Houran USA Construction, LLC

Plain-English summary

Houran USA Construction renovated a three-story building using a four-tier scaffold. OSHA cited the company after an inspector observed an employee without a hard hat below scaffold work, employees using a scaffold with a missing guardrail about 24 feet above the ground, and an access ladder that did not extend three feet above the landing or have proper securing. The judge found that employees were exposed to each condition and that the project manager or company owner knew, or with reasonable diligence could have known, about the visible hazards. All three violations were classified as serious. The citations were affirmed with penalties of $2,217, $3,696, and $2,956, totaling $8,869.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.100(a); 29 C.F.R. § 1926.451(g)(4)(i); 29 C.F.R. § 1926.1053(b)(1)
• Outcome: Three serious citation items were affirmed, with total penalties of $8,869.
• Key point: Visible hard-hat, scaffold-guardrail, and ladder hazards supported actual or constructive employer knowledge.

Full text (OSHRC public release)


HOURAN USA CONSTRUCTION, LLC, OSHRC Docket No. 18-1261

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW
C OMMISSION

1120 20 th
Street, N.W., Ninth Floor

Washington, D.C.

20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC
D ocket No.
1 8-1261

HOURAN USA CONSTRUCTION, LLC,

Respondent.

Appearances:    David J. Rutenberg, Esq.

Office of the Regional Solicitor

United States Department of Labor

201 Varick Street, Room 983

New York, N.Y. 10014

For the Complainant

Steve J.
Houran,
Pro Se

Houran
USA Construction, LLC

10 Stuyvesant Ave., 2 nd
Floor

Lyndhurst, N.J. 07071   

For the Respondent

Before:   
   Keith E. Bell

Administrative Law Judge

DECISION AND ORDER

This proceeding is before the Occupational Safety and Health Review Commission (the Commission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 451 (the Act). The Occupational Safety and Health Administration (OSHA) conducted an inspection of a worksite located
at
193 Palisade Ave. in Jersey City, N.J. 07306
on or about
May 9, 20 1 8 . As a result,
o n
July 13, 2018 ,
OSHA issued a Citation and Notification o f Penalty (Citation ) to
Houran
USA Construction, LLC
( Respondent or
Houran ), alleging
multiple
violations of the Act. Citation 1 include s three (3) items and is
classified as “serious”.

This case
is a
simplified proceeding
under
the Occupational Safety and Health Review
Commission Rule s of Procedure Rule

202. 29 C.F.R. §
     2200.20 2 .
     Therefore, no complaint or answer was filed. Respondent did not assert an affirmative defense during the pre-hearing conference. 29 C.F.R. §   2200.207(b).

A hearing was held on June 11, 2019.
For the reasons that
follow, Citation 1,
Items 1, 2, and 3
are AFFIRMED.

Jurisdiction

The parties have stipulated to the Commission’s jurisdiction over this proceeding and cove rage under the Act. (JX-1, no. 1) . 1
The parties have
also
stipulated that
Houran
is a New Jersey
co mpany
with its principal place of business in
Lyndhurst , New Jersey .
(JX-1, no.
2 ).

T he
evidence adduced at the hearing establishe d
that
Houran
was an “employer” engaged in a “business affecting commerce” within the meaning of section 3(5) of the Act, 29 U.S.C. § 652(5).
The evidence supports a finding
that the Act
applies,
and the Commission has jurisdiction over this proceeding pursuant to section 10(c) of the Act, 29 U.S.C. § 659(c).

Stipulated
Facts 2

1. Jurisdiction of this action, OSHRC Docket No. 18-1261 , is conferred upon the Occupational Safety and Health Review Commission by
   s ection 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590, 29 U.S.C. §
   651,
   et seq .).

2. Respondent ,
   Houran
   USA Construction, LLC, a limited liability company organized under the laws of the State of New Jersey, maintaining its principal office and place of business at 10 Stuyvesant Ave., 2 nd
   Floor, Lyndhurst, N.J. 07071, and doing business in the State of New Jersey, is and at all times hereinafter mentioned was engaged in residential and commercial construction and related activities.

3. Steve J.
   Houran
   is and at all relevant times was the owner and president of Respondent.

4. Respondent performed work at 193 Palisade Ave., Jersey City, N.J.
   07306 (worksite) on, among other dates, May 9, 2018. 3

Background

Respondent,
Houran
USA Construction, LLC ,
is a New Jersey limited liability corporation engaged in residential and commercial construction and related activities. JX-1, no .

2. Steve J.
   Houran
   is the owner and president of the company. JX-1, no. 3. Respondent performed work at 193 Palisade Ave. in Jersey City, New Jersey
   on May 9, 2018. JX-1, no. 4. The worksite was a small renovation job on a
   100-year-old
   historic building that
   involved
   fixing the gutters, soffits, corbels, and the installation of siding. Tr. 287-88. The building consisted of three stories. Tr. 131, 197-198; GX-2. On the outside of the building was a four-tier tubular scaffold that was wrapped around the front and right side (facing the building) of the building. Tr. 31.

OSHA Inspection

On May 9, 2018, OSHA Compliance Officer (CO) Idalia Rosa
Venkatraman was assigned
to
perform local targeting inspection s
for fall hazards in Jersey City. Tr. 25. In the course of
performing her duties, CO Venkatraman happened upon a worksite located at 193 Palisade Ave. Id.
Initially,
CO Venkatraman parked across the street from the worksite and made observation s of
the workers and the work being done. Tr. 26. T he n,
the CO
took some pictures of the worksite. Id . At
the front of the building , the CO
observed a sign that read, “ Houran
USA Construction”. Id. CO Venkatraman approached an employee working outside and asked to speak to the project manager. Tr. 26. The employee went inside the building and returned with the project manager whose name was Jerry
Pod czerwnski
(Jerry). Tr. 26-27 , 31 . Jerry confirmed that he was the project manager. Tr. 32, 34. The CO conducted an opening conference with Jerry . Tr. 31. Additionally, she conducted interviews with other
Houran
employees on the
worksite
includ ing
Neil
Sonnick ,
Jose Castro, Angel Diaz, and John Massey . Tr. 34 , 37.

Discussion

To prove a violation of an OSHA standard, the Secretary must show by a preponderance of the evidence that (1) the cited standard applies; (2) the employer failed to comply with the terms of the cited standard; (3) employees had access to the violative condition; and (4) the employer either knew or could have known with the exercise of reasonable diligence of the violative condition. JPC Grp., Inc ., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009). A preponderance of the evidence is “that quantum of evidence which is sufficient to convince the trier of fact that the facts asserted by a proponent are more probably true than false.” Astra Pharma. Prods ., 9 BNA OSHC 2126, 2131, n. 17 (No. 78-6247, 1981)
aff’d in relevant part,
681 F.2d 69 (1st Cir. 1982).

Alleged Vio lation of 29 C.F.R. § 1926. 100(a)

Citation 1, Item 1 alleges a viol ation of 29 C.F.R. § 1926. 100(a)
which states :

[e]mployees
working in areas where there is a possible danger of head injury from impact, or from falling, or flying objects, or from electrical shock and burns, shall be protected by protective helmets.

Specifically,
Citation 1, Item
1
alleges that
on or about May 9, 2018, an employee working on the ground floor of the worksite was not wearing a
hard hat
and was exposed to a potential head injury while working below employees performing carpentry work on a scaffold .

CO
Venkatraman
observed
a n employee
working in front of the building picking up garbage . Tr. 49. CO Venkatraman
observed,
and the photographic evidence purports to show the employee
walking underneath the scaffold without a
hard hat . Tr. 52;
CX- 2 . T he
cited
standard applies.

CO Venkatraman testified that she observed Jose Castro
working on the ground floor picking up garbage in front of the building. Tr. 49. She further testified that Mr. Castro was not wearing a hard hat. Tr. 52. Instead, Mr. Castro was wearing a baseball cap while walking underneath the scaffold. Tr. 58. There were employees above Mr. Castro working from the scaffold
(approx. 24 feet high)
using tools such as
a
caulking gun , hammer, and other materials. Id. Additionally, the scaffold was not completely planked. Id. CO Venkatraman testified that there was a danger of Mr. Castro being struck in the head by falling objects. Id. Finally, CO Venkatraman testified that there were no nets or toe boards to catch falling objects. Tr. 59. Jose Castro testified that he didn’t have his hard hat on because he had just returned from a break. Tr. 243. Owner Steve
Houran
admitted that his employees don’t like to wear hard hats because it makes them sweat. Tr. 293. Notwithstanding
this
defense, t he standard requires employees working under these conditions to wear protective head gear. The
cited standard was violated .

Employee Exposure

Employees may come within the zone of danger “while in the course of assigned working duties, personal comfort activities while on the job or their normal means of ingress-egress to their assigned workplaces.”
Gilles &
Cotting , Inc ., 3 BNA OSHC 2002, 2003 (No. 504, 1976) . T he Third Circuit
Court of Appeals
has held that an employee is exposed to a hazard if he/she has
access to the zone of danger.

Donovan v. Adams Steel Erection, Inc ., 766 F.2d 804, 812 (3d Cir. 1985)
(“   ‘ access,’ not exposure to danger is the proper test”).

CO Venkatraman observed that employee J ose
C astro
was not wearing a hard hat
even though
he was walking underneath the scaffolding. Tr. 52. The CO expressed concern that an employee working on the ground below the scaffolding could be struck in the head by
a
falling object. Tr. 58. Mr. Castro testified that he was working 10-15 feet away from the scaffold. Tr. 238. Moreover, he
initially
claimed that he never passed under the scaffold. Tr. 239 . However,
Mr. Castro then conceded that he must have been under the scaffold at some point during the day. Tr. 240.

Employee exposure to the fall ing/flying object
hazard is established.

Employer Knowledge

The Commission has held that an employer is chargeable with knowledge of conditions which are plainly visible to its supervisory personnel. A.L. Baumgartner Constr.
Inc.,
16 BNA OSHC 1995, 1998 (No. 92-1022, 1994).
“An employee who has been delegated authority over other employees, even if only temporarily, is considered to be a supervisor for the purposes of imputing knowledge to an employer.”

Tampa Shipyards Inc ., 15 BNA OSHC 1533, 1537 (No. 86-630, 1992)
(consolidated) .
Dover Elevator Co ., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993) ( noting that “ It is the substance of the delegation of authority that is controlling, not the formal title of the employee having this authority; an employee who is empowered to direct that corrective measures be taken is a supervisory employee .” ).

In
Pennsylvania Power & Light Co. v. OSHRC,
737 F.2d 350, 352 , 355 (3d Cir. 1984) , the Third Circuit considered the crew leader of a three-person electrical utility crew at a remote worksite to be a supervisor for purposes of determining the employer's knowledge of the violative conditions.

Owner ,
Steve
Houran
was not at the worksite on the day of the inspection. Tr.
45 . Instead ,
Jerry
identified himself
to CO Venkatraman as the project manager on site. Tr. 32, 34. Other employees interviewed also referred to Jerry as their supervisor. Tr. 34. In rebuttal,
S teve
Houran
testified that Jerry was just a “consultant” who happened to be on-site on the day of the inspection. Tr. 302-03. Mr.
Houran
further testified that Jerry was not the project manager. Tr. 304. According to Mr.
Houran , the project manager was a man named Scott Adkins who was absent on the day of the inspection and he was the person in charge. Tr. 304-05. Finally, Mr.
Houran
testified, “to the best of my knowledge, I can’t pinpoint who was really
took in (sic) charge.” Tr. 307.
Mr.
Houran’s
statements
denying that Jerry was the supervisor on May 9, 2018, are undermined by the fact that, during the inspection, Jerry instructed Angel Diaz to close the gap in the guardrail and Angel responded, “ok boss”. Tr. 82-83. In any case, Respondent’s assertions regarding the
absence of a person in charge during the inspection do not negate the Secretary’s theory that Respondent had “constructive” if not “actual” knowledge of this and other violative conditions cited. Sec’y
B r. 2 -3, 20. To establish constructive knowledge, the Secretary must show that the employer, with the exercise of reasonable diligence, could have known of a hazardous condition.

Kerns Bros. Tree Serv ., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000).
Based on CO Venkatraman’s testimony, Mr. Castro was observed working in plain sight near or underneath the scaffold without a hard hat. CO Venkatraman also testified that
Mr. Castro had to go inside the building to get the
Jerry the project manager. So , it is possible that Jerry was unaware that Jose Castro was not wearing his hard hat. However, with reasonable diligence, he could have discovered this violative condition.

It is noteworthy that Jerry still did not instruct Mr. Castro to put on his hard had when the CO brought it up during the closing conference. Tr. 60. In fact, CO Venkatraman only observed Jose Castro put on his hard hat as she was exiting the worksite. Tr. 62-63. It has been held that a n employer has a duty “to take
reasonably
diligent measures to inspect its worksite and discover
hazardous conditions; so long as the employer does so, it is not in violation simply because it has not detected or become aware of every instance of a hazard.”

Texas A.C.A., Inc. , 17 BNA OSHC 1048, 1051 (No. 91-3467 , 1995) (citations omitted).

The Commission has held that an employer is chargeable with knowledge of conditions which are plainly visible to its supervisory personnel. A.L. Baumgartner Constr. Inc.,
16 BNA OSHC
at
1998.
Assuming
arguendo , that
the undersigned
accept s
Mr.
Houran’s
contention
that there was no on-site supervisor at the time of the inspection, the evidence still establishes a finding of constructive knowledge of this violation. Mr.
Houran
admitted that
his employees don’t like to wear hard hats and sometimes work without them because the hats make them sweat. Tr. 293 . With that knowledge, Jerry or Steve
Houran
should have been diligent about checking to make sure that all employees were wearing hard hats on the day of the inspection. Steve
testified that he was nearby the worksite. 287. So, it was possible for him to return to the worksite before or during the inspection to observe Jose Castro working near and under the scaffold without a hard hat in plain sight. W hether
the undersigned
believe s
that Jerry was the site supervisor or that the supervisor was absent, the Secretary has established constructive knowledge in that a reasonably diligent employer
would have
inspected
the worksite and
observed this employee working in plain sight without a hard hat. However, the evidence of record clearly establishes that Jerry was the on-site supervisor on the day of the inspection.

T he Secretary has proven, by a preponderance of the evidence, that
R espondent violated 29 C.F.R. § 1926. 100 ( a ).

Serious Classification

To prove a violation
was “serious” under section 17 ( d) of the Act, 29 U.S.C. § 666(d) ,
the
Secretary must show there was a substantial probability that death or serious physical harm could have resulted from the cited condition and that the employer knew or should have known of the
condition; the likelihood of an
accident occurring is not required.
Spancrete
N e. , Inc. , 15 BNA OSHC 1020, 1024 (No. 86-521, 1991).

Based on her experience, CO Venkatraman testified that the injury that could have resulted from Jose Castro’s failure to wear a hard hat while working near or under a scaffold could have ranged from a
bump on the head to a severe laceration, concussion, or other serious injury. Tr. 58-59. The testimony regarding the serious nature of this violation is unrebutted.
The Secretary has met his burden of proving that the violation alleged in Citation 1, Item 1 is properly classified as serious.

Alleged Violation
of 29 C.F.R. § 1926. 451( g)(4)( i )

Citation
1 , Item
2
alleges a violation
of 29 C.F.R. § 1926. 451( g )( 4 )( i ) which states:

[g] uardrail
systems shall be installed along all open sides and ends of
platforms. Guardrail systems shall be installed before the scaffold is released for use by employees other than erection dismantling crews.

Specifically, Citation
1 , Item
2
alleges
that on or about
May 9, 2018, employees working on the fourth tier of a scaffold were exposed to a fall of approximately 24 feet because the scaffold was missing a guardrail. CO Venkatraman observed,
and the photographic evidence shows a gap in the guardrail on the top
(fourth)
tier of the scaffold. Tr.
27;
CX-4, 5. The cited standard applies.

Upon arrival at the worksite, CO Venkatraman observed guardrails missing from the scaffold that framed the building and an employee working on the scaffold exposed to a fall hazard of about 24 feet. Tr. 25. The CO testified that there appeared to be two rails missing from the top tier of the scaffold. Tr. 142, 165. The gap in the guardrail was approximately seven (7) feet wide. 4 Tr. 69. The CO noticed an employee working on the scaffold on the right side (facing the building)
on the fourth tier which was missing guardrails. Tr. 49; GX-4. CO Venkatraman interviewed the
employee
seen
working on the scaffold, Angel Diaz, who informed her that he was performing soffit repair. Tr. 54. When the CO inquired about the missing guardrails, Jerry informed her that they were removed the day before because they were hoisting up materials. Tr. 61. Steve
Houran’s
testimony supports Jerry’s explanation regarding the missing guardrails. Tr. 298. Respondent argues that
the scaffold was to be dismantled. Tr. 288. Yet,
Jerry never mentioned anything about dismantling the scaffold. Tr. 298 . According to Jose Castro, they finished the job on the morning of the inspection and were in the process of breaking down the scaffold to get it out of the way. Tr. 216. If true, Respondent’s claim would negate a violation of this standard because
dismantling a scaffold is an exception to the requirement to have guardrails. However, Respondent’s argument is rejected as inconsistent with CO Venkatraman’s observations and the
statement of Angel Diaz regarding the work he was performing. The
cited standard was violated.

Employee Exposure

CO
Venkatraman
testified that she observed and employee working atop the scaffold on the fourth tier with missing guard rails. Tr. 49. She confirmed her observations with an interview of the employee seen working on the scaffold. Tr. 54. Another employee, John Massey, was performing soffit repair on the left-side of the building. Tr. 40-41. He was doing his work from the roof of the adjacent building; however,
he
admitted
that he had to
access the scaffold
to
get to and from the other building. Tr. 41. CO Venkatraman testified that she observed an employee enter the building from the top/fourth tier of the scaffold. Tr. 49. Presumably, all employees on the scaffold were within the zone of danger which was the
gap created by the missing guardrail.
However, the Secretary need not show it was certain that employees would be in the zone of danger, but he must show that exposure was more than theoretically possible. Fabricated Metal Prods., Inc . 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997);
Phoenix Roofing , 17 BNA OSHC
1076

1079
(No. 90-2148, 1995)
aff’d , 79 F.3d 1146 (5th
Cir. 1996);
Kaspar
Wire Works, Inc ., 18 BNA OSHC 2178, 2195 (No. 90-2775, 2000) (finding that it was “
‘reasonably predictable’ that an employee would come into contact with the unguarded belt and pulley either while attempting to reposition the fan, or inadvertently while passing nearby”),
aff'd , 268 F.3d 1123 (D.C. Cir. 2001).

Given the CO’s observations of employees working on and accessing the top tier of the scaffold where the guardrail was missing, it was
reasonably
predictable that
those
employees would be in the zone of danger. Employee exposure is established.

Employer Knowledge

The evidence is clear that both Jerry and Steve
Houran
were aware that the guardrails had been removed before the inspection. Tr. 61, 298. Employer knowledge is established.

The Secretary has proven, by a preponderance of the evidence, that Respondent violated 29 C.F.R. §1926.451(g)(4)(i).

Serious Characterization

CO Venkatraman testified that the employee working from the scaffold was exposed to a fall of approximately 24 feet. Tr. 25. 5 She
also
testified that the opening in the scaffold constituted an “imminent danger”. Tr. 177. CO Venkatraman further testified that a fall from a height of approximately 24 feet to the concrete below could been deadly, or at least resulted in broken bones. Tr. 107. The Secretary’s characterization of this violation as “serious” is established.

Alleged Violation of 29 C.F.R. §
1926.1053(b)(1)

Citation 1, Item
3
alleges a violation of 29 C.F.R. § 1926. 1053(b)(1)
which states:

[ w]hen portable ladders are used for access to an upper landing surface, the ladder side rails shall extend at least 3 feet (.9 m) above the upper landing surface to which
the ladder is used to gain access, or, when such an extension is not possible because of the ladder’s length, then the ladder shall be secured at its top to a rigid support that will not deflect, and a grasping device, such as a grabrail, shall be provided to assist employees in mounting and dismounting the ladder. In no case shall the extension be such that ladder deflection under a load would, by itself, cause the ladder
to slip off its support.

Specifically, Citation 1, Item
3
alleges that, on or about
May 9, 2018, employees were exposed to a ladder
that
extend ed
onto
the
1 st
floor of the house
but
did not extend three (3) feet over the landing. 6
T he photographic evidence
clearly
shows a ladder
on the worksite
that does not extend three feet above the upper landing. Tr. 28-29;
CX-6, 7
& 8 7 . The cited standard applies.

CO Venkatraman testified that there was an extension ladder inside the building
extending from the ground floor to the second floor. Tr. 83. The CO recognized the ladder as a Werner extension ladder. Tr. 85. The ladder was missing the extension part that would have made it a full 20 feet in length.
Id. Without the missing part, the ladder was approximately 13 feet in length.

Tr. 171.

CO Venkatraman counted the rungs of the ladder to determine
its length as used at the worksite. Tr. 85. The ladder extended approximately 1 foot over the landing. Tr. 86. The height of the second floor over the ground floor was 10 feet. Id. According to CO Venkatraman, the ladder only extended one (1) foot over the landing because it was placed at an angle rather than perpendicular. Tr. 87. Additionally, CO Venkatraman testified that the ladder was just leaning against the landing and was not secured to anything. Tr. 86. Respondent ’s defense is
that
the ladder didn’t belong to it. Tr. 227, 299. To that end, Jose Castro
testified that there were subcontractors on site doing plumbing and electrical
work
on the day of the inspection. Tr. 210. However,
CO Venkatraman did not observe any subcontractors on site during her inspection. Tr.
173.

Also, e ven if there were subcontractors, Respondent Steve
Houran
confirmed that his company was the general contractor
in charge
on site. Tr. 300. Moreover, his testimony that employees understand that the ladder
must
be held by another helper down below supports
the CO’s testimony that the ladder was not secured as required by the standard . Tr. 292. The cited standard was violated.

Employee Exposure

CO Venkatraman testified that she observed an employee access the ladder during her inspection. Tr.

89. Her observation is supported by a photograph taken during the inspection. GX-6. The man observed using the ladder was an employee of Respondent as confirmed by a conversation the CO had with him and others. Tr. 90-91. Employee exposure is established.

Employer Knowledge

The project manager, Jerry, told the CO that the cited ladder was the easiest way from the first floor to the second floor. Tr. 91. 8 Steve
Houran’s
testimony that employees knew they had to have a helper down below holding the ladder when using it, indicates his knowledge that the ladder was not secure. Assuming that
neither Jerry nor Steve
Houran
(who was elsewhere at the time of the inspection)
saw
employee s
u sing
the ladder as depicted in GX-6, both are charged with constructive knowledge because reasonable diligence would have revealed this violation in plain sight. Employer knowledge is established.

The Secretary has established, by a preponderance of the evidence, that Respondent violated 29 C.F.R. §
1926.1053(b)(1).

Serious Characterization

CO Venkatraman testified that an employee on the cited ladder could have lost balance/footing and fallen approximately 10 feet to the ground below thereby suffering an injury ranging from fractures
to paralysis or death. Tr. 108. The Secretary’s characterization of this violation as “serious” is established.

Penalty Determination

The Commission, as the final arbiter of
penalties , must give due consideration to the
gravity
of the violation and to the employer's size, history and good faith.
J.A. Jones Constr. Co. , 15 BNA OSHC
2201,
2213- 14
( N o. 87-2059, 1993) .
These
factors
are not necessarily accorded equal weight, and
gravity
is generally the most
important
factor . Trinity Indus., Inc. , 15 BNA OSHC 1481, 1483 (No. 88-2691, 1992).

The
gravity
of a violation depends upon such matters as the number of employees exposed, duration of exposure, precautions taken against injury, and the likelihood that an injury would result. J.A. Jones , 15 BNA OSHC at 2213-14.
Respondent
provides
no argument regarding the proposed penalties, but rather makes an unsupported and oblique reference to the penalties as an “unwarranted financial hardship”. Resp’t
B r. 7. CO
Venkatraman
determined
the penalty factors for each of the violations affirmed as follows:

· Citation 1, Item 1: gravity 9
( low ); employer’s size ( 60 % reduction); history
(no reduction because employer had not been inspected in the past five years ); and good faith ( no
reduction
because employer did not provide copies of
written safety and health plan ).
Tr. 111-14 . The proposed penalty for this violation is $2,217.00. Tr. 111.

· Citation 1, Item
2 : gravity ( high );
employer’s size (60% reduction); history (no reduction
because employer had not been inspected in the past five years); and good faith (no reduction because employer did not provide copies of written safety and health plan). Tr. 114. The proposed penalty for this violation is $3,696.00. Id .

· Citation 1, Item
3 : gravity (low);
employer’s size (60% reduction); history (no reduction because employer had not been inspected in the past five years); and good faith (no reduction because employer did not provide copies of written safety and health plan). Tr. 115-16. The proposed penalty for this violation is $2,956.00. Tr. 114.

The evidence supports a finding that the penalties proposed are appropriate.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing constitutes the findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Citation 1, Item
   1
   alleging a violation of 29 C.F.R. § 1926.100(a)
   is AFFIRMED as issued and a penalty in the amount of $2,217.00
   is imposed.

2. Citation
   1, Item
   2
   alleging a violation of 29 C.F.R. §1926.451(g)(4)(i)
   is
   AFFIRMED as issued and a penalty in the amount of $3,696.00 is imposed.

3. Citation 1, Item
   3
   alleging a violation of 29 C.F.R. § 1926.1053(b)(1)
   is AFFIRMED as issued and a penalty in the amount of
   $2,956.00 is imposed.

/s/ ____

KEITH
E.
BELL

Judge, OSHRC

Dated:
February 7, 2020

Washington, D.C.

CERTIFICATE OF SERVICE

This is to certify that a copy of the
Notice/ Order was
sent
to the parties listed below
electronically using the Commission’s E-Filing System
on
January 27, 2020.

Jeffrey Rogoff,
Regional Solicitor

U.S. Department of Labor

Office of the Solicitor

201 Varick Street, Room 983

New York, New York 10014

Attention: David J. Rutenberg, Esquire

Email: [email protected]

SERVED VIA FIRST CLASS MAIL

Steve J.
Houran , Pro Se

HOURAN USA CONSTRUCTION, LLC

10 Stuyvesant Avenue, 2 nd
Floor

Lyndhurst, NJ 07071

T.B. Dillard   

T. B. Dillard, Administrative Asst.

Post Office Address:

Judge Keith Bell

OSHRC

One Lafayette Center

1120 20th Str., N.W. - 9th Floor

Washington, D.C. 20036-3419

(202) 606-5405
FAX (202) 606-5409      

"

1
JX denotes “Joint Exhibit”;
C X denotes “ Complainant
Exhibit” ; and RX denotes “Respondent Exhibit” .

2
At the start of the hearing, the parties
identified stipulated facts which the undersigned
admit ted into the record as
Joint Exhibit no.
1
that included
S tipulated
F acts 1- 4 . Tr. 10.

3
The parties’ Joint Exhibit 1 erroneously references “Jersey City, N.Y.” in
S tipulated
F act no. 4. The undersigned correctly references the worksite as located in “Jersey City, N.J.”.

4
The CO did not take actual measurements of the gap in the guardrail; instead, she based her calculation on standard measurements. Tr. 69.

5
CO Venkatraman did not take measurement s , but rather based her estimate of the height of the scaffold on her knowledge of standard scaffold sizes/measurements and the fact that the scaffold on this worksite had four tiers. Tr. 53.

6
Testimony adduced at the hearing reveal that the ladder
extended
from the ground floor
( or first floor )
to the second floor of this three-story building.

7
CX-8 was also designated as RX-1.

8
CO Venkatraman
actually testified
that
Jerry told her the ladder was the easiest way for employees to get from the “basement” to the first floor. However, her description of the building was clarified on cross examination to reflect that there was no basement since it was at ground level and not underground thereby making this a three-story building. Tr. 197-98. Accordingly, references to a “basement” are meant to refer to the first floor.

9
During her testimony, CO Venkatraman referenced “severity” instead of “gravity”. The undersigned takes the two to be one in the same.