OSHRC ALJ decision
Docket 93-2941
Decided November 1, 1994
Citations affirmed
Judge Irving Sommer
G. Pugni & Son, Inc.
Demolition head-protection and engineering-survey items affirmed, $3,500
Apply this to your situation
This order from 1994 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Final order, not Commission precedent
This decision by an OSHRC
Administrative Law Judge became a final order of the Commission
because no Commissioner directed review (29 U.S.C. § 661(j)). It
binds the parties but is not binding precedent in other cases. The
full text below is from the official OSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official OSHRC release. The full text is the Commission's own document.
Read the official release (oshrc.gov)
Plain-English summary
G. Pugni & Son was a demolition and rehabilitation subcontractor at the Walt Whitman Mall in Huntington, New York. On August 18, 1993, a suspended concrete and plaster ceiling collapsed onto two workers who were tearing it down, and OSHA inspected after a news-media referral. The agency issued three citation items: no head protection for the workers, no engineering survey by a competent person before demolition began, and no posted OSHA notice. Administrative Law Judge Irving Sommer affirmed all three. On the head-protection item he held that supplying hard hats is not enough: an employer must also instruct workers on their use, monitor the workplace, and enforce the rule. On the survey item he found no engineering survey had been performed, rejecting the superintendent's own judgment that none was needed and a later OSHA letter offered in support. The poster item was undisputed. Penalties totaled $3,500: $1,000 for head protection, $2,500 for the missing survey, and $0 for the poster.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1926.100(a); § 1926.850(a); § 1903.2(a)(1)
- Outcome: All three items affirmed (head protection $1,000 serious; engineering survey $2,500 serious; OSHA poster $0 other-than-serious). Total $3,500.
- Key point: The demolition standards require an engineering survey by a competent person before demolition begins, and merely handing out hard hats does not satisfy the head-protection duty without training, monitoring, and enforcement.
Full text (OSHRC public release)
UN1TED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centfe
1120 20th Street, N.W. - 9th Floor
Washington, DC 2003H419
PHONE
COM(202)~l~
~@@--
SECRETARY OF LABOR 3
Complainant,
v. OSHRC DOCKET
NO. 93-2941
G. PUGNI & SON, 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 September 30,1994. The decision of the Judge
will become a final order of the Commission on November 1,1994 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 PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received b the Executive Secretary on or before
October 16 1994 in order to ermit su&icient time for its review. See
Commission Rule 91,29 C.F.E. 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. 200363419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOe
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: September 30, 1994
DOCKET NO. 93-2941
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
Patricia Rodenhausen, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U.S. DOL
201 Varick, Room 70?
New York, NY 10014
Paul Vincent Bonfiglio, Safety
Advisor
Vincent Safety Service Company
357 Hempstead Turnpike
P. 0. box 212
West Hempstead, NY 11552
Irvin Sommer
Chie f Administrative Law Jud e
Occupational Safety and Heal fil
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419
00107355075:02
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centfe
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
PHONE
coM(202)60&6100
nS(202)606-6100
SECRETARY OF LABOR, .
.
.
.
Complainant, .
.
l
.
v.
.
.
Docket No. 93-2941
.
.
G. PUGNI & SON, INC., .
.
Respondent.
Appearances:
Rebecca R. Stern, Esq. Paul V. Bonfiglic
U.S. Department of Labor Vincent Safety Service Co.
New York, New York West Hempstead, New York
For the Complainant For the Respondent
Before: Administrative Law Judge Irving Sommer
IJND
This is a proceeding under Section 10(c) of the Occupa-
tional Safety and Health Act of 1970, 29 U.S.C. section 651 et
secl.3 ("the Act"), to review citations issued by the Secretary
of Labor pursuant to section Q(a) of the Act, and the proposed
assessment of penalties therein issued, pursuant to section 10(a)
of the Act.
I 2 -
Respondent is a corporation which was engaged in
construction and related activities.
On or about August 18,
1993) the worksite at Route 110, Walt Whitman Mall, Huntington,
New York was inspected by an OSHA compliance officer.
Subsequently, on September 23, 1993, the company received two
citations resulting from this inspection. Respondent filed a
timely notice of contest to
the citations and penalties. A
hearing was held on May 27, 1994, in New York, New York. Both
parties were represented at the hearing and both parties have
filed post-hearing responses. No jurisdictional
issues are in
dispute. The matter is now before the undersigned for a decision
on the merits.
At the hearing on May 27, 1994, the compliance officer,
Robert Magee, testified that at the time of the inspection, he
had come to this particular job site because the OSHA area office
had received a referral from the local news media about an
accident at the Walt Whitman Mall in Huntington, New York. The
news media reported to OSHA that apparently a concrete slab had
fallen and struck two employees who were working on a scaffold.
Mr. Magee was accompanied by another compliance officer, Richard
Mendelson, who took a videotape of the accident inspection. The
compliance officer noted that when he walked into the room where
the accident had occurred earlier in the day, there was total
disarray. The ceiling was on the floor, with the scaffold upside
down and overall a pile of rubble everywhere.
Mr . Magee noted that he then conducted an opening
conference with the general contractor's representative, Mr.
Fortinberry, as there was no representative
of G. Pugni & Son
available. They were later joined by two gentlemen from the
- 3-
local labor union. Mr. Fortinberry related that he did not
observe the accident but heard the workmen's screams and a loud
crash. When he ran into the room where
the demolition work was
being done he saw the two employees underneath a pile of rubble
and ran to call for help,
The compliance officer further testified that the
injured employees worked for G. Pugni & Son, the subcontractor
who was hired to do the rehab and demolition work. No
supervisory official for the company was present at the site at
the time of the accident. Mr. Magee related that the two.
employees had been tearing down a suspended concrete and plaster
ceiling when it apparently collapsed on them.
Mr. Magee also testified that he had talked to the two
employees (Richard Fassett and Salvatore Tine) a few weeks after
the accident when they had recovered well enough to be sent home
from the hospital. After talking to the two employees, the
compliance officer recommended the issuance of a citation for a
violation of 29 C.F.R. section 1926.100(a) fur failing to provide
the employees with head protection whenever there is an overhead
hazard. Mr. Magee also recommended the issuance of a citation
for a violation of 29 C.F.R. section 1926.850(a) for failing to
require an engineering survey to be done by a competent person
prior to the employees doing any demolition work. Finally, the
compliance officer noted that he recommended the issuance of a
citation for a violation of 29 C.F.R. section 19032(a)(l) for
failing to post an OSHA poster at the job site. '
Mr. Magee later conducted a closing conference with G.
Pugni's superintendent, Pat O'Neil, explaining the company's OSHA
rights and responsibilities. He also notified Mr.
O'Neil that
citations could very well be issued for the violations noted
- 4-
during the inspection.
The Secretary next called one of G. Pugni's two injured
employees, Mr. Richard Fassett, to testify. Mr . Fassett
testified that he had only started to work for the company on the
day before the accident, August 17, 1993. Mr. Fassett described
being hired by the company and the work that he did there under
the direction of Respondent's superintendent, Pat O'Neil. He
then described what occurred on the date of the accident, August
18 3 1994. Mr. Fassett noted that he was not wearing any
protective equipment when he arrived for work, nor was he given.
any protective equipment to use. He was given tools to use to do
the demolition work. Mr. Fassett related that he and Mr. Tine
were told to take down the ceiling but were not given any
particular guidance or instruction about how to do the job
or any precautions to be aware of. In addition, Mr. Fassett
noted that the lighting in the back room where the ceiling work
W&S to be done was very dim so an electrician hooked up a
spotlight and the workers also had to use a flashlight to help
them see. Since Mr. O'Neil was not present to offer any
guidance, the two workers began to dismantle the ceiling with a
crowbar and a iiammer a little at a time. However, when Mr.
Fassett began to pry back the lathe from the black iron, the
workers heard a snap and the ceiling came crashing down on top of
them. Mr. Fassett then related that the next thing he knew he
was being brought out through the mall on a stretcher
(transcript, p. 7-10, p. 10-14, p. 18-39, p. 57-61, p. 67-81).
The Secretary's case was also supported by exhibits C-l- C-4.
- 5-
Respondent's representative, Mr. Bonfiglio,
cross-examined both the compliance officer, Mr.
Magee> and the
injured employee, Mr. Fassett, regarding the alleged violations
of the standards for which Respondent was cited.
Mr. Bonfiglio then called Respondent's superintendent,
Pat O'Neil, to testify regarding what transpired regarding the
accident which had occurred. Mr. O'Neil testified that G. Pugni
& Son had been contracted to do work at the Walt Whitman Mall in
Huntington, New York by the general contractor, Hayman, Hogue &
Hetchler. Mr. O'Neil related that he had visited the worksite
prior to sending the workers to the jobsite to determine what
needed to be done there. He talked to the general contractor's
representative, Eric Fortinberry. Mr. Fortinberry told him that
G. Pugni & Son as the subcontractor would be responsible for
demolition, carpentry; and acoustic work for the new store being
constructed.
Mr. O'Neil noted that initially he instructed the two
employees to make a hole in the cinder block wall so that an
electrician could set up temporary lighting in the back of the
store so that the two men could see to do their work in that
area. Once the temporary lighting was set up, Mr. O'Neil
indicated that Mr. Fassett and Mr. Tine were instructed to cut
out part of the back room ceiling.
Pat O'Neil related, in response to Mr. Bonfiglio's
question regarding whether the men which G. Pugni & Son hired
from the local union had been given any safety training, that he
believed that they were given safety training. He also indicated
that he gave the two employees no special safety equipment to do
the required work. Mr. O'Neil further testified that
the only
safety equipment which he felt the two new men needed to use for
this particular job was to wear hard hats. He noted that neither
employee was wearing a hard hat when they arrived for work, so he
supplied them with hard hats, which he found in boxes in the back
of the store where the demolition work was to be done-
Mr. O'Neil then testified that, though he inspected the
jobsite with the general contractor to determine what had to be
demolished and to get information to give a bid, he did not think
that this particular project required an engineering survey to be
done ' before work was started. Under cross-examination, Mr.
O'Neil noted that he found two hard hats in boxes in the back.
room of the store. He told the two workers "Here's your hard
hats" and laid them on a
the front.table in
On recross-
examination, Respondent's superintendent related that he had not
provided any safety training to these new workers. He also noted
that he had prior experience in taking down plaster ceilings
(transcript, p. 40-57, p. 62-66, p. 82-88, pa 89-98, p. 99402).
The Respondent's case was also supported by exhibit R-l.
. . . .
eged serlus vmJ&lon of 29 C.F.R. se&.un l~f$JJO(a~
Serious Citation 1, item 1 alleges:
Employees were not protected by protective helmets while
working in areas where there was a possible danger of head injury
from impact, or from falling or flying objects, or from
electrical shock and burns.
The Secretary asserts that on the day of the accident
the two workers employed by G. Pugni & Son were not wearing
protective helmets while working in an
area where there was a
possible danger of head injury in violation of the standard.
At the hearing,
the Secretary questioned one of the
employees who was injured during the accident, Mr. Fassett. Mr.
Fassett testified that
he and his partner, Sal Tine, were not
given any personal protective equipment to wear on the day of the
accident. The compliance officer also noted that in previous
conversations with the two injured employees they both admitted
to him that they were not wearing hard hats on the day of the
accident. Further, the compliance officer related that the
general contractor's representative, Mr. Fortinberry, also told
him that he did not think that the two employees were wearing
hard hats on the date of the inspection.
Respondent strongly argues that the two workers who
were injured were provided with protective helmets to wear on the
date of the accident. At the hearing the Respondent questioned
Respondent's superintendent, Mr. O'Neil. Mr. O'Neil testified
that he felt that the only safety equipment which the two new
employees needed to use for this particular job was to wear hard
hats. He noted that neither man arrived for work with a hard
hat, so he supplied them with hard hats, which he found in boxes
in the back of the store where demolition work was to be done.
He said that he told the two workers ''Here's your hard hats"
and laid them on a table in the front.
Despite Respondent's protestations to the contrary, it
is quite evident here that Respondent had no established written
safety program that required its employees to
wear hard hats on
all jobs and at all times to prevent injuries, such as those that
occurred in this instance. Though Respondent's superintendent
testified that he "supplied" hard hats to the two injured
employees here, under the Occupational Safety and Health Act, an
employer has the duty not only to make sure that protective gear
is supplied but also to ensure that
employees are instructed on
their proper use and actually use the protective equipment.
- 8-
Further, it is the employer's duty to monitor the workplace to
ensure compliance with the work rule and to discipline those
workers found violating any OSHA standard. See Secretly at
r v. Bclb Roberts Cow 3 14 BNA OSHC 1105 (No. 88-2131,
1989; Secretav of mar v. Thowstrom. & Ccr.t 14 BNA OSHC
.
1142 (No. 88-2468, 1989); Secretuv of &&nr v. Job B. Kelly.
3 14 BNA OSHC 1397 (No. 88-2489, 1989).
Therefore, taking into
consideration all the record
evidence and credible testimony presented regarding this citation
item, I find that the Secretary has established a violation of
the standard by a preponderance of the evidence presented.
The
evidence further reflects that the Respondent knew or should have
known of the hazards to its employees. The violation was obvious
and discernible by mere observation.
A review of all the
relevant factors, the hearing transcript, and the original case
record fully establishes that a penalty of $1,000 is appropriate
for this citation item.
. . . .
ed serums vlQJ&un of 29 C.F.R. section 192f$.85fl(al
Serious Citation 1, item 2 as amended alleges:
An engineering survey was not performed by a competent
person to determine the conditions of
floors and the framing
walls and the possibility of unplanned collapse of any portion of
the structure prior to permitting employees to start demolition
operations. The employer did not have in writing evidence that
such a survey had been performed, to
wit, no engineering survey
was performed prior to the demolition of a concrete ceiling.
The Secretary argues that the Respondent failed to
perform an engineering survey prior to initiating the demolition
work. Respondent's own superintendent, Mr. O'Neil,
testified
that though he inspected the jobsite with the general contractor
to determine what had to be demolished, he did not think that
-9 -
this particular project required an engineering survey to be done
before work was started.
Respondent asserts that its supervisor, Mr. O'Neil, did
inspect the jobsite prior to starting operations, In his
capacity as construction superintendent, with his many years of
experience, he felt that there were no inherent hazards and
therefore he allowed work to begin. Further, Respondent
introduced into evidence, exhibit R-l, a letter dated January 27,
1994, from Mr. Roy Gurnham, Director of the Office of
Construction and Maritime Compliance Assistance, to support its.
position that the type of work that it performed on August 18,
1993, ostensibly did not require an engineering survey.
As to Respondent's exhibit R-l, this support is not
really helpful to Respondent's case. The exhibit is a letter
from OSHA's Office of Construction and Maritime Compliance
Assistance dated January 27, 1994, a letter which was written
five months after the inspection and accident occurred. Further,
the exhibit did not even include a copy of Respondent's letter
dated November 9, 1993, to the OSHA office detailing what
specific questions were being asked of that office.
In this instance, it is evident from a review of all
the record evidence, that the Respondent has presented no
compelling evidence or witness whatsoever to refute the
compliance officer's assertion that no engineering survey was
performed prior to work being done on the concrete ceiling in
this case. In fact, Respondent's own superintendent, Mr. O'Neil,
testified that he did not think that this particular project
required an .engineering survey to be done before work was
started. In addition, the general contractor's representative,
Mr. Fortinberrv, indicated to the compliance officer that as far
.
as he knew no engineering survey had'been done.
-lO-
Clearly, the totality of the evidence and testimony in
this matter substantiate that the Respondent was in violation of
the standard an the date of the inspection. The Secretary has
proposed a penalty of $2,500 for this citation item. Under all
the existing facts and circumstances herein, a penalty of $2,500
for said violation of the standard is consistent with the
criteria set forth in section 17(j) of the Act. See Secretarv of.
.
endIck md Sow. Inc., 2 BNA OSHC 3197 (No.
6120, 1974).
. . .
cSed atbr vlOlat,Lon af 2.9 (J.F.R. sectelan 1903 ~(a)(~1
Other Citation 2, item 1 alleges:
The OSHA notice was not posted to inform employees of the
protections and obligations provided for in the Act.
The Secretary asserts
that Respondent failed to post
the OSHA notice at the worksite to inform its employees of the
protections and obligations provided for in the Act. The
compliance officer testified that during his inspection he did
not see the required OSHA poster.
The Respondent does not really deny that they were in
violation of this
particular OSHA standard. In fact,
Respandent's superintendent, Mr. O'Neil, noted to the compliance
officer that he was not aware that the OSHA notice was posted at
Respondent's jobsite.
Consequently, since there is no dispute between the
parties regarding this citation item, the violation is affirmed
as other-than-serious, and no penalty is assessed. See Secrew
.
10n 3 14 BNA OSHC 1044 (Nos.
88-986 and 88-987, 1989); Secretuv of I&u-m v. Mwrmt Cm a
14 BNA OSHC 1074 (No. 88-872, 1989); S-Y nf I.&~abrr
.
r:trlc&l Camnanv 9 14 BNA OSHC 1094 (No. 88-1054, 1989).
-ll-
All findings of fact
and conclusions of law relevant
and necessary to a determination of the contested issues have
been found specifically and appear herein. See Rule 52(a) of the
Federal Rules of Civil Procedure. Proposed Findings of Fact or
Conclusions of Law inconsistent with this decision are denied.
Based upon the Findings of Fact, Conclusions of Law, and the
entire retard, it is hereby ordered:
1. Citation 1, item 1, alleging a serious violation of 29
C.F.R. section 1926.100(a) is affirmed and a penalty of
$1,000 is assessed.
3
Y. Citation 1, item 2, alleging a serious violation of 29
C.F.R. section 1926850(a) is affirmed and a penalty of $2,500
is assessed.
3. Citat,ian 2, item 1, alleging an other violation of 29
C.F.R. section 1903.2(a)(l) is affirmed and a penalty of $0 is
assessed.
I.,
-
IRVING GLIMMER
Judge, OSHRC
DATED: SfP 2 9 1994
WBtiPngtwn-, D.C.
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