A.J. McNulty Co., Inc.

Plain-English summary

A.J. McNulty was handling a six-foot concrete pillar with an overhead crane at a Staten Island worksite. Two employees receiving the pillar and their foreman were not wearing hard hats. The company acknowledged that the workers should have worn head protection and said it disciplined them under its written safety policy. The ALJ found that the foreman's presence and conduct established the serious violation, but reduced the proposed $1,500 penalty to $750 after considering the statutory penalty factors.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.100(a).
• Outcome: Affirmed. The serious hard-hat violation was upheld with a $750 penalty.
• Key point: A written safety program does not defeat a citation when the supervising foreman observes the violation and also fails to follow the same rule.

Full text (OSHRC public release)

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

PHONE: FAX:
COM (202) 60641~ COM (202) 6065050
Frs (202) 606-51~ Frs (202) 6065050

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-0395
A. J. MCNULTY COMPANY, INC.
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGES DECISION
The Administrative Law Judge’s Re art in the above referenced case was
docketed with the Commission on Otto Ber 15, 1993. The decision of the Judge
will become a final order of the Commission on November 15, 1993 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 by the Executive Secretary on or before
November 4 1993 in order to ermit sufficient time for its review. See
Commission’Rule 91, 29 C.F.P! 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. DO5
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 rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COM-ON
I A /

Date: October 15, 1993

DOCKET NO. 93-0395 a.

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, w.
Counsel for Re '01~4Trial Liti ation
Office of the So7 icitor, U.S. DO5
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Patricia Rodenhausen, Esq0
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
201 Varick, Room 70?
New York, NY 10014

Lawrence Weiss
A. J. McNulty & Co., Inc.
53-20 44th Street
Maspeth, Queens, NY 11378

Irvin Sommer
Chie BAdministrative Law Jud e
Occupational Safety and Healt%
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00107205684:02

l

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

FAX:
COM (202) 606-5050
Frs (202) 6ow5o50

SECRETARY OF' LABOR, .
.

Complainant, .
.
.
.
v. .
. Docket No. 93-0395
l

A. J. MCNULTY & CO., INC., I
.

Respondent.
.
.

Appearances:

Steven D. Riskin, Esq. Lawrence Weiss
U.S. Department of Labor A. J. McNulty & Co., Inc.
New York, New York Maspeth, Queens, New York

For the Complainant For the Respondent

Before: Administrative Law Judge Irving Sommer

This is a proceeding under Section 10(c) of the Occupa-
tional Safety and Health Act of 1970, 29 U.S.C. section 651 &
sea* 3 ("the Act"), to review citations issued by the Secretary
of Labor pursuant to section 9(a) of the Act, and the proposed
assessment of penalties therein issued, pursuant to section 10(a)
.
of the Act.

. On December 15, 1992, A. J. McNulty’s worksite at 75
Vanderbilt Avenue, Staten Island, New York was inspected by an
OSHA compliance officer. Subsequently, on December 24, 1992, the
company received one citation resulting
from this inspection.
Respondent by letter dated December 29, 1992, filed a notice of
contest to the citation and the penalty proposed. A hearing was
held on June 9, 1993, in New York, New York. Both parties were
represented at the hearing. Neither the Respondent nor the
Secretary filed a post-hearing brief, but rather relied upon the
arguments and evidence presented at the hearing. No
jurisdictional issues are in dispute. The matter is now before
the undersigned for a decision on the merits.

. . .
It-on 1. Item 1
.
1Qn of 29 C.F.R. sectIgn m.lOO(al
The standard at 1926.100(a) states:
(a) Head Protection. 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 burns,
shall be protected by protective helmets.

The Secretary alleges that two of Respondent's
employees w8re receiving a concrete pillar from an overhead crane
without wearing protective helmets. The compliance officer,
Lawrence Wheat, testified that he observed two employees standing
on a wall waiting for a pillar to be lowered to them that was
made of concrete, about six feet long and two feet wide that was
to be used ‘as a cross beam for a door arch. Both employees were
giving directions to the crane operator for
beam to be the
lowered and neither employee was wearing a hard hat at the time
(transcript, p. 7-8). The compliance officer subsequently asked

the employees where their foreman was, and one of the employees
went to find him and brought him back to talk to the compliance
officer. The compliance officer notified the foreman that the
employees were being subjected to the hazard of possible head
injuries from falling objects or impact not continue
and could
working without hard hats. The foreman then instructed one of
the employees to go get hard hats which were located elsewhere on
the jobsite. The employee returned shortly with hard, hats,
factory-sealed like in a bag. The compliance officer also noted
that the foreman, who was hooking up the concrete pillar to be
lifted, was not wearing a hard hat either (transcript, p. Q-10).

Respondent does not dispute that its two employees and
foreman were not wearing hard hats on the day of the inspection.
However, Respondent stresses that it has an excellent established
written safety program which was discussed with its foreman and
employees at the start of the job. Respondent characterizes this
citation as an "oddball case" in which “the men were sloppy".
A. J. McNulty's president, Lawrence Weiss, in his closing
argument testified that ' 'they were wrong and we made it clear to
them, and we did what I thought was required of us by OSHA which
was to dismiss the men at the end of the day and explain to them
the reasons for it, which was the failure to observe the mandated
safety ---, our safety policy. The men felt that they were under
no serious risk. Whether they’re right or wrong is immaterial.
The point is they should have been wearing the hard hat. I'm in
agreement with the Secretary of Labor on that. And we
disciplined them for it. More than that, I don’t know what I can
do " (transcript, p. 35-36).

.. Clearly, the totality of the evidence and testimony in
this case substantiate that the Respondent was in violation of
the standard cited on the date of the inspection. The violation

• 4-

was open and in clear view of Respondent's foreman who was
supervising the employees' work, and who himself was also not
wearing a hard hat. I therefore find that a serious violation of
section 1928.100(a) occurred as charged.

The
Secretary has proposed a penalty of $1,500 for this
alleged violation of the standard. Section 17(j) of the Act, 29
U.S.C. section 666(j), requires that in assessing penalties, the
Commission must give "due consideration" to four criteria: the
size of the employer's business, gravity of the violation, good
faith, and prior history of violations. J A J-s
.
CQDstructlqp
Co-, 15 BNA OSHC 2201 (No. 874059, 1993), &ecus of tb
South, 14 BNA OSHC 1910 (No. 89-2241, 1990). A careful review of
the record in this case and the four penalty criteria noted above
leads me to the conclusion that a penalty of $750 is appropriate
under all the existing facts and circumstances of this case and
is so Assessed. .

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.

h
.

Based upon the Findings of Fact, Conclusions of Law, and the
entire record, 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 $750 is
   assessed.

DATED:
ocl 14 1993
Washington, D.C.