BUSY BEAVER BUILDING CENTERS, INC.

OSHRC Docket Nos. 16122; 16312

Occupational Safety and Health Review Commission

April 27, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Regional Solicitor, USDOL

Hayes C. Stover, for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of netitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); sea also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance of an unreviewed Judge's decision. [*2] Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.

APPENDIX A

DECISION AND ORDER

Marshall H. Harris, Regional Solicitor, U.S. Department of Labor, Regina M. Kossek and Joel D. Gusky, for Complainant

Hayes C. Stover, for Respondent

OSTERMAN, Judge, OSHRC

This is a proceeding initiated by the Respondent pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (hereafter the Act) to challenge two Citations and two Notifications of Penalties issued to Respondent.

The record discloses that on November 21, 1975, Respondent was issued a Citation which alleged non-serious violations of 29 CFR 1904.2 and 29 CFR 1904.5 and a "repeated" violation of 29 CFR 1910.22(d)(1). The total [*3] penalty sought amounted to $250 [Docket No. 16122]. On or about December 16, 1975, Respondent was served with a Notification of Failure to Correct Alleged Violations and Proposed Additional Penalty in the amount of $1,000 for its failure to abate the alleged violation of 29 CFR 1910.22(d)(1) [Docket No. 16312]. Only the violation of 29 CFR 1910.22(d)(1) is now in issue. The nonserious violations charged have become final by operation of law. Section 29 CFR 1910.22(d) reads as follows:

(d) Floor Loading protection. (1) In every building or other structure, or part thereof, used for mercantile, business, industrial, or storage purposes, the loacs approved by the building official shall be marked on plates of approved design which shall be supplied and securely affixed by the owner of the building, or his duly authorized agent, in a conspicuous place in each space to which they relate. Such plates shall not be removed or defaced but, if lost, removed, or defaced, shall be replaced by the owner or his agent.

(2) It shall be unlawful to place, or cause, or permit to be placed, on any floor or roof of a building or other structure a load greater than that for which such floor or [*4] roof is approved by the building official.

On February 20, 1976, the Secretary's motion to consolidate the matters for trial was granted and subsequently the proceedings were noticed for hearing. Thereafter, the parties agreed to submit the consolidated proceeding for decision upon the basis of stipulated facts. Briefs were filed thereafter.

The stipulation filed by the parties is as follows:

Complainant and Respondent by their respective counsel hereby stipulate to the following facts pursuant to an agreement to submit the case at issue to the Administrative Law Judge upon stipulation of facts.

1. Respondent is an Employer engaged in interstate commerce, subject to the Occupational Safety and Health Act of 1970, is an Employer within the meaning of 3(5) of that Act, has approximately 500 employees in total and 10 employees at the Carnegie location, and has in excess of 10 million dollars of gross sales annually.

2. On August 22, 1975, Respondent's lumber yard [sic] located at 200 First Street, Carnegie, Pennsylvania, was inspected by a Compliance Officer of the Occupational Safety and Health Administration and was cited in a citation dated September 3, 1975, for a violation [*5] of 29 CFR 1910.22(d)(1) in a building identified as the "main warehouse", with an abatement date of October 3, 1975.

3. Respondent did not file a Notice of Contest to the September 3, 1975 citation, and the citation became a final Order of the Commission pursuant to 10(a) of the Act.

4. On November 17, 1975, Respondent's Carnegie location was again inspected by a Compliance Officer of the Occupational Safety and Health Administration.

5. Based upon said inspection, Respondent was subsequently cited in a citation dated November 21, 1975, for a repeat citation for violation of 29 CFR 1910.22(d)(1) in a building identified as the "fibreglass[sic] storage building", with a proposed penalty of $160.00 (Docket No. 16122).

6. Based upon the November 17, 1975, inspection, Complainant on December 16, 1975, issued a Notification of Failure to Correct Alleged Violation and of a Proposed Additional Penalty in the amount of $1,000.00 for failure to abate the violation of 29 CFR 1910.22(d)(1) cited in the September 3, 1975 citation (Docket No. 16312).

7. Respondent filed timely Notice of Contest to both the repeat citation and the failure to abate and proposed additional penalty. By [*6] Order of Administrative Law Judge Ben D. Worcester, dated February 20, 1976, the cases were consolidated.

8. The location and identity of the areas for which Respondent was cited are as follows:

a. Docket No. 16122 - Storage platform located im fibreglass storage warehouse as shown in Complainant's Exhibits 11 through 19.

b. Docket No. 16312 - Storage platform as shown in Exhibits 1 through 10 and located in Respondent's main (paneling) warehouse.

c. Both platforms are used for storage of materials.

d. Respondent stipulates to the admission of Complainant's Exhibits 1 to 21.

9. No certificate showing any floor load limit was posted at either location described in paragraph 8 on August 22, 1975, or on November 17, 1975.

10. Persons who are Respondent's employees within the meaning of 3(6) of the Act on occasion walk upon the platform which is the subject of Docket No. 16122.

11. Persons who are Respondent's employees within the meaning of 3(6) of the Act on occasion walk on as well as along the base of the platform which is the subject of Docket No. 16312.

12. A cracked beam, as shown in Complainant's Exhibits 17 and 18, is located within the framework of the [*7] structure shown in Exhibits 11 through 16. (Respondent does not stipulate to the relevancy of this fact, but only to its accuracy.)

13. Some of the items stored on the two platforms are boxed materials with a content weight marked upon them.

14. The total weight of the items on either platform could be reasonably estimated based upon the marked weights.

15. Respondent has never, before or after either inspection, been advised by any local official or other designated authority who may be charged with administration and enforcement of any building code, as to an approved floor load which could be posted on either platform.

16. There is no local official who will certify the weight limits or approved floor load of the platforms which are the subject matters of either proceeding except as the referral described in Paragraph 17 may constitute certification.

17. The Building Official of the Borough of Carnegie when asked to certify an approved floor load will decline and will refer a requestor to Ordinance 698 dated December 4, 1958, as amended.

18. Ordinance 698, as amended by Ordinance No. 830, incorporates by reference the 1967 National Building Code of the National Board [*8] of Underwriters (Copies of Ordinance 698 and applicable amendments are attached as Exhibit 1 to this Stipulation).

19. The proposed penalties were derived in conformity with the Complainant's regulations as shown in Complainant's Exhibits 20 and 21.

20. Either party may make references to the 1967 National Building Code in the Briefs.

The Respondent in its brief makes the following arguments (1) that the platforms for which Respondent was cited are not "floors" within the meaning of the standard involved (2) that Respondent was not in violation of the said standard because compliance is impossible and (3) that prior uncontested citations are not res judicata and thus not a proper basis for charging Respondent with a "repeated" violation. Respondent also urges that the proposed penalties are excessive.

It should be noted here that the areas fo which Respondent was cited are described in the stipulation of facts as follows in Item 8:

8. The location and identity of the areas for which Respondent was cited are as follows:

a. Docket No. 16122 - Storage platform located in fibreglass [sic] storage warehouse as shown in Complainant's Exhibits 11 through 19.

b. Docket [*9] No. 16312 - Storage platform as shown in Exhibits 1 through 10 and located in Respondent's main (paneling) warehouse.

c. Both platforms are used for storage of materials.

It appears from the stipulated facts that the Secretary has assumed that walking space on a storage platform is a "floor" within the meaning of 29 CFR 1910.22(d) [See Stipulation, Items 8 through 15 inclusive; Exhibits 1 through 19]. It is also clear from the record that the Secretary is not concerned with the load limits applicable to the floors of the warehouses themselves, as distinguished from the walking surfaces of the storage platforms which were erected on those floors. Nothing in the stipulation of facts or the record as a whole relates to the former. However, Respondent asserts, and the Secretary does not dispute, that the said platforms are free-standing structures (storage shelves) erected within the main warehouse and the fiber glass storage warehouse and that these platforms are not an integral part of the warehouses.

The term "floor" is nowhere defined in the standards. Websters Third International Dictionary defines "floor" as "the bottom or lower part of a room, the part of a room on [*10] which one stands, the lower inside surface of any hollow structure." The term "platform" is defined in 29 CFR 1926.502(e) as "a working space for persons elevated above the surrounding floor or ground, such as a balcony or platform for the operation of machinery or equipment." n1 Certain standards have been issued with respect to platforms.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 It should be noted that this definition distinguishes between the "platform" and the "floor" on which it rests.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

However, I find no standard which establishes load limits for platforms and none has been called to my attention by either party. Recent court decisions have reaffirmed the rule that where a term is employed in one place and excluded in another, it should not be implied where excluded, Diamond Roofing Co., Inc. et al v. Occupational Safety and Health Review Commission 528 F.2d 645, 648 (5th Cir. 1976); Langer Roofing and Sheet Metal, Inc. v. Secretary of Labor and Occupational Safety and Health Review Commission, 524 F.2d 1337 (7th Cir. 1975).

In the [*11] foregoing circumstances, I must hold that 29 CFR 1910.22(d)(1) is not applicable to the storage platforms herein and that the Respondent has not been in violation of that standard as charged in the Citations and Complaints filed herein. In view of this holding, it is unnecessary that I consider the remaining defenses raised by the Respondent with respect to the alleged violations of 29 CFR 1910.22(d)(1).

FINDINGS OF FACT

1. Respondent is a corporation subject to the jurisdiction of the Occupational Safety and Health Act of 1970 and this Commission.

2. On or about November 17, 1975, Respondent's worksite at 200 First Street, Carnegie, Pennsylvania, was inspected by the Secretary's compliance officer and thereafter on November 21, 1975, was issued a Citation and Notification of Proposed Penalty alleging a "repeated" violation of 29 CFR 1910.22(d)(1) for failure to display certificates showing floor load limits on certain storage platforms erected in two warehouses at Respondent's worksite.

3. On December 16, 1975, Respondent was issued a Notification of Failure to Correct Alleged Violation and Proposed Additional Penalty in the amount of $1,000 for failure to abate the violation [*12] of 29 CFR 1910.22(d)(1).

4. Notice of Contest was filed only with respect to the alleged violations of 29 CFR 1910.22(d)(1).

5. The said storage platforms, which contain walking space, are free-standing structures erected in the interior of Respondent's warehouses and are not integral parts of the warehouse buildings.

6. The standards issued by the Secretary which relate to platforms generally, do not require that certificates designating floor loading capacity be affixed to platforms.

CONCLUSIONS OF LAW

1. A free-standing storage platform, which is not an integral part of a warehouse in which it is erected, is not subject to the provisions of 29 CFR 1910.22(d)(1) requiring the display of a certificate showing the floor load capacity of the platform, even though the platform contains walking space upon which employees must occasionally walk.

2. The Respondent which operated and controlled warehouses with platforms as described above, was not in violation of 29 CFR 1910.22(d)(1) as charged in the Citations which are the subject of this proceeding.

ORDER

Pursuant to Section 10(c) of the Act and Rule 66 of this Commission's Rules of Procedure, it is ORDERED:

1. [*13] That the Citations herein charging Respondent with violations of 29 CFR 1910.22(d)(1) be, and the same hereby are, DISMISSED.

2. That all Notifications of Proposed Penalties relating to the said Citations be, and the same hereby are, VACATED.

HENRY K. OSTERMAN, Judge, OSHRC

Dated: December 20, 1976

Hyattsville, Maryland