S. E. SMITH & SONS

OSHRC Docket No. 15152

Occupational Safety and Health Review Commission

March 11, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, USDOL

Norval O. Books and S. E. Smith & Sons, 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 [*2] 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.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

I would vacate this citation, which alleges that respondent failed to comply with various occupational safety and health standards codified at 29 C.F.R. 1910.213, because those standards were improperly promulgated. n1 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.

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n1 My views on this matter are set forth in detail in my dissenting opinion in Secretary v. Noblecraft Industries, Inc., OSAHRC Docket No. 3367, November 21, 1975.

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Since this decision does not address any of the matters covered in Judge Morris' decision, his decision is attached [*3] hereto as Appendix A so that the law in this case may be known.

APPENDIX A

DECISION AND ORDER

Eugene F. DeShazo, Office of the Solicitor, U.S. Department of Labor, for the Complainant

Norval O. Brooks, for the Respondent

Morris, Judge: Citations allege violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter, the "Act"). Complainant asserts the violations occurred and were established as a result of an inspection on September 16, 1975. Complainant issued his citation on September 22, 1975. Respondent filed a notice of contest on September 27, 1975. Citation 1 alleges nonserious violation and it reads:

Item

Standard Allegedly Violated

1

29 CFR 1910.22(a)(1)

2

29 CFR 1910.23(c)(1)

3

29 CFR 1910.106(e)(2)(iv)(d)

4

29 CFR 1910.106(e)(6)(ii)

5

29 CFR 1910.157(d)(4)(iii)

No civil penalty is proposed.

Citation 2 alleges serious violations and it reads:

Item

Standard Allegedly Violated

1a

29 CFR 1910.213(c)(1)

1b

29 CFR 1910.213(c)(2)

1c

29 CFR 1910.213(c)(3)

1d

29 CFR 1910.213(h)(1)

1e

29 CFR 1910.213(h)(4)

Complainant proposes a civil penalty of $500 for the violation of citation 2.

ISSUES

Whether the [*4] employees operating the table and radial saws can decide for themselves whether they should use the safety devices required by the standards, and whether the proposed civil penalty is appropriate (Tr. 5-7, 11-12).

Respondent's single defense to the citations asserts that the worker "operating the saw should be the man who ultimately decides what is safe for him . . . not the government and not anyone else." (Tr. 6.)

While compliance rests primarily on the employer when Congress enacted the Act it provided in Section 5(b), now 29 U.S.C. 654(b) as follows:

(b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this chapter which are applicable to his own actions and conduct.

If respondent's view prevailed there might well be as many approaches to safety when operating saws as there are operators. Such a result would frustrate the Congressional declaration of policy "to assure so far as possible every working man and woman in the nation safe and healthful working conditions . . .," 29 U.S.C. 651(b). See Secretary v. Atlantic & Gulf Stevedores, Inc., 16 OSAHRC 770, BNA O.S.H.C. 1003, CCH E.S.H.G. [*5] P19,526 (1975); pet. for review filed, No. 75-1584 (3rd Cir., June 6, 1975). Respondent does not otherwise contest the alleged citations (Tr. 5-7, 27); they should be affirmed.

Evaluations of civil penalties should be made independently from complainants proposals, Secretary v. Dreher Pickle Company, No. 48, 2 OSAHRC 497, 1 OSHC 1132 (BNA); OSHD (CCH) P15156 (1973). Respondent was in serious violation of the guarding standards as such a violation could result in the amputation of fingers, Secretary v. Thunderbird Coos Bay, Inc., No. 2270; OSHD (CCH) P17854.

Respondent has no prior adverse history; it employs four workers at this location; the saws are in use on the average of an hour a day (Tr. 27, 42-44). Considering all of the criteria of 29 U.S.C. 666(i) a civil penalty of $250 is appropriate.

Respondent admits being an employer engaging in a business affecting commerce (Tr. 7-8). Therefore, based on the uncontroverted record the undersigned makes the following:

ORDER

1. Items 1, 2, 3, 4, and 5 of citation 1 are affirmed. No penalty is assessed.

2. Items 1a, 1b, 1c, 1d, and 1e of citation 2 are affirmed.

3. The proposed civil penalty of $500 for the violation [*6] of citation 2 is vacated and a civil penalty of $250 is assessed in lieu thereof.

John J. Morris, Judge, OSAHRC

Dated: May 26, 1976