E & R Erectors, Inc.

Read the official release (oshrc.gov)

Plain-English summary

E & R Erectors was the structural-steel subcontractor for a Philadelphia warehouse project where employees laid roof decking roughly 30 feet above the ground without safety belts or nets. Employee Raymond Connors fell from the roof structure and suffered serious injuries. Although OSHA had not physically measured the height, the judge credited the approximately 30-foot figure provided by the company's representative from project plans and corroborated by Connors, while the company offered no direct contrary measurement. The foreman also worked on the roof without protection, so his knowledge of the condition was imputed to the company. The serious violation was affirmed, but the penalty was reduced from $3,000 to $1,500 after payroll records supported greater size credit and the Secretary failed to prove a recent history of serious, willful, or repeated violations.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.105(a).
• Outcome: Modified. The serious fall-protection item was affirmed, and the penalty was reduced from $3,000 to $1,500.
• Key point: Reliable project-plan information and corroborating testimony can establish a fall height without a field measurement, while the Secretary must support penalty-history assumptions with evidence.

Full text (OSHRC public release)

Editorial note: the source PDF at this URL bundles two unrelated decisions. Only the E & R Erectors, Inc. decision (Docket 93-1367) is reproduced below; the second decision contained in the same file, Humble Construction Company (Docket 93-2489), is a separate matter published on its own.

                        lJNI7ED STAES OF AMERICA
                   SAFETY AND HEALTH REVIEW
                       One LafayetteCentm
                   11202OthStmet,N.W.-9thFloor
                     Washington,DC 20036-3419

SECRETARY OF LABOR
compiainant, OSHRC DOCKET
v. NO: 934367
E & R ERECI’ORS, INC.
Respondent.

                   NOTICEOF WG

The AdministrativeLaw Judge’sReport in the above referenced case was

docketedwith the Commissi’ on on November28,1994. The decision of the Judge
will become a final order of the Commissi
on on December 28,1994 unlessa
Commissionmember directsreviewof the decisionon or before tha,tdate. ANY
PARTY DESIRING REVIEW OF THE JUDGE’SDECISIONBY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARYREVIEW.
Any suchpetition shouldbe receivedby the ExecutiveSecretairyon or before
December 19,1994 in order to permitsufkient time for its review. See
commission Rule 9l,29 CER. 2200.91. .
All fixrtherpleadingsor communications
regardingthis case shallbe
addressedto:
l3xecdve Secretaxy
Occupational safety and Health
Revmv Commission
1120 20th St. N.W., Suite 980
Washington,D.C 200364419
Petitioning partiesshallalso mail a copy to:
DanielJ. Mick, Esq.
Counsel for RegionalTrial Liti ation
Office of the Solicitor,U.S. DO%
Room S4004
200 ConstitutionAvenue,N.W.
Washington,DC 20210
If a Direction for Review is issuedby the Commission,then the Counsel for
Regional Trial Litigationwill representthe Departmentof Labor. Any party
havmgcpslions &out reviewnghtsmay contactthe Commission’sExecutive
Secretaryor call (202) 6064400.
FOR THE COMMISSION

Date: November28, 1994 Ray H. Darling,Jr.
ExecutiveSecretairy
DOCKET NO. 934367
NOTICE IS GIVEN TO THE FOLLOWINGz

Daniel J. Mick, Esq.
Counselfor Regional Trial IX tion
Office of the Solicitor,U.S. DOT
Room S4004
200 Constitution Ave., N.W.
Washington, D.C 20210

CatherineOliver Murphy
De uty Regional Solicitor
ofi! ce of the Solicitor, U.S. DOL
14480 Gatewa Builbg
3535 Market Htreet
Philadelphia,PA 19104

James W. Scott,Jr. Assistant
Director of ratioIls
Samuel Grossi%T Sons
2526 StateRoad
Bensalem,PA 19020

John H. Frye, III
-tie Law Jud e
Ocb~zkmal Safety and Health
Remew Commission
One Lahyette Centre
112020th St. N.W., Suite990
Washington,DC 200363419

ooo18253013:03
 UNiTED STAES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centm
1120 20th Street,N.W.-9th floor
Washington, DC 2OOd4419

                                      .
                                      .

SECRETARY OF’UBOR, l
l

  Complainant

           v.                         ..            Docket 934367
                                      .
                                      l

E & R ERECXORS, ..
INC., ..
..

  Respondent
                                      .

Appearances:

  RichardT. Buchanan.,Esq.            JamesW. Scott,Jr.
         Off& of the Soiicitor               AssistantDirectorof
         U.S. Departmentof Labor              operations
         Philadelphia,
                     Pennsylvania            SamuelGrossi & Sons, Inc.
                                             Bensaleq Pennsylvania
                 For Complainant                   For Respondent

BEFORE: ADMINSTRATIVE LAW JUDGE JOHN H FRYE, III

                            DECISION AND ORDER

INTRODUCTION

  As a result of an accident at Respondent’s work site in which an employee WS

severely injured in a fall, the Secretary conducted an inspection which resulted in the

issuance of a single citation alleging one violation of 29 CFR 8 1926.105(a) and a proposed

penalty of $3000. Following Respondent’s notice of contest, the Secretary filed a complaint

with the Commission which Respondent answered. Trial took place before me in
Philadelphia on February 1,1994. In this decision, I affirm the violation and assess a civil

penalty of $1500.

FINDINGS OF FACT

          1.    Respondent, E & R Erectors, Inc., was the strum           steel erector

subcontractor of Samuel Grossi & Sons, Inc., at a construction site located at 1801 North

5th Street, Philadelphia, PA 19122. Tr. 7, 37-41. Samuel Grossi & Sons, Inc., was

subcontracted to C.H. Schwertner & Son, Inc. GX 5 (Responses to Interrogatory Nos. 1,

2, 4.)

          2.    Respondent was engaged in the construction of a single story, meat

storage warehouse at the site (Tr. 8, 30, 41, 47), where it employed approximately seven

persons. Tr. 9,lO. .Jerry Brown was Respondent’s foreman and supetior at the site. Tr.

9, 84.

          3.     Raymond Connors was employed by Respondent as a journeyman

ironworker at the workplace on February 24, 1993, and for approximately one week prior

thereto. Tr. 7, 9. h the course of his employment at the workplace, Mr. Connors was

required to perform tasks on the skeletal “steel roof structure of the warehouse, including

laying decking. Tr. 8-9. Other individuals employed by Respondent at the workplace,

including Phillip Gehringer, were required to perform tasks on the skeletal steel roof

structure of the warehouse. Tr. 10,83-&L

          4.     Mr. Connors, Mr. Gehringer, and at least two other employees of

Respondent, including Respondent’s supervisor foreman, laid decking on the skeletal steel
roof structure at locations where the height from the roof to the ground was approximately

30 feet. These employees. were not using safety belts at the time. Tr. 16, 27-30, 31-32, 43,

55,92. Respondent did not provide and none of Respondent’s employees used safety belts

while working on the skeletal steel roof structure at the site. Tr. 10, 11, 38-39, 58, 84.

          5.     On February 24, 1993, Mr. Connors fell Tom the skeletal steel roof

structure to the ground while laying decking, and suffered serious injuries. Tr. 13.16,17-20.

          6.     There was no safety net in use at the site until after Mr. Connors’

accident. Tr. 11, 84, 87.

          7.     From March 3 through 8,1993, Robert J. McDonough, a Compliance

Officer with the Occupational Safety and Health Administration, conducted an inspection

of the workplace. Tr. 37-38.

          8.     As .a result of the inspection, Respondent was issued one serious

Citation alleging a violation of 29 C.F.R. 0 1926.105(a) together with Notice of a Proposed

Penalty totaIling $3,000.00 pursuant to Sections 9 and 10 of Occupational Safety and Health

Act of 1970, as amended (the Act), 29 U.S.C. 00 658 and 659. GX 4; Tr. 48.

          9.     The $3,000.00 penalty was calculated by taking into consideration the

probability and severity of injury, and Respondent’s size, good faith, and prior history of

OSHA violations. Tr. N-51, 61, 65-66, 69, 73, 76, 78, 79.
DISCUSSION

   A       The Alleged Violation

   To establish a violation of a standard or regulation promulgated under the Act, the

Secretriry must show that “(1) the standard applies to the cited condition; (2) the employer

violated the terms of the standard; (3) its employees were exposed or had access to the

violative conditions; and (4) the employer had actual or constructive knowledge of the

violation.” Sal Mizsowy Contractors,Inc., 15 BNA OSHC 1609, 1610 (No. 87-2007, 1992).

See also Tnwnid Constmction Co., Inc., 14 BNA OSHC 1784, 1788 (No. 86-1139, 1990).

   The standard in question, 29 C.F.R. 6 1926.105(a), states:

           Safety nets shall be provided when workplaces are more than 25 feet above
           the ground or water surface, or other surfaces where the use of ladders,
           scaffolds, catch platforms, temporary floors, safety lines, or safety belts is
           impractical.

   In its brie& Respondent contests only that part of the Secret              prima facie case

which concerns the height of the steel Tom which Mr. Connors fell.’ Respondent points

out that the burden of proof falls squarely on the Secretary to show that E & R Erectors

violated 29 C.F.R. 6 1926.105(a) by failing to provide appropriate fall protection where

employees were exposed to a fall hazard in excess of 25 feet. Respondent has not offered

any direct evidence of the height of the steel, but rather asserts that the Secretary failed to

introduce reliable evidence that the height exceeded 25 feet.

‘Respondentset forth two affirmativedefensesin its Answer. The firstaf6rmativedefensestated that The
use of safetybeltswas impracticaland the use of nets was infeasible.”The secondthat “the use of safety
beltswaspratical and [they]were in usefor a substantialportionof the workday,” precludingthe
requirementof safetynets. Respondentdid not pursueeither defensein its brie, thus abandoningthem.
In anyevent,the Secretarycorrectlypointsout in his brief (pp. 1042) that they are meritless.

                                              4

Respondent notes that the Secretary did not offer any evidence of actual

measurements of the height of the steel, but instead relied on a representation made to Mr.

McDonough by Mr. Gehringer. Respondent attacks the Secretary’s reliance on Mr.

Gehringer’s representation. First, as reflected in the above findings, Mr. Gehringer obtained

this figure from a plti in the possession of the general contractor, C.H. Schwertner, not E

& R Erectors, and Mr. McDonough did not personally inspect the plan2 Respondent

argues that, as a consequence, he cannot identify the plan as one which was approved and

cannot be sure that height was taken of the section of the building where the accident took

place.

     Second, Respondent points out that the plan gave the height of the building as 30

feet, two inches, from the top of steel to the finished floor. At the time of the accident,

however, there was no finished floor in place, so the actual fall distance could have been a

greater or lesser distance.

     Respondent also points out that ML Gehringer stated that neither he nor anyone on

the job thought the building was over 25 feet high, and consequently no one believed that

there was any need for fall protection. Gehringer also stated that, because E & R Erectors

    examination,Mi McDonoyh acknowkdgedthat there was some questionconcerningthe actual

20n cross
height of the building, and he conceded that it was ultimatelydetermined by others who lookedat a plan:
Q AII right. Let me rephrase that. You verified it by looking at a plan,is that whatyou
said?
A I verifiedit by the verbal verification fkomGorky[PhilipGehringer]of E & R and also
from the superintendent of SchwertnerBornthe pnints.
Q You said you d&ussed the heightof the buildingwithCo&y, correct?
A correct,
Q Whenyou asked Gorkyhowhighthe building was,whatdid he - did he tell you right
awayor did he go -
A No it was not knownright may. What we didis, I believe,theywenfback to the trailer
and they went throughthe prints,him and Schwertner and theycame up with30 - 2 Tr.
55.

                                               5

was undergoing a slow period, most of the men on the site were foremen and were very

experienced as ironworkerx3 Tr. 91-92. Respondent argues that, given the extensive

experience of the men on the site and their belief that the building was less than 25 feet

high, evidence that this belief was not only mistaken, but mistaken by more than Eve feet,

should be viewed with some skeoticism.

   In contrast to Mr. Gehringer’s testimony that no one on the site believed that the

building was over 25 feet high, Mr. Connors testified that he learned that the height of the

building was 30 feet, two inches, prior to his accident by looking at a print that the foreman,

Jerry Brown, was using. Tr. 27. Respondent maintains that this testimony should also be

viewed with some skepticism, however, pointing out that while Mr. Connors seems to

remember quite clearly the height of the top of steel for the section of the building from

which he fell, he was far less clear about the height of the other half of the building, and

could not say for sure whether the other half of the building was higher or lower than the

section fkom which he fell. Tr. 27. Mr. Connors gave no explanation of why he alone chose

to ascertain the height of the building, why he chose to determine the height only at the part

of the building where he subsequently fell, and why he subsequently chose not to tell anyone

else on the site despite his admitted knowledge of the OSHA fall protection standards of 29

C.F.R. 6 1926.105(a)!

    Respondent’s position may be summed up as follows:

%r. Gehringertestified that he had 28 years experience.

“Respondentalso argues thatthe Secretarymadea point of stressingthat Mr. Connors,despiteprior
employmentas a foremanby E & R, had no supervisoryresponsl%iliti~ on this job. Presumably,
Respondentdoes not wishMr. Connors’knowledgeattriitmxl to it, However,Respondent’sresponsibility
for erectingthe steelframeworkof the buildingclearlyput it on noticeof the heightof the steel,

                                               6

Mr. McDonough could have very easily resolved the issue by physically
measuring the height of the building at the point where Mr. Connors fell, but
he chose not to. As an imperfect alternative (since a plan would only show
the height from the finished floor), he could have looked at the plan himself
to insure that he was looking at an approved drawing at the proper part of the
building, but he chose not to. Instead he chose to rely solely on the
uncorroborated representation of Mr. Gehringer. While such representations
are certainly admissible as evidence, they should not be accorded the same
level of credibility by the factfinder that would be accorded a direct
measurement or a personal inspection of the plan by Mr. McDonough.

                   The Secretary has therefore not met his burden of proof in establishing
           that ironworkers on the job were exposed to falls of more than 25 feet, and
           is’consequently unable to prove a violation of 29 C.F.R. 8 1926.105(a).

Respondent’s brief, p. 23.

   Respondent’s position is essentially correct. However, Respondent overlooks the fact

that Mr. Gehringer was acting as Respondent’s representative at the opening conference

when Mr. McDonough enquired about the height from which Mr. Connors fell. Tr. 41. As

such, Mr. McDonough was entitled to rely on his representations regarding the height of the

steel. Moreover, those representations were corroborated by Mr. Connors, who, whatever

his reason for checking the height prior to his fti, had a powerful reason to remember it

afterwards. While clearly it would have been preferable if the Compliance Ofiicer had taken

steps to pin down the height of the steel more definitively, Respondent has advanced

insufficient reasons to discount the testimony introduced on this point. Particularly in view

of Respondent’s failure to demonstrate by direct, contradictory evidence that its

representative, Mr. Gehringer, was mistaken in his representatior$ I find that the Secretary

has introduced substantial evidence that the height fkom which Mr. Connors fell exceeded

‘Clearly, Restindent wouldhave possessed drawings showing the height.

                                             7

25 feet. Amu Phamzaceuticalh&cts, Iizc. v. OSHRC & Donovan, 681 F.2d 69, 10 BNA

OSHC 1697 (1st Cir. 1982); Secretmy v. CF & TAvailabk Concrete Aurrping, Inc., 15 BNA

OSHC 2195,2198 (Rev. Corn. 1993).

   Respondent failed to pruvide any form of f&Uprotection to employees working on the

structure at heights in excess of 25 feet above the ground! Mr. Connors, Mr. Gehringer,

Gary Moore, and foreman Jerry Brown all worked on the roof without any fall protection.

There were no safety nets in use at the workplace until after Mr. Connors’ accident. In

addition, none of Respondent’s employees who were required to work on the roof structure

wore any fall protection device, none was told to use a safety belt while worldng on the roof,

and Respondent provided no safety belts at the workplace to these employees. Mr. Connors

and Mr. Gehringer testified, unrebutted, that there was no fall protection in use at the site

prior to Mr. Connors’ accident. Mr. McDonough Ao testified that he observed no fall

protection in use when he first arrived at the site on March 3,1993. He also stated that ML

Gehringer checked the gang boxes during the course of the inspection and found no safety

6Respondent’supervisorforemanat the workplace,Jerry Brown,workedon the roof structureat a height
in excessof 25 feet withoutany fall protection. Tr. 16. He thereforehad first-handknowledgeof the
conditionconstitutingthe violationand, if he did not have actualIrnowledge of the height,the exerciseof
reasonablediligencewouldhave revealedit to him_ Under thesecircumstances, Respondentmustbe
deemedto have had knowledgeof the conditior~SeeMCC ofFlorida,Inc, 1981 CCHOSHD li 25,420 at
31,682 (No. 15757,198l) (employerhad knowledge where unapprovedg;isolinecontainer,whenforemen
were in area, was detectablethroughreasonablediligence);ChapmanC~IWWZ&Z Ca., I& 9 BNA OSHC
1175,117677 (No. 762677,198O) (employerhad howledge whereungrounded circularsaw couldhave
been discoveredwithexerciseof reasonablediligenceby employer); Pecosteel-Ar&ona, 2 BNA OSHC 1506
(No. 1930, 1975) (foreman’sknowledgemustbe imputedto his employer);S&Z&eRoofiirg& SheetM;etal;
I’, 13 BNA OSHC 1297 (ALJ, Nos. 85-339 and 85-X8,1987) (employerhadknowledge whereground
pin missingon extensioncord wasobviouslydefective).

                                               8

belts. Respondent proffered no evidence at the hearing that any fall protection was

provided or used prior to Mr. Gehringer’s erecting safety nets.

     In cases where an employer has used none of the fdu protection measures
     listed in section .105(a) and is cited for failure to provide safety nets, the
     Secretary will establish a prima facie case upon showing that the employees
     were exposed to a fall in excess of twenty-five feet and that none of the
     protective measures was used.

Centurv Steel Erectors, Inc. v. Dole, 888 F.2d 1399, 1402 (D.C. Cir. 1989), citing Brock V.

L.R. Willson & Sons, Inc., 773 F.2d 1377, 1383 (D.C. Cir. 1985). The Secretary has

established a violation of s 1926.105(a).

     B0     The Proposed Penalty

            Section 17(j) of the Act states:

            The Commission shall have authority to assess all civilpenalties
            provided& 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.

29 U.S.C. 6 666(j). Mr. McDonough explained how he calculated the $3,000.00 proposed

penalty. He testified that the high probability - “it happened, somebody fell” - and high

severity - possl%le“broken bones, lacerations, internal injuries and death” - resulted in a

$S,OOO.OO
gravity-based penalty. Tr- 50,61. He further explained that no adjustments were

made for history, because Respondent had been previously cited for a violation of the Act,

(Tr. 51) and for good faith, because only adjustments for size and history are permitted for

high gravity serious violations. Tr. 73,76. The Secretary argues that this is sound reason@

Respondent permitted a dangerous condition, open and obvious, to exist for at least one

                                               9

week at its work site with the result that a worker was severely injured. This conduct does

not reflect good faith.

   Respondent challenges the Secretary’s penalty recommendation. It points out that

under Chapter VI B.6 of the Field Operations Manual, the severity assessment is made by

determining Yhe type of injury or illness which could reasonably be expected to result fkom

an employee% exposure to the safety or health hazard.” Respondent argues that in the

instant case, the appropriate choices appear to be between high and medium severity. It

points out that under Chapter VI B.6.a, high severity includes “Death from injury or illness;

injuries involving permanent disability; or chronic, irreversible illness,” and under B.6.b,

medium severity includes “Injuries or temporary, reversible illnesses resulting in

hospitalization or a variable but limited period of disability.” Respondent argues that

because Mr. Connors survived his fall, the distinction between high and medium severity

hinges upon whether his disabilities are permanent.

   Respondent misapplies the FOM. The question of whether a violation should be

aeemed to be one of high severity does not depend on the outcome of an accident, but

rather on whether a serious injury is likely to result if an accident occurs. An accident is not

a prerequisite to the finding of a violation. Secretary v., Super Excavators, I’izc., 15 BNA

OSHC 1313, 1317 (Rev. Corn. 1991). Thus the nature and extent of Mr. Connors’ injuries,

while relevant to the question of gravity, are not controlling.’ Mr. McDonough’s conclusion

that a fall of more than 25 feet could result in death or permanent disability is consistent

‘In any event, Mr. Connors descriptionof his injuriesand treatment(Tr. 17-20) is clearlyconsistentwith
the conclusionthat he is permanently disabled.

                                              10

with both OSHA’s and the Commission’s assessment of similar hazards. I find that this is

a high gravity violation.’

   Respondent also argues that Mr. McDonough did not afford it a proper credit for

size. Under Chapter VI B.lO.e(l) of the FOM, the size of an employer’s business is to be

“measured on the basis of the maximum number of employees of an employer at all

workplaces at any one time during the previous 12 months.” Mr. McDonough, relying on

information furnished by Respondent’s vice president, Eugene Grossi, Sr., that Respondent

had 80 employees (Tr. SO),accorded Respondent a 40% reduction in penalty. Respondent

introduced evidence that the maximum number of employees it had was 19. On that basis,

it argues that it is entitled to a 60% reduction.

   The evidence whichRespondent introduced consists of its Weekly Payroll Summaries

for the twelve months preceding the date of the accident. On direct examination, the

controller for E & R Erectors, Inc., Edward J. Scheetz, Jr., testified that these weekly

reports were the documents that he used to prepare the weekly payroll. As such, they bore

the names of every employee of E & R Erectors during a particular week. These documents

showed that the greatest number of persons employed by E & R Erectors, Inc. at any one

time during the twelve months preceding the date of the accident was nineteen. Tr. 99401.

   While the Secretary points out that the payroll summaries are inconsistent with the

oral responses of Mr. Grossi and, to some extent, with the responses of Mr. Scheetz on cross

*On the assumptionthat it wouldprevailon this point, Respondentalso arguesthat, becausethe violation
is not properlycategorizedas highseverity,it is entitledto a 25% creditfor good faith This argumentis
made moot by the thisfinding.

                                             11

examination, he has not demonstrated that they are unreliable.’ Because the payroll

summaries are records kept in the ordinq course of business, I find that they accurately

reflect the number of Respondent’s employees for the period preceding Mr. Connors’fbll,

   The Secretary points out that the most likely explanation for Mr. Grossi’s higher

figures is that Mr. Grossi considers E & R Erectors, Inc. to be part and parcel of Samuel

Grossi & Sons, Inc., and points out that this is borne out by the following evidence. Mr.

Grossi and his brother, Robert, are the exclusive stockholders of both companies. Although

Mr. Grossi’s son, Eugene, Jr., is not technically employed by Respondent (Tr. llO), he is an

engineer for Samuel Grossi & Sons, Inc. (Tr. 108), and met with Mr. McDonough on

Respondent’s behalf, with his father, during the closing conference. Tr. 42; RX 1 (Form

OSHA l-A, block 8). Respondent’s representative at the hearing, James Scott, is the

Assistant Director of Operations for Samuel Grossi & Sons, Inc. Tr. 3. As stated previously,

Mr. Scheetz is the controller for both companies and Kim Michaud performs clerical work

for both. . Correspondence and filings on behalf of Respondent were sent under Samuel

Grossi & Sons, Inc.‘s letterhead.

   The Secretary argues that the Commission has held that it is proper, under certain

circumstances, to consider the assets of the parent of a wholly-owned subsidiary in assessing

9The Secretaryalso urges that the accuracyof ML Scheetz’stestimonyis furtherundercutby the omission
from payrollsummaries of severalindividuals who,althoughthey may not havebeencompensated by E &
R Erectors, fnc for their services,performedworkfor Respondentat the Grossis’ direztion.in the
Secretary’s view, they should be considered employees.Theyare: Robert and EugeneGrossi,the sole
stockholdersand presidentand vicepresident,respectively,of Respondent(Tr. 106); Mr. Scheetzhimsf
(‘I’r.111); and Kim Michaud(Tr. 107). However,even if they are included,their mmbers wouldnot place
Respondentin the categoryof 26 - 100 employees.

                                             12

the subsidiary’s size for purposes of determinin g financial eligibility under the Equal Access

to Justice Act, 5 U.S.C. $504. See Niio Electic Co., 16 BNA OSHC 15% (No. 91-3090,

1994). The Secretary urges that the same logic should apply here.

   In Ni!i!o,the Commission interpreted Congress’ intent in enacting the EAJA to be to

benefit small concerns which lacked access to sufficient funds to mount a defense to charges

brought by the government. Because the respondent’s parent corporation in that case had

the necessary resources to mount a defense (which it made available to the respondent), the

Commission found that an award under the EAJA would not effectuate the intent of the

EAJAO

   Here, the Secretaq has not made a sufficient showing that it would effectuate the

intent of Congress to interpret the definition of “employer” in 0 3(5) of the Act so as to

ignore Respondent’s corporate status and compute the penalty based on the fact that

Respondent’s stockholders also own another business entity. The fact that at the owners’

direction, certain employees of the other entity perform services for Respondent is not

unusual and, standing alone, does not dictate such a result. For instance, it is entirely

posslMe that the Respondent may reimburse the other . entity for these setices

   Relying on Chapter VI B.lO.e(3) of the FOM, Respondent argues that it should

receive a reduction of 10 percent because it has not been cited by OSHA for any serious,

willful, or repeated violations in the past three years. It points out that, unlike the

information concerning an employer’s size, information concerning a past history of OSHA

citations is within the possession of the Secretary, and that, as a result, the burden of proof

must fall to the Secretary to show that the employer is not entitled to a reduction for history.

                                           13

The entirety of evidence presented by the Secretary on the issue of OSHA history

consisted of Mr. McDonough’s equivocal response to a question on direct:

          Q       Okay. Did you give them any reduction for history?
          A       Ah, I believe not because there was previous OSHA citations issued.

Tr. 51. Mr. McDonough was equally vague on cross-examination. See Tr. 73.

   In addition, Respondent points out that there is no evidence concerning the nature

of any past violations. The FOM precludes the 10% reduction for those employers who

have been cited within the past three years for serious, wB?ul, or repeated violations. Mr.

McDonough’s vague allusions to past citations contain no indication whether any of those

alleged citations were for serious, wilEi& or repeated violations.

   Respondent maintains that its inability to obtain its past history with OSHA through

discove$* and the Secretary’s failure to present any evidence indicating a prior history of

serious, willful, or repeated violations within the past three years requires that it be accorded

the 10% reduction for history mandated by the FOM. Respondent is correti serretcuy

v.Mosser Consnuction Co., 15 BNA OSHC 1408, 1416 (Rev. Corn. 1991).

   Based on the foregoing, I conclude that Respondent is entitled to a 70% reduction

of a $5000 gravity based penalty and assess a total penalty of $1500.

loInresponseto its request, the Secretarysentthe OSHA PhiladelphiaArea OfficeInspectionHistoryfor
E & R Erectors coveringthe dates fkomJanuaryI,1972 throughMarch 11,1988.

                                            14

CONCLUSIONS OF LAW

             1.   Respondent is an employer engaged in a business tiecting commerce

within the meaning of section 3(5) of the Act, 29 U.S.C. 6 652(5). [Answer, II V.]

             2.   Jurisdiction of this proceeding is conferred upon the Occupational

Safety and Health Review Commission by section 10(c) of the Act, 29 U.S.C. 5 659(c).

[Answer, U I.]

             3.   29 C.F.R. 6 1926.105(a)applies to the conditions relating to the laying

of decking by Respondent’s employees on the skeletal steel roof structure at the workplace.

             4.   Respondent violated 29 C.F.R. 0 1926.105(a) by failing to provide any

form of fall protection for employees working on the skeletal steel roof structure at the

workplace, at heights in excess of 25 feet, until after Ray Connors’ accident on February 24,

1993. A penalty of $1500 is appropriate.

                                           15
      

      ORDER

       Citation 1, Item 1, is affirmed as a serious violation of the Act. A total penalty of
      

$1500.00 is assessed.

     It is so ORDERED.

Dated:
Washington, D.C.

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