Brown & Root, Inc.

Plain-English summary

Brown & Root, Inc. conceded that flights of metal stairs between several floors of a generating-plant project lacked required handrails. An earlier uncontested citation involved the same standard at a different company division and worksite, and the judge classified the new violation as repeated. The Commission did not decide whether that classification was correct because the appropriate penalty was well below the maximum for even a nonserious violation. It found moderate gravity and no evidence of bad faith. The Commission reduced the penalty to $150 and otherwise affirmed the judge's decision.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.500(e)(1)
• Outcome: The admitted stair-rail violation was affirmed, and the penalty was modified to $150.
• Key point: The Commission left the repeated classification unresolved because the assessed penalty was below the maximum for a nonserious violation.

Full text (OSHRC public release)

Docket No. 15688

BROWN & ROOT, INC.
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OSHRC Docket No. 15688

Occupational Safety and Health Review Commission

January 10, 1978

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Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Reg. Sol., USDOL

Joe M. Stevens, Jr., for the employer

OPINION:

DECISION

BY THE COMMISSION:

In this case, Judge J. Paul Brenton ruled that Brown & Root committed a repeated violation of the safety standard at 29 C.F.R. 1926.500(e)(1).
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Brown & Root's petition for review on the question of whether the violation was properly classified as repeated was granted.

On September 30, 1975, Brown & Root's Power Division was engaged in steel erection for the construction of a generating plant in Thompsons, Texas.
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The steel frames for nine floor levels had been erected and flights of metalstairs between the floor levels had been installed.
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The open sides of the stairs between the fifth and ninth floors were not equipped with hand rails. n1

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n1 29 C.F.R. 1926.500(e)(1) provides, in pertinent part:

Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails . . .

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On March 7, 1974, Brown & Root received a citation which alleged, among other things, that it violated 29 C.F.R. 1926.500(e)(1) at a worksite in Houston, Texas where its Industrial Civil Division was constructing a four-story poured concrete office building.
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Brown & Root did not contest that citation, and it therefore became a final order of the Commission. n2

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n2 29 U.S.C. 659(a)

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The Secretary alleges that the September 30, 1975, violation was a repeated violation based upon the earlier uncontested citation.
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Brown & Root concedes that it violated the standard, but contends that the violation should not be classified as repeated because the evidence does not show that it "flaunted" the requirement of the standard.

In this case, the Secretary proposes that a penalty of less than $1000 should be assessed regardless of whether the violation is a repeated one. n3 The Commission agrees that a penalty of less than $1000 is appropriate.
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The violation is of moderate gravity and there is no evidence that
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Brown & Root acted in bad faith.
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A penalty of $150 is deemed appropriate.

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n3 A penalty of up to $10,000 may be assessed for a repeated violation.
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29 U.S.C. 666(a).
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For a serious or nonserious violation, a penalty of up to $1000 is permitted.
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29 U.S.C. 666(b) and (c).

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Since the penalty assessment is considerably less than the maximum authorized for a nonserious violation, the Commission members do not reach the question whether the violation is properly classified as repeated under their differing views expressed in George Hyman Construction Co., 77 OSAHRC 67/C7, 5 BNA OSHC 1318, 1977-78 CCH OSHD para. 21,774 (No. 13559, 1977), pet. for review filed, No. 77-1591, 4th Cir., May 2, 1977. n4

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n4 Penn Central Transportation Co., 77 OSAHRC 15/F4, 4 BNA OSHC 2033, 1976-77 CCH OSHD para. 21,540 (No. 13084, 1977).

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Accordingly, the Judge's decision [*4]
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is modified to assess a penalty of $150 and, as so modified, is affirmed.
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