b'Commission hearings. A Guide to courtviewedthemasharassment.Asathis,theCommissionruled,wasan procedures has been published so thatresult, the Commission has,inafewimpractical solution andan unreasona non-attorney can carry his own caseinstances, thrown out smallpenaltiesable burdenanyemployer in all but for throughalloftheproceduralstepsfor low gravity violations,such as un themost unusual circumstances. before, during and after hearing. Thiscoveredtrashcans,inadequate lunchPrime Contractor -Guide is sent automaticallyto anyonefacilities,uncleanrestrooms,un Sub Contractor Relationship whocontestsaLaborDepartmentgrounded coffee pots,and the like. enforcement action.In another case where the gravity ofThe Act does not, of course, speak of AtthehearingtheLaborDepart thenon-seriousviolationswascontractorsandsub-contractors;it menthastheburdenofprovingitsrelatively high,theCommission ruledrefersonlyto"eachemployer."It allegations withsubstantial evidence.that the small size of the firm anditsrequiresofeachemployerthathe The employer is presumed to be not inpoor financial condition weregroundscomply with those of the Secretary of Labor\'ssafety and health standards violationwhenhehasfiledatimelyfor eliminating any penalty. The Com job objection to the charge. If the Secre missionsought inthiscasetoavoidthatareapplicabletohisoperations taryofLaborfailstopresentdestructivepenalties,particularlyinandthathe"furnishtoeachofhis convincingevidencewhichwillviewofthesubject firm\'ssuccessfulemployees employment and a place of substantiate the charges, hewillloseand prompt abatement of the hazards.employment,whicharefreefrom his case.Thisis an instancewhere one of therecognizedhazards."Starklyput, WhentheDepartmentisabletofour criteria: the size of the firm - out that means that each employer,be he sustain its case, it is the Review Com weighed the others.generalcontractororsub,is mission Judge who makes the penaltyresponsiblefortheexposureofhis determination.TheJudgegivesnoNon-Compliance By Employeesemployeestoanyhazards,unless, moreweighttotheOSHApenaltyThelawexhortsemployeestonaturally,thatemployercouldn\'t proposal than he does to its charges. Ifcomplywithjobsafetyhealthstan reasonably be expected to know of the he decides thatty should bedards,butpenaltiesforfailuretohazards. a civil penalassessed,hedecides what amount,ifcomply can onlybeassessed againstEach employer is responsible for the any, is appropriate.employers.hazards to which his employees may be TheJudge then writes his decisionIn several cases inwhich the viola exposedwhereverhisemployees andmailsittotheparties.Itwilltionsresultedfromafailureofhappen to be working and regardless of become final 30 days thereafter unlessemployees to use requiredprotectivewho created the hazards or who may be one of the three members of the Com equipment, such as ear muffs to protectformally or informally responsible for mission elects to exercise hisright ofthemfromexcessivenoiselevelsortheir elimination or prevention. discretionaryreview.Th~hashap safety belts to prevent fall injuries, theLet\'ssay,hypothetically,thata penedinabout 10%ofthecasestoCommission in a series of similar dispo general contractor has formally agreed date.sitions ruled that the employer was atto supply the employees of all the subWhen it does happen the decision infaultas these employers shouldhavecontractorswithhardhatsforuse the case is madeby the Commissiondonemorethanmerelymakewhereverthey are required at ajob Members rather than the Judge.protectiveequipment available.Theysite.If heshould failtoprovidethe Once a decision has become finalinmustalsoestablishaneffectivehats, then it would be up to each sub to eitheroftheseways,anypartydisciplinarypolicytoseethattheirsee to itthat hisemployeesgot hats aggrieved by it can appeal the ruling toemployees are complying with it.fromanothersourceortoprohibit the U.S.However,whenanemployerdoesthem from going intohardhat areas Court of Appeals, if he does sountilthegeneralcontractormethis within 60 days.haveagoodprogram,itisnot reasonable to hold him in violation for aobligation and supplied the protective Penaltiesbrief, isolated failure of his employeesgear.If asubweretoallowhis The Act requires the Commission toto use their protective equipment.employeestoworkinthehardhat take four things into consideration inTheCommissionmadejust suchaareas without the protective headgear, deciding the amount of any penalty toruling inse in which two employeesthen he could be foundin violation of a cabeassessed:the size of the husiness,ofacompanywithagoodprogramthe Job Safety Act,eventhoughthe the gravity of the v_iolation, the goodfailed to wear their hard hats. When anprime has signed a contract promising faithoftheemployer,andtheemployer does his best to see that histo provide the equipment. employer\'shistoryofpreviousvio employees comply with job safety stan On the other hand, even if a hazard lations.dardsdesignedfortheirownexistsatajobsite,butthesubInoneof theearliest Commissionprotectionheneedn\'tfearbeingincontractor\'s employees working there decisions, it was ruled that any one ofviolationwhentheemployeesgoaren\'t exposed to this hazard, the subthe four criteria may be so importantwrong.contractor would not be in violation. In as to make the other threeThe Commission has also ruled thatoneoftheearlycasesinvolvingthe secondary in deciding on apenalty.an employer has not violated the Actprime-sub-relationship, for example, a In one particular case, the gravity ofwhen non-compliance results from thecitation was issued to a sub-contractor theviolation,briefuseofaforkliftsuddenandunpredictableactofanwhoseemployees wereworkingnear lackingoverheadprotection,wasemployee in ignoring a standing worksomestairsthatlackedhandrailsin deemed low and the penalty reduced.rule and exposing himselfobviousviolation of a job safety standard. The to an Growing out of this decision, the Com hazard. AnotherCommission decisionstairs had been installed by the prime mission subsequently ruled that wherevacated a citation against an employercontractor. At the hearing for the case, violations of job safety and health stan because the hazard involved had beenitwasnotshownthatthesub\'s dards were of extremelylowgravity,createdbyaninexperienced,well employeeseverusedthestairsand minorpenaltiesdidnothingtohelpqualifiedtechnicianwhohadalwayswere,thus,exposedtothehazard gaintheobjectivesoftheActtoscrupulously observed excellent safetycreatedbylackofhandrails.The achieve a safe and healthful workplacepractices in the past. The only way theReview Commission Judge who heard for all employees.accident inthecase couldhavebeenthecase,therefore,threwoutthe The Commissionsawthat inmanypreventedwouldhavebeenforthecharge against the sub-contractor. cases where these small penalties wereemployer to provideconstant one-on Inotherwords,theemployer\'s proposedemployersunderstandablyone supervision for the technician and(See page16I April 197313'