UNITED ROOFING AND SHEET METAL, INC.  

OSHRC Docket No. 14765

Occupational Safety and Health Review Commission

February 7, 1977

  [*1]  

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioner.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Regional Solicitor, USDOL

Stephen D. Forehand, Vice Pres., United Roofing & Sheet Metal, 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 interest issue.

The Judge's decision is accorded [*2]   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

David E. Street, for the Complainant

Mr. Stephen Forehand, Vice-President, United Roofing and Sheet Metal, Inc., for the Respondent

USHER, Judge:

This is a proceeding initiated by the Secretary of Labor, United States Department of Labor, 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, seeking the affirmance by the Commission of a citation which charges two "non-serious" violations of Section 5(a)(2) of the Act and seeking further to have the Commission assess a   [*3]   penalty of $65.

The citation, issued by Complainant's agent on August 18, 1975, as the result of an inspection of Respondent's worksite at Crystal City, Virginia, on July 24, contained the following charges:

Helmet for protection against impact and penetration of falling and flying objects did not meet the requirements of ANSI Z89.1-1969 Safety Requirements for Industrial Head Protection in that protection provided employee on 7/24/75 at 3rd level of East Service Area had been damaged and suspension support was broken (29 CFR 1926.100(b))

and

Portable electric lighting used in moist location on 7/24/75 in moist Mechanical Room 215 Mezzanine level was not operated at a maximum of 12 volts (29 CFR 1926.401(j)(4)).

On August 22, 1975, Respondent filed the requisite notice of contest and Complainant filed his complaint on September 19.   Respondent's answer to the complaint was docketed by the Commission on November 21.

The issues were tried before the undersigned at Washington, D.C., on January 21, 1976.

By stipulation Respondent admitted certain facts which serve to establish its identity as a Maryland corporation, the relative size of its business, and the history of its previous [*4]   violations of the Act.   The stipulation included an admission of facts which establish that it engages in a business affecting commerce and that it is subject to the requirements of the Act.

Additionally, the stipulation contained a withdrawal by Respondent of its notice of contest as to Item No. 1 of the aforesaid citation (the asserted violation of Regulation 1926.100(b)).

Discussion

The safety and health standard set forth in Regulation 1926.401(j)(4) provides:

Portable electric lighting used in moist and/or other hazardous locations, as for example, drums, tanks, and vessels shall be operated at a maximum of 12 volts.

According to the testimony of Reginald Butcher, electrical foreman for Plymouth Electric Construction Company, Howard E. Sherman, sheet metal foreman for the Respondent, and Clyde W. Farrar, Jr., OSHA Compliance Safety and Health Officer, the latter, an agent of the Complainant, conducted an inspection of a worksite at the Crystal City Metro Station on July 24, 1975.   On the mezzanine level (below ground level) at that location a room designated as Room No. 215 was being prepared as a "mechanical room." Two of Respondent's employees were engaged there installing [*5]   metal ducts.

The essential elements of the asserted violation were clearly established.

Mr. Sherman and Mr. Butcher verified the fact of the inspection by the Compliance Safety and Health Officer on the date in question, and Mr. Sherman admitted that Respondent's employees had installed and were using a "drop light" for added illumination in the mechanical room.   The drop light was "portable" according to Mr. Sherman, who described portable electric lighting as "any type of lighting that you could move from one area of the project to the other and plug into a receptacle."

Mr. Farrar described the drop-cord light which he observed being used at the worksite by persons who identified themselves as employees of Respondent.   His description did not differ substantially from that given by Mr. Sherman.   Mr. Farrar further testified that he determined that the portable light in question was operated at 115 volts; it was plugged into a 115-volt receptacle in the wall, and there was no 12-volt transformer "encompassed into [its] makeup." Mr. Butcher testified that his firm had installed the electrical system at the project and that it was in fact not less than 110 volts.

According to Mr.   [*6]   Farrar the floor of the mechanical room was "saturated * * * [with] water" so that the soles of his shoes became wet, and he felt the dampness "through the skin of [his] feet." He stated that there were wet concrete floors and walls and several metal pipes in the mechanical room, all of which were conductors of electrical current.

The hazard presented by this set of circumstances was described in some detail by the Compliance Safety and Health Officer.   His opinion that electrical current could travel from the drop light -- in the event the bulb were broken or the cord became abraded -- through one of the several wet conductors to and through the body of one of Respondent's employees was quite credible and is accepted as fact.   He opined that an employee could be "very seriously * * * permanently injured, or death could result."

Clearly the evidence supports the Complainant's charge that the safety standard was violated.   The Respondent used portable electric lighting operated at a voltage in excess of 12 volts in a moist location, and its employees were thereby exposed to a safety hazard.

The Compliance Safety and Health Officer proposed a penalty for the violation which had as [*7]   its basis a consideration of the extent to which the safety standard was violated, the likelihood of resulting injury, and the probable severity of such resulting injury. Additionally, due consideration was given to the size of the Respondent's business, its good faith, and the history of its previous violations.

The record herein compels the following findings of fact and conclusions of law:

Findings of Fact

1.   Respondent, United Roofing and Sheet Metal, Inc., is a Maryland corporation, and, on July 24, 1975, maintained a place of business or worksite at the Crystal City Metro Station in the Commonwealth of Virginia.

2.   On or about July 24, 1975, Respondent fabricated goods, materials, or products in the State of Maryland and shipped such goods, materials, or products to the Commonwealth of Virginia.

3.   Respondent's net worth for the fiscal year immediately preceding July 1975 was $250,000, and it employed approximately 80 persons on a daily average.

4.   Respondent has shown good faith regarding its responsibilities toward the occupational safety and health of its employees as evidenced by its relatively commendable history of violations of the Act in the recent past.   [*8]  

5.   On July 24, 1975, Respondent used portable lighting which was operated at a voltage in excess of 12 volts in a moist or wet location at the aforementioned worksite.

6.   Use of the aforesaid portable lighting presented an occupational safety hazard to Respondent's employees.

Conclusions of Law

1.   At all times relevant hereto Respondent was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act and as such was subject to the requirements of Section 5(a)(2) of the Act.

2.   The regulations promulgated by the Secretary pursuant to Section 6 of the Act and codified at 29 CFR 1926.100(b), 1926.401(j)(4) constitute safety and health standards as contemplated by Section 5(a)(2) of the Act.

3.   On July 24, 1975, Respondent violated Section 5(a)(2) of the Act in that it failed to comply with the safety and health standards codified at 29 CFR 1926.100(b), 1926.401(j)(4).

4.   The penalty proposed by Complainant accords with the provisions of Sections 17(c) and 17(j) of the Act.

ORDER

Upon consideration of the aforesaid findings and conclusions, it is hereby ORDERED that

1.   The citation issued to Respondent by Complainant on August [*9]   18, 1975, is hereby AFFIRMED, and

2.   A civil penalty of $65 is ASSESSED against Respondent.

BENJAMIN G. USHER, Judge, OSAHRC

Dated: April 12, 1976

Hyattsville, Maryland