RUEDY'S AUTO SHOP

OSHRC Docket No. 13374

Occupational Safety and Health Review Commission

January 5, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Regional Solicitor, USDOL

Gordon F. Brown, 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

Mrs. Jane A. Matheson, for Complainant

Gordon F. Brown, for Respondent

STATEMENT OF THE CASE

Jerry W. Mitchell, 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.) contesting a portion of a Citation issued against Ruedy's Auto Shop (Respondent) by the Secretary of Labor (Complainant) under the authority vested in Complainant by Section 9(a) of the Act.

A place of business and employment under the operation and control of Respondent, described as "Auto Body Repair" located at 701 Northwest 2nd Street, Oklahoma City, Oklahoma, [*3] was inspected by a representative of the Secretary of Labor on March 25, 1975. During that inspection alleged violations of 16 specific safety standards were noted. As a result of the inspection Citation Number 1 (Nonserious, 10 Items) and Citation Number 2 (Serious, 6 Items) were issued to Respondent on April 23rd. The safety standards allegedly violated were promulgated by the Secretary of Labor pursuant to Section 6 of the Act and are now codified at Title 29, Code of Federal Regulations, Part 1910.

Pursuant to the enforcement procedure provided in Section 10(a) of the Act Respondent was duly advised by a Notification of Proposed Penalty dated April 23rd of the proposal to assess penalties of $25 each in connection with Items 6 and 9 of Citation Number 1 and $0 in connection with the remaining Items of that Citation. A penalty of $500 was proposed in connection with Citation Number 2 where all 6 Items are combined into a single serious violation.

In a timely manner Respondent filed a letter dated May 9th reporting correction of all Items on each of the Citations except for Item 1C on Citation Number 2. In this letter Respondent indicates the desire to contest the violation [*4] listed in Item 1C of Citation Number 2. Respondent also contests the penalty of $500 proposed in connection with Citation Number 2 where the 6 Items of that Citation are combined into a single alleged serious violation. The stated basis for the contest is alleged inability to obtain the necessary building permit because the area is subject to Urban Renewal and the urban renewal people refuse to approve the permit. A letter from the Urban Renewal Authority is attached to the contest.

The alleged violation under contest is described in the Citation in the following language with the cited safety standard quoted immediately thereafter:

Citation Number Two (6 Items combined into a single serious violation) --

"Item IC -- 29 CFR 1910.107(d)(2)

The paint spraying area was not provided with mechanical ventilation adequate to remove flammable vapors, mist, or powders to a safe location and to confine and control combustible residues; i.e., The paint spray area located in the center west section of the shop."

ABATE - "Immediately upon Receipt of This Citation."

STANDARD -- 29 CFR

"Subpart H -- Hazardous Materials

* * *

1910.107 Spray finishing using flammable and combustible materials. [*5]

* * *

(d) Ventilation --

* * *

(2) General. All spraying areas shall be provided with mechanical ventilation adequate to remove flammable vapors, mists or powders to a safe location and to confine and control combustible residues so that life is not endangered. Mechanical ventilation shall be kept in operation at all times while spraying operations are being conducted and for a sufficient time thereafter to allow vapors from drying coated articles and drying finishing material residue to be exhausted."

A complaint was filed by Complainant. In that complaint the abatement date for Item 1C of Citation Number 2 is amended to reflect the requirement that abatement of Item 1C be accomplished by October 1, 1975. Trial, initially set for September 30th, was held on November 3rd at Oklahoma City, Oklahoma.

PROCEEDINGS AND EVIDENCE

When the trial convened each party was represented by competent legal counsel. In a preliminary discussion on the record the parties agreed that the only issue to be tried was the amount of the penalty. Respondent admits that all of the Items cited were violations at the time of the inspection on March 25, 1975. All violations were abated within [*6] the time proposed except for Item 1C of Citation Number 2 which was abated by the amended abatement date of October 1, 1975. Respondent also admits jurisdiction.

Complainant presented its case through the testimony of the Compliance Safety and Health Officer (CSHO) (Charles W. McGlon) who inspected Respondent's workplace on March 25, 1975. He describes the conditions observed during the inspection. Six Items of violation dealing with the spray painting area and operation were combined into a single serious violation because of the cumulative effect of the violations taken as a whole. He states that 10 employees were exposed to the hazard, but admits that Respondent "certainly exhibited" good faith and was concerned with the safety of its employees.

Respondent presented its case through the testimony of its President (Roy Ruedy). He describes the construction of the building involved, its history and ownership, and the efforts made by him to expand and improve the building. He also details the difficulties of obtaining a building permit because the building is located in an urban renewal area. He describes some of the conditions existing at the time of the inspection and testifies [*7] there were 7 employees, including him in the building at the time of the inspection. This was the regular crew.

Subsequent to receipt of the transcript each party filed initial briefs and Respondent filed a reply brief. Briefing time was extended once at the request of Respondent.

DISCUSSION

JURISDICTION --

The jurisdictional allegations of the complaint are not denied in the answer. In addition Respondent admits jurisdiction on the record.

THE VIOLATIONS --

The thrust of the Notice of Contest is to challenge the violation listed in Item 1C of Citation Number 2 and the penalty of $500 proposed in connection with all 6 of the Items of Citation Number 2 grouped as a single serious violation. However, during the preliminary discussion Respondent conceded that all of the violations cited, including Item 1C, were actual violations at the time of the inspection on March 25, 1975. At the same time the parties agreed that abatement of Item 1C was accomplished within the extended abatement time of October 1, 1975 since it was completed by September 25th. With these concessions the only remaining issue is that of the amount of the penalty.

THE VIOLATIONS DESCRIBED IN [*8] CITATION NUMBER 2 ARE SERIOUS --

Under the terms of Section 17(k) of the Act a violation is serious if there is a substantial probability that death or serious physical harm could result from the violative condition existing -- the cumulative effect of the 5 proven violations with respect to the spray painting operation and area. It is not necessary that there be a substantial probability of an accident occurring because of the hazard -- only that there be a substantial probability that if an accident does occur the resulting injury will be serious in nature or that death will result. See Secretary v. Standard Glass and Supply Company, 2 OSAHRC 1488, 1489 (1973) and Secretary v. Crescent Wharf & Warehouse Co., 2 OSAHRC 1318, 1325 (1973).

In the instant case the very possible likelihood of an explosion and/or fire existed. The failure to adequately and properly ventilate the spray painting area so as to exhaust the spray mist and fumes, coupled with the presence of sources of ignition through the improper, unguarded electric lights, the absence of No Smoking signs, and the uncovered receptacles for waste and rags made the possibility of an explosion very real. [*9] In addition there was a great deal of flammable material improperly present. This material would only magnify any explosion and fire. There can be no doubt that any explosion occurring under these circumstances would result in serious injury - if not death to all of the employees working in the spray painting area of the building.

Section 17(k) also requires that an employer know of the violation before it can be found to be serious. In the instant case this requirement is fully satisfied. Respondent's President was aware that a danger existed and was attempting to cure it. He thus had full knowledge of the violation. The 5 proven violations described in Citation Number 2, Items 1B, 1C, 1D, 1E and 1F), grouped together, clearly constitute a SERIOUS violation.

APPROPRIATE PENALTY --

In determining the appropriateness of any penalty assessed in connection with this proven serious violation it is necessary to give due consideration to the criteria (history, size of business, good faith and gravity) set forth in Section 17(j) of the Act.

1. The March 25th inspection was the first OSHA inspection of Respondent's workplace.

2. Respondent's business is a very small operation [*10] with only 6 employees.

3. Respondent's good faith is excellent. Abatement was accomplished immediately. Respondent's president cooperated fully and willingly. Respondent was attempting to improve safety at the worksite even before the inspection.

4. Gravity here is considered to be more than moderate. All of Respondent's employees, as well as Respondent's president, were exposed to the hazard on a practically continuous basis because of the lack of ventilation and the intermittent, irregular spraying operations. These circumstances, particularly no ventilation, permitted the lingering of dangerous fumes through much of the day.

There is an additional factor present in the instant case which must be considered in determining the amount of penalty appropriate in these circumstances. This additional factor is the location of the inspected workplace in an urban renewal area. Starting in 1973 Respondent attempted to expand his building so as to install an appropriate, complying paint spray area. His request for a building permit covering the expansion was denied because of the anticipated requirement that the workplace be relocated. The urban renewal agency opposed the building [*11] permit because such improvements would be nullified when the shop was relocated. After considerable delay the urban renewal agency reversed itself and supported Respondent's application, but for a smaller addition than that originally planned by Respondent. This smaller, approved, addition was promptly made by Respondent bringing his workplace into compliance through the installation of a small, prefabricated, properly ventilated spray painting booth. Cost of the installation was approximately $12,000. It is noted here, however, that Respondent continued with spray painting in the unventilated building from 1973 to some time after the inspection without abating the violation.

Under all of the foregoing circumstances it is considered that a penalty of $130 is appropriate here. This penalty is based on the fact that Item 1A was not proven; abatement of Items 1B, 1D, 1E and 1F was not delayed by the urban redevelopment problem; and that Item 1D is obviously a serious violation of continuing nature.

Consequently, based upon the evidence adduced, the arguments made, and the briefs submitted we make the following:

FINDINGS OF FACT

1. On March 25, 1975 and at all times material [*12] hereto Ruedy's Auto Shop, Respondent herein, was engaged in a business affecting commerce. On that date Respondent's 6 employees were working in his auto shop and auto spray painting operation. Such activity is a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970. (Complaint and Answer; Transcript pgs 12-15, 18, 35, and 46-47.)

2. On March 25, 1975 a Compliance Safety and Health Officer inspected Respondent's workplace at 701 Northwest 2nd Street, Oklahoma City, Oklahoma on behalf of the Secretary of Labor. The inspected site was located within an urban renewal project. As a result of that inspection Citation Number 1 (Nonserious, 10 Items) and Citation Number 2 (Serious, 6 Items grouped in one serious violation) were issued to Respondent on April 23rd. The Notification of Proposed Penalty issued to Respondent on that same date sought penalties of $50 and $500 for the respective Citations. On May 9th Respondent contested Item 1C of Citation Number 2 and the penalty of $500 proposed in connection with all of Citation Number 2. At the time of the trial Respondent conceded that all of the violations cited, existed [*13] as violations at the time of the inspection. (File; Transcript pgs 8-14, 17, 31 and 66.)

3. On March 25, 1975 the electrical wiring to the Ingersoll-Rand air compressor located in the northwest corner of Respondent's shop was properly installed without danger of an electrical short. (Transcript pgs 20, 27, 32-33, 37-40, 61, and Exhibit A.)

4. On March 25, 1975 the violations described in Items 1B, 1C, 1D, 1E and 1F existed as described in the Citation and were violations of the cited safety standards at the time of the inspection. Six employees were exposed to the hazards of the violations. (Transcript pgs 12-14, 18-25, 28-30, 46-47, 61 and Exhibit 1.)

5. Respondent first sought a building permit for the expansion of his building in 1973. The Oklahoma City Urban Renewal Authority opposed the issuance of said permit until mid-1975. At some time prior to June 30, 1975 this Authority agreed to recommend approval of the building permit but authorizing a lesser expenditure than that sought by Respondent. (Transcript pgs 11-12, 35, 47-58, 60, 63, 67 and Exhibits B and C.)

6. The refusal to issue the building permit did not prevent, or delay, the abatement of Items 1B, 1D, [*14] 1E and 1F of Citation Number 2. (Transcript as a whole showing abatement before issuance of permit.)

7. Respondent's president, Roy Ruedy was present during the inspection and was aware of the presence of the violation resulting from the absence of a ventilation system and the presence of a quantity of flammables in the spray painting area. (Transcript pgs 12-14, 31, 35, and 64.)

8. Respondent was very cooperative with the inspecting Compliance Safety and Health Officer and exhibited good faith by immediately correcting all of the violations except Item 1C of Citation Number 2. Item 1C was corrected prior to September 25, 1975. (Transcript pgs 11-12, 49-60, 66 and File-ltr dated September 25, 1975.)

From the foregoing Findings of Fact we now make and enter the following:

CONCLUSIONS OF LAW

1. At all times material hereto Ruedy's Auto Shop, Respondent herein, was an employer engaged in a business affecting commerce within the meaning of Section 3 of the Occupational Safety and Health Act of 1970. On May 22, 1975 Respondent filed a letter contesting a portion of Citation Number 2. Respondent thereby brought itself and the subject matter of this proceeding within the [*15] jurisdiction of the Occupational Safety and Health Review Commission pursuant to Section 10 of the Act.

2. The cumulative effect of the circumstances described in Items 1B, 1C, 1D, 1E and 1F of Citation Number 2 is a serious violation of the safety standards cited.

3. The evidence does not establish the existence of the violation alleged in Item 1A of Citation Number 2.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law and for good cause shown, it is ORDERED that:

1. Item 1C of Citation Number 2 be, and the same hereby is, AFFIRMED; and it is further

2. ORDERED that the penalty of 500 proposed in connection with the whole of Citation Number 2 be modified to $130 and as so modified be, and the same hereby is, ASSESSED.

Dated this 24th day of March 1976.

JERRY W. MITCHELL, Judge