W. Kramer Associates (ALJ decision, February 16, 1993)

Plain-English summary

W. Kramer Associates is a heating, ventilation, and air conditioning contractor. OSHA inspected its worksite at the Northeastern Pennsylvania Veterans Home construction project in Scranton, Pennsylvania, and issued a serious citation and a second citation with two other-than-serious items, with $1,575 in total proposed penalties. The parties settled the other alleged violations, and Administrative Law Judge Michael H. Schoenfeld approved and incorporated that settlement into the record. The one item that went to decision was a charge that Kramer failed to post the required OSHA notice informing employees of their rights under the Act. The judge vacated that item. At the time of the inspection the company had a single employee at the site, who had started work about an hour earlier, and the required poster was kept in the cover of a gang box that held the tools that employee used, with another copy in the company's trailer. The judge found the sole employee was informed as the regulation requires, so the posting item was vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1903.2(a)(1) (posting the OSHA notice informing employees of the Act)
• Outcome: Mixed. The other cited items were resolved by an approved settlement; the contested posting item was vacated.
• Key point: Where a worksite has a single employee who has access to and is informed by the required OSHA poster, here kept in the gang box of tools he used, the posting requirement is satisfied and the citation is vacated.

Full text (OSHRC public release)

UNITED SATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1825 K STREET NW
4% FLOOR
WASHINGTCN, DC 20006-1246

C3M (232, E’,J-4033
FT5 (202) f~:-J333

SECRETARY OF LABOR
Complainant,
V. OSHRC DOCKET
W. KRAMER ASSOCIATES
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was docketed with the Commission on Januarv 14, 1993. The decision of the Judge will become a final order of the Commisiion on February 16, 1993 unless a Commission member directs review of the decision on or before that date. ANY PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE COM%lISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW. Any such etition should be received b the Executive Secretary on or before . February s 1993 in order to ermit su ii cient time for its review. See Commission Rule 91, 29 C.F. e, . 2200.91. All further pleadings or communications regarding this case shallbe addressed to:
Executive Secretary
Occupational Safe6 and Health
Review Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shall also mail a copvd to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for Regional Trial Litigation will represent the Department of Labor. Any party having questions about review rights may contact the Commission’s Executive Secretary or call (202) 634-7950.
FOR THE COMMISSION

Date: January 14, 1993
Rav I% Darling, Jr.
Exicutive Secretary
. DOCKET NO. 92-1391
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 202 10

Marshall H. Harris, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
14480 Gatewa Building
3535 Market dtreet
Philadelphia, PA 19 104

James F. Sassaman, Director of
Safety
GBCA
P.O. Box 15959
36 South 18th Street
Philadelphia, PA 19 103

Michael H. Schoenfeld
Administrative Law Jud e
Occupational Safety an f Health
Review Commission
Room 417/C
1825 K Street, N.W.
Washington, DC 20006 1246

00109356444 :03
 ..
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UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1825 K STREET N.W.
4TH FLOOR
WASHINGTON
DC 20006-1246

FAX:
..
COM (202) 634-4008
FT’S 6344006

SECRETARY OF LABOR, ..
..
.
Complainant,
..
..
v. .. OSHRC Docket No. 92-1391
.
W. KRAMER ASSOCIATES,
..

Respondent.
.
. l

.

Appearances:

Michael H. Rosenthal, Esq.
James F. Sassaman .
Office of the Solicitor of Labor
General Building
U.S. Department of Labor
Contractor’s Assn.
For Complainant
FmRespondent

Before: Administrative Law Judge Michael H. Schoenfeld, .
DECISION AND ORDER

Background and Procedural Histop

This case arises under the Occupational Safety and Health Act of 1970,29 U.S.C. 5 0 651 - 678 (1970) (“the Act”).
Having had its worksite inspected by a compliance officer of the Occupational Safety
and Health Administration, W. Kramer Associates, (“Respondent”) was issued one citation alleging a serious violation of the Act and one additional citation alleging two other-than- serious violations of the Act. Civil penalties totalling $1575.00 were proposed. Following the filing of a complaint and answer and pursuant to a notice of hearing, the case came on to be heard on October 22, 1992, in Philadelphia, Pennsylvania. NO affected employees sought to assert party status. Both parties have filed post-hearing briefs.

Jurisdiction
Complainant alleges and Respondent does not deny that it is an employer engaged
in heating, ventilation and air conditioning contracting. It is undisputed that at the time of this inspection Respondent had a work site at the Northeastern Pennsylvania Veterans Home construction project on Mulberry Street in Scranton, Pennsylvania. Respondent does not deny that it uses tools, equipment and supplies which have moved in interstate commerce. Based m %Ixx facts, I find that Respondent is engaged in ‘a business affecting interstate commerce.
Based on the above finding, I conclude that Respondent is an employer within the
meaning of § 3(5) of the Act.’ Accordingly, the Commission has jurisdiction over the subject matter and the parties.

Discussion

The essential facts in this case are undisputed. Respondent was cited for its alleged failure to post a notice to employees informing them of the protection afforded them under the Act, as required by the Secretary’s regulation at 29 C.F.R. 5 1903.2(a)(l) (199O).2 At

’ Title 29 U.S.C. 0 652(5).

2 Other alleged violations of the Act have been settled. The terms of the settlement, which were made part of the record in this case (Tr. 3-5) are hereby approved and incorporated fully herein. The remaining standard at issue, 29 C.F.R. 51903.2(a)(l) requires that:

Each employer shall post and keep posted a notice or notices, to be furnished bv Occupational Safety and Health Administra- tion, U.S. Deparkent of Labor, informing employees of the Act. . .Such notice or notices shall be posted in each establish- ment in a conspicuous place . . . .

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 __ .. ... .

the time of the inspection Respondent had only one employee at the work site who had begun work there about 1 hour before the inspection. (Tr. 33, 36, 37) Respondent had no other employees at the site until approximately six weeks later. (Tr. 62-3) At the time of the inspection and during that first six weeks on the job, there was a copy of the required poster located in a white trailer,3 inside the cover of a “ging box” containing tools and equipment used by the sole employee at the site. (Tr. 53-4, 56).4 Respondent’s only employee at the inspected work site, even though not required to view the poster every day he was on the site, was nonetheless informed as required by the regulation. Accordingly, the alleged violation is VACATED.

FINDINGS OF FACT

All findings of fact necessary for a determination of all relevant issues have been made above. Fed. R, Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent with this decision are hereby denied.

3 The Secretary’s contention that the white trailer did not arrive at the site until after March 1 is rejected. It is sheer speculation based solely on the Compliance Officer’s statement that he knew of only one trailer present.

4 Respondent’s sole employee at the site also knew of another poster which was located on the wall of an office inside Respondent’s green trailer. (Tr. 46-7) Reliable, credible testimony established that such a poster was in that location when the trailer was locked up at a previous job site. (Tr. 35.6,46-8,50-3,57) Respondent’s sole employee at the inspected work site is the only one known to have a key to the green trailer. (Tr. 52) By the time Respondent had other employees at the site, some six weeks later, the materials in the green trailer had been removed to allow access for all to the office area of the trailer. (Tr. 53, 59, .
63)

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 CONCLUSIONS OF LAW

1. Respondent was, at all times pertinent hereto, an employer within the meaning of 9 3(5) of the Occupational Safety and Health Act of 1970, 29 U. S. C. 0 8 651 - 678 (1970).
1

2. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter.

3. Respondent was not in violation of 29 C.F.R. 6 1903.2(a)(l), as alleged.

l

IcHAEL H. SCHOENFELD
1’ Judge, OSHRC

Dated: Jm I ;! 1993
Washington, D.C.