4G PLUMBING & HEATING, INC., a corporation

OSHRC Docket No. 14676

Occupational Safety and Health Review Commission

March 3, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Henry C. Mahlman, Regional Solicitor

Norman Carey, 4G Plumbing & Heating, Inc., 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 interet 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.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I agree with the vacation of item 1 of the citation but would also vacate the 29 C.F.R. 1926.450(a)(9) charge because respondent, a plumbing and heating subcontractor, did not create or cause the alleged violation and was not otherwise responsible therefor. Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975); Secretary v. Grossman Steel & Aluminum Corporation, OSAHRC Docket No. 12775, May 12, 1976 (dissenting opinion). 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 Morris' decision, his decision is attached hereto as Appendix A so that the law in this case may be known. [*3]

APPENDIX A

DECISION AND ORDER

Ann Noble, Office of Henry C. Mahlman, Associate Regional Solicitor, U.S. Department of Labor, for the Complainant

Norman Carey, (Pro Se), for the Respondent

Morris, Judge: A citation alleges violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter "Act"). Complainant asserts violations occurred July 23, 1975 and were observed when complainant's representative inspected a building site in Anaconda, Montana. A citation which issued August 15, 1975 was challenged by a notice of contest dated August 25, 1975.

Citation number 9 alleges nonserious violations of two standards. Item number 1 alleges a violation of 29 CFR 1926.401(c), It reads:

An electrical extension cord connected to the "Rigid 124" buffer in the Heathstone ECH Building did not have a grounding prong to provide a path to ground that was permanent and continuous.

Proposed civil penalty: $30.

The above cited standard reads:

1926.401 Grounding and bonding.

(c) Effective grounding. The path from circuits, equipment, structures, and conduit or enclosures to ground shall be permanent and continuous; have ample carrying capacity to [*4] conduct safely the currents liable to be imposed on it; and have impedance sufficiently low to limit the potential above ground and to result in the operation of the overcurrent devices in the circuit.

Item 2 alleges a violation of 29 CFR 1926.450(a)(9). It reads:

Wooden ladders located on the 3rd and 4th floors did not have the side rails extended 36 inches above the landing.

No civil penalty is proposed.

The above cited standard reads:

1926.450 Ladders.

(a) General requirements.

(9) The side rails shall extend not less than 36 inches above the landing. When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point of access, shall be installed.

ITEM 1

During an inspection a Woodhead tester revealed an open ground (Tr. 9, 11; compl's. ex. 1). Additional checking established that a third prong grounding plug of an electrical cord had been cut off. The cord connected a pipe buffer to the power source. Respondent uses buffers of this type on its plumbing work (Tr. 8, 9, 18, 21, 31).

Respondent's evidence indicated the cord had been new with a ground attached when installed on the job. Respondent did not know of its [*5] defective condition (Tr. 19, 20, 23). Personnel are to report any such defects (Tr. 23-24).

No evidence indicates respondent knew or should have known of the described defective condition. Such knowledge is an essential ingredient of the charge; Brennan v. Occupational Safety and Health Review Commission and Hendrix d/b/a Alsea Lumber Company, 511 F.2d 1139 (9th Cir., 1975).

ITEM 2

At two levels the ladders extended 16 inches and 24 inches above the adjacent floor (Tr. 17, 21, 22; compl's. ex. 2). A material hoist provided the only other access to the floors (Tr. 18, 21). The general contractor, someone other than respondent, admitted ownership of the ladders, as well as responsibility for putting them in position (Tr. 19). While no employees were observed using the ladders they provided the only available access. A circumstantial case of employee exposure is established. The violation exists, employees would necessarily be exposed when using the ladders, and an employee was working in the vicinity, Secretary v. Chicago Bridge and Iron No. 224, 14 OSAHRC 361 (1974).

Respondent admits employing persons and engaging in a business affecting commerce. Therefore, [*6] based on the uncontroverted record, the undersigned makes the following:

ORDER

1. Citation 9, item 1 is vacated together with the proposed civil penalty of $30.

2. Citation 9, item 2 is affirmed; no penalty is assessed.

So ordered in the City and County of Denver, Colorado.

Dated: March 22, 1976

John J. Morris, Judge, OSAHRC