DONALD HARRIS, INC.  

OSHRC Docket No. 76-4173

Occupational Safety and Health Review Commission

September 30, 1980

  [*1]  

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Henry G. Beamer, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Garvin Lee Oliver is before the Commission for review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   In that decision, Judge Oliver concluded, among other things, that Respondent, Donald Harris, Inc., violated the Act for failure to comply with the standard at 29 C.F.R. §   1926.451(d)(10). n2 The judge found the violation to be repeated within the meaning of section 17(a) of the Act, 29 U.S.C. §   666(a). n3 He also affirmed the three other than serious violations. n4 For the repeated violation, the Secretary proposed a penalty of $1,500, and the judge assessed a penalty of $1,250.   In its petition for discretionary review, the Respondent raises the following issues:

1.   Whether the Secretary's authorized representative fulfilled the duty imposed by section 8(e) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §   651 et seq.

2.   Whether the Respondent's [*2]   failure to comply with the standard at 29 C.F.R. §   1926.451(d)(10) is a repeated violation.

3.   Whether the penalty assessed by the Administrative Law Judge for respondent's failure to comply with the standard at 29 C.F.R. §   1926.451(d)(10) is excessive.

Chairman Cleary granted Respondent's petition for discretionary review. We affirm the judge's decision.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 29 U.S.C. §   661(i).

n2 29 C.F.R. §   1926.451(d)(10) provides:

Guardrails made of lumber, not less than 2 X 4 inches (or other material providing equivalent protection), and approximately 42 inches high, with a midrail of 1 X 6 inch lumber (or other material providing equivalent protection), and toeboards, shall be installed at all open sides and ends on all scaffolds more than 10 feet avove the ground or floor.   Toeboards shall be a minimum of 4 inches in height. Wire mesh shall be installed in accordance with paragraph (a)(6) of this section.

n3 In pertinent part section 17(a) states that:

Any employer who . . . repeatedly violates the requirements of section 5 of this Act . . . may be assessed a civil penalty of not more than $10,000 for each violation.

n4 Judge Oliver affirmed other than serious violations of 29 C.F.R. §   1926.21(b)(2), §   1926.451(a)(12), and §   1926.451(a)(13).   Neither party has sought review of those aspects of the judge's disposition of the case, and no issue concerning those items is included in the direction for review.   An issue neither raised in a petition for review nor directed for review by an individual member upon his own motion, see Commission Rule of Procedure 92(c), 44 Fed. Reg. 70106 at 70111 (1979), to be codified at 29 C.F.R. §   2200.92 [formerly Rule 91a(c), 29 C.F.R. §   2200.91a(c)], is not before the Commission on review.

  [*3]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

I

The facts surrounding the inspection are not in dispute.   Harland Jervis and William Neal, two compliance officers of the Occupational Safety and Health Administration (OSHA), arrived on the morning of August 26, 1976, to inspect the working conditions during the construction of Westmoreland Mall in Greensburg, Pennsylvania.   They announced themselves to the general contractor and informed him of their intent to inspect the worksite. The general contractor chose a carpenter, Robert Steiner, who was the union steward and safety officer, to contact all subcontractors and to convene a meeting of their representatives for an opening conference with the compliance officers.   Mr. Steiner made a list of all the subcontractors he knew to be on the worksite that day. n5 He then went around the site informing those subcontractors that an opening conference and inspection was to take place.   Mr. Steiner contacted all subcontractors except Respondent.   The opening conference was held, and the compliance officers began their inspection.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -   [*4]   - - - - -

n5 Mr. Steiner testified that, to the best of his knowledge, no one from Donald Harris, Inc. was at the worksite that day.   Further, given the location of the later-discovered Harris employee, Mr. Steiner would still have overlooked Harris because this location was beyond his usual safety tour route.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

During the inspection, the compliance officers observed Respondent's foreman working from a scaffold located on the roof of the building.   The foreman was patching a beam pocket in the face of a wall.   The scaffold was a three section, welded frame scaffold standing approximately fifteen feet high. n6 The scaffold did not have a standard guardrail. Mr. Jervis photographed the scaffold on the roof and issued a citation based on their personal observations.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n6 The compliance officer testified that the height of the scaffold was 19 feet, 6 inches.   On cross examination, he said that the 19 feet 6 inches height was an estimate, but the scaffold could not be lower than 14 feet. Donald Harris, Respondent's Vice President, testified on cross examination that the scaffolding was 15 feet high.   Even though there is some discrepancy in the testimony as to its exact height, no one testified that the scaffold was lower than the 10 foot regulatory minimum -- the height triggering the need for guardrails.

  [*5]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

II

Respondent contends, both before the judge and on review, that the citation should be vacated because the compliance officer failed to substantially comply with section 8(e) of the Act, n7 in that the Respondent was not afforded an opportunity to be present during the inspection. Respondent argues that the initial subcontractor notification tour conducted by Mr. Steiner was conducted in a haphazard manner.   He did not know all of the subcontractors and did not check his list of subcontractors against those who did attend the opening conference.   Also, Respondent contends that the OSHA inspectors failed to make specific inquiry as to whether all the subcontractors were represented and, thus, also failed to contact those who were not represented.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n7 29 U.S.C. §   657(e), provides:

Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection. Where there is no authorized employee representative, the Secretary or his authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace.

  [*6]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Secretary maintains, both before the judge and on review, that the compliance officers substantially complied with section 8(e) of the Act.   Because the worksite was large (a shopping mall consisting of one hundred stores), the compliance officers depended entirely on the safety officer to have representatives of all the subcontractors present at the opening conference.   Mr. Steiner made a list of all the subcontractors whom he personally knew to be working at the site and spent over an hour and a half locating subcontractors for the opening conference.   He traveled to each level of the building, and, knowing that ninety-nine percent of the masonry work was completed, concluded that no representative from Donald Harris, Inc., was present on the worksite. Further, since he was also the building safety steward who toured the building twice a day, he was the best person to contact the subcontractors. Therefore, did Secretary concludes, the compliance officers, with the help of Mr. Steiner, did all they could to ensure eneryone was present at the opening conference.

The Secretary also argues that   [*7]   Respondent has failed to show that it was prejudiced in preparing or presenting its defense as a result of the Secretary's failure to afford the employer its walkaround privileges.   The Secretary concludes that since Respondent made no showing of prejudice, its section 8(e) contention must fail.

Based on these facts, the administrative law judge found that in spite of the lack of a formal offer to Respondent of an opportunity to accompany the compliance officers on the walkaround, the compliance officers acted reasonably before inspecting Respondent's workplace, and therefore, there was substantial compliance with section 8(e) of the Act.   The judge also found that Respondent had failed to demonstrate that it was substantially prejudiced by the absence of an offer by the compliance officers to accompany them during the inspection.

The Commission has held that the test to be applied in determining whether to grant relief to an employer because of the Secretary's failure to meet the walkaround requirements of section 8(e) of the Act is whether the employer suffered prejudice in the preparation and presentation of its defense.     (July 31, 1980).   S & H Riggers & Erectors, Inc., 80 OSAHRC    , 8 BNA OSHC 1173, 1980 CCH OSHD P24,336 (Nos. 76-1104 & 76-1739, 1980), appeal filed, No. 80-7297 (5th Cir. April 21, 1980); Titanium Metals Corp. of America, 80 OSAHRC    , 7 BNA OSHC 2173, 1980 CCH OSHD P24,199 (No. 14080, 1980), appeal filed, No. 80-1333 (3d Cir. March 10, 1980).

In this case, Respondent did not present any evidence to show that its ability to prepare or present its defense was in any was prejudiced by the inspection procedure.   Consequently, Respondent's contentions must fail. n8

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n8 In Able Contractors, Inc., 77 OSAHRC 184/A2, 5 BNA OSHC 1975, 1980, 1977-78 CCH OSHD P22,250 (No. 12931, 1977), the Commission remanded the case for further findings and conclusions, including a determination as to whether the employer's defense has been prejudiced by the Secretary's alleged noncompliance with section 8(e).   The Commission based this remand on the fact that the controlling legal test had been changed in the interval between the judge's decision and the Commission's decision in that case.   Here also there has been an intervening change in the law, that is, the Commission's decision in Able Contractors was issued after Judge Oliver's decision in this case.   Nevertheless, there is no need for a remand.   Judge Oliver's decision clearly placed Respondent on notice that the lack of prejudice could be a factor in our resolution of its section 8(e) claim.   Yet Respondent has not even asserted prejudice before us and it did not take exception to the judge's conclusion that it was not prejudiced by the manner in which the compliance officers conducted their inspection. Moreover, it is clear under the facts of this case that Respondent could not establish that it was prejudiced. Respondent's foreman, Mr. Bettis, who was also in charge of employee safety, was found by the compliance officers working from the scaffold which was in violation.   Mr. Bettis also admitted that employee safety meetings were not regularly held.   Furthermore, Mr. Bettis was fully informed of the Secretary's charge on the date of the inspection. Under these circumstances, it is clear that Respondent could not establish that it was prejudiced in the preparation or presentation of its defense.   Cf. Belger Cartage Service, Inc., 79 OSAHRC 16/B14, 7 BNA OSHC 1233, 1979 CCH OSHD P23,440 (No. 76-1480, 1979) (remand unnecessary despite intervening change in law where employer could not rebut showing that violation was repeated).

  [*9]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

III

Judge Oliver's conclusion that Respondent violated the Act by failing to comply with the standard at section 1926.451(d)(10) is not before us on review. n9 The judge's characterization of the violation as "repeated," however, is before us.   The Respondent was issued citations for failure to comply with section 1926.451(d)(10) on three earlier occasions.   One violation occurred on August 29, 1974, one on June 11, 1976, and the last on July 16, 1976.   Evidence of these prior violations was admitted into the record.   The record also indicates that Respondent sent letters specifying abatement of the violations of August 29, 1974, and July 16, 1976, but not contesting them.   Therefore, these two citations became Commission final orders by operation of law before the inspection in this case.   Section 10(a) of the Act, 29 U.S.C. §   659(a). n10

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n9 See note 4 supra.

n10 The record does not indicate whether the violation which occurred on June 11, 1976, became a Commission final order prior to the inspection in this case.

  [*10]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Respondent argues on review that the violation here cannot be repeated because the prior final orders upon which the Secretary has based the repeated characterization were violations committed at different worksites. Respondent submits that the Secretary's guideline regarding repeated violations, contained in his Field Operations Manual, ("the Manual"), n11 are arbitrary and relies on the Commission decision in Donald Harris, Inc., 78 OSAHRC 1/C2, 6 BNA OSHC 1267, 1977-78 CCH OSHD P22,472 (No. 10434, 1978) which it claims affirmed a judge's decision to that effect.   Thus, Respondent concludes, violations at different worksites cannot stand as the basis for repeated violations.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n11 Field Operations Manual, U.S. Dept. of Labor, Occupational Safety and Health Admin., Chap.   VIII B.5e, states in pertinent part: "For purposes of considering whether a violation is repeated, citations issued to employees having fixed establishments . . . will be limited to the cited establishment. For employers engaged in businesses having no fixed establishment. . . repeated violations will be alleged based on prior violations occurring anywhere within the same state."

  [*11]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, 1979), the Commission held that a violation is repeated under section 17(a) of the Act n12 if at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation.   Potlatch also held that the Secretary's prima facie case of substantial similiarity can be established by showing that the past and present violations are for failure to comply with the same standard. n13 Once the prima facie case has been established, the burden shifts to Respondent to rebut that showing.   The Respondent may rebut the prima facie case by proving that the factual circumstances of the present violation are so different from the past violations that the situations cannot be viewed as substantially similar. n14 Belger Cartage Service, Inc., 79 OSAHRC 16/B14, 7 BNA OSHC 1233, 1236, 1979 CCH OSHD P23,440 at p. 28,374 (No. 76-1480, 1979).   See Potlatch Corp., supra.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -   [*12]   - -

n12 29 U.S.C. §   666(a).

n13 The Secretary has shown that the prior and present violations are for the employer's failure to comply with the same specification standard, and not for failure to comply with the same general standard.   See Potlatch, supra.

n14 Even though this case was heard before our decision in Potlatch, we conclude that Respondent's defenses would not have been tried differently had Potlatch been issued before the hearing.   Therefore, we do not offer the Respondent an opportunity for a remand with respect to the repeated violation.   See, e.g., Truland-Elliot, 77 OSAHRC 163/A7, 4 BNA 1455, 1976-77 CCH OSHD P20,908 (No. 11259, 1976).   Further, since the Secretary has presented a prima facie case of a repeated violation of a specification standard and the evidence of record shows that Respondent here could not rebut the Secretary's case, a remand is unnecessary.   J.L. Foti Const. Co., Inc., 80 OSAHRC    , 8 BNA OSHC 1281, 1980 CCH OSHD P24,421 (No. 76-5049, 1980).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The fact that these violations occurred at different worksites is not relevant [*13]   to a determination of a repeated characterization. Geographic proximity of past and present violations and the length of time between the two violations are indictive of the employer's "good faith." These factors will be considered by the Commission only in the assessment of a penalty.   Potlatch Corp., supra.

In any event, that portion of the Secretary's Manual on repeated violations concerning whether the employer has a fixed establishment has withstood constitutional (equal protection) scrutiny. n15 Desarrollos Metropolitanos, Inc. v. OSHRC, 551 F.2d 874 (1st Cir. 1977). Moreover, Respondent's reliance on Donald Harris, Inc., supra, is misplaced.   In that case, the Commission specifically concluded that it was unnecessary to address the question of whether the violation should be classified as repeated. The Commission neither adopted nor affirmed the judge's conclusion regarding the Secretary's Field Operations Manual. For the reasons stated above, we affirm the judge's decision that the violation was repeated. n16

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n15 The guidelines provided by the manual are plainly for internal application to promote efficiency and not to create an administrative straight jacket.   They do not have the force and effect of law, nor do they accord important procedural or substantive rights to individuals.   FMC Corporation, 77 OSAHRC 155/B02, 5 BNA 1707, 1977 CCH OSHD OSHC P20,640 (No. 13155, 1977).

n16 Commissioner Barnako would not presume that a violation of the same standard fulfills the substantial similarity requirement and shift the burden to the employer to prove otherwise.   Potlatch Corp., supra (concurring and dissenting opinion).   Instead, he would look to whether the second violation is of such a nature that the employer, as a result of the notice provided by the first citation, should have taken steps to eliminate from its different workplaces the condition alleged to constitute the repeated violation.   When such notice is not apparent from the face of the citation, he would require the Secretary to prove substantial similarity.

In Commissioner Barnako's view the standard at §   1926.451(d)(10) applies to two distinct conditions: first, those involving scaffolds more than ten feet in height and second, those involving scaffolds less than ten feet in height but in which the distance from the scaffold platform to the ground or floor below exceeds ten feet. In Commissioner Barnako's opinion, a citation for repeated violation must be predicated upon the same type of condition involved in the underlying citation upon which the Secretary bases the repeated allegation.   See Automatic Sprinkler Corp., 79 OSAHRC 102/B2, 7 BNA OSHC 1957, 1979 CCH OSHD P24,077 (No. 76-5271, 1979) (concurring and dissenting opinion).

The citation for repeated violation here alleges a violation of §   1926.451(d)(10) and involves a scaffold more then ten feet in height. Hence the condition for which Respondent was cited is of the first type noted above.   The underlying citations all allege violations of §   1926.451(d)(10), but it is not apparent from the face of the citations whether the cited conditions fall within the first or second category listed above.   Moreover, the Secretary's evidence does not establish which of the two conditions were involved in the underlying citations.   Accordingly, Commissioner Barnako does not agree with his colleagues that the Secretary has established a prima facie case of substantial similarity. Therefore, he would not affirm the judge's decision that the violation was repeated.

  [*14]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

IV

The original penalty proposed by the Secretary was $1,500 for the repeated violation.   Judge Oliver assessed a penalty of $1,250 after properly considering the penalty assessment factors set out in section 17(j) of the Act, 29 U.S.C. §   666(i). n17 Respondent, on review, contends that this assessment is excessive.   Since we find that the judge properly weighed the factors of section 17(j) of the Act, we will not disturb his findings.   Therefore, in light of the above, we affirm the judge's assessment of $1,250 for the repeated violation.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n17 Section 17(j) of the Act, states that:

The 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.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Accordingly, we hold that Respondent [*15]   failed to show it was prejudiced in the preparation and presentation of its defense because of the Secretary's failure to meet the walkaround requirements of section 8(e) of the Act, and we affirm the judge's decision finding the violation of the Act based on noncompliance with 29 C.F.R. §   1926.451(d)(10) to be repeated and assess a penalty of $1,250.

SO ORDERED.