JULIUS HOCHMAN, d/b/a HOCHMAN ROOFING COMPANY

OSHRC Docket No. 15303

Occupational Safety and Health Review Commission

April 18, 1977

  [*1]  

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Julius Hochman, Hochman Roofing Company, 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 decision.    [*2]   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

EUGENE F. DESHAZO, U.S. Department of Labor, Office of the Solicitor, for the complainant

JULIUS HOCHMAN, Hochman Roofing Company, for the respondent

STATEMENT OF CASE

Vernon Riehl, Judge, OSHRC

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 contesting a citation issued by the complainant against the respondent under the authority vested in the complainant by section 9(a) of that Act.   The citation alleged that an inspection of a workplace under the operation and control of the respondent revealed the existence of workplace conditions that violated section 5(a)(2)   [*3]   of the Act for the reason that these conditions failed to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof.

The citation alleges that the violations resulted from a failure to comply with standards promulgated by publication in the Federal Register.

A description of the alleged violations contained in said citation states:

CITATION NUMBER 1, NONSERIOUS VIOLATION

Item 1, 29 CFR 1926.100(a)

Employee ground man working beneath the edge of the roof of the Artesian Ice and Cold Storage Building, 2700 Stockyard Expressway, is not provided with head protection to protect him from the danger of head injury from falling objects.

CITATION NUMBER 2, SERIOUS VIOLATION

Item 1, 29 CFR 1926.500(d)(1)

Two [2] employees installing a new roof on the Artesian Ice and Cold Storage building, 2700 Stockyard Expressway, approximately 30 feet above ground level were exposed to the hazards of unguarded open floor roof sides. (north and south ends)

During the hearing, the respondent, Mr. Hochman, made a motion that citation number 2, item 1, for serious violation of 29 CFR 1926.500(d)(1) be dismissed because [*4]   of the holding in the Langer Roofing and Sheet Metal, Inc, v. Secretary of Labor case, 524 F.2d 1337 (1975). See also Diamond Roofing Company, Inc., v. OSHRC, 528 F.2d 645, and Secretary v. Cornell Roofing and Sheet Metal Company, OSHRC Docket 8525 (Commission Decision, June i2, 1976).   This motion was sustained and citation number 2, item 1 (29 CFR 1926.500(d)(1)) and the proposed penalty was vacated.

At the time of inspection, construction mateials were found lying on the roof of the worksite close to the perimeter.   Directly under the edge of the roof, respondent's employee was working.   Respondent failed to provide this employee with a helmet to protect him from falling objects.   Accordingly, he was cited for nonserious violation of 29 CFR 1926.100(a) and a penalty of $25 was proposed.

The credible evidence establishes that an employee working beneath the edge of the roof was exposed to the danger of objects falling on him and consequent injury caused by failing to wear a hard hat.

FINDINGS OF FACT

1.   Respondent is a corporation with a principal place of business in St. Joseph, Missouri, where it is engaged in the business of construction as a roofing contractor.   [*5]  

2.   Respondent employed approximately three employees in its various business activity at the workplace inspected by the compliance officer in St. Joseph, Missouri.

3.   Respondent is engaged in a business affecting commerce.

4.   As a result of an inspection on September 25, 1975, by a compliance officer of OSHA, respondent was issued a citation for a nonserious violation, and a notification of proposed penalties on October 2, 1975, pursuant to section 9(a) of the Act.

5.   Respondent filed a timely notice of intent to contest item 1 of the citation for nonserious violation and the notification of proposed penalty therefor pursuant to section 10(c) of the Act.

6.   On September 25, 1975, at respondent's worksite in St. Joseph, Missouri, respondent failed to provide the groundman working beneath the edge of the roof of the Artesian Ice and Cold Storage Building (an area where there was a possible danger of head injury from falling or flying objects) with a protective helmet, in violation of 29 CFR 1926.100(a).   At least one of respondent employees was affected by this violation.   An abatement of "immediately upon receipt of the citation" was fixed for this violation.   The penalty [*6]   proposed for the violation was $25, and is appropriate considering the credible evidence of record.

7.   The hazard created by failing to provide the employee, working beneath the edge of the roof, a protective helmet is that objects can be dropped from above which could strike the employee on the head causing injury.

8.   In determining the amount of the penalty proposed, due consideration was given to the size of the business of the respondent, the gravity of the violation, the good faith of the respondent and the history of previous violations as required by section 17(j) of the Act.   The abatement period fixed was the shortest possible time in which it was believed abatement could be reasonably accomplished.

CONCLUSIONS OF LAW

1.   Respondent is an employer within the meaning of the Act.

2.   Jurisdiction of the parties and the subject matter herein is conferred upon the Occupational Safety and Health Review Commission by Section 10(c) of the Act, and the citations were issued in accordance with Section 9(a) of the Act.

3.   Respondent is not in violation of 29 CFR 1926.500(d)(1) as set forth in citation 2, item 1, serious violation.

4.   Respondent violated section 5(a)(2)   [*7]   of the Occupational Safety and Health Act by violating the occupational safety and health standards (29 CFR 1926) as alleged in the citation for nonserious violation.

5.   The penalty proposed for the nonserious violation was appropriate considering the gravity of the violation, the size of respondent's business, the good faith of the respondent, and the respondent's history of previous violations.

DECISION

Based upon the above findings of fact and conclusion of law, it is hereby ORDERED:

1.   The citation for nonserious violation and the notification of proposed penalty issued to respondent be affirmed.

2.   Citation number 2, item 1, (serious violation) together with the proposed penalty is hereby vacated.

Vernon Riehl, Judge, OSHRC

Date: July 22, 1976