Kunz Construction Co., Inc. (ALJ decision, March 15, 1995)

Plain-English summary

Kunz Construction Co., Inc. was inspected while working near the Alamo Dome in San Antonio, Texas. OSHA found a foreman without a hard hat, an access ladder that did not extend three feet above the excavation, an unguarded plank used as a crossing, and employees in an excavation that was neither shored nor properly sloped. Kunz challenged the inspection because OSHA had not gone through the general contractor, but it offered no specific defense to the cited conditions. The judge rejected that objection and credited the compliance officer's testimony and photographs. All four items were affirmed as serious, with a total penalty of $5,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.100(a); 29 C.F.R. § 1926.651(c)(2); 29 C.F.R. § 1926.651(l)(1); 29 C.F.R. § 1926.652(a)(1).
• Outcome: Affirmed. Four serious violations were affirmed with a total penalty of $5,000.
• Key point: An employer's objection to how OSHA approached a multi-employer site does not rebut documented hard-hat, access, crossing, and cave-in-protection violations.

Full text (OSHRC public release)

UNITED STAtES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-2803
KUNZ CONSTRUCIION CO., INC.
Respondent.

NOTICE OF DOCKETING
OF ADMINISTlWTTVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was docketed with the Commission on February 13, 1995. The decision of the Judge will become a final order of the Commission on March 15, 1995 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 COMMISSION MUST l3LE A PETITION FOR DISCRETIONARY REVIEW. Any such etition should be received by the Executive Secretary on or before March 6, T:995 in order to ermit sufficlent time for its review. See Commission Rule 91, 29 cp.F.R. 2200.91. All further pleadings or communications regarding this case shalI be addressed to:
Executive Secretary
Occupational S&ety and Health.
Revlew Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mid, Esq.
Counsel for Regional Trial titi ation
Office of the Solicitor, U.S. DO%
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 Iitigation will represent the Department of Labor. Any party having questions about review nghts may contact the Commission’s Executive Secretary or call (202) 606-5400.
FOR THE COMMISSION

Date: February 13, 1995
Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 92-2803
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Iiti ation
Office of the Solicitor, U.S. DOc
Room s4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

James E. White, Esq.
Re lonal Solicitor
O&e of the Solicitor US DOL
525 Griffin Square Blhg.,‘&ite 501
GrifEn & Youn Streets
Dabs, TX 752 &

Harold H. Kunz, Jr., President
Kunz Construction Co., Inc.
211 West Turbo Drive
P.O. Box 790140
San Antonio, TX 78279 0140

Louis G. LaVecchia
Administrative Law Jud e
Occupational Safety an B Health
Review Commission
Federal Building, Room 7Bll
1100 Commerce Street
DaIlas, TX 75242 0791

00110377645:06
 UNITED STATESOF AMERICA
OCCUPATIONAL SAFE-W AND HEALTH REVIEW COMMlSSlON ROOM 7811, FEDERAL BUILDWIG
1100 coMMEF?cE STREEf
DALLAS, lEXAS X242-0791

PliONE: FAX:
CONl(214)?673271
WM(214)767-0350
FTS(214)767-5271
FlS(214)767-Q36O

SECRETARY            OF LABOR,                      a.

Complainant,
..
..
v. .. OSHRC DOCKET NO. 922803

KUNZ CONSTRUCTION
.s
COMPANY, INC.,
l
l

Respondent.

APPEARANCES:

Ernest A Buford., Esquire
H. H. Kunz, Jr.
Dallas, Texas
San Antonio, Texas
For the Complainant. For the Respondentgo se,

Before: Administrative Law Judge Louis G. LaVecchia

DECISION AND ORDER

          This proceeding         is before    the Occupational          Safety   and Health   Review

Commission (“the Commission”) pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 0 651 et seq. (“the Act”).
The hearing in the matter was held on July 19, 1994, at San Antonio, Texas.
The respondent objected to the proceeding on the grounds that the inspection was illegal. The objection is hereby overruled since the inspection was made as a result of a routine referral to the compliance officers. .
The Underlving Facts
An inspection of a work site in San Antonio, Texas by compliance officers of the Occupational Safety and Health Administration (“OSHA”) on July 7,1992 resulted in the issuance of a “serious” citation against the respondent
for alleged violations of
- --.--.v L--d- .--..... _
.- .a---- h c w- . . _ ---. ------ -. . .-- - ---. -_Lee-_I----..-----

2
several safety standards promulgated under the Occupational Safety and Health Act of 1970. These are shown and discussed below:
29 CFR 1926.lWal
Mr. Solter, the lead compliance officer, spoke with Mr. Hargett, the
respondent’s job foreman, in the opening conference normally held before an
inspection and noted that Mr. Hargett was wearing a baseball cap, instead of a hard
hat in an area designated as a hard hat area. He was, therefore, exposed to the
hazard of being struck in the head by falling objects, or receiving an electrical shock
or burn.
The danger was magnified by the fact that the work being performed
involved deep excavations and trenches, which are subject to cave-ins and heavy rocks,
etc., rolling down from above. (Exhibits C-l through C-3).
29 CFR 1926.651(c)(2)
Employees were entering and exiting a 20’ x 20’ excavation using a ladder which was not adequate for that purpose, since it did not, as required, exfend up over the
working s&ace at least 3 fet. The excavation was 9 or 10 feet deep, exposing an
employee to a substantial fall and serious injuryor death. (Exhibit C-2).
29 CFR 1926.6Sl~l)Q~
A 2 x 12 inch plank without guardrails was observed extending &orn the east to the west side of an excavation to a concrete valve box on the north side.
The
compliance officer was told by one of the workmen that the plank was being used by
the men for the crossover. A f&U of up to 10 feet could be experienced by the
employees, exposing them to serious injuries or death. (Exhibits C-l and C-2).
29 CFR 652(aM]
The compliance officer observed employees working in a 20 x 20 foot
excavation on the north side of the Alamo Dome that had not been shored or properly sloped, exposing them to the hazard of being struck by moving earth.
(Exhibits C-2
and C-3).
Discussion
The respondent offered no specific defenses to the cited violations but
expressed the opinion that the inspection was improper because the compliance officer - _ . .. . .. --- __ -- --.
.-. ---.- .

3

“did not go through” the general contractor in conducting the inspection.
There is no
merit in this stance, of course, and it must be rejected. In the absence of valid defenses to the charges, and in view of the credible testimony
of the compliance
officer, supported by the photographic evidence, I can only conclude that the
complainant has proved his complaint. The citation items will be affirmed as serious
violations of the Act.
The proposed penalties have been considered and found to be fair and proper
under appropriate sections of the Act. Therefore, a total penalty of $5,000.00 as
proposed by the complainant,
will be assessed for the violations here found.
CONCLUSIONS
10 The Review Co mmission has jurisdiction of this proceeding.
2. The respondent is engaged in a business affecting commerce and has
employees within the meaning of the Act.
3 l The respondent violated the safety standards shown above and the
violations are properly characterized
as “serious” within the meaning of the Act.
Order
The respondent
is assessed a total civil penalty of $5,000.00 for the violations
found. ’
So ORDERED.

Administrative Law Judge

Date: FE8 - 7 1995