or a floor hole cover of standard strength and construction . . . ."
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In a number of decisions in which I have dissented, my colleagues have concluded that it was error for the Judges to inject issues which had not been raised by the parties. n6 Apparently, they distinguished those decisions from the instant one because the injection in the instant case was to the advantage of the complainant. In so doing they disregard their own advice in Central Steel, supra note 6, that:
"The error [for a Judge to inject issues] is compounded when the parties are not even informed that the Judge will consider such issues."
Similarly, the parties in this case were never informed that respondent's liability was to be based upon a different standard than the one tried. This was error.
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Assuming arguendo that Rule 15(b) of the Federal Rules of Civil Procedure applies to the amendment of job safety citations, no amendment is permissible thereunder unless there is express or implied consent of the parties. Consent can only be implied when the party against whom an amendment is sought received fair notice that the unpleaded charge was in issue. In addition, there is no notice or implied consent where respondent appears pro se at the trial and his attention is in no way directed to the significance of the evidence on an issue outside the pleadings. United States v. Hauck, 155 F.2d 141, 147 (2d Cir. 1946).
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n7 As I have previously indicated, however, this rule does not apply to such a citation as it is a unique creature of statute to which statutory requirements for stating the nature of the violation with particularity have been attached.
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That is the case here. Respondent, appearing pro se, did not receive actual notice during the trial of the amendment, nor was there an opportunity to present evidence or possible defenses germane to the amended charge, to wit: 29 C.F.R. § 1926.651(t), n8 which applies to excavations. That standard raises many questions which are not pertinent to the standard cited in the original charge. Does respondent's concrete hole come within the definition of this standard? Was the location thereof "remotely located" within the meaning of the standard? Does the standard's wording adequately inform employers whether or not the scandard applies to them? The post-trial amendment precluded respondent from raising any of these matters.
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n8 This standard, listed under Subpart P of the regulations which is entitled "Excavations, Trenching and Shoring," provides:
"Adequate barrier physical protection shall be provided at all remotely located excavations. All wells, pits, shafts, etc., shall be barricaded or covered. Upon completion of exploration and similar operations, temporary wells, pits, shafts, etc. shall be backfilled." (Emphasis added.)
An excavation is defined in pertinent part in 29 C.F.R. § 1926.653(f) as:
"Any manmade cavity or depression in the earth's surface, including its sides, walls, or faces, formed by earth removal and producing unsupported earth conditions by reasons of the excavation." (Emphasis added.)
In the instant case, there is nothing in the record indicating that the subject hole was an excavation. Its walls were of concrete, not unsupported earth. Consequently, 29 C.F.R. § 1926.651(t) is clearly inapplicable.
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No consent can be implied under these circumstances as prejudice clearly results. The amendment was therefore highly improper. Messrs. Barnako and Cleary decline to pass upon this issue because the subject "has been discussed in many cases," and because neither party has requested review. n9 Those excuses are totally devoid of merit. Firstly, what has been discussed in other cases is of no avail to the respondent in this case when my colleagues refuse to address the issue. Secondly, as was held in Brennan v. OSAHRC and Santa Fe Trail Transport Company, 505 F.2d 869, 871 (5th Cir. 1975), an employer who has contested a citation and has not withdrawn that contest
". . . has an interest in the controversy even though n10 it is unwilling to do anything to protect that interest."
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n9 It seems ironic that by their decision my colleagues are sustaining the sua sponte action by the Judge which resulted in the affirmance of a violation against respondent while, at the same time, denying review of that action because of what they consider to be an improper sua sponte direction for review by me. Their standard for application of this rule is a clear one: Sua sponte actions are acceptable only where they assist the Secretary of Labor in obtaining a conviction. If they work to the advantage of an employer - they are wrong. Messrs. Barnako and Cleary have applied this "standard" in many cases and have never deviated from it.
n10 Accord, Brennan v. Smoke-Craft, Inc., No. 74-2359 (9th Cir., February 13, 1976) at n.6; Brennan v. Hanovia Lamp Division, Canrad Precision Industries, 502 F.2d 946, 948 (3d Cir. 1974).
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Because the amendment was improper and the originally cited standard is inapplicable, n11 the charge should be vacated.
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n11 There can be no violation of a standard which requires guarding of floor holes or openings when the proof fails to show the existence of a floor. Secretary v. Gressani-Gysel Construction, Inc., 3 OSAHRC 1183, 1192 (1973).
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Since this decision does not cover all matters contained in Judge Chodes' decision, the same is attached hereto as Appendix A.
APPENDIX A
DECISION AND ORDER
Stephen D. Dubnoff, for the Secretary of Labor
Carmen J. Gumina, for the respondent
Joseph Chodes, 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 659) in which the respondent is contesting a Citation issued by the complainant under the authority vested in complainant by Section 9(a) of the Act (29 USC 658(a)). The Citation alleges that [*11] as the result of the inspection of a place of employment located at Middlesex College Campus, Academic Service Building and Performing Arts Center, Woodbridge Avenue, Edison, New Jersey, the respondent is alleged to have violated Section 5(a)(2) of the Act (29 USC 654(a)(2)) by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof (29 USC 655).
The Citation, which was issued on December 19, 1973, alleged that the violations resulted from a failure to comply with standards promulgated by the Secretary by publication in the Federal Register and codified in 29 CFR, Chapter XVII, Part 1926. The standards prescribed by Part 1926 were adopted as occupational safety and health standards under the Act at 29 CFR 1910.12.
Specifically, the respondent was charged with nonserious violation of the following standards:
1. 29 CFR 1926.100(a) in that employees of respondent failed to wear protective hats in and around the Academic Service Building area where there was danger of falling objects.
2. 29 CFR 1926.102(a) in that respondent failed to provide eye and face protection equipment at northeast corner [*12] of worksite where employees were engaged in cutting lumber with a Dewalt-Rip radial saw.
3. 29 CFR 1926.25(a) in that respondent failed to keep work area in and around Academic Service Building free of loose reinforcement rods, scrap lumber, loose wire, paper, nails and tools.
4. 29 CFR 1926.350(a)(9) in that respondent failed to have oxygen cylinders secured in an upright position at northwest end, west center and at eastern section of worksite area.
5. 29 CFR 1926.500(b)(8) in that respondent failed to guard an opening, approximately 4 feet by 4 feet with a depth of approximately 10 feet, at west center outside wall area of Academic Service Building.
Pursuant to the enforcement procedure set forth in Section 10(a) of the Act (29 USC 659(a)), the respondent was notified by letter dated December 19, 1973 from William J. Dreeland, Area Director of the New Jersey area, Occupational Safety and Health Administration, U.S. Department of Labor, of a proposed penalty of $45 for the alleged violation of the standard referred to in item 1 above; $35 for item 3; and $155 for item 5. No penalties were proposed for items 2 and 4.
After respondent contested this enforcement action, and [*13] a Complaint and Answer had been filed by the parties, the case came on for hearing at New York, New York, on May 2, 1974.
STIPULATIONS
1. The respondent, Gumina Building and Construction Co., is a New Jersey corporation with its principal office and place of business in New Brunswick, New Jersey. (T-5, 6)
2. The respondent receives materials from without the State of New Jersey for use on its various construction sites. (T-6)
3. The respondent is a large corporation as compared to other businesses in the central New Jersey area. (T-6)
4. The respondent's dollar volume for the year preceding the alleged violation was ten million dollars and its new worth was one million dollars.
5. The respondent was the general contractor at the site involved in this proceeding. (T-6)
6. The average daily number of employees during the year preceding the alleged violation yaried from one hundred to four hundred depending on the season and construction site. On the day of the alleged violations there were approximately thirty of respondent's employees on the job site. (T-6, 7)
7. None of respondent's employees were injured at the time of the alleged violations. (T-6)
8. [*14] Respondent has no previous history of any violations of the Occupational Safety and Health Act or of any New Jersey Safety law. (T-7)
9. All documents required to be posted, including the Notice of Hearing, were posted in the trailer at the job site. (T-7)
SUMMARY OF EVIDENCE
The worksite in question was visited by Philip A. Taormina, a compliance officer with the complainant, on December 10, 1973. An Arts Building was being constructed and had progressed to the first floor. There were about 30 employees of the respondent on the job and about 15 of them, including Tom Gilletta, the foreman, were not wearing protective hats. The employees were working at two different levels so that there was the possibility that a tool or a piece of lumber could fall down and on the employees at the lower level. (T-22, 23, 32)
Mr. Taormina observed an area set off from the building where some men, including John Elko, one of respondent's employees, were working at a table saw. From where he was standing Mr. Taormina could not tell whether the men were wearing glasses, but he was told later by Mr. Elko, that there was no safety equipment on the job, that he had asked for safety glasses [*15] and been refused. (T-13, 19-21) On the other hand, Carmen Gumina, on behalf of the respondent, stated that glasses were available on the job and that all an employee had to do was to ask for them. (T-75).
There were all sorts of debris at the job site, inside and outside the building, including planks, loose boards, reinforcement rods, paper, wire, nails and tools, and there was evidence that the debris was not placed there the day of inspection, but had accumulated over a period of time. The debris, according to Mr. Taormina, created a tripping hazard as employees would have to walk through the debris to perform their work. (T-33-35)
Mr. Taormina observed 5 oxygen gas cylinders lying in the mud or on the ground at the job site, but a "pretty good distance away". (T-37, Exhibit C-1)
On a side of the building under construction there was a 10 foot deep opening leading to the basement. The top of the opening measured 4 feet by 4 feet and there was a rim around it about 7 to 9 inches high and about 4 inches wide. There was no cover over the opening nor was there a railing around the opening, except for the side adjacent to the building. The hazard presented was that employees [*16] who were working around the area could fall into the opening and possibly get killed. Mr. Taormina observed employees within 20 or 30 feet of the opening and because there was a ladder in the opening, it meant to him that someone would be going to the opening sooner or later. (T-44-46, 50, 51, Exhibits C-2, C-3) Mr. Gumina testified that the opening was being used to bring material down to the boiler room. (T-78)
PENALTIES *
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* Section 17(j) of the Act (29 USC 666(i)) provides that [t]he Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.
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Mr. Taormina recommended a unadjusted penalty of $140 for violation of item 1 (failure to wear protective hats) and in arriving at this figure he took into account the probability of an accident happening, [*17] the seriousness of any injury which could result and the 15 employees affected by the violation. The unadjusted penalty was then reduced by 10 percent for the good faith of the respondent. While the respondent did not have a formal safety program, the respondent's foreman, Mr. Gilletta, was a sort of safety man in instructing his men and Mr. Gilletta was cooperative. No allowance was given for the size of respondent's business because it had over a hundred employees. An allowance of 20 percent was made for history as the respondent had no record of any previous safety violation. The unadjusted penalty was thus reduced to $98. An additional allowance of 50 percent was made for the expected abatement of the violation so that the final proposed penalty, rounded out, was $45. (T-63-65)
No penalty was recommended for item 2 (failure to provide eye protection) because Mr. Taormina did not actually see any employee working without glasses. (T-65)
An unadjusted penalty of $100 was recommended for item 3 (failure to keep work area clear of debris) which, after the same allowances discussed under item 1 above, reduced the proposed penalty to $35. (T-65, 66)
With respect to item [*18] 4 (failure to secure oxygen cylinders) no penalty was assessed as the respondent's employees were a distance away and there was little probability to any injury. (T-66, 67)
For item 5 (uncovered opening) an unadjusted penalty of $420 was recommended, primarily because of the possibility of serious injury or death resulting from an accidental tripping into the opening. A mitigating factor was the low probability that an accident would happen because the opening was guarded on one side and employees would have to walk around to approach the opening. After the allowances referred to under item 1 above, the proposed penalty was $155. (T-66-69)
DISCUSSION
The evidence sufficiently establishes violations of items 1, 3 and 4. The penalties proposed for the violations of items 1 and 3 of the $45 and $35, respectively, are considered appropriate under the criteria set forth in section 17(j) of the Act. No penalty for violation of item 4 is justified on the basis of low probability of injury.
With respect to item 2 (failure to provide eye protection) the evidence does not establish a violation of 29 CFR 102(a). The compliance officer did not observe any of respondent's employees [*19] working at the table saw without safety glasses and the Citation for violation of this standard is based on what Mr. Elko told him, namely, that he asked his employer for glasses and was refused. This hearsay evidence is contradicted by the direct testimony of Mr. Gumina that safety glasses were available on the job and all an employee had to do was to ask for them.
In item 5, respondent is charged with violation of 29 CFR 1926.500(b)(8). This standard is under sub-part M headed "Floor and Wall Openings, and Stairways" (emphasis added) and provides:
(8) Floor holes, into which persons can accidentally walk, shall be guarded by either a standard railing with standard toeboard on all exposed sides, or a floor hole cover of standard strength and construction that is secured against accidental displacement. While the cover is not in place, the floor hole shall be protected by a standard railing. (Emphasis added)
"Floor Opening" is defined in Section 1926.502(b) as "[a]n opening measuring 12 inches or more in its least dimension in any floor, roof, or platform through which persons may fall". (Emphasis added)
While the evidence clearly establishes that there was an [*20] uncovered and unguarded hole or opening into which a person could accidentally walk, it was located outside the building under construction. The hole or opening was not in any floor * and consequently not within the scope of the standard allegedly violated.
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* "Floor" is defined in Webster's New World Dictionary Second College Edition as "The inside bottom surface of a room, hall, etc." and as "a level or story of a building".
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It appears, however, that another standard, 29 CFR 1926.651(t) under sub-part P, headed "Excavations, Trenching and Shoring" is applicable to the factual situation herein. The standard provides:
(t) Adequate barrier physical protection shall be provided at all remotely located excavations. All wells, pits, shafts, etc., shall be barricaded or covered. Upon completion of exploration and similar operations, temporary wells, pits, shafts, etc., shall be backfilled. (Emphasis added)
The hole or opening in the instant case comes within the definition of a pit, that is, a hole or cavity [*21] in the ground. The standard requires that pits shall be barrticaded or covered which was not done in the instant case. While the respondent was not cited for violation of Section 1926.651(t) the issue raised by the citation and complaint, and tried at the hearing, was whether the opening at the outside wall of the building under constrution was adequately guarded against the possibility that an employee could walk into the opening. The respondent would not be prejudiced by amendments alleging violation of 29 CFR 1926.651(t) in item 5 of the Citation and paragraph V(5) of the complaint, thereby conforming the pleadings to the evidence. This action is sanctioned by Rule 15(b) of the Federal Rules of Civil Procedure which provides, in pertinent part:
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment . . . .
With respect to the penalty for this violation, the evidence [*22] shows that respondent's employees were within 20 to 30 feet of the opening and could be expected to use the opening to reach the basement. The number of employees who would have occasion to use the opening and with what frequency is not established. The probability of an employee walking into the opening is minimized by the raised rim around the opening and the guarding on the side facing the building. Under the circumstances, it is considered appropriate to reduce the penalty from $155 to $50.
FINDINGS OF FACT
On the basis of the Citation, Notice of Proposed Penalty, Notice of Contest, pleadings, stipulations, the testimony adduced at the hearing and the representations of the parties, it is concluded that on the basis of the record as a whole, a preponderance of the evidence supports the following findings of fact: *
1. Paragraph 1 through 9 of the Stipulations are incorporated herein as findings of fact.
2. Approximately 15 of the respondent's employees were working without protective helmets in areas where there was a possible danger of head injury from falling objects.
3. The evidence does not establish that respondent did not supply its employees with eye and [*23] face protection while cutting lumber with a radial saw as alleged in the Citation and complaint.
4. The work area at the worksite was not kept clear of debris thereby exposing approximately 30 of its employees to the hazard of tripping and sustaining injuries.
5. Five oxygen gas cylinders were not secured in an upright position.
6. A pit or opening 4 feet by 4 feet and 10 feet in depth, at a side of the building under construction was not covered and not guarded, except that there was a guard on the side adjacent to the building. Respondent's employees were working about 20 to 30 feet away, and the employees would have had to use the pit or opening to get down to the basement of the building.
7. Giving due consideration to the size of respondent's business, the gravity of the violation, the good faith of the respondent and the negative history of previous violations, the appropriate penalty for violation of item 1 of the Citation is $45, for item 3 $35 and for item 5, as amended, $50. No penalty is appropriate for violation of item 4.
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* The facts recited in the findings occurred at the worksite involved in this proceeding on December 10, 1973.
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CONCLUSIONS OF LAW
1. The Respondent at all times material hereto was engaged in business affecting commerce within the meaning of Section 3(5) of the Occupation Safety and Health Act of 1970.
2. The respondent at all times material hereto was subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder, and the Commission has jurisdiction of the parties and of the subject matter herein.
3. Respondent violated the Occupational Safety and Health standard set forth at 29 CFR 1926.100(a) and is assessed a penalty of $45; respondent violated 29 CFR 1926.25(a) and is assessed a penalty of $35; respondent violated 29 CFR 1926.350(9) and is assessed no penalty; and respondent violated 29 CFR 1926.651(t) and is assessed a penalty of $50.
4. The respondent did not violate the standard set forth at 29 CFR 1926.102(a).
ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record it is ORDERED
1. That the Citation issued on December 19, 1973, for violation of 29 CFR 1926.100(a) and the proposed penalty [*25] of $45; the Citation for violation of 29 CFR 1926.25(a) and the proposed penalty of $35; the Citation for violation of 29 CFR 1926.350(a)(9) and the proposed no penalty; and the Citation, as amended, for violation of 29 CFR 1926.651(t) and the proposed penalty, as modified, in the amount of $50; are all hereby affirmed.
2. That the Citation issued on December 19, 1973 for violation of 29 CFR 1926.102(a) is hereby vacated.
JOSEPH CHODES,
JUDGE, OSAHRC
Dated: Jun. 21, 1974
New York, New York