INTERSTRUCT CORPORATION, A Division of International Basic Economy Corporation

OSHRC Docket No. 12798

Occupational Safety and Health Review Commission

April 21, 1977

  [*1]  

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Morton J. Marks, Reg. Sol., USDOL

Francisco Fernandez Carbia, 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 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

Edwin Tyler, Office of the Solicitor, on behalf of complainant

Francisco Fernandez Carbia, on behalf of respondent

PATTON, Judge: This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., 84 Stat. 1590 (hereinafter referred to as the Act) alleging a failure to abate issued by the complainant against the respondent under the authority vested in complainant by section 9(a) of the Act.

It was alleged that respondent failed to abate violations arising at a workplace of the respondent located at Carolina, Puerto Rico.   It was alleged that a settlement [*3]   stipulation previously approved by Judge David H. Harris stipulated that respondent had violated standards 29 C.F.R. §   1910.180(d)(6), 29 C.F.R. §   1910.179(j)(3) and 29 C.F.R. §   1910.213(c)(1), and that said order of Judge Harris became a final order in said case.   A hearing was held on August 7, 1975, at Hato Rey, Puerto Rico, on the allegations of failure to abate. Standard 29 C.F.R. §   1910.179(j)(3) is no longer at issue.   Evidence was presented by both parties, and briefs have been filed.   There was no motion to intervene.

LAW AND ISSUES OF THE CASE

It was alleged in the original citation that respondent violated standard 29 C.F.R. §   1910.213(c)(1).   Said citation stated as follows:

"The American #2 hand fed ripsaw Ser #919117 and located at the carpentry shop was not guarded on the upper portion of the blade above the saw table."

Five days' time from date of receipt of the citation was proposed as the abatement date.

It was alleged in the original citation that the respondent had violated standard 29 C.F.R. §   1910.180(d)(6) in the following respect:

"Inspection records were not kept readily available for the following truck cranes hoisting equipment located at this [*4]   establishment:

a.   Warner and Swasey - Ser #83352

b.   Grove - Ser #2793

c.   Grove - Ser #19726

d.   Bay City I.D. #1326."

Ten days following receipt of the citation was the proposed abatement date.   Said original citation also alleged a violation of standard 29 C.F.R. §   1910.179(j)(3) alleging that overhead and gantry cranes located at the respondent's establishment were not inspected completely.   Respondent was required to abate ten days after receipt of the citation.

The complainant filed a Notice of Failure to Abate alleging that on March 12, 1975, the respondent had failed to abate said violations.   A penalty in the amount of $8,000 for failure to abate was proposed as to the alleged violation of standard 29 C.F.R. §   1910.213.(c)(1).   A penalty in the amount of $100 was proposed for alleged failure to abate the violation of standard 29 C.F.R. §   1910.180(d)(e).   A penalty in the amount of $200 was proposed for alleged failure to abate the violation of standard 29 C.F.R. §   1910.179(j)(3).

Respondent does not at this time maintain that there has been a failure to abate as to standard 29 C.F.R. §   1910.179(j)(3), but states in its brief that only the other two standards are at [*5]   issue.

EVIDENCE IN THE CASE

The answer of the respondent admitted that respondent is a Division of International Basic Economy Corporation maintaining an office at Carolina, Puerto Rico.   It was admitted that respondent is and, at all times relevant to this cause, has been engaged in the manufacture of pre-stressed and post-stressed concrete products, and that a substantial amount of the equipment, materials and supplies used by respondent in its manufacturing and business operation is produced and originates in places outside of the Commonwealth of Puerto Rico.

As above stated, it was admitted that as a result of a settlement stipulation, an order which had become a final judgment was entered holding that respondent had violated said standards.

Inspection of the respondent's premises was made on March 12, 1975, to ascertain whether abatement had been completed (Tr. 17).

The complainant maintained that on several occasions complainant advised respondent that a guard should be capable of being automatically raised or lowered (Tr. 42).   On August 20, 1974, at the time of the original inspection, such an explanation was allegedly made (Tr. 44).   The respondent requested a formal [*6]   conference, and on September 17 the conference was held, at which time the complainant again explained the necessary guarding to the respondent (Tr. 44).   The employees were also told how to comply (Tr. 45).   The respondent gave Vice-President Rafail Bracero the standards applicable to the industry, the law, record keeping requirements, posters, and other brochures at the time of the original inspection on August 20, 1974 (Tr. 46).   Compliance officer Santiago testified they were asked at the conference on September 17, 1974, how to comply, and it was explained that the hood should automatically adjust itself to the width of the material being cut (Tr. 50).   He stated that they were given a wood-working machine booklet, National Safety Counsel brochures, and the National Safety Counsel brochures which showed some type of guards for this type of equipment (Tr. 50-51).

The respondent testified that respondent looked for a hood after the first inspection, but what they saw in the market did not adjust to the particular type of machine in question.   They personally inquired at other jobs and went to several stores, including Sears Roebuck (Tr. 70, 71, 72).   Respondent's machine was an [*7]   old one (Tr. 72).   They had seen modern machinery with the barbering guard which comes off the front.   When they had the conference of September 17, 1974, respondent's purpose was to show the Area Director they had purchase orders for guards for other machinery for which they had been cited; but they could not find the guard for the machine (Tr. 73, 74).   Mr. Dario Collado, who is a safety engineer for IBEC Housing Company, of which respondent is a part, testified they asked what the Government wanted them to install on this particular machine, but they did not get a straight answer as to what they were expected to do (Tr. 74).   After the meeting they went back to the plant, and engineer Garcia built the other protection which was installed (Tr. 57).   The only modification was welding on the two hinges.   The hood remained the same otherwise (Tr. 76).   The method of using the hood was the same (Tr. 76).   They performed further modification after the inspection of March 12, 1975 (Tr. 77).

The respondent's compliance officer, Mr. Fernandez Carbia, testified that he asked respondent for records of the inspection of the hoisting equipment.   They produced some records but didn't produce [*8]   others (Tr. 18).   The plant manager, Rafael Bentancourt, testified that he had inspected the hoisting machine both before and after March 12, 1975, but there was no written inspection report of the machine on said date.   He had to obtain a certificate after March 12, 1975 (Tr. 80, 83, 84).

EVALUATION OF THE EVIDENCE

It is the position of the respondent that the inspection was premature.   The stipulation and settlement agreement were entered into on January 16, 1975.   The respondent represented in such settlement agreement that it had abated the alleged violations set forth in the citation.   Judge Harris' order approving said settlement agreement was entered on January 28, 1975.   It is the position of the respondent that said order did not become the order of the Commission until February 27, 1975, and that the correction or abatement period began to run on the date of the final order, which it is the position of the respondent would be thirty days from the date of the order of Judge Harris or February 27, 1975.   Thirteen calendar days later or nine work days later, the inspection was made.   The statement by the respondent in the settlement stipulation that the respondent had [*9]   abated the violation was one of the considerations of said settlement stipulation.   The order was approved based upon said representation.   The respondent was, therefore, required to have abated by the date that it represented at had done so.

Aside from the above consideration, the respondent was required to abate the violations of standard 29 C.F.R. §   1910.180(d)(6) ten days following receipt of the citation.   If the abatement period did not begin to run until February 27, 1975, and the inspection was made thirteen days later, the inspection was made three days after the expiration of the ten-day period allowed for abatement. The period allowed for abatement is not "working days" but "calander days." The time within which a respondent is permitted to file a notice of contest to the citation has been frequently held to be fifteen working days, because the statute specifically describes the time as "working days." No such phraseology is used with reference to the time of abatement. This defense cannot, therefore, be substained.

The alleged violation in the initial citation, which was approved by the stipulation and the order of Judge Harris as to standard 29 C.F.R. §   1910.213(c)(1),   [*10]   is as follows:

"The American #2 hand fed ripsaw Ser #919117 and located at the carpentry shop was not guarded on the upper portion of the blade above the saw table." (emphasis supplied)

The only thing complained of in the original citation was that the upper portion of the blade above the saw table was not guarded. The respondent sought to find the proper guard and upon failing to do so had one of its own employees add to the top of the guard so as to adequately cover the blade. The principal contention of the complaint is that there was no automatic way of raising or lowering the hood. Nowhere in the citation or the settlement stipulation, nor in the order of Judge Harris, can anything be found about raising and lowering the hood. Now the complainant maintains that the respondent should be penalized $8,000 because of failure to abate something for which it was never officially charged.   There is evidence in the record that on several occasions the complainant orally advised the respondent that the hood should be automatically lowered.   The respondent testified that the respondent did not so understand it; but, on the contrary, when the respondent at the meeting of September [*11]   17, 1974, requested instructions on how to comply, the respondent never got a satisfactory answer.   It would appear that there was no complete meeting of minds between the parties.   It is not, however, necessary to resolve the question of what was said and what was understood.   Section 9 of the Act states in part:

". . . Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated."

It will be noted that the Act requires the citation to be in writing and further requires that the citation be specific as to the nature of the violation.   The citation advised the respondent that the respondent was in violation for not having a hood on top of the blade. By no possible interpretation of the citation can it be construed to advise the respondent that the respondent must have an automatic means of raising and lowering the hood. It will be observed that the citation must be in writing.   There is no provision for an oral amendment of the citation, and any oral statement to the respondent by the complainant adding to the requirements [*12]   of the citation and requiring a different type of action to be taken by the respondent is not permitted by section 9 of the Act.   One of the purposes of the requirement that the citation be in writing is to avoid the very type of problem that here presents itself, where the complianant alleges that the respondent was told one thing as to how to comply, and the respondent states that such information was not given.   A judge cannot amend the Act by providing for oral amendments of the citation when the act itself requires the entire citation be in writing.   It also is quite significant that the uncontradicted testimony of the respondent is to the effect that the adjustments to the machine were always made before the power was turned on.   An employee is not exposed to a hazard until the power is turned on.

The complainant has not established that the hood was inadequate protection so far as covering the top of the blade is concerned.   That is the only thing that the final judgment of the Review Commission required respondent to do.   The allegation of violation of standard 29 C.F.R. §   1910.213(c)(1) must, therefore, be dismissed.

The situation is different with reference to the alleged [*13]   violation of standard 29 C.F.R. §   1910.180(d)(6).   The original citation was clear as to what was required.   It is established that the required inspections of the crane hoisting equipment had been made, but it is admitted that the required inspection records were not made at the time of the inspection of March 12, 1975.   There was no abatement of the violation of this standard.   It would appear that the proposed penalty of $100 is proper.   It should not have been difficult to have complied with the final order requiring the records to be kept and made available.   Since this is not an initial violation, but is a failure to abate, the proposed $100 penalty should be assessed.

FINDINGS OF FACT

1.   Respondent is a corporation duly authorized to do business in the Commonwealth of Puerto Rico, maintaining an office at Carolina, Puerto Rico.   A substantial amount of equipment, materials and supplies used by respondent in its manufacturing and business operation is produced outside of the Commonwealth of Puerto Rico.

2.   On August 20, 1974, an inspection of the respondent's said premises was made.   As a result of said inspection, a citation issued alleging violation of standards 29 [*14]   C.F.R. §   1910.180(d)(6), 29 C.F.R. §   1910.179(j)(3) and 29 C.F.R. §   1910.213(c)(1), as well as alleging violations of other standards of the Act.

3.   On January 16, 1975, the parties filed a stipulation and settlement agreement, whereby it was admitted that said violations had occurred, and respondent represented that it had abated all the alleged violations.

4.   On January 28, 1975, Judge David H. Harris issued an order approving said stipulation and settlement agreement which became a final order of the Commission on February 27, 1975.

5.   An inspection was made of the respondent's premises on March 12, 1975, following which a citation was issued alleging failure to abate the violations of standards 29 C.F.R. §   1910.180(d)(6), 29 C.F.R. §   1910.179(j)(3) and 29 C.F.R. §   1910.213(c)(1).

6.   The complainant withdrew the allegations of violation of standard 29 C.F.R. §   1910.179(j)(3).

7.   The citation which was issued as a result of the inspection of August 20, 1974, only alleged a violation of standard 29 C.F.R. §   1910.213(c)(1) for failure of respondent to guard the upper portion of the blade above the saw table of the American No. 2 hand-fed ripsaw. There was no mention in   [*15]   the citation of a requirement that respondent must have automatic means of raising or lowering a hood over said ripsaw.

8.   Neither the settlement agreement nor the order of Judge Harris made any mention of an automatic device to raise or lower the hood on said ripsaw.

9.   The respondent was told on several occasions prior to the inspection of March 12, 1975, by the complainant that an automatic device should be on the ripsaw to automatically raise and lower the hood. The evidence does not establish that the respondent understood that such action was required.

10.   At the time of the inspection of March 12, 1975, respondent did not have said automatic device on the ripsaw.

11.   At the time of the inspection on March 12, 1975, the respondent had changed its hood so as to completely cover the top of the saw blade.

12.   The respondent inspected its short grain hoisting equipment before and after the inspection of March 12, 1975.

13.   The respondent did not at the time of the inspection by complainant of March 12, 1975, maintain inspection records of the truck crane hoisting equipment located at said establishment.

CONCLUSIONS OF LAW

1.   Respondent is engaged in a business [*16]   affecting interstate commerce and is within the jurisdiction of the Occupational Safety and Health Act of 1970.

2.   The withdrawal by complainant of the allegations of violation of standard 29 C.F.R. §   1910.179(j)(3) should be approved.

3.   The respondent did not fail to abate the violation of standard 29 C.F.R. §   1910.213(c)(1).

4.   The respondent failed to abate the violation of standard 29 C.F.R. §   1910.180(d)(6).

On the basis of the foregoing finding of facts and conclusions of law, and the entire record, it is therefore ORDERED:

1.   That the allegations of failure to abate the violation of standard 29 C.F.R. §   1910.213(c)(1) are dismissed.

2.   That the withdrawal by complianant of the allegations of failure to abate the violations of standard 29 C.F.R. §   1910.176(j)(3) are approved, and that respondent is not found to be in violation of said standard.

3.   That respondent had not, on March 12, 1975, abated the violations of standard 29 C.F.R. §   1910.180(d)(6).   A penalty in the amount of $100 is assessed for said failure to abate

Dated this 2nd day of February, 1976.

JOHN S. PATTON, Judge