Island ADC, Inc. (ALJ decision, July 18, 1994)

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
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One Lafayette Cents
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1120 20th Street, N.W. - 9th Floor
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Washington, DC 20036-3419
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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

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SECRETARY OF LABOR,
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Complainant,
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v. 0
0 OSHRC Docket No. 934203 l
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ISLlAND ADC, INC.,
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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.