Kenneth J. Herman, Inc.

Plain-English summary

Kenneth J. Herman, Inc. was constructing fire escapes at a New York worksite. OSHA cited employees working without required head protection, using a scaffold frame instead of safe access, and working on scaffolds without required guardrails or effective tie-off protection. OSHA also cited the company for lacking an adequate safety program and failing to instruct employees about unsafe conditions. The judge rejected the company's unpreventable employee misconduct defense because it did not prove that it had effectively communicated, monitored, and enforced relevant safety rules, and a foreman participated in the unsafe conduct. All five violations were affirmed, including a repeated scaffold guardrail violation. The judge assessed penalties totaling $8,100.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.100(a), 1926.451(a)(13), 1926.451(d)(10), 1926.20(b)(1), and 1926.21(b)(2)
• Outcome: Five violations were affirmed, with penalties of $600, $1,500, $6,000, $0, and $0, totaling $8,100.
• Key point: An employee-misconduct defense failed where the employer did not prove effective safety rules, communication, monitoring, and enforcement, and its foreman participated in the violations.

Full text (OSHRC public release)

OCClJPA’rlONAL sA~~~~~~E~~~~~=~~“,EW COMMISSION
One Lafayette Centm
1120 20th Stteet, N.W. - 9th Floor
Washington, DC 20036-3419

                                                                               FAX:
                                                                               COM (202) 606-5050
                                                                               Frs (202) 60+5050

.
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-3294
KENNETH J. HERMAN, INC.
Respondent.

                       NOTICE OF DOCKETING
                 OF ADMINISTRATIVE LAW JUDGE’S DECISION
    The Administrative Law Judge’s Re ort in the above referenced case was
docketed with the Commission on Otto i!er 4, 1993. The decision of the Judge
will become a final order of the Commission on November 3, 1993 unless a
Commission member directs revigw 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 2P, 1993 in order to ermit suk rcient time for its review. See
Commission Rule 91, 29 C.F.ii . 2200.91.
   All further pleadings or communications regarding this case shall be
addressed to:
                          Executive Secretary
                          Occupational Safety and Health
                           Revrew Commission
                          1120 20th St. N.W., Suite 980
                          Washington, D.C. 20036-3419
Petitioning    parties shall also mail a copy to:
                          Daniel J. Mick, Esq.
                          Counsel for Regional Trial Liti ation
                          Office of the Solicitor, U.S. DOf
                          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
having questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.


Date: October 4, 1993         ’

DOCKET NO. 92-3294
NOTICE IS GIVEN TO THE FOLLOWING:


Daniel J. Mick, l%q*
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOf
Room S4004

. 200 Constitution Ave., N.W.
Washington, D.C. 20210

Patricia Rodenhausen, Esq b
Re ‘onal Solicitor
O&e of the Solicitor U.S. DOL
201 Varick, Room TO?
New York, NY 10014


. Kenneth J. Herman, President
  Kenneth J. Herman, Inc.
  151 Dixon Avenue
  Amityville, NY 11701


Twin Sommer
Chief Administrative Law Jud e
Occupational Safety and Healt5
 Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419


 00106883812:02

                              UNITE0STATES OF AMERICA
    OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                               One Lafayette Centr8
                         1120 20th Street, N.W. - 9th Floor
                            Washington, DC 20036-3419


                                                                             FAX:
                                                                             COM (202) 6064050
                                                                             ns (202) 60&50!io


                                         ..

SECRETARY OF LABOR, l
.

                                         .
                                         l


   Complainant,                          .
                                         l


                                         .
                                         l


           v.
                                         .
                                         .      Docket No. 92-3294
                                         ..

KENNETH J. HERMAN, INC., ..
.b
Respondent. 0
.
. l
.

Appearances:

   Evan R. Barouh, Esq.                  Kenneth J. Herman, Pres.
          U.S. Department of Labor              Kenneth J. Herman, Inc
          New York, New York                    Amityville, New York

                  For Complainant                       For Respondent

Before: Administrative Law Judge Irving Sommer

                                     .
                              DECISION AND ORDER

   This is a proceeding under Section 10(c) of the Occupational Safety and Health Act .

of 1970,29 USC. section 651 et seq., (the Act), to review citations issued by the Secretary
of Labor pwsuant to section 9(a) of the Act, and the proposed assessment of penalties
therein issued, pursuant to section 10(a) of the Act.
Following an inspection of Respondent’s business site at Island& New York the
Secretary of Labor issued three citations to the Respondent charging serious violations of
the standard _I
at 29 CFR 1926.100(a) and 29 CFR 1926.451(a)(13); repeat violation of the
standard at 29 CFR 451(d)(lO) and other than serious violation of the standards at 29 CFR
1926.20(b)(l) and 29 CFR 1926.21(b)(2).
. A hearing was held in New York, N.Y. No

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standard at 29 CFR 451(d)(10) and other than serious violation of the standards at 29 CFR
1926.20(b)(l) aI@ 29 CFR 1926.21(b)(2). AL hearing was held in New York, NY. No
jufisdictional issues are in dispute, the parties having pleaded sufficient facts to establish that
the Respondent is subject to the Act and the Commission has jurisdiction of the parties and
of the subject matter.
Alleged Violation of 29 CFR 1926.100(a)
Section 1926.100-Head Protection
(a) Employees 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 bums, shall be
protected by protective helmets. The Secretary alleges that two employees were working
on a without protective helmets and were subject to possible head injuryborn falling objects
or impact. Mr. Omellas, the compliance officer testified that the Respondent was engaged
in the construction of two fire escapes on a building in Island@ N.Y. He observed two
employees working on the north side of the building, one on the 6th -floor and one
immediately below on the 5th floor, not wearing hard hats for protection. (T 11-12, Exh.
C-l). He stated the employee on the 5th floor was in a dangerous area and subject to injury
from falling tools. The evidence substantiates that. this employee was at hazard and could
be subject to head injuries from falling objects absent a protective helmet. However, as to
the employee working on the 6th floor the evidence of record does not demonstrate that he
was in a zone of danger. To allege as the compliance officer did that this individual could
possibly suffer injury by impact is too speculative absent other evidence demonstrating a
reasonable predictability of such potential danger. No violation is found as to the
employee on the 6th floor. The violation was open and in clear view of Malley, the
Respondent’s foreman who was supervising the work. The foreman had actual or
constructive knowledge of the violative condition, and such knowledge is imputed to the
Respondent employer. Baytown Construction Co., 15 BNA OSHC 1705, 1710, 1992 CCH
OSHD par. 29,741,p. 40,414( No. 88-2912s), affd w/o published opinion, 983 F2d 282 (5th
Cir. 1993). Respondent alleges that the violation was caused by unpreventable employee
misconduct since employees are furnished hard hats and told to wear them. However, there
is no evidence that the Respondent adequately communicated and effectively enforced his

                                           3

alleged de ~-fo the we&g of hard hats. There is no evidence that the rule was enforced
through disciplinary action or any other penalties; there was no evidence of the presence of
a systematic effort to monitor employees for conformity with the safety rule alleged.
Actually, Kolkowski, one of the foreman admitted not wearing a hard hat. His action further
demonstrates Respondent’s failure to promulgate and carry out any such rule. The totality
of the credible evidence does not demonstrate that the employer herein sustained his burden
of establishing an unpreventable employee misconduct defense, I therefore find that a
violation of section 1926.100(a) occurred as charged. Under all the existing facts and
circumstances herein, a penalty of $600 is appropriate.
Alleged Violation of 29 CFR 1926.4Sl(a!(13~
The cited standard reads in pertinent part:
Section 1926.451 - Scaffolding -
(a) General requirements. (13) An access ladder or equivalent safe access
shall be provided. The compliance officer observed an employee “using the frame of the
scaffold to gain access to various levels”. (T24, C 1). Specifically, he stated the empluyee
“started at the 46 foot level, and he slowly went down, level by level, down to about almost
to the bottom, and each time he did that he used the frame if the scaffold because there was
no ladder at that point.” (T60) The compliance officer found it to be a serious violation
since the employee was subject to a fall of 46 feet which could cause serious physical
injuries. While Kolkowski the foreman testified there was a ladder present, the totality of
the evidence presented by the Respondent did not demonstrate that a ladder of the
height, width, make-up with railings attached were present. These appurtenances are
required by the standard to qualify as a ladder. The testimony of the compliance officer
specifically stating he observed the frame of the scaffold being used for climbing down was
unequivocal, direct and forthright and is accepted and is found to be more credible than the
testimony of Kolkowski. I find that Respondent’s employee in using the fkame of the
scaffold for movement was at a hazard of falling down and being seriously injured. The
Respondent knew or should have known of this hazardous condition since it was visible to
his foreman working in the area. The standard at 1926.45l(a)( 13) was violated in that no
access ladder or equivalent safe access to the scaffold was provided. Respondent’s

                                          4

suggestion that hereto the violation was one caused by unpreventable employee misconduct
is rejected on the same bask as previously stated. There is no evidence it had established
work rules to prevent the violation, or if it had, that it communicated same to the employees,
and enforced the rule when such violation occurred. The preponderance of the credible
evidence establishes a violation of 1926.451(a)(13). The penalty proposed by the Secretary
of $1500 is appropriate under all the existing facts and circumstances.
Alleged Violation of 29 CFR 1926.45l(d)(lO\
Section 1926.45l(d) provides:
1926.451 Scaffolding.
(d) Tubular welded frame scaffolds.
--- (10) Guardrails made of lumber, not less than 2 x 4 inches (or other
material providing equivalent protection) and approximately 42 inches high, with a mid-rail
of 1 x 6 inch lumber (or other material providing equivalent protection), and toeboards, shall
be installed at all open sides and ends on all scaffolds more than 10 feet abovt the ground
or floor. Toeboards shall be a minimum of 4 inches in height. Wire mesh shall be installed
in accordance with paragraph (a)(6) of this section. The Secretary alleges that the
Respondent committed a repeated, serious violation of 1926.451(d)(10) by failing to provide
standard guardrails and toeboards for tubular welded scaffolding on which employees
worked. The compliance officer testified he observed employees working on scaffolding that
had no guardrails; specifically, on the south side of the building employees were working on
the scaffold with no guardrails and they were not tied off in any way; on the north side of
the building two employees were working on the scaffold, both had safety belts, but only one . .
was tied of& the other being at risk of falling. The employees working without being tied
off and with no guardrails present were at a hazard of falling a distance of more than 10 feet
to the ground, thusly subject to serious injuries. The foreman Kolkowski admitted that while
he had a belt on, he was not tied off. The Respondent knew or should have known of the
hazard present. His foreman visibly observed the violation, and in fact, was a perpetrator
himself. On the same basis as previously stated Respondent’s alleged defense of unprevent-
able employee misconduct is rejected. The Secretary classified the violation as repeated.

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me record m that the Respondent WAS cited for violation of this standard during the
three year period prior to the issuance of the current violation, and that such violations
were affirmed against the Respondent. A violation is properly classified as repeated if at
the time of the alleged repeated violation, there was a Commission order against the same
employer for a substantially similar violation. The evidence of record shows that the
Respondent previously was cited for violation of this standard and that such violation was
found as charged and has become a final decision of the Commission. I, therefore conclude
that the violation of 1926.45l(d)( 10) was repeated. The Secretary assessed a penalty of
$6000 for the serious repeated violation. The compliance officer testified that in formulating
the penalty he had considered the size of the corporation, its good faith, gravity of the
violation, and history of previous violations. Taking into consideration the entire evidence
of record and the criteria under 17(j) of the Act, I find the penalties asessed appropriate
under all the existing facts and circumstances herein and afTinn the assessment of the
penalty of $6000.

   Alleged Violation of 29 CFR 1926.200(l)       and 1926.2UbM21.
   The Respondent was charged with other than serious violations of 1926.20(b)(l) for

failure to have an adequate safety program, and of 1926.21(b)(2) for failure to instruct
employees to avoid unsafe conditions. The evidence clearly demonstrates that the
Respondent did not comply with the cited standards. Mr. Shad, the company vice-president
admitted to the compliance officer that they had no safety program (T-34). This is borne
out by the current and past violations of the scaffolding requirements of 1926.45l(d). The
company knew of the past violations, yet took no effective steps to prevent their reoccur-
rence, or to im&tute a training program which was strictly monitored and effectively policed.
The absence of either a safety program and failure to instruct employees in avoidance of
unsafe conditions is vividly portrayed by the disregard by the company foreman of both the
head protection and scaffolding standard. I therefore conclude that the Respondent violated
the standard at 1926.20(b)(l) and 1926.21(b)(2) and assess no penalty.

                                                                                       *


                                           6

                     Findings of Fact and Conclusions of Law
   All findings of fact relevant and necessary to a determination of the contested issues

have been found specially and appear herein. See Rule 52(a) of the Federal Rules of Civil
Procedure. Proposed findings of fact and conclusions of law inconsistent with this decision
are denied. I)
ORDER
Based upon the Findings of Fact, Conclusions of Law, and the entire record, it is
hereby ordered:
18 The allegation of a serious violation of 29 CFR 1926,100(a) is AFFIRMED
and a penalty of $600 is assessed.
20 The allegation of a serious violation of 29 CFR 1926.451(a)( 13) is AFFIRMED
and a penalty of $1500 is assessed.
30 The allegation of a serious repeated violation of 29 CFR 1926.451(d)(10) is
AFFIRMED and a penalty of $6000 is assessed.
40 The allegation of an other than serious violation of 29 CFR 1926.20(b)(l) is
AFFIRMED with no penalty assessed.
50 The allegation of an other than serious violation of 29 CFR 1926.21(b)(2) is
AFFIRMED with no penalty assessed.

                                                     Judge       ’

DATED: or07 - I 1993
Washiiigton,D.C.