GRANITE-SEABRO CORPORATION
OSHRC Docket No. 923
Occupational Safety and Health Review Commission
August 16, 1974
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: MORAN
OPINION:
MORAN, CHAIRMAN: A decision of Review Commission Judge David G. Oringer, dated July 31, 1973, is before this Commission for review pursuant to 29 U.S.C. § 661(i).
Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, the Judge's decision is hereby affirmed in all respects.
CONCURBY: CLEARY
CONCUR:
CLEARY, COMMISSIONER, concurring: I concur in affirming the Judge's finding of no prejudicial error concerning respondent's alleged violation of the Act for non-compliance with the standards cited in this case.
The facts herein compel a comment on the possibility that respondent should have been found to have violated section 5(a)(1) of the Act. Judge Oringer was of the view that a violation of that section should have been asserted. n1 The direction for review on the issue antedated National Realty & Constr. Co., Inc. v. O.S.H.R.C. & Secretary of Labor, No. 72-1978 (D.C. Cir., December 13, 1973). Judge Wright's instructive decision in National Realty makes it clear that the Secretary must fashion and defend his own theory. The Commission cannot [*2] do it. n2
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n1 Standards relating to power transmission and distribution had not been adopted by the Secretary of Labor as of the time of the instant citation.
n2 Of course this is a two way street. Employers in cases before the Commission are also expected to fashion and defend their own theories and can not expect the Commission to do it for them.
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The National Realty decision, however, does not preclude the Commission from concluding that an issue was tried by the parties' express or implied consent pursuant to the provisions of section 15(b) of the Federal Rules of Civil Procedure as applied by 29 CFR 2200.2(b). The Commission would normally find implied consent to a trial of the section 5(a)(1) violation on the instant record. However, here counsel for the Secretary expressly noted that the Secretary intended to limit the proceedings to a trial of the alleged violation of section 5(a)(2) of the Act. Clearly, therefore, under these circumstances, I find no implied consent to a trial of a possible section [*3] 5(a)(1) violation.
[The Judge's decision referred to herein follows]
ORINGER, JUDGE, OSAHRC: 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 Citation issued on May 5, 1972, and Complaint filed on May 25, 1972, allege that Granite-Seabro Corporation, the employer (hereinafter referred to as "Respondent"), on or about April 27, 1972, at a workplace under its ownership, operation and control, violated three occupational safety and health standards promulgated pursuant to section 6 of the Act, which in combination were deemed one "serious" item of the Citation by Complainant, and read, as follows:
CITATION NO. 1 -- ITEM NO. 1
29 CFR 1926.20(b)(1) -- (b) Accident prevention responsibilities. (1) It shall be the responsibility of the employer to initiate and maintain such programs as may be necessary to comply with this part.
29 CFR 1926.20(b)(2) -- [*4] (b) Accident prevention responsibilities. (2) Such programs shall provide for frequent and regular inspections of the job sites, materials, and equipment to be made by competent persons designated by the employers.
29 CFR 1926.21(b)(2) -- (b) Employer responsibility. (2) The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.
The violations as alleged by the Complainant are described as follows:
CITATION NO. 1 -- ITEM NO. 1
Construction 29 CFR Sec. 1926 as adopted by 29 CFR Sec. 1910.12 -- Subpart C
1926.20(b)(1) -- Failure by the employer to initiate and maintain such programs as may be necessary to comply with this subpart.
1926.20(b)(2) -- Failure on the part of the employer to have provided for frequent and regular inspections of the job sites by competent persons as designated by the employer (page 7346).
1926.21(b)(2) -- Failure on the part of the employer to instruct each employee in the recognition and avoidance of unsafe conditions and regulations applicable to his work environment to control or [*5] eliminate any hazards or other exposure to illness or injury (page 7346).
CITATION No. 1 -- (Page 2)
On Thursday, April 27, 1972 the employer did not take proper precautions while conducting a hazardous operation in not directing two linesmen to descend from the top of the 85 ft. high power line transmission structure while the supporting poles of this structure were in the process of being reseated into a plumb or verticle position.
Notification of Proposed Penalty was issued by the Complainant, on even date, to wit, May 5, 1972, proposing to assess a penalty of $800 for the alleged serious violation(s) described above. The Respondent filed notice of intention to contest the Citation and proposed penalty with the Complainant on May 15, 1972.
This cause was referred to the Occupational Safety and Health Review Commission for hearing pursuant to section 10(c) of the Act on May 23, 1972, the undersigned was appointed, and the within case was assigned to him for hearing pursuant to section 12(e) of the Act.
Pursuant to notice, the hearing was held on October 5, 1972 in New York, New York.
Having heard the testimony and observed the demeanor of the witnesses, and having [*6] considered the same, together with the the Citation, Notification of Proposed Penalty, Notice of Contest, pleadings, representations, stipulations and admissions of the parties, it is concluded that substantial evidence, on the record as a whole, supports the following
FINDINGS OF FACT
1. The Respondent, Granite-Seabro Corporation, is a Delaware corporation with its main corporate office located in Kittery, Maine (T. 6).
2. The Respondent uses materials that are shipped in interstate commerce and performs work in more than one state of the union (T. 6 & 7).
3. The Respondent was in control of the work site herein concerned and had an average payroll of some three hundred and twenty-five (325) employees (T.7).
4. In the fiscal year ending December 31, 1971, the Respondent did an estimated gross volume of business in the amount of $6,000,000, and its net worth was approximately $110,000 (T. 7).
5. The Respondent was at all times herein mentioned engaged in the outside electrical construction business (Complaint and Answer).
6. As a result of an inspection of the Respondent's work site at Saugherties, New York conducted by an authorized representative of the Complainant, [*7] the Respondent was issued a Citation for a serious violation on or about May 5, 1972, alleging violations of those standards found at 29 CFR 1926.20(b)(1), 29 CFR 1926.20(b)(2) and 29 CFR 1926.21(b)(2), all of which in combination were alleged by the Complainant to be one (1) serious violation (Complaint and Answer) (Citation).
7. The Complainant failed to sustain the burden of proof that the Respondent committed a serious violation of the Act by violating those standards found at 29 CFR Section 1926.20(b)(1), 29 CFR 1926.20(b)(2) and 29 CFR 1926.21(b)(2), separately or in combination thereof.
8. The penalties, as proposed by the Complainant to be assessed against the Respondent, in the instant cause, are inappropriate.
DISCUSSION
The Complainant, in lieu of standards covering power transmission and distribution which were not then in existence, utilized a combination of general safety and health provisions of the construction safety standards then in effect. The power transmission and distribution standards now found at 29 CFR 1926.950 et seq., were first published in the Federal Register in Volume 37, No. 227, on Thursday, November 23, 1972, and may be found in [*8] that volume on page 24880. The inspection in the instant cause took place on April 27, 1972, some seven (7) months prior to the promulgation of the standards that governed power transmission and distribution.
The inspection arose out of an accident that occurred at the work site of the Respondent. Congress in its wisdom, provided a general duty clause in section (5)(a) of the Act, for use in those situations where standards had not yet been promulgated. That general duty clause required, for a finding of violation, a recognized hazard to exist that was causing or was likely to cause death or serious physical harm to an employee or to employees of an employer.
The Secretary, rather than charging a violation of the general duty clause, i.e., section 5(a)(1) of the Act, utilized three separate general provisions of the Construction Safety Act, promulgated as standards by the Secretary, which, in the opinion of this Judge, may not be used for the purpose intended. Three of these general provisions were linked together to create one allegedly serious violation. This, in my opinion, was not a purpose for which these general provisions were intended. It does not appear that [*9] 29 CFR 1926.20(b)(1), is a standard within the definition contained in section 3(8) of the Act.
Even assuming that the three standards lumped into one for the purpose of creating a serious violation by the Complainant, were looked at from the record standpoint, there was still a lack of probative evidence upon which to predicate a finding of violation.
I find that there were sufficient inspections of the job site materials and equipment made by competent persons so that 29 CFR 1926.20(b)(2), if in fact a standard, was complied with. Further, it seems to me that the employer/employee partnership in safety instruction and the work of the safety director of the Respondent was sufficient to comply with that standard found at 29 CFR 1926.21(b)(2).
Insofar as the alleged violation of 29 CFR 1926.20(b)(2) is concerned, in which the Secretary alleged "failure on the part of the employer to have provided for frequent and regular inspections of the job sites by competent persons as designated by the employer," the record clearly reflects a failure to sustain the burden of proof thereof. On page 134 of the transcript, the Compliance Officer was asked:
Question: Did you ascertain whether [*10] or not inspections were made by competent persons in the employ of the Respondent?
Answer: No, I can't recall that, your honor.
Asked later in the page, "How do you allege a violation unless you know whether such inspections were made?" The Compliance Officer answered, ". . . . I couldn't imagine that that had been the procedure. Again, I am basing a lot of this on what had become apparent to me in the course of that investigation. . . ."
The allegation of violation was predicated purely on surmise by this Compliance Oficer, and the testimony of the Respondent indicated that such inspections were made. Based on the evidence of record concerning this allegation of violation, certainly the Complianant failed to sustain the burden of proof thereof.
In alleging a violation of 29 CFR 1926.21(b)(2), the Secretary alleged "failure on the part of the employer to instruct each employee in the recognition and avoidance of unsafe conditions and regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury." Even assuming that the Citation fully complies with the requirements of the Act, and that the mere recitation of [*11] language from the standard is sufficient, the Complainant has failed to sustain his burden of proof as to that item.
The record is replete with testimony concerning safety instruction given to employees from the time they become apprentices by the union itself and the utilization of a safety director by the Respondent. Further, one per cent of the gross payroll is paid by the employer, for the payment of a committee to teach safety, apparently composed primarily of union representatives. In my opinion, again the Secretary failed to sustain the burden of proof of this element of the alleged violation.
It is my further opinion that the combination of these three subsections of the Construction Safety Standards were not sufficient upon which to predicate a serious violation under the Act. In this case the Complainant attempted to utilize these standards in place of the power transmission and distribution standards which were not yet promulgated. The Complainant should have utilized the general duty clause of the Act, inasmuch as no standards covered this industry at the time and that was the purpose for which the general duty clause was intended. It may well be, that had [*12] the general duty clause been utilized, and the alleged violation causing the accident had been specified in the Citation, then and in such case, a violation of the general duty clause of the Act may have been found. However, this section, 5(a)(1) of the Act, was not alleged to be violated, and I find that the utilization of these three sub-sections of the standards cannot be substituted therefore. It appears that as a result of the accident which occurred, the allegations of violations found in the instant cause were utilized in place of the general duty clause because the power transmission and distribution standards had not yet been written. This was not the purpose of the general provisions of the Construction Safety Act, and the Citation and penalty proposed therefore, must fall.
In Secretary of Labor v. Keibler Industries, Inc., [*13]
1. That the Secretary did what sub-section (a) of (29 CFR 1926.21) required him to do,
2. That the employer did what sub-section (b)(1) required him to do, as it relates to 1, above, and
3. That the employer did not thereafter impart this acquired knowledge to employees, as sub-section (b)(2) requires him to do.
While I am not sure that I fully agree with No. 2, above, inasmuch as that relates to sub-section (b)(1), which uses the word "should" which is purely hortatory and therefore not mandatory upon the employer, I do however, agree that it would be incumbent upon the Complainant to prove that the Secretary complied with 29 CFR 1926.21(a), in order to successfully cite the employer with a violation of 29 CFR 1926.21(b)(2). In the case at bar, such proof is wholly absent the record.
In Secretary of Labor v. A M P Construction Co.,
In the instant cause there [*14] were no specific standards adopted, however, the general duty clause could have been utilized.
Judge Larkin, in the previously quoted case, further stated that the Secretary cited a general and non-specific standard adopted as a regulation, when in essence he is contending the employer has failed to furnish a place of employment free from recognized hazards as required by section 5(a)(1) of the Act. I find that the latter statement of Judge Larkin covers the situation found in the case at bar. In the instant case, a journeyman and an apprentice were aloft on a power structure when the poles were being moved into plumb. The poles were being plumbed while the men were aloft, and as a result, the journeyman was killed and the apprentice was injured. Based on the testimony of record, to allow the two men to remain aloft while the poles were being put into plumb, and not being fastened thereon in some manner, was a recognized hazard likely to cause death or serious physical harm, and the record evidence was such, that it may well have resulted in a proven violation of section 5(a)(1) of the Act. That question is moot however, inasmuch as the employer was not so charged. [*15] I find that the general provisions of the Construction Safety Standards cannot be substituted for either the general duty clause, or for specific standards governing power transmission and distribution. In Secretary of Labor v. A M P Construction Co., cited above, Judge Larkin stated "The Secretary's reliance upon 29 CFR 1926.20(b)(1) and 29 CFR 1926.20(b)(2), in lieu of Section 5(a)(1) of the Act, is fatal to his case, and the issue is decided for Respondent." One could similarly say in the instant cause, that the Secretary's reliance upon those standards found at 29 CFR 1926.20(b)(1), 29 CFR 1926.20(b)(2) and 29 CFR 1926.21(b)(2), in combination, in lieu of section 5(a)(1) of the Act, is fatal to his case. Similarly, in the instant cause, the issue is decided for the Respondent.
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 date of the inspection at its work site herein concerned, and at all other times mentioned [*16] herein, an employer subject to the safety and health regulations promulgated as 29 CFR Part 1926.20(b)(1), 29 CFR Part 1926.20(b)(2) and 29 CFR Part 1926.21(b)(2), by the Secretary of Labor.
3. The Respondent was not, on the day of the inspection herein concerned in violation of those standards found at 29 CFR 1926.20(b)(1), 29 CFR 1926.20(b)(2) and 29 CFR 1926.21(b)(2), either singly or in combination, and therefore did not commit a serious violation of the Act as alleged.
4. The penalty proposed for the alleged serious violation(s) contained in the Citation herein concerned are inappropriate, and must be vacated, in view of conclusion Number 3, immediately above.
In view of the foregoing, good cause appearing therefore, it is ORDERED, that
1. The Citation issued herein is herewith vacated.
2. The penalty proposed for the alleged violation(s) contained in the Citation is herewith similarly vacated.
SO ORDERED.