DRAKE INDUSTRIES INC.  

OSHRC Docket No. 15244

Occupational Safety and Health Review Commission

April 18, 1977

  [*1]  

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

Baruch A. Fellner and John C. Nangle, Office of the Solicitor, USDOL

R. G. Hagman, President, Drake Industries, 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 of an unreviewed Judge's [*2]   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 item 2 of the citation because the evidence does not establish that respondent failed to comply with the cited standard, 29 C.F.R. §   1910.252(e)(2)(iii).   That regulation requires that employers protect employees adjacent to welding areas from the hazards of welding rays. However, the evidence fails to establish that respondent's employees were situated in areas adjacent to welding locations so as to necessitate the use of the equipment prescribed in §   1910.252(e)(2)(iii).   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 Rubin's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

APPENDIX [*3]   A

DECISION AND ORDER

Allen H. Bean and Nevin A. Rose, for Complainant

R. G. Hagman, President, for Respondent

Louis J. Rubin, Judge:

This action arose under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. A hearing was held on February 10, 1976 in Kalamazoo, Michigan.   No affected employee or authorized employee representative has asserted party status.

On August 29, 1975, the Secretary of Labor issued a citation alleging 22 non-serious violations of safety standards.   Respondent's notice of contest was directed to all the items in the citation.   However, respondent's answer to the complaint, dated October 24, 1975, omitted any reference to items 4, 7, 8, 14, 15, 16, 17, 18, 21 and 22.   At the hearing, respondent clarified its position by withdrawing the notice of contest with respect to these 10 items.   (Tr. 5.) At a pre-trial conference held immediately prior to the hearing, the parties stipulated and reached settlement with respect to items 1, 3, 5, 6, 9, 10, 12, 13, 19 and 20.   (Tr. 5 - 7.) The stipulation and settlement agreement are incorporated in this order.   After briefs were filed, complainant moved to withdraw item 11 [*4]   of the citation and the proposed penalty therefor leaving item 2 as the sole remaining item in issue.

Respondent is a corporation engaged in the manufacture of holding tanks.   Thirty to thirty-five percent of its sales are outside of the state of Michigan.   (Tr. 13.) Respondent has 7 employees.   Respondent's status as an employer as defined in Section 3(5) of the Act and the jurisdiction of the Review Commission are not in issue.

SUMMARY AND DISCUSSION OF EVIDENCE

Compliance Officer, John Budrick, inspected respondent's workplace in Constantine, Michigan on August 1, 1975.   Two employees were at the workplace. The Compliance Officer observed one of the employees using an are welder at the test station. The other employee was in the first welding booth approximately 25 to 30 feet away doing general production work.   The general production worker was seated on a table, could overlook the welding booth, and faced the arc welder.   The test station was situated in a corner of the building with walls on two sides.   There was no screen or shield to prevent exposure to the rays. The first and third welding booths were protected on three sides with the fourth side exposed.   Employees [*5]   could walk within 6 to 10 feet of the arc welding areas.   Neither employee was wearing goggles.

29 (CFR 1910.252(e)(2)(iii) reads in pertinent part:

". . . Workers or other persons adjacent to the welding areas shall be protected from the rays by non-combustible or flameproof screens or shields or shall be required to wear appropriate goggles."

Item 2 of the citation, as amended by the complaint, alleges that respondent "failed to protect workers or other persons adjacent to arc welding areas from exposure to arc welding by the use of non-combustible or flameproof screens or shields or by not requiring that said workers or other persons wear appropriate goggles. (Ref: (1) First welding booth and third welding booth; (2) test station)."

Respondent challenges item 2 on the grounds that the nature of the work does not permit completely enclosed booths and that the production worker was not adjacent to the welding area, being 25 to 30 feet away.   The Compliance Officer has testified that compliance can be achieved with a non-combustible flameproof screen or by the wearing of goggles. (Tr. 24.) His testimony has not been refuted.   While there may be some question as to whether a   [*6]   distance of 25 to 30 feet constitutes an employee hazard, the evidence shows that employees had access to within 6 to 10 feet of the arc welding areas.   This short distance could expose an employee to the hazard of flash burns to the eyes.

a penalty of $25.00 was proposed for item 2.   Consideration of the penalty factors set forth in Section 17(j) of the Act indicates that the possibility of injury was low.   Arc welding was not being done in the first and third booths during the inspection.   Respondent was found to be entitled to maximum credit for good faith, size of business and having no previous violations.   (Tr. 25 - 27.) Under these circumstances, the imposition of a penalty is not appropriate and the penalty is vacated.

The parties have stipulated as to corrections in the transcript.   The stipulation is appended as Exhibit C-1.

FINDINGS OF FACT

1.   The test station and the first and third welding booths are arc welding areas in respondent's workplace.

2.   Respondent's employees work adjacent to the arc welding areas in that they have access to within 6 to 10 feet of these areas.

3.   Respondent's employees are not protected from arc welding rays by non-combustible or [*7]   flameproof screens or by appropriate goggles thereby exposing them to the hazard of flash burns to the eyes.

CONCLUSION OF LAW

1.   Respondent is in violation of 29 CFR 1910.252(e)(2)(iii).

ORDER

1.   The notice of contest as to items 4, 7, 8, 14, 15, 16, 17, 18, 21 and 22 is dismissed.

2.   Pursuant to the settlement agreement:

a.   Items 1, 3 and 6 are vacated.

b.   Item 5 - that part pertaining to the Atlas Grinder No. 193 and Bench Grinder No. 296 is vacated; that part pertaining to the Black and Decker No. 20615 and Milwaukee Electric No. 883947 is affirmed.   The penalty is reduced from $30.00 to $15.00.

c.   Items 9 and 10 are affirmed.   The proposed penalties are vacated.

d.   Items 12, 19 and 20 and the proposed penalty of $25.00 for item 19 are affirmed.

e.   Item 13 is vacated because of is sufficient evidence at this time to establish the violation.

3.   Complainant's motion to withdraw item 11 and the proposed penalty therefor is granted.   Item 11 is vacated.

4.   Item 2 is affirmed.   The proposed penalty of $25.00 is vacated.

June 11, 1976

Louis J. Rubin, Judge, OSHRC