UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

April 26, 1977

DECISION

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

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 had 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 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.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

(SEAL)

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

Judge Oringer correctly decided this case except insofar as he assessed a penalty $20 greater than that proposed by complainant. Secretary v. Worcester Pressed Steel Co., 20 OSAHRC 737 (1975) (concurring and dissenting opinion). Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges.

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

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

February 5, 1976

APPEARANCES:

For the Secretary of Labor Altero D’Agostini, Regional Solicitor; Mildred L. Wheeler, Attorney

U. S. Department of Labor Federal Building—P. O. Box 36017 450 Golden Gate Avenue San Francisco, California 94102

For the Employer Aero Engineering Co. No appearance

DECISION AND ORDER

David G. Oringer, Judge:

This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., (hereinafter referred to as the Act) to review a citation for non-serious violations issued against the respondent, by the complainant, on July 25, 1975, together with a notification of proposed penalty issued on the same date, proposing penalties of $40.00, as a result of an inspection that took place on June 16, 1975, in Nevada.

The complainant alleged that the respondent on the day and place above aforesaid violated that standard found at 29 C.F.R. 1910.134(e)(3) and described the violation as follows:

‘Written procedures not prepared that would cover safe use of respirators (gas masks) to evacuate in case of hydrocloric acid emergency spills and similar procedural use of cartridge respirators during the normal operations’,which language was amended in the complaint to read as follows:

‘Respondent failed to have written procedures prepared covering the safe use of respirators and dangerous atmospheres that might be encountered in normal operations or in emergencies in that no written procedures were prepared that would cover the safe use of respirators (gas masks) to evacuate in case of hydrochloric acid emergency spills and similar procedural use of cartridge respirators during normal operations, contrary to the standard at 29 C.F.R. 1910.134(e)(3).’

Subsequent to the issuance of a citation and notification of proposed penalty, the respondent on August 7, 1975, timely filed a notice of contest which clearly protested the penalty and may have some hint that the respondent was protesting the citation as well.

The complaint alleged that only the penalty was contested and that the citation became a final order of the Commission. A timely answer was filed by the respondent, through his Counsel, which denied part of Paragraph II of the complaint and denied that rare salts were being sold or delivered to places outside the State of Nevada. It further stated as an affirmative defense that the amendment of the citation by service of the complaint was a deprivation of the respondent’s right to due process and further alleged that the practices and procedures of the respondent were superior to those of the Secretary of Labor.

Prior to setting the case for trial, the undersigned was advised by the complainant that the case was settled. As a result of such advice, on October 3, 1975, a notice was sent out that the case would not be scheduled for trial inasmuch as the undersigned had been notified that the case was settled. They were further advised that unless the settlement agreement was received within ten days from the date thereof, a trial date would be set. Subsequent thereto, no settlement agreement was received and after some time the undersigned contacted Counsel for the respondent, Mr. David Olwell, who advised the undersigned that the settlement agreement was in the mail. Further time elapsed and the settlement agreement was not received and on November 18, 1975, the case was set down for trial for December 23, 1975, at 10:00 a.m. in Courtroom No. 2 on the fifth floor of the Federal Building at 300 Booth Street in Reno, Nevada.

At the time of trial the reporter appeared, as did the complainant and the complainant’s representative and witness. No one appeared for the respondent.

Despite the denial of Paragraph II of the complaint, in the answer, the stationery of the respondent reflected two offices; one in Seattle, Washington, and one in Sparks, Nevada. Further, the answer stated that the respondent has a corporate office in Seattle, Washington, and, in the case at bar, this tribunal notes that the corporation was working in another state of the Union, to wit, the State of Nevada. Further, the respondent who was working in the State of Nevada, in addition to having its corporate offices in another state of the Union, has its attorney therein. Accordingly, this tribunal found sufficient evidence that the respondent affected commerce1 and, therefore, came within the jurisdiction of the Commission.

The complainant put on its case in chief and proved the violation by a preponderance of the credible evidence of record, as well as by the waiver of the respondent of its right to appear and defend.

In addition to serving the notice of trial on the respondent’s representative and on the respondent by certified mail, phone calls were made after the call of the calendar to see why the respondent did not come in. After some difficulty in reaching the respondent’s office, the complainant’s Counsel stated that the company secretary said someone was ill and both principals left for Seattle. The complainant’s representative then was instructed by this tribunal to call respondent’s Counsel, the brother of one of the officials of the respondent, who stated that he knew of no one in the family who was ill. No notice was given to this tribunal of any reason why the respondent failed to appear, to the date of this decision.

The evidence reveals that the penalty assessed herein is a paucity, nevertheless, the only increase in penalty that is deemed appropriate is deletion of any amount awarded for good faith.

Despite the fact that this tribunal was incorrectly advised by the respondent’s Counsel that the settlement agreement was in the mail, and never received it, the undersigned was never notified that the respondent was either going to try the case or was not going to execute the settlement agreement, nor that it was not going to appear.

During the trial, Counsel for the complainant produced a letter from the respondent’s Counsel dated December 17, 1975, that reads as follows:

Mildred Wheeler

Attorney at Law

U. S. Department of Labor

450 Golden Gate Avenue, Room 10404

Federal Building

San Francisco, California 94102

Re: Aero Engineering, Inc.

OSHRC DOCKET NO. 14541

Dear Ms. Wheeler:

To my absolute amazement, I received a letter from Aero Engineering, signed by Troy Becker, advising me that the conversations that we had are not true.

It now seems that Aero Engineering wishes to contest this matter. It is presently scheduled for December 23, 1975. I will not be there. I can see no basis for my client to litigate this matter, and I have so advised him.

Very truly yours,

David H. Olwell’

  Despite this letter being received by complainant, and that respondent had advised the complainant that it was going to appear and defend, respondent neither forwarded the settlement agreement nor notified this tribunal that it was not going to appear at the trial.

From all of the above circumstances, I find a shocking lack of good faith on the part of the respondent. I do believe its affirmation that it has abated the violation alleged by the complainant as I have no reason to disbelieve the same. Insofar as good faith is concerned, I find it completely lacking in respondent’s dealings with the complainant and with this tribunal. Accordingly, I find that the paucity of the $40.00 penalty proposed by the complainant resulted from an amount given for good faith and, in view of its conduct and lack of good faith, I find any reduction of the penalty based on good faith inappropriate and find an assessment of $60.00 a proper penalty in the instant cause.

In view of the above considerations, the citation is AFIRMED and a penalty is herewith ASSESSED in the amount of $60.00.

SO ORDERED.

DAVID G. ORINGER, JUDGE, OSAHRC

Dated: February 5, 1976