OSHRC Docket No. 13134

Occupational Safety and Health Review Commission

January 4, 1977


Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  


Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Reg. Sol., USDOL

Mrs. John Hoaglin, John Hoaglin Auto Trim, for the employer



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 [*2]   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.  



MORAN, Commissioner, Dissenting:

I would set aside the Judge's decision and remand the case in order to afford the pro se respondent the opportunity to deny the jurisdictional averments in the complaint and, in the event of a denial thereof, to afford complainant the opportunity to litigate the question of jurisdiction.   See Secretary v. Cecil Sand and Gravel Company, OSAHRC Docket No. 3667, July 28, 1975.   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 Burchmore's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.



Allen Prince, for the Secretary of Labor

Mrs. John Hoaglin, for the [*3]   respondent


By citation issued April 14, 1975, complainant charges that on March 25, 1975, respondent committed ten non-serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (the Act), in that respondent failed to comply with the Occupational Safety and Health Standards contained in 29 C.F.R. 1910.   Penalties of $25 each were proposed for items 1, 3, 8, 9, and 10, with no penalty being proposed for the remaining items.

Timely notice of contest was filed as to the penalties only, and the proceeding was referred to the undersigned judge for hearing and adjudication.   Hearing was held at Oklahoma City, Oklahoma, on October 31, 1975.   The parties submitted the case for decision on the record without filing briefs.

The original decision dismissed the complaint for want of jurisdiction because complainant failed to allege or to prove facts upon which it could be concluded that respondent is an employer engaged in a business affecting commerce within the meaning of the Act.   Upon further consideration, it is noted that complainant did plead the stated conclusion as a conclusion, and respondent did not deny [*4]   it.   The rules of pleading now permit the pleading of conclusions of law.   Wright and Miller, Federal Practice and Procedure, section 1218.   I conclude therefore that respondent is an employer engaged in a business affecting commerce, and that the Commission has jurisdiction of the proceeding.

The violations being uncontested, the sole issue for determination is what penalty, if any, is appropriate for each violation.   Under section 17 of the Act, the assessment of penalties rests upon a consideration of the gravity of the violation and the size, history and good faith of the respondent.   The Secretary introduced evidence on these factors, but limited his presentation of evidence on gravity to those items (1, 3, 8, 9 and 10) on which he proposed penalties of $25 each.

The gravity of each item is low.   Item I involved scraps of vinyl, parts of auto seats, and springs scattered on the floor of the shop which created a tripping hazard in violation of section 22(a)(1) of the regulations.   Item 3 was a violation of section 22(b)(1) in that a supply of naptha was kept in the shop in a five gallon can without an approved flame arrestor, valve and closing device.   This created a hazard [*5]   of fire or explosion in the event of inadvertent mishandling of a lighted match or cigarette.

Item 8, a violation of section 106(d)(2)(i), involved three sewing machines that had no belt guards on their drive belts, exposing the operators to nip points between the belt and the pulley.   Item 9 concerned the existence in the building of uncovered electrical outlet boxes, on which an employee could sustain an electrical shock, contrary to section 141(c)(1)(vi).   Finally, in item 10, there was no ground wire on the sewing machines and none on a coke machine, also subjecting employees to the hazard of shock, contrary to section 151(b).

Respondent is a small employer.   There are twelve employees plus the two members of the family.   Gross business amounts to ten to twelve thousand dollars monthly.   Respondent has no prior history of violations of the Act and his good faith is evidenced by the fact that all violations were promtly abated.   Also, respondent did not know or realize that any violations existed until they were pointed out.

The sewing machines were relatively new machines that came from the factory without any guards on their belts; guards had to be fashioned for them.   The [*6]   machines were Underwriters Laboratory stamped, yet they had no ground plugs, and respondent did not know they were required.

I conclude from all of the facts that the penalties proposed by the complainant are appropriate to the violations found, except in the case of items 8 and 10, as to which zero penalty is appropriate.

It is ORDERED that penalties of $25 each be and the same are hereby assessed for items 1, 3 and 9, that no penalty be assessed the remaining items, and that this proceeding be and the same is hereby discontinued.

Robert N. Burchmore, Judge OSAHRC

May 17, 1976