ELFORD, INC.

OSHRC Docket No. 14784

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

William Kloepfer, Associate Regional Solicitor

Thomas J. Fitzpatrick, Safety Director, Elford, 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 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

W. S. Kloepfer, Associate Regional Solicitor, U.S. Department of Labor and Benjamin T. Chinni, for Complainant

Thomas J. Fitzpatrick, Safety Director, Elford, Inc., for Respondent

OSTERMAN, Judge, OSAHRC

This is a proceeding initiated by the Respondent pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 USC 659(c) (hereafter the Act) to contest a Citation and Notification of Proposed Penalty issued to Respondent on or about August 12, 1975.

The Citation charged Respondent with ten (10) non-serious violations of the safety and health standards issued [*3] by Respondent pursuant to the Act. Penalties proposed totaled $210. The Notice of Contest filed by Respondent on September 2 challenged all of the allegations with the exceptions of Items 5 and 9 which proposed fines of $55 and $0, respectively. With respect to these two items the Citation has become the final order of this Commission by operation of law.

At the commencement of the hearing it was stipulated by the parties that neither the proposed penalties nor the abatement dates are issues in the proceeding (Tr. 3).

The evidence discloses the following with respect to each of the items alleged in the Citation.

Item 1, 29 CFR 1926.25(a) [excessive debris at worksite]. The Secretary's compliance officer testified that on the day of inspection he found that scrap lumber, metal and mortar littered the various floors in the work areas (Tr. 9-11). The evidence also disclosed that Respondent was in the process of remodeling the building in question and that the work involved tearing out the interior of the building and cutting new window openings in the masonry walls (Tr. 29-30). On a regular basis all areas and walkways were cleared by a 4-man crew specifically assigne to [*4] this duty (Tr. 38, 42-45).

Item 2, 29 CFR 1926.102(a)(1) [Failure to provide eye protection for operator of Partner saw]. The Secretary alleged that the operator of a saw used to cut through masonry was not wearing protective goggles (Tr. 11-13). It was undisputed that the said saw operator had been supplied with protective goggles by the Respondent and told to wear them and that the goggles were on his person but not on his eyes at the time he was observed by the compliance officer (Tr. 30, 39).

Items 3 and 4, 29 CFR 1926.150(a)(4) and 1926.150(c)(1)(vi) [Failure to provide appropriate and operative fire extinguishers at worksite near kerosene storage area]. The compliance officer found that one fire extinguisher in the area had been discharged and was not effective. Respondent was also cited in Item 4, because the type of fire extinguisher found was not that prescribed by 29 CFR 1926.152(b)(1) (Tr. 13-15). The Secretary's evidence was not contradicted.

Item 6, 29 CFR 1926.300(d)(3) [Partner saw did not shut off properly when pressure switch was released]. The Secretary's evidence was to the effect that the saw blade continued to rotate for an excessively long [*5] time after the operator released the pressure switch (Tr. 16-18). Respondent conceded this fact (Tr. 40, 46-47).

Item 7, 29 CFR 1926.401(f) [Failure to use 3-wire type extension cord with electric tools]. The compliance officer stated that he observed a 2-prong extension cord in the penthouse adjacent to the roof of the building (Tr. 18). The said cord was not in use at the time and no equipment was attached to it (Tr. 19) and it was not attached to an electrical outlet but was draped over some equipment. The compliance officer did not know whether it had ever been in use (Tr. 20-22).

On cross-examination the compliance officer admitted that Respondent's carpenters were using their own 3-prong extension cords and that they were in compliance (Tr. 31-32). Respondent's witness testified that the cord in question was not an extension cord; that it was a wire which had been on the premises when demolition was started; and that it had been there for many years (Tr. 40, 47-48).

Item 8, 29 CFR 1926.500(d)(1) [Unguarded perimeter of flat roof]. The Secretary's compliance officer testified that the perimeter of the roof of the building in question was not guarded by a standard [*6] railing as required by the regulation referred to above. However, the application of this standard to flat roofs has been rejected by the courts, See: Diamond Roofing, etc. v. Occupational Safety and Health Review Commission, Dockets 459, 364, 1102,    F.2d    (5th Cir., 1976) and Langer v. Secretary of Labor, Dockets 1208, 1536,    F.2d    (7th Cir., 1975).

Item 10, 29 CFR 1910.219(c)(3) [Failure to enclose a rotating pump shaft]. The Secretary's evidence was that the shaft of a pump located in a very small room in the basement of the building near a walkway was unguarded as required by the standard (Tr. 25). It was also the Secretary's evidence that the room containing the pump was close to a walk-through area and that the door to the room was open (Tr. 26) although the Respondent's employees were not passing through the pump room. Had the door been closed the Respondent would not have been cited for this violation (Tr. 28). Respondent testified that no employees were working in the pump room and that there was no occasion for them to be in that area (Tr. 41).

Reviewing the evidence I conclude that with two exceptions, Items 3 and 6, the Secretary has [*7] failed to establish the violations charged in the Citation. With respect to Item 1, I find it difficult to see how the interior of a building can be demolished without creating substantial amounts of debris in the working areas. It is reasonably clear from the testimony that Respondent did have a regular disposal procedure in effect. As to Item 2, the evidence shows that Respondent's employee was provided with protective eye goggles and told to use them. There was no evidence that Respondent was aware of the employee's failure to do so, Cf: Secretary of Labor v. Commission and Hendrix d/b/a Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1975).

Item 4 is in effect a duplication of Item 3. Items 7 and 10 were not supported by a preponderance of the evidence. Item 8 has been disposed of by court decisions.

CONCLUSIONS OF LAW

1. On July 30, 1975, Respondent was in violation of 29 CFR 1926.150(a)(4) and 29 CFR 1926.300(d)(3). The penalty proposed for each of these violations is appropriate under the circumstances herein and not inconsistent with Section 17(j) of the Act.

2. On July 30, 1975, Respondent was not in violation of the Secretary's regulations referred [*8] to in Items 1, 2, 4, 7, 8 and 10 of the Citation issued to Respondent on August 12, 1975.

ORDER

Pursuant to 29 USC 659(c) and Rule 66 of this Commission's Rules of Procedure, it is ORDERED:

1. Items 3 and 6 of the Citation referred to above and the penalties, if any, proposed by the Secretary for these items are AFFIRMED.

2. All other violations charged in the Citation referred to above are DISMISSED and the penalties proposed for these violations are VACATED.

Dated: May 3, 1976

Hyattsville, Maryland

HENRY K. OSTERMAN, Judge OSAHRC