Island ADC, Inc.

Plain-English summary

Island ADC was a construction subcontractor working at a New York City job site. After OSHA inspections in early 1993, the company received one citation with four serious items: an ungrounded electric cutter, a five-foot scaffold without guardrails, unlocked scaffold casters, and a stairway missing a handrail. At the hearing the company conceded that all four violations occurred and asked only that the penalties be reduced. Administrative Law Judge Michael H. Schoenfeld rejected the company's argument that using short-term hiring-hall workers made safety training impractical, reasoning that constantly changing crews should heighten, not lower, an employer's duty to provide basic safety protection. He found the proposed penalties appropriate and declined to reduce them. The full $3,125 penalty was affirmed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.404(f)(6); § 1926.451(a)(b); § 1926.451(e)(8); § 1926.1052(c)(1)
• Outcome: Citation affirmed in full; all four serious items upheld and the $3,125 aggregate penalty assessed as proposed.
• Key point: A subcontractor cannot avoid penalties by pointing to temporary hiring-hall labor; turnover raises rather than lowers the duty to train and protect workers.

Full text (OSHRC public release)

                                   UNITED STATES OF AMERICA
  a        OCCUPATIONAL       SAFETY AND HEALTH REVIEW COMMISSION
      rr                            One Lafayette Cents
r i                           1120 20th Street, N.W. - 9th Floor
    2
   +                             Washington, DC 20036-3419
 be           -

$Ygl!lEEi:
SECRETARY OF LABOR
Complainanh
v. OSHRC DOCKET
NO. 93-1203
ISLAND ADC, INC.
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 June 17, 1994. The decision of the Judge
        will become a final order of the Commission on July 18, 1994 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 FILE A PE?ITION FOR DISCRETIONARY REVIEW.
        Any such etition should be received by the Executive Secretary on or before
        July 7 19& m order to permit sufficient time for its review. See
                     l



        Com&ssion Rule 91, 29 C.F.R. 2200.91.
           All further pleadings or communications regarding this case shall be
        addressed to:
                               Executive Secretary
                               Occupational Safety and Health
                                Review Commission
                               1120 20th St. N.W., Suite 980
                               Washington, D.C. 200364419
        Petitioning parties shall also mail a copy to:
                               Daniel J. Mick, Esq.
                               Counsel for Re l  onaI Trial Liti ation
                               Office of the Sof l
                                                 citor, U.S. DOt
                               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
        havmg questions about review nghts may contact the Commission’s Executive
        Secretary or call (202) 606-5400.




       Date: June 17, 1994

D&ET NO. 93-1203
NOTICE IS GIVEN TO THE FOILOWING:

Daniel J. Mick Esq.
Counsel for Re 'onalTrial Iiti ation
Office of the Soptl
                  citor, U.S. DOe
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210



Patricia Rodenhausen,
Re l onal Solicitor   -
                        w   l




O&e of the Solicitor U.S. DOL
201 brick, Room 703
New York, NY 10014


                     0
Burton W. Stone, Esque

. 500 Old Coun Road
Garden City, 3 11530

Michael H. Schoenfeld
Administrative Law Jud e
Occupational Safety an d Health
 Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419




00108908831:02

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Cents
1120 20th Stmet, N.W - 9th Floor
Washington, Dc 20036-3419

                                          l
                                          0




SECRETARY OF LABOR,                       l
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                                          .
                                          0




      Complainant,                        ..
                                          l
                                           .
               v.                          0
                                           0     OSHRC Docket No. 934203
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                                          .




ISLlAND ADC, INC.,                        0.
                                          b
                                          .
      Respondent.                         ..
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                                          .

.
Appearances:

      Luis A Micwi, Esq.                  Burton W. Stone, Esq.
             Office of the Solicitor             Garden City, New York
             U.S. Department of Labor                    For Respondent
                     For Complainant

Before: Administrative Law Judge Michael H. Schoenfeld




Backmound and Procedural Historv


      This case arises under the Occupational Safety and Health Act of 1970,29 U.S.C. 5 $)
651 - 678 (1970) (“the Act”).
       Having had its worksite inspected by a compliance officer of the Occupational Safety
and Health Administration on or about January 29, February 3 and February 11, 1993l,


    ’ Request for Admissions, ll 1. The ruling made at hearing denying the Secretary’s
motion (Tr. 6) is hereby reversed. Inasmuch as Respondent never responded at all to the
Secretary’s Request for Admissions, each and every request made therein is deemed to have

Island ADC, co., Inc., (“Respondent”) was issued one citation alleging four serious violations
of the Act. P~aaltitiestotalhg $3125.00 were proposed by the Secretary. Respondent timely
contested. FolIowing the filing of a complaint and answer and pursuant to a notice of
hearing, the case came on to be heard on May 10, 1994, in New York, New York. No
affected employees sought to assert party status.

Jurisdiction
       Complainant alleges and Respondent does not deny that it is an employer engaged
in construction related activities. Respondent does not deny that it uses tools, equipment
and supplies which have moved in interstate commerce (Complaint, 1 1 II, IIf; Answer;
Request for Admissions, ll lI 2 & 3). I find that Respondent is engaged in a business
affecting interstate commerce.

. Based on the above finding, I conclude that Respondent is an emplayer within the
meaning of 3 3(S) of the Act. 2 Accordingly, the Commission has jurisdiction over the
subject matte1 and the parties.

Discussion
       At the outset of the hearing, Respondent indicated that it conceded the four
violations had occurred as alleged and that it wished to exercise its right to have a hearing
on the record only as to the appropriateness of the penalties proposed by the Secretary (Tr.
5). The Secretary did not object.
       The violative conditions which existed and the penalties proposed by the Secretary
for each violation are as follows:
       Item 1 - An electric tool (a cutter) connected via an extension cord was missing the
ground pin thus was not grounded. (29 C.F.R.5 1926.404(f)(6).) Penalty proposed: $500.




been admitted. Rule 54(b), 29 C.F.R. 5 2200.54(b) (1993).

    2 Title 29 U.S.C. 8 652(5).

- 3*

     Item 2 - A scaffold 5 ft. high did not have guardrails. (29 C.F.R. 8 1926.45l(a)(b).)

Pen&y proposed: $875.
Item 3 - Casters on the scaffold were not locked. (29 C.F.R. 0 1926.451(e)(8).)
Penalty proposed: $875.
Item 4 - A stairway was not equipped with a handrail along the unprotected side. (29
C.F.R. 5 1926.1052(c)(l).) Penalty proposed: $ 875.
Under (s 17(j) of the Act; 29 U.S.C. 0 666(j), the Commission has the
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.
Where the record contains little relevant information concerning the factors set out above,
’ the Commission has “given [the respondent] the benefit of the doubt on each of these three
factors in determining
._. . an appropriate penalty.” Moser Co?~~~tio~ Co., 15 BNA OSHC
-1408, 1416 (No. 89-1027, 1991).
The OSHA supervisor who reviewed the citations prior to their issuance, testified as
to how she calculated the proposed penalty as to each of the four items. In each case she
started with a “gravity based” amount and, following the formula in the Field Operations
Manual, gave Respondent “adjustments (reductions)” for its small size, good faith and history
of no prior violations.” These adjustments were based on a company of 85 employees with
26 at this particular work site (Tr. 1243). She testified that if she were aware that
Respondent operated under at least one other name and had had prior violations under that
name, the “adjustment” for history would have been different (Tr. 9, 12-13). Based on her
calculations, the Secretary proposed the penalty amounts contained in the citation.
Respondent argued that as a sub-contractor on multi-employer work sites its
employees often face conditions which were created by other contractors over which it has
no control. It also argued that it is required by many of its contracts in the New York area
to “hire” from the local union hiring hall a number of employees equal to the number of its
“regular” employees it assigns to the site. Respondent points out that no matter how much
it trains its “regular” employees, the requirement to “hire” from the hiring hall means that
. .

  they   get   individuals they do not know had who have no long term commitment to
  Respondent. These employees, who may be with Respondent for only a day or two, cannot
  be trained economically.
          Respondents “defenses”do not demonstrate particular good faith nor do they warrant
  reduction in the proposed penalties. In order to avoid liability under the Act, a noncontrol&
  ng, noncreating subcontractor, such as Respondent, must show either that its exposed
  employees were protected by other realistic measures taken as an alternative to literal
  compliance with the cited standard or that it did not have, nor with the exercise of
  reasonable diligence could have had, notice that the condition was hazardous. Atming-
  Johnson Co. v. OSHRC, 516 F.2d 1081, 3 BNA OSHC 1166 (7th Cir. 1975). In this case
  Respondent has shown neither.
          Moreover, the fact that Respondent has constantly changing personnel on its worksite
  should heighten its responsibility for at least basic safety training. To accept Respondent’s
  position would-be to agree that temporary or hiring hall employees are somehow entitled
  to less protection from hazardous conditions than are a respondent’s “regular” employees.
          Even though Respondent is to be given any “benefit of the doubt,” this record
  contains little information as to the penalty assessment factors, and if anything, demonstrates
  why the penalties might be increased, at least as to the one item mistakenlv failed to be
                                                                                   d




  identified as repeated.3
           In sum, the penalties as proposed by the Secretary are deemed to be appropriate.


                                     FINDINGS OF FACT


          AU 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 Amending the item now to “repeated” by a post-hearing           amendment would be
  prejudicial and basically unfair to Respondent.

CONCLUSIONS OF LAW

      1. Respondent was, at all times pertinent hereto, an employer within the meaning

of 3 3(S) of the Occupational Safety and Health Act of 1970, 29 U. S. C. 9 3 651 - 678
(1970).

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

parties and the subject matter.

      3. Respondent was in serious violation of the Act as alleged in the citation issued to

it on or about March 30, 1993.

      4. The penalties proposed by the Secretary in the citation issued to Respondent on

or about March 30, 1993, are appropriate within the meaning of 0 17(j) of the Act.

                                        ORDER


      1. The citation issued to Respondent on or about March 30, 1993, is AFFIFWED.


      2. Respondent shall pay to the Secretary of Labor - OSHA an aggregate civil penalty

totalling $ 3125.00.

                                      (.MICHAEL    H. SCHOENFELD
             JUN 15 t991                *Judge, OSHRC

Dated:
Washington, D.C.