Seifert Construction Co., Inc.

Plain-English summary

Seifert Construction conceded that floor depressions at its worksite violated the cited floor-opening standard. The only remaining dispute was whether the violation was serious. The stipulated facts described depressions about eight inches deep, some containing four five-inch bolts, and competing proposed testimony about the likely consequences of stepping or falling into them. The judge held that the Secretary bore the burden of proving seriousness and that the evidence was, at best, evenly balanced. He also found the experienced superintendent's account more persuasive on the limited record because it indicated that such incidents probably would not cause serious injury or death. The citation was reduced to other-than-serious and a $100 penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.500(d)(1) and 1926.500(b)(8).
• Outcome: Modified. The conceded floor-opening violation was reclassified from serious to other-than-serious, with a $100 penalty.
• Key point: The Secretary must prove that the probable result of an accident would be death or serious physical harm to sustain a serious classification.

Full text (OSHRC public release)

OCCUPATIONAL SA$i;i~;h~~i~iE”lEW COMhdisslON
One Lafayette Cents
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-3379
SEIFERT CONSTRUCTION CO., INC.
Respondent.

                     NOTICE OF DOCKETING
            OF ADMIMSTFUTIVE LAW JUDGE’S DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on December 15, 1993. The decision of the Judge
will become a final order of the Commission on January 14, 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 petition should be received b the Executive Secretary on or before
January 4, 1994 in order to ermit suff! cient time for its review. See
Comrmssion Rule 91, 29 C.P .R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
ReMew 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. DO%
Room S4004
200 Constitution Avenue, N‘W. l

                   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 nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION

Date: December 15, 1993
/zcT~a-l$#~/~v
Ray H. Darling, Jr.
Executive Secretary
d&ET NO. 92-3379
NOTICE IS GIVEN TO THE FOILOWING:

Daniel J. Mick, Esq.
Counsel for Re ‘od Trial Liti ation
Office of the So%‘citor, U.S. DA
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Marshall H. Harris, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
14480 Gatewa Build&g
3535 Market Htreet
Philadelphia, PA 19104

James F. Sassaman, Director of
Safety
GBCA
P.O. Box 15959
36 South 18th Street
Philadelphia, PA 19103

Michael H. Schoenfeld
Administrative Law Judge
Occupational Safety and Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036-3419

00018227207 :03
 ~- ~

                                       0
                                       a

SECRETARY OF LABOR, l
.

   Complainant,

          v.                                  OSHRC Docket No. 92-3379
                                       l
                                       l

SEIFERT 0
.
CONSTRUCTION CO., INC. 0
0
0
.

   Respondent.




                             DECISION AND ORDER
   This case arises under the Occupational Safety and Health Act of 1970,29 U.S.C. 8 5

651 - 678 (1970) (“the Act”).
The sole remaining issue in this matter is whether the violation of 29 C.F.R.
0 1926.500(b)(8), which Respondent concedes existed, is serious within the meaning of
6 17(k) of the Act. .

   Respondent was issued a citation alleging one serious violation for a failure to compiy

with the standard at 29 C.F.R. 0 1926.500(d)(l). An amendment so as to allege a violation
of 29 C.F.R. Q 1926.500(b)(8) in the alternative was made and granted. The parties
requested tbot- ti *.‘case be decided without a hearing and submitted a joint Stipulation of
Facts. This D&&on and Order is based upon the facts as stipulated. Respondent’s written
argument following the filing of the stipulation essentially concedes the applicability of the
standard, the existence of the violative condition, employee exposure to the condition, and
Respondent’s knowledge thereof. Thus, all of the essential elements of a violation have
been taken by Respondent as proven. l Asbu Rhamaceutical &ducts, Xii., 9 BNA C&Hc
21x2129 (Na 786247,198l).
The S~~M~IY has &ged that this violation is serious within the meaning of 8 17(k)
of the Act. Under section 17(k) of the Act, 29 U.S.C. 0 666(j), a violation is serious where
there is a substantial probability that death or serious physical harm could result from the
violative condition. It is the likelihood of serious physical harm or death arising from an
accident rather than the likelihood of the accident occurring which is considered in
determining whether a violation is serious. Dravo Corp., 7 BNA OSHC 2095, 2101, (No.
16317,1980), pet for revjew denieri, 639 F.2d 772 (3d Cir. 1980). In is not necessary for the
occurrence of the accident itself to be probable. It is sufficient if the accident is possl%le,
and its probable result would be serious injury or death. Bmvn & Rtwl; Inc., Powa Rant
Div., 8 BNA OSHC 1055, 1060 (No. 76-3942, 1980). The Commission has held serious
violations to have been demonstrated under circumstances where the hazard was a f&Uof
ten to fifteen feet. Brown-McKee, Inc., 8 BNA OSHC 1247 (No. 76982, 1980) ERG.
lit&s&, Inc., 6 BNA OSHC 1050 (No. 15426, 1977).
Facts relating to the issue of seriousness are included in the stipulation. Paragraphs
5 and 6 describe the characteristics of the violative condition. Paragraphs9 and 10 describe
what the content of the Compliance Officer’s testimony would be if he took the stand In
essence, he would testify that an employee could stumble or fall and sustain broken bones ,
due to the 8” depressions, some of which had four 5-inch bolts located in the opening. On
the other hand, paragraphs 12,13,14 .and 15 describe what testimony would have been given
by Respondent’s General Superintendent, a tradesman with over 20 years experience in the
industry.
Inasmuch as the case was submitted on stipulated facts, with no testimony being taken
from either %itnes$ there may well be no issue of credibility as between the testimony of
the compliance officer and the superintendent. There is however, a reasoned manner with
which to resolve this case.

’ Even if not conceded by Respondent, the facts as stipulated to are sufficient to support
the alleged violation.

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As the advocate of m order, the secretary bears the burden of proof as to the
alleged seriousntu of aa alleged violation. Thus, the secretary, after proving a violation, has
the burden to shaw by a preponderant of the evidence of record that the violation is
serious if it has been alleged as such. In this case, the evidence is, at best, in equipoise. If
the testimony of the compliance officer and that of the superintendent are given equal
weight neither tips the scale in one direction or the other. Under these circumstances, the
Secretary has not proven the seriousness of the alleged violation.
On the other hand, if a comparative weight of the evidence assessment of the
stipulated proffered statements of the compliance officer and superintendent were required
to be made based solely on the stipulation, the view of the superintendent would have to
prevail. Even if the Compliance Officer’s opinions are to be accorded some weight, the only
way to assess what weight they should be given must be based upon his education and
personal experience. In this stipulation there is no indication whatsoever of the degree of
the compliance officer’s experience as a CO or in employee safety at all. Nor is there any
indication that he is experienced in the field of construction. The Superintendent, however,
is shown to have over 20 years experience in the particular industry, that he knows of no
serious hazards resulting from such floor depressions, and that he has stepped into floor
depressions without serious consequences. While much of such testimony goes to the
likelihood of an accident occurring rather than the consequences of a mishap, the lack of
a serious injuq over 22 years tends to show that such an incident would “probaby not result
in serious injury or death. On balance, the weight of the evidence is that stepping into a
depression such as existed at this work site would probably not result in serious injury or
death. Accordingly, the alleged violation is not serious as alleged.
As an other than serious violation of the Act a civil penalty of $100 is appropriate.

                                FINDINGS OF FACT


   All findings of fact necessary for a determination of all relevant issues have been

made above. .Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law
inconsistent with this decision are hereby denied.

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.

                                  CLUSIONS OF MW


     1. Respondent w8s, at all times pertinent hereto, an employer within the meaning

of 8 3(S) of -the Occupational Safety and Health Act of 1970, 29 U. S. C. 0 Q 651 - 678
(1970).
2. The Occupational Safety and Health Review Commission has jurisdiction over the
parties and the subject matter.
3. Respondent was in violation of Q 5(a)(2) of the Occupational safety and Health
Act of 1970,29 U.S.C. 55 651-678 in that it failed to comply with the standard at 29 C.F.R.
0 1926.500(b)(8) in the manner alleged in the citation issued to it on or about September
24, 1992.
40 The violation found above was other than serious.
5a A civil penalty of $100 is appropriate.

                                       ORDER


     IT IS ORDERED THAT the citation issued to Respondent on or about September

24, 1994 is MODIFIED to reflect an other than sixious violation of the Act.

     IT IS FURTHER ORDERED THAT a civil penalty of $100 is asseswL




                                                                                      I




                                  /
                                        MICHAEL H. SCHOENFELD-
                                        Judge, OSHRC

Dated: DEC 1-93
Washington, D.C.

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