B & B MOTOR & CONTROL CORP.

OSHRC Docket No. 14289

Occupational Safety and Health Review Commission

January 18, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, USDOL

David Shaw, Chief Engineer, B & B Motor & Control Corp., 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 accord the significance [*2] 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

Francis V. LaRuffa, Regional Solicitor, United States Department of Labor

Louis D. DeBernardo, for complainant

David Shaw, Chief Engineer, B & B Motor & Control Corp., For the respondent

Ditore, J.:

This action was initiated pursuant to the provisions of section 10(a) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 659(a)) by respondent's filing of a notice of contest to the notification of proposed penalty issued to respondent by complainant on July 21, 1975.

The notification of proposed penalty alleges that a penalty of $650.00 is proposed for the serious violation [*3] of 29 CFR 1910.36(b)(4) (Citation 2, item 1); and that penalties of $50.00, $30.00 and $30.00, are proposed for the nonserious violations of 29 CFR 1910.37(k)(2), 1910.157(a)(5), and 1910.37(q)(6) (Citation 1, items 1, 2 and 4). No penalties were proposed for the nonserious violations set forth in items 3, 5, 6 and 7 of Citation 1.

After a complaint and an answer were filed, the action was set for hearing, and heard, on December 1, 1975, at New York, New York.

ISSUES

Whether the monetary penalties proposed for the seriousl violation and for the three nonserious violations are reasonable and proper.

STATEMENT OF THE EVIDENCE

Respondent is in the electric motor maintenance and repair business, and maintains an office and place of business at 96 Spring Street, New York, New York (complaint, answer; T. * 9, 11). Respondent occupies about 50 X 90 feet of space on the first floor and in the basement of the premises located at 96 Spring Street (T. 27, 49). The basement area is used for the assembly of electronic controllers by three employees (T. 37, 47, 49). Except for cartons stored in the basement there are no flammable materials or liquids in the basement area (T. [*4] 47).

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* Reference key: T. refers to pages of hearing minutes.

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On July 16, 1975, respondent's premises were inspected by compliance officer David Marra (T. 8-10). During his walk-around inspection of the basement area, Officer Marra observed, in addition to the three working employees, two fire exits located at the east and south sides of the basement (T. 11).

The east exit door was secured to the door jamb by two pipe bars and a flat stock bar (T. 27, 28, 29; Exh. C-2). A heavy table about 4 feet wide and 72 inches long with located directly in front of the east exit door. Motor parts and iron material were on the table (T. 11, 12, 13, 14, 29, 32; Exh. C-1).

The south exit door was fastened and secured by a heavy iron crossbar which was held in place by brackets and thumb screws (T. 29, 30, 31; Exh. C-3). The outer side of the south exit door was blocked by a wooden ladder and some stored material (T. 12). There were no other exits in the basement other than an enclosed flight of stairs leading to the first [*5] floor. The stairway was located about 30 feet from the south exit and from the area where the three employees were working (T. 17, 34, 35, 37).

The compliance officer believed that the two secured and fastened exit doors was a serious violation of 29 CFR 1910.36(b)(4), and the blockage of the two exit doors was a nonserious violation of 29 CFR 1910.37(k)(2). He believed that in the event of fire, smoke inhalation and fire burns, injuries would befall the three employees due to their inability to quickly exit the basement area through the two fire door exits; and that the employees could suffer death or serious physical harm. Officer Marra recommended, based on the gravity of the two violations and after credit considerations, an adjusted penalty of $650.00 for the serious violation of 29 CFR 1910.36(b)(4) (Citation 2, item 1), and $50.00 for the nonserious violation of 29 CFR 1910.37(k)(2) (Citation 1, item 1). Respondent did not contest these two violations but contested the two penalties proposed.

Officer Marra also recommended a citation for a nonserious violation of 29 CFR 1910.37(q)(6) in that the exit signs at the east and south exit doors were not illuminated. [*6] Officer Marra could not remember whether there were or were not exit signs, or where the signs were located in the basement area. He stated that the illumination in the basement area was adequate but felt that in the event of a smoke fire, illuminated exit signs would be easier to locate (T. 26). He recommended an adjusted penalty of $30.00 for this violation based on the violation's gravity, after credits were applied (T. 26) (Citation 1, item 4). Respondent did not contest this violation but did contest the penalty proposed.

During his walk-around inspection of the first floor area of respondent's workplace, Officer Marra observed a fire extinguisher standing on the floor of a 15 X 15 foot reception room. One employee, the receptionist was in the room, and the extinguisher was clearly observable (T. 23).

Officer Marra also observed two other fire extinguishers located in a 30 X 40 foot shipping area, standing on the floor. The extinguishers were not blocked from immediate view (T. 20, 21, 22).

Officer Marra believed that the three extinguishers should have been installed on hangers for easier location, if needed, in case of fire. On the basis of the gravity of the violation [*7] (29 CFR 1910.157(a)(5) (Citation 1, item 2), and after deducting credits, Officer Marra recommended an adjusted proposed penalty of $30.00 for the violation (T. 21). Respondent did not contest this violation but did contest the penalty proposed.

Respondent established that there was an overhead sprinkler system and fire extingushers in the basement area (T. 48-49).

OPINION

Respondent by its failure to contest the serious violation of 29 CFR 1910.36(b)(4) and the nonserious violations of 29 CFR 1910.37(k)(2) and 1910.37(q)(6), admitted that the east and south basement fire exit doors were fastened and did not provide free and unobstructed egress out of the building; that the way of exit access to the east exit door, and the way of exit discharge from the south exit door were not maintained free of obstructions; and that the exit signs for the two exit doors were not illuminated. Respondent was assessed a proposed total penalty of $730.00 for the three violations.

For purposes of penalty evaluation, the above three violations will be considered together since they cover the same two areas (exit doors). Fire exit doors must be unlocked and unfastened, and the means [*8] of egress to and from exit doors must be unobstructed in order to allow employees free and instant escape from the inside of a building in case of a fire or other emergency.

There is no evidence in this case that establishes the basement area to be other than a "low hazard contents" area (29 CFR 1910.35(e)). The only possible combustible materials in respondent's basement were the cartons stored there. There is no evidence that these materials would cause a self-propagating fire to occur. There were three employees working in the basement area 30 feet from an enclosed flight of stairs leading to the first or street floor. In addition, the basement area was protected by an overhead sprinkler system, and fire extinguishers were supplied and available in this area.

Considering the above factors with the compliance officer's equivocal testimony concerning the exit signs, the three violations are deemed to have a low gravity factor. Based on the low gravity of the three violations and the other factors of section 17(j) of the Act, the proposed penalties of $50.00 and $30.00 for the two nonserious violations will be vacated, and the proposed penalty of $650.00 for the serious violation [*9] will be reduced to $250.00 to cover all three violations.

The violation concerning the three fire extinguishers on the first floor which were not installed on hangers or brackets as required by 29 CFR 1910.157(a)(5), is admitted by respondent. The gravity of this violation is also low. There is no evidence that the first floor area was other than a "low hazard contents" area, and the three extinguishers were clearly visible in their standing position. The proposed penalty of $30.00 considering the gravity of the violation and the other factors of section 17(j) of the Act, is reasonable and proper.

FINDINGS OF FACT

The credible evidence and the record as a whole establishes preponderant proof of the following findings of fact:

1. Respondent, a New York corporation, is in the electric motor maintenance and repair business, and maintains an office and place of business at 96 Spring Street, New York, New York.

2. Respondent on July 21, 1975, was cited for one serious violation and seven nonserious violations of occupational safety and health standards, none of which it contested.

3. The serious violation carried a proposed penalty of $650.00, and three of the nonserious [*10] violations (items 1, 2 and 4 of Citation 1) carried proposed penalties of $50.00, $30.00 and $30.00, respectively. Respondent contested these monetary proposed penalties.

4. On July 16, 1975, the day of inspection, respondent occupied an area of 50 X 90 feet in the basement and on the first floor of its workplace at 96 Spring Street, New York, New York.

5. The basement area was used primarily for storage of cartons. A small section on the south side of the basement was used as a workplace by three of respondent's employees for the assembly of electronic controllers.

6. Two fire exit doors, one at the east side and one at the south side of the basement, were fastened and secured in violation of 29 CFR 1910.36(b)(4), had their way of access blocked in violation of 29 CFR 1910.37(k)(2), and had exit signs which, were not illuminated in violation of 29 CFR 1910.37(q)(6).

7. The fastened and blocked basement exit doors prevented free and instant escape by the three employees from the basement area in case of a fire emergency.

8. There is no evidence that the basement area was other than a "low hazard contents" area, nor is there any evidence that the cartons stored in [*11] the basement would cause a self-propagating fire to occur.

9. The basement area was protected by an overhead sprinkler system, and fire extinguishers were supplied and available in the basement.

10. There was an enclosed flight of stairs on the south side of the basement which lead from the basement to the first floor and which was 30 feet from the area where the three employees were working.

11. Under all the circumstance of this case the gravity of the serious violation and the two nonserious violations was low.

12. Based on the gravity, the other statutory factors of section 17(j) of the Act, and on the equivocal testimony of the compliance officer concerning the exit signs, the proposed penalty of $50.00 and $30.00 for the two nonserious violations will be vacated, and the proposed penalty of $650.00 for the serious violation will be reduced to $250.00 to cover all three violations.

13. On July 16, 1975, respondent failed to have installed on hangers or brackets three fire extinguishers on the first floor of its workplace in violation of 29 CFR 1910.157(a)(5). One extinguisher was standing on the floor in a 15 X 15 foot reception room, the other two were standing [*12] on the floor in the shipping area of the first floor.

14. The three fire extinguishers were clearly visible.

15. There is no evidence that the first floor area was other than a "low hazard contents" area.

16. The gravity of violation is deemed low and considered with the other statutory factors of section 17(j), the proposed penalty of $30.00 for this violation (item 2, Citation 1) is reasonable and proper.

CONCLUSIONS OF LAW

1. Respondent is, and at all times material herein was engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 652(5)).

2. The Occupational Safety and Health Review Commission has jurisdiction over the subject matter and parties to this action.

3. Under the circumstances of this case with due consideration to the low gravity of the violations and to the other statutory factors of section 17(j) of the Act (29 U.S.C. 666(i)), the proposed penalties of $50.00 and $30.00, respectively for the nonserious violations of 29 CFR 1910.37(k)(2) and 1910.37(q)(6) are vacated, and the proposed penalty of $650.00 for the serious violation of 29 CFR 1910.36(b)(4) is reduced [*13] to $250.00, to cover all three violations.

4. Under the circumstances of this case with due consideration to the low gravity of the violation and to the other statutory factors of section 17(j) of the Act (29 U.S.C. 666(i)), the proposed penalty of $30.00 for the nonserious violation of 29 CFR 1910.157(a)(15) is deemed reasonable and proper.

ORDER

Due deliberation having been had on the whole record, it is hereby

ORDERED that the proposed penalty of $50.00 for the nonserious violation of 29 CFR 1910.37(k)(2) (Citation 1, item 1), and the proposed penalty of $30.00 for the nonserious violation of 29 CFR 1910.37(q)(6) (Citation 1, item 4), are vacated, it is further

ORDERED that the proposed penalty of $650.00 for the serious violation of 29 CFR 1910.36(b)(4) is reduced to $250.00 to cover the serious violation and the two nonserious violations (Citation 1, items 1 and 4), and as reduced, is affirmed, it is further

ORDERED that the proposed penalty of $30.00 for the nonserious violation of 29 CFR 1910.157(a)(5) (Citation 1, item 2) is affirmed.

JEROME C. DITORE, JUDGE, OHAHRC

Dated: April 27, 1976, New York, New York