ZIPCO CONSTRUCTION CORP.  

OSHRC Docket No. 76-404

Occupational Safety and Health Review Commission

April 20, 1976

  [*1]  

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Reg. Sol., USDOL

Edward J. Steward, Secy-Treas, Zipco Construction Corp., 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 petitions 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); see 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 [*2]   of an unreviewed Judge's decision.   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.  

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Both item of the citation should be vacated because of complainant's failure to issue the citation with reasonable promptness as required by 29 U.S.C. §   658(a).    

Since my colleagues do not address any of the matters covered in Judge Gold's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

APPENDIX A

DECISION AND ORDER

Jack Fisher, for Complainant

Edward Steward, Secretary-Treasurer, for Respondent

Gold, J.:

This case was heard on April 27, 1976, at New York, New York, pursuant to Section 10(c) of the Occupational   [*3]   Safety and Health Act of 1970, 29 U.S.C. §   659(c).

On January 13, 1976, Respondent was issued a nonserious citation containing three itemized charges.   Respondent filed a notice of intent to contest items 1 and 2.   The third item became a final order of the Commission by operation of law, in accordance with 29 U.S.C. §   659(a).

By its failure to deny paragraphs I, II, and III of the complaint, Respondent is deemed to have admitted, pursuant to Commission Rule 33(b)(2), 29 C.F.R. §   2200.33(b)(2), that it is a New York corporation, with an office and place of business at Yonkers, New York; that many of the materials and supplies used by Respondent in conducting its construction business were manufactured outside the state of New York; and that Respondent thereby engages in a business affecting commerce, within the meaning of Sections 3(3) and 3(5) of the Act, 29 U.S.C. § §   652(3) and (5), and the Commission has jurisdiction of the parties and subject matter.

29 U.S.C. §   654(a)(2) requires that each employer comply with occupational safety and health standards promulgated under the Act.

Section 666(c) provides that an employer may be assessed a civil penalty of up to $1,000 for each [*4]   nonserious violation.

Civil penalties can be assessed only after considering the size of the business of the employer, the gravity of the violation, the good faith of the employer, and the history of previous violations.   29 U.S.C. §   666(i).

On December 29, 1975, a representative of the Department of Labor inspected a site at Jackson Avenue, Yonkers, New York (Tr. 13), where Respondent was engaged in building three two-story townhouses (Tr. 15, 16, 35-36).   Respondent owns the land, which it is developing, and was the general contractor at the site (Tr. 32).

The standard cited in item 1 states:

Subpart M -- Floor and Wall Openings, and Stairways.

§   1926.500 Guardrails, handrails, and covers.

* * *

(d) Guarding of open-sided floors, platforms, and runways.   (1) Every open-sided floor or platform six feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder.   The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery,   [*5]   or there is equipment with which falling materials could create a hazard.

Standard railing specifications are found at Section 1926.500(f) and, in pertinent part, read:

(f) Standard specifications. (1) A standard railing shall consist of toprail, intermediate rail, toeboard, and posts, and shall have a vertical height of approximately 42 inches from upper surface of top rail to floor, platform, * * *.

The inspecting officer testified that he observed an employee of Respondent carrying lumber approximately three feet from the edge of a floor which was eight feet above ground level (Tr. 14); that there was no railing guarding that open side of the floor (Tr. 14); and that the employee was not wearing a safety belt (Tr. 14).   The foregoing establishes a violation of item 1.

The standard on which item 2 is based declares:

Subpart F -- Fire Protection and Prevention.

§   1926.150 -- Fire Protection

(a) General Requirements

(1) The employer shall be responsible for the development of a fire protection program to be followed throughout all phases of the construction and demolition work, and he shall provide for the firefighting equipment as specified in this subpart.   As fire hazards [*6]   occur, there shall be delay in providing the necessary equipment.

Section 1926.150(a)(1) is general in nature, and requires, inter alia, that an employer provide the firefighting equipment "as specified in this subpart." Specific standards in the subpart list the particular equipment required.   The first sentence of Section 1926.150(c)(1)(iv) requires that at least one fire extinguisher rated not less than 2A shall be provided on each floor of a building under construction.   There were no fire extinguishers in the three townhouses (Tr. 15).   Hence, Respondent was not in compliance with the standard cited in item 2.

However, the townhouses were not without fire protection. There was a city fire hydrant directly across the street from the site, about 100 feet from the townhouses (Tr. 31); there were two fire extinguishers in Respondent's office at the site, and by using the shortest route, the travel distance from the extinguishers to the most distant of the three houses was 100 feet, according to the Secretary-Treasurer of Respondent corporation (Tr. 31, 34, 35, Exh. J-1).   Neither the inspector not the Secretary-Treasurer knew the rating of these extinguishers (Tr. 20,   [*7]   31).   The inspector, who made no measurement (Tr. 24), first estimated the distance from the office to the end of the row of townhouses to be approximately 300 feet (Tr. 16), quickly changed this to "between 250 and 300" (Tr. 16).   He first stated that he saw one fire extinguisher in the office then changed his answer to "at least one" (Tr. 19).

In addition, there was a hose at the site; it was hooked outside the first building, for use by the mason; the hose was 350 feet long (Tr. 30), and had a 1/2 inch diameter (Tr. 31).

The availability of this equipment, however, did not exempt Respondent from the requirement of the first part of Section 1926.150(c)(1)(iv).

The second part of that subparagraph reads:

In multistory buildings, at least one fire extinguisher shall be located adjacent to stairway.

In my view, a two-story residence is not a multistory building within the contemplation of that standard, and Respondent is not required to comply with the second portion of that standard.

Having found that Respondent failed to comply with standards cited in items 1 and 2, I conclude that on December 29, 1975 Respondent violated 29 U.S.C. §   654(a)(2).

The Secretary has proposed a   [*8]   penalty of $55 for item 1, and $30 for item 2.   Respondent operates a small business (Tr. 16-17), there is no evidence of prior safety violations (Tr. 16), and the inspector noted that he found Respondent "very cooperative" and "concerned in matters of safety and willing to comply at once" (Tr. 17).   These nonserious infractions are minor in nature.   Upon consideration of the criteria listed in 29 U.S.C. §   666(i), I deem it appropriate in this case to impose no penalty for either item.

IT IS ORDERED that items 1 and 2 of the nonserious citation of January 13, 1976 be affirmed, and that no penalty be imposed therefor.

Dated: May 27, 1976

Boston, Massachusetts

ABRAHAM GOLD, Judge, OSAHRC