MERCURY NATIONAL LIFE INSURANCE CO.
OSHRC Docket No. 13069
Occupational Safety and Health Review Commission
January 3, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Ronald M. Gaswirth, Regional Solicitor, USDOL
Guy Sherman Primrose, President, Mercury National Life Insurance Co., 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 [*2] 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.
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
Mr. Arnold S. Battise, for the complainant
Mr. Guy Sherman Primrose, for the respondent
This is a proceeding brought pursuant to 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. Respondent seeks review of an amended citation for several alleged nonserious violations issued on February 25, 1975, and also seeks review with reference to the $190.00 penalty proposed for the alleged violations.
The aforementioned citation and notification of proposed penalty were issued [*3] as a result of an inspection conducted on February 5, 1975, at respondent's work place located at 104 West Gray Street, Norman, Oklahoma, where respondent had employees engaged in operating its life insurance business.
The citation alleged that on February 5, 1975, respondent violated the provisions of sections 29 CFR 1903.2(a)(1), 29 CFR 1904.6, 29 CFR 1904.5, 29 CFR 1910.36(b)(4), 29 CFR 1910.37(q)(1), and 29 CFR 1910.309(a), which said violations were described in the citation as follows:
29 CFR 1903.2(a)(1) - Occupational Safety and Health Poster was not posted in a conspicuous place where notices to employees are customarily posted.
29 CFR 1904.6 - Occupational Safety and Health Administration records were not retained available for review as required; i.e., OSHA Form #100 for calendar years 1971, 1972, 1973 and 1974 and OSHA Form #102 for calendar years 1971, 1972, and 1973.
29 CFR 1904.5 - Occupational Safety and Health Administration OSHA Form #102, Annual Summary of Occupational Injuries and Illnesses, was not compiled, posted, nor available for review, i.e., OSHA 102 for calendar year 1974.
29 CFR 1910.36(b)(4) - A lock or fastening was installed to [*4] prevent free escape from the inside of the building, i.e., emergency exit doors located in the policy service work area, east wall.
29 CFR 1910.37(q)(1) - Access to exits, where the exits or the way to reach the exits were not immediately visible, were not marked by readily visible signs in the following locations: north exit and exit located in the policy service work area, east wall.
29 CFR 1910.309(a) - Live parts of electric equipment were not guarded by approved cabinets or other forms of enclosures to prevent accidental contact; i.e., no cover plate on electrical outlet box located on east wall in the policy service work area.
Respondent, through its president, Mr. Guy Sherman Primrose, filed an untimely notice of contest n1 with complainant's area director in Tulsa, Oklahoma, whereir he advised that he had paid the proposed penalty under protest since he was of the opinion that respondent's company "does not come under the jurisdiction of OSHA." He advised that the company was not licensed to do business outside the state of Oklahoma, that all of its salesmen and 14 employees worked out of the home office, and that his company "does not engage in interstate commerce." [*5] Thereafter, this matter was scheduled for hearing in Oklahoma City, Oklahoma, on September 5, 1975, at which time complainant was represented by its attorney, Arnold S. Battise, Esq., of the office of the Regional Solicitor and respondent was represented by its president and chairman of the board, Mr. Guy Sherman Primrose. No additional parties desired to intervene or to participate in this proceeding.
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n1 Respondent's letter of April 4, 1975, addressed to the Office of the Area Director, was approximately 25 working days subsequent to the receipt of the amended citation.
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The only issue involved in this case is whether respondent was engaged in a business affecting commerce within the purview of section 3(5) of the Act.
There was no substantial dispute as to the facts in this case. The evidence shows that respondent was chartered in 1923 in Oklahoma, with its home office in Norman. All of its agents are located in Oklahoma and no life insurance is written or solicited outside of the state. All of respondent's [*6] executive and secretarial employees are located in Norman. It was estimated 95 to 98 percent of the policyholders are located in the state of Oklahoma. All of its income is generated in Oklahoma and probably 99 percent of its stockholders reside within the state. In addition to the regular life insurance policies, respondent also writes "credit life" policies through banks in Oklahoma covering persons making automobile loans, etc.
From the testimony of the compliance officer and three witnesses of respondent it was ascertained that respondent has some of its printing done by the Stafford Lowden Co. in Texas, that respondent uses IBM typewriters, a MMM duplicating machine and three automobiles which were not manufactured in Oklahoma, that respondent has policyholders who have moved to other states and which policies are serviced by written communications and long distance telephone calls to other states, such as Texas, Florida, Wyoming, and California. Some military personnel whose policies are serviced reside as far away as Germany. Possibly five percent of the long distance telephone calls with policyholders come from out of state cities. Premium notices are sent to policyholders [*7] outside of Oklahoma and monies are received from out of state policyholders.
As previously pointed out it was Mr. Primrose's contention that his company was not involved in interstate commerce and did not come within any common definition of interstate commerce. On the other hand, complainant contends that respondent was engaged in a "business affecting commerce" within the meaning of the Act and that this phrase is often used when Congress intends to go beyond the actual regulation of businesses engaged in interstate or foreign commerce.
After carefully considering this matter it must be concluded that respondent's operations fall within the scope of section 3(5) of the Act. n2 The Act does not require that respondent engage in interstate commerce -- only that its business "affects" commerce. n3
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n2 "The term 'employer' means a person engaged in a business affecting commerce who has employees, but does not include the United States or any State or political subdivision of a State."
n3 Section 3(3) of the Act reads as follows: "The term 'commerce' means trade, traffic, commerce, transportation, or communication among the several States, or between a State and any place outside thereof. . . ."
[*8]
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In section 2 of the Act it was stated that Congress found that personal injuries and illnesses arising out of work situations imposed a substantial burden upon, and are a hindrance to, interstate commerce in terms of loss production, medical expenses, etc. Further, it was stated that Congress had declared it to be its purpose and policy, through the exercise of its power, to regulate commerce among the several states and to provide for the general welfare, "to assure as far as possible every working man and woman in the Nation safe and healthful working conditions." It is thus apparent that Congress intended to exercise the full measure of its plenary power under the commerce clause.
Attention is here directed to the case of Brennan v. Occupational Safety and Health Review Commission and John J. Gordon Co., 492 F. 1027, (2nd Cir. 1974) where a building maintenance service company was held to be engaged in a business affecting interstate and thus subject to the Act. Gordon was described as a medium sized company engaged in sand blasting, painting, window cleaning, and jantorial work on [*9] industrial and commercial buildings in Buffalo, New York. Gordon held service contracts with several large corporations, including Houdaille Industries, Bethlehem Steel Corporation, Blue Cross, and Dunlop Tire and Rubber Co., all of which were engaged in interstate commerce. Gordon used supplies produced outside of New York state, but purchased them from local suppliers. Judge Friendly in his decision noted that in construing essentially the same language in the National Labor Relations Act the Supreme Court had held that the Act goes well beyond persons who are themselves engaged in interstate or foreign commerce (see also NLRB v. Fainblatt, 59 S. Ct. 668, (1939) and United States v. Ricciardi, 357 F. 2d 91, (2nd Cir. 1966).
Congressman Steiger, in presenting the conference report to the House of Representatives on the Occupational Safety and Health Act, 116 congressional Record 42199, 42206 (1970), stated:
"The coverage of this bill is as broad, generally speaking, as the authority vested in the federal government by the commerce clause of the Constitution."
As indicated by Judge Friendly the legislative history of the Act shows that Congress meant to make maximum [*10] use of the commerce power to achieve a high degree of safety. n4
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n4 The undersigned Judge recalls the case of the Secretary of Labor v. Stagg Renz Insurance Agency, 4 OSAHRC 537 (1973), where several nonserious violations were allegedly committed by respondent. There, the insurance agency's activities were all conducted in the Dallas, Texas, area. The Review Commission was found to have jurisdiction over the subject matter. However, this issue was not contested at the hearing.
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In many cases the Review Commission has held that employees are subject to the Act where all of its activities are confined to a certain city, area, or state, but where they purchased and used equipment and supplies acquired from sources outside the state. In Secretary of Labor v. C and J Forming Contractors, 3 OSAHRC 918 (1973) the Judge disagreed with respondent's contention that its activities were only intrastate and did not affect commerce. He stated:
"Moreover, to permit a general contractor using materials flowing [*11] in interstate commerce to form a labor supply corporation and attempt to restrict its activities intrastate would defeat the purposes of the Act. Certainly the substance must control the form."
Considering the broad purposes expressed in the Act and prior precedents it must be concluded that respondent's activities fall within the purview of the Act.
Complainant has moved to dismiss respondent's so-called notice of contest because of its failure to file it in a timely manner. Respondent's letter of April 4, 1975, actually did not dispute the matters set forth in the citation and in fact respondent enclosed a check in payment of the proposed penalties. However, even if it could be assumed to be a notice of contest the same was not filed within the 15 day working period as required by the provisions of section 10(a) of the Act. Accordingly, complainant's motion to dismiss is hereby granted.
HENRY F. MARTIN, JR., JUDGE
Dated: Feb. 18, 1976