UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

September 4, 1974

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

BY THE COMMISSION:

This matter is before this Commission for review of a March 15, 1974, decision of Judge John A. Carlson pursuant to 29 U.S.C. § 661(i). At issue is whether the citation was issued with reasonable promptness as required by 29 U.S.C. § 658(a). We hold that the respondent waived consideration thereof at this level because that defense was not raised in the proceedings below. Secretary v. Chicago Bridge and Iron Company, OSAHRC Docket No. 744 (January 24, 1974). We therefore affirm the Judge’s decision.

Chairman Moran would vacate item 1 of the citation for the reasons set forth in his dissenting opinions in Secretary v. Plastering, Incorporated, OSAHRC Docket No. 1037 (May 3, 1974), and Secretary v. Advanced Air Conditioning, Inc., OSAHRC Docket No. 1036 (April 4, 1974).

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

March 15, 1974

CARLSON, JUDGE OSAHRC:

This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651, et seq., hereafter called the Act), contesting a citation issued by the Complainant against the Respondent under authority vested in Complainant by Section 9(a) of the Act. The citation alleges that as the result of an inspection of a workplace under the ownership, operation or control of the Respondent, located at ‘9825 East Girard Avenue, Denver, Colorado’ and described as follows: ‘apartment house construction site,’ Respondent was determined to have violated Sec. 5(a)(2) of the Act by failing to comply with certain Occupational Safety and Health Standards promulgated by the Secretary of Labor pursuant to Sec. 6 thereof. Specifically the citation which was issued June 22, 1973 alleges that violation resulted from a failure to comply with certain standards promulgated by the Secretary and codified in 29 CFR Part 1926. Four separate items of violation were set forth.

The description of these alleged non-serious violations as contained in the citation is as follows:

The citation called for correction of all alleged violations as of June 27, 1973.

Pursuant to the enforcement procedure set forth in Sec. 10(a) of the Act, Respondent was notified on June 22, 1973 that penalties of $30.00 each were proposed for Items 1 and 3, a penalty of $25.00 for item 4 and no penalty for item 2. $Respondent filed a timely notice of contest as to all violations and complaint and answer were thereafter duly filed by the respective parties.

The matter came regularly on for hearing at Denver, Colorado before the undersigned judge on November 9, 1973. No appearance was made by or on behalf of any affected employee. The authorized employees’ representative did not receive appropriate notice of the hearing from Respondent but such defect was duly corrected through the execution of a waiver filed by the business agent for the union local, which document is of record.

STANDARDS INVOLVED

The standards allegedly violated in connection with each of the items of the citation read as follows:

SUMMARY OF THE EVIDENCE

The sole witness testifying in this case was Complainant’s compliance officer. On the morning of May 10, 1973 he visited a construction site where approximately 50 buildings containing 450 apartment units were being built (Tr. 25–27, 51.) He first met with the project manager of the general contractor who in turn called in representatives of the various subcontractors on the job, at which time an opening conference was held. Some 20 subcontractors were engaged in the project. One Robert Holcomb, a foreman for Grebb Electric and its highest management representative at the site, was at the conference. The compliance officer was accompanied on his inspection by the project foreman for the general contractor and was accompanied by representatives of each of the subcontractors during the portions of the inspection which related to their particular projects (Tr. 28–29, 46). Mr. Holcomb accompanied the compliance officer throughout the electrical portion of the inspection which took place about mid-way through the entire inspection. The witness understood that a total of seven Grebb employees were on the job, including Holcomb, but he was uncertain as to the number which he actually saw, indicating that it was perhaps 3 or 4. They were actually performing work while he observed them; were carrying tools of the electrical trade; and were indicated to be Grebb employees (Tr. 54–55, 91). No other electrical contractors were involved in the project (Tr. 31).

Regarding the first item of alleged violation, four color photographs were introduced through the witness, each depicting rather massive amounts of lumber, boxes and other debris, all located on the ground outside of buildings (Compl’s. exs. 1–A through 1–D). No evidence was introduced showing that Respondent’s employees worked in any of the exterior areas depicted. The witness did testify, however, that inside the structures where Respondent’s employees were actually seen at work, areas were obstructed by similarly strewn debris, which exposed the employees to a danger of tripping and nail punctures (Tr. 84–87, 103–104).

Respecting items 2 and 3 of the citation alleging that Respondent’s employees were ‘observed using flights of stairs’ which were not provided with standard handrails and which had protruding nails in the treads, creating tripping hazards, two additional photographs (Compl’s. exs. 2 & 3) were introduced. These showed stairways in what were obviously incomplete buildings of frame construction and verified the witness’s accompanying testimony that the centers of the temporary 2 by 4 treads on the stairs were fixed by double headed framing nails which protruded approximately half an inch above the level of the treads; and that such stairs in fact, were not equipped with rails on the open side (Tr. 33, 35–36).

Relative to the fourth item of alleged violation which indicated that employees were ‘observed’ working on open-sided floors or platforms more than 6 feet above ground level, a further photograph (Compl’s. ex. 4) was introduced which again depicted a portion of the incomplete interior of a frame structured building. The photo does show what appears to be a platform extending from near the viewer toward second floor studding in the background. Affixed to the studding is what was identified by the witness and indeed appears in the photograph to be a length of electrical conduit and a junction box. There is no railing on the platform (Tr. 70–71). The witness was unable to give any definite information as to the dimensions of the platform nor was he able to give an opinion as to how close a worker would have to be to the edge of the platform in order to be in danger of a fall (Tr. 72–76).

The witness repeatedly acknowledged that with respect to items 2, 3 and 4 he at no time observed any of Respondent’s employees using the stairs in question or upon the platform in question (Tr. 88); and that the language of the citation was inaccurate as to those items wherein it alleged that ‘employees were observed’ in the locations in question (Tr. 102). The compliance officer made it clear in his testimony that he believed that Respondent, Grebb Electric’s employees, were exposed to the dangers which he believed to be presented by the stairs, because the stairways provided the only access to the second floors (Tr. 31, 103).

This witness further testified that superintendent Holcomb had told him that Respondent did obtain materials from outside the state of Colorado and that a specific conversation was held concerning Atlas Lighting Fixtures which were in cartons addressed from the state of California and that Respondent was using such fixtures (Tr. 92–93). It was stipulated that: ‘The parties agree that Grebb Electric uses some materials in its business which were manufactured outside of Colorado’ (Tr. 110).

OPINION

Respondent at the outset of the hearing moved for dismissal arguing that the Act imposes obligations and provides procedures which violate the Fifth, Sixth, Seventh, Ninth and Fourteenth Amendments to the Constitution of the United States. The multi-part motion was denied since the judges of this Commission have no authority to rule on issues which involve direct attacks upon the constitutionality of provisions of the Act.1

Also, Respondent’s related (and untimely) request for a civil jury trial under the Seventh Amendment was rejected since clearly no civil proceeding under the Act would qualify as an action at common law.

Respondent also argues generally that all conditions complained of were caused by the general contractor or persons other than Grebb Electric and that Respondent should hence be absolved from any liability. It is now well settled, however, that each employer in a workplace has the duty to make that place safe for his workers, irrespective of who created a violative condition which exposes those employees to the contemplated hazard.2

As to item 1 of the citation regarding alleged presence of scrap and debris in the work area the evidence establishes violation.3 The photographs presented in hopeful substantiation of this charge fail utterly to do so since the compliance officer ultimately acknowledged that the exterior areas shown were not within Respondent’s work area (Tr. 99). However, there was direct, emphatic and unrebutted testimony that the compliance officer saw employees of Respondent moving or working in areas where such debris was present and offered a danger.

With respect to the three remaining items concerning use of stairs and platforms the question is plainly whether sufficient evidence was presented to show that Respondent’s employees were exposed to the hazards envisioned in the cited standards. Complainant puts it succinctly in his brief:

While he [the compliance officer] did not personally observe their exposure to other hazards, his assumptions of exposure were entirely reasonable.

This judge cannot agree. Circumstantial evidence, depending upon its quality, is perfectly competent to prove a charge. The record in this case, however, shows that the assumptions made to connect Respondent’s employees to use of the stairs or platforms were far too speculative and conjectural to sustain the burden of proving employee exposure. Exposure, in common with every other element of violation, must be proved by Complainant.4 In this case Complainant was content to assume that since some wiring was at a second story level, employees used the uncompleted stairs to get there and used the platform as a work surface. There was no evidence as to when the stairs or platforms were put in or when the wiring was installed. From the photographs and testimony it is perfectly apparent that second story areas of electrical work could have been reached by ladders, scaffolds or other means. Complainant has sought to sustain its burden of proof by the showing of a mere possibility. The violations cannot be sustained on such a basis and the citation must hence be vacated as to items 2, 3 and 4.

The compliance officer testified concerning the method used in deriving the penalties proposed by Complainant (Tr. 39–45). He used certain worksheets provided him by his superiors. As to item 1 involving housekeeping, the believed that the likelihood of injury from an inadequate clearance of debris was ‘moderate’ and he also felt that the severity of injury would fall within the medium range, since it could involve danger of a puncture wound from a nail. Considering seven employees to have been exposed to the danger presented by the debris an unadjusted proposed penalty of $120.00 was recorded which was reduced by 20% factor based upon the employer’s good faith, a 10% factor based on its size and a 20% factor based on its prior history free of violations under the Act. These are the maximum adjustments permitted under Complainant’s intra-agency guidelines. An additional 50% reduction was allowed as an ‘abatement credit’ in anticipation of abatement. The ultimate penalty proposed was hence $30.00 (Compl’s. ex’s. 5 and 6).

In contested cases under the Act jurisdiction to assess monetary penalties resides exclusively with the Commission. Section 17(j) of the Act requires that consideration be given to the size of the business of the employer, the gravity of the violation, the employer’s good faith and the history of previous violation. In Secretary of Labor v. Nacirema Operating Company, Inc., OSAHRC Docket No. 4 the Commission held that the element of gravity should generally be accorded the greatest weight. Other cases have held that in determining gravity attention must be given to the number of employees exposed; the duration of exposure; the precautions taken against injury; and the degree of probability of recurrence of injury.

This judge has weighed the relevant factors as disclosed in the evidence in this case and concludes that a penalty of $30.00 for the violation of 29 CFR 1926.252(c) is reasonable and appropriate.

FINDINGS OF FACT

The entire record herein supports the following findings of fact:

1. That Respondent is a corporation engaged in electrical contracting in the state of Colorado and that it uses in its work materials which originate beyond the borders of Colorado.

2. On May 10, 1973 Respondent was engaged as a subcontractor performing electrical work on a construction project in Denver, Colorado involving erection of apartment houses.

3. On such date Respondent’s worksite was inspected by a compliance officer employed by Complainant.

4. At the time material hereto Respondent had approximately 7 employees on the job.

5. Such employees were working in areas where there were accumulations of scrap lumber with protruding nails and other debris and that in moving through or about such areas Respondent’s employees were exposed to a danger of tripping anf falling; and puncture wounds from the nails.

6. On May 10, 1973 certain electrical installations had been made by Respondent’s employees and that certain of these had been installed above the first floor level in the frame apartment structures on the sites.

7. The evidence showed that wooden stairways having more than 4 risers and having no standard railings on the open side were in place in some units; and that such stairways had nails protruding from the center of the temporary wooden treads.

8. Platforms more than 6 feet above the ground not equipped with guard rails were constructed in some units at the time of inspection.

9. The record contains no persuasive evidence sufficient to show that Respondent’s employees used either such stairways or platforms in the performance of or incidental to the performance of their work.

CONCLUSIONS OF LAW

1. That Respondent was at all times material hereto an employer engaged in a business affecting Commerce within the meaning of the Act and hence subject to the jurisdiction of this Commission.

2. That the evidence establishes that Respondent violated 29 CFR 1926.252(c) as alleged in item 1 of the citation.

3. That the evidence fails to establish that Respondent violated 29 CFR 1926.500(e)(1) as alleged in item 2 of the citation.

4. That the evidence fails to establish that Respondent violated 29 CFR 1926.500(c) as alleged in item 3 of the citation.

5. That the evidence fails to establish that Respondent violated 29 CFR 1926.500(d)(1) as alleged in item 4 of the citation.

6. That a penalty of $30.00 is reasonable and appropriate in connection with item 1 of the citation.

ORDER

In accordance with the foregoing it is hereby ORDERED:

1. That item 1 of the citation is affirmed and that a penalty of $30.00 is assessed in connection therewith.

2. That items 2, 3 and 4 of the citation are vacated together with such penalties as were proposed in connection therewith.

1 Public Utilities Commission of California v. United States, 335 U.S., 534, 78 S. Ct. 446 (1958); Secretary of Labor v. American Smelting and Refining Company OSAHRC Docket No. 10.

2 See, for example, Secretary of Labor v. Charles S. Powell, OSAHRC Docket No. 1971; Secretary of Labor v. Meyerbank Electric Company, Inc., OSAHRC Docket No. 2011.

3 One may wonder why the somewhat more general housekeeping regulation at 29 CFR 1926.25(a) was not cited but 1926.252(c) is regarded as applicable.

4 Secretary of Labor v. Asyland Oil, Inc., OSAHRC Docket No. 2179; Secretary of Labor v. Ellison Electric, OSAHRC Docket No. 412.