GIFFORD-HILL PRE-STRESS

OSHRC Docket No. 75

Occupational Safety and Health Review Commission

February 15, 1972

  [*1]  

Before MORAN, CHAIRMAN; VAN NAMEE and BURCH, Commissioners

OPINION:

  BY THE COMMISSION: The Commission affirms the Hearing Examiner's recommended decision and order in this case.

DISSENTBY: VAN NAMEE

DISSENT:

  VAN NAMEE, COMMISSIONER, dissenting: This matter is before the Commission as the result of my direction for review of the Hearing Examiner's report.   That direction for review was filed on January 18, 1972, in accordance with the provisions of Section 12(j) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590; 29 U.S.C. 651, et seq. ) hereinafter referred to as the Act.

On September 3, 1971, the Secretary cited this respondent and two other employers, charging that each had violated "section 5(a)(1)(2)" (sic) of the Act in that "lifting attachments on prestress concrete slabs are of unsafe material and construction." An October 9 abatement date was specified in each of the three citations for serious violation. By his notifications of proposed penalty the Secretary proposed that this respondent be penalized $700; that S & H Riggers and Erectors, Inc., (the respondent in Docket No. 76) be penalized $750; and that Arthur G. McKee and Company (the respondent in Docket No. 77)   [*2]   be penalized $700.

Notices of contest were timely filed by the three respondents thus establishing the Commission's jurisdiction   in accordance with section 10(c) of the Act.   A complaint was filed against each respondent by the Secretary and each employer duly answered.   Two "injured employees" sought party status through counsel, and, although it does not appear from the record whether or not they were granted such status, they were kept advised of developments in the proceeding by being served with copies of all pleadings, correspondence, and other documents.   Likewise, five labor organizations representing various crafts and classes of respondents' employees were served with copies of pleadings, etc., and treated as parties although it does not affirmatively appear from the record that they actively sought such status.

The Secretary moved to consolidate the three cases, and, although the record reveals no action by the Hearing Examiner on that motion, the cases were thereafter treated as consolidated proceedings.   Subsequently, each respondent moved to withdraw its notice of contest, and paid the penalty which the Secretary had proposed.   These withdrawal motions met [*3]   the Commission's requirements regarding service upon other parties, certification of abatement of the hazard, and affirmation of continuing compliance with the Act's requirements.   However, each respondent pointedly asserted that it had not violated the Act.   The two "injured employees" and the labor organizations were duly notified of the motions to withdraw the notices of contest. However, the record reveals no affirmative action by any of them concerning agreement or disagreement on their parts with this stipulated disposition of the proceedings.

By his order of December 20, 1971, the Hearing Examiner granted the motion to withdraw notice of contest of each respondent "upon . . . representation   that the violation . . . has been fully abated and the proposed penalty . . . paid . . . with an affirmation of continuing compliance with the consent of affected employees and Secretary of Labor. . . ."

The Hearing Examiner did not certify that the settlement of the matter is consistent with the provisions of the Act (Commission's rules of procedure, rule 2200.23).

My colleagues have affirmed the Hearing Examiner's action, without comment.   On the basis of the record, I cannot [*4]   concur.

Inasmuch as the reasoning to support the majority's action is not disclosed, my dissent will necessarily seem somewhat oblique.

That the authority of the Commission to adjudicate questions regarding the Secretary's enforcement actions (section 10(c) of the Act) and assess all civil penalties for violations of the Act (section 17(j)) carries with in the corresponding responsibility of deciding issues in a manner consistent with the public interest objectives of the Act, on the basis of a complete record, is being questioned -- if not here, in other circumstances.   My views on that subject will be stated at length in an opinion soon to be released and will not be restated here.

Assuming arguendo that the Commission cannot approve a stipulated disposition of a proceeding before it which contravenes the Act, or the policy thereof, and assuming that the Commission need not sanction a settlement which does not clearly comport with the Act's purposes or one arrived at for undisclosed reasons, the Hearing Examiner's recommended decision in this case should not be affirmed.

The parties' (the Secretary, the employers, and perhaps the labor organizations) refusal to present to [*5]   the   Commission a record sufficiently complete to enable it fairly to determine the issues should not be allowed to frustrate the Commission's responsibility to formulate policy on important questions.

In this case the general contractor, Arthur G. McKee and Company, asserts by way of its answer to the Secretary's complaint, inter alia., that it sub-contracted the fabrication and installation of the concrete slabs to Gifford-Hill and Company, Inc., (or its subsidiary Gifford-Hill Pre-Stress), and that, if there was a serious violation of the Act, it (McKee) did not, and could not with the exercise of reasonable diligence, know of the presence of the violation (section 17(k) of the Act).   Gifford-Hill admits that it manufactured the concrete slabs but alleges that it sub-contracted their installation to S & H Riggers and Erectors, Inc.   Thus it denies that the construction site at the Ralston-Purina Pet Food plant in Fairburn, Georgia, constituted "a place of employment furnished by it" (section 5(a)(1) of the Act).   It claims it had no employees at the site of the violation, that it "does no business at construction sites . . . and did not lift . . . any concrete slabs [*6]   at [this] construction site." Furthermore, Gifford-Hill alleges that the lifting attachments at the ends of the concrete slabs were adequate according to recognized standards (those of the Pre-Stress Concrete Institute, the American Concrete Institute, and the American National Standards Institute).

Although not specifically stated, S & H Riggers' general issue plea constitutes a denial of knowledge -- or the ability to know with the exercise of reasonable diligence -- of the alleged violative condition (section 17(k) of the Act).

These are but a few of the substantial questions of law and fact which are raised in these proceedings.   In   my view, the resolution of such questions should not have been avoided in these cases.   The majority's decision merely delays a determination of issues which are crucial to the effective implementation of the Act.   If the Congress mandated any responsibility to the Commission, it is clear that it expected the employment of that expertise possessed by its members, especially in the early stages of the statute's enforcement, to the end that hazards to employees' safety and health will be eliminated or mitigated at the earliest possible time.   [*7]   That will not be accomplished by permitting the stipulated disposition of proceedings on the parties' own terms without affirmative consideration of the public interest. The Commission cannot long deny the will of the Congress by avoiding or diluting its statutorily imposed rule.

[The Judge's decision referred to herein follows]

KENNEDY, JUDGE, OSAHRC: This case is properly before this Hearing Examiner upon assignment for hearing by the Occupational Safety and Health Review Commission.

Upon motion by respondent to withdraw its notice of contest and representation that the violation contained in the Citation for Serious Violation, Citation Number 1, issued by the U.S. Department of Labor, Occupational Safety and Health Administration, has been fully abated and the proposed penalty of $700 paid; that the violation has been fully abated, with an affirmation of continuing compliance; with the consent of affected employees and Secretary of Labor (whose representatives have been served with said motion);   the Hearing Examiner finds that the motion of respondent should be granted and so orders.

There being no further contest in this case, it is respectfully recommended   [*8]   that this order be made the order of the Commission.