BROWN-LANE COMPANY

OSHRC Docket No. 1534

Occupational Safety and Health Review Commission

October 3, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Henry F. Martin, Jr., dated February 27, 1973, is before this Commission for review pursuant to 29 U.S.C. 661(i).

Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, the Judge's decision is hereby affirmed in all respects

[The Judge's decision referred to herein follows]

MARTIN, JUDGE.: This case, which arises under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ), is properly before the undersigned upon assignment by the Occupational Safety and Health Review Commission.

A hearing was scheduled in Baton Rouge, Louisiana, on January 18, 1973, however, a notice of cancellation thereof was issued January 15, 1973, upon representation of the parties that they were finalizing a proposed settlement of the issues involved in this matter.

As a result of an inspection of Respondent's workplace at Erwinville, Louisiana, on July 31, 1972, Respondent was issued a Citation and Notification of Proposed Penalty, charging violations of the following standards:

Item [*2] No. -- Standard Violated -- Proposed Penalty

1 -- 29 CFR 1910.252(a)(2)(iv)(c) -- 0

2 -- 29 CFR 1926.350(a)(1) -- 0

3 -- 29 CFR 1926.350(a)(9) -- 0

4 -- 29 CFR 1926.451(a)(2) -- $40.00

5 -- 29 CFR 1926.451(a)(4) -- $40.00

Respondent's answer to the complaint filed herein was in the nature of a general denial, based primarily upon its contention that it was a part of the mining industry under the jurisdiction of the Bureau of Mines, rather than the Occupational Safety and Health Administration.

On February 14, 1973, a joint stipulation was submitted wherein the Complainant moved to vacate its Citation and Notification of Proposed Penalty with respect to Items 1, 2 and 3 thereof and Respondent moved to withdraw its Notice of Contest of Items 4 and 5 of the Citation and the Notification of Proposed Penalty of $40.00 for each item. Each party concurred in the motion of the opposing party.

In support of the stipulation, which will be considered as a proposed settlement agreement as permitted under Section 2200.100 of the Commission's Rules of Procedure (29 CFR 2200.100), the parties made the following representations:

It was agreed that jurisdiction in this matter is [*3] conferred upon this Commission by Section 10(c) of the Occupational Safety and Health Act of 1970.

Respondent is a wholly-owned subsidiary of Big River Industries, Inc., which is engaged in the operation of open pit clay mines and is an employer engaged in a business affecting commerce.

On the date of the inspection, July 31, 1972, Respondent was engaged in employment performed at a workplace located one mile west of Erwinville, Louisiana, and engaged in milling and processing operations carried out by Big River Industries, Inc.

On said date Respondent was engaged in the construction of additional facilities to be used in the activities being carried out by Big River Industries, Inc., and had approximately 15 employees on the job. The employees were not represented by an authorized employee representative.

Following the inspection Complainant issued to Respondent a Citation and Notification of Proposed Penalties alleging five violations of safety standards (as previously noted).

Section 4(b)(1) of the Occupational Safety and Health Act of 1970 states in part that nothing in the Act shall apply to working conditions of employees with respect to which other Federal agencies exercise [*4] statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

Section 6(a) of the Federal Metal and Nonmetallic Mine Safety Act (30 U.S.C. 721 et seq., ) authorizes the Secretary of the Interior to promulgate safety and health standards for the purpose of the protection of life, the promotion of health and safety, and the prevention of accidents in mines which are subject to said Act.

Pursuant to Section 6(a) of the aforementioned Act, the Secretary of the Interior has the authority to promulgate health and safety standards applicable to the working conditions involved in the Citation which was issued on September 1, 1972.

With respect to the working conditions involved in Items 1, 2, and 3 of the Citation, which deal with oxygen and liquid gas cylinders, the Secretary of the Interior has exercised authority by promulgating certain regulations (30 CFR 55.4-33, 30 CFR 55.16-5, and 30 CFR 55.16-6). The Secretary of the Interior has promulgated no regulations applicable to the working conditions involved in Items 4 and 5 of the Citation relating to scaffolding, guard rails and toeboards.

With regard to these two items Respondent [*5] represents that it has abated said violations and that this abatement is continuing.

Respondent further stated that it has tendered payment to the Secretary of the two $40.00 penalties as proposed in connection with Items 4 and 5 of the Citation.

Respondent further represented that it has given notice to its affected employees of the provisions of this stipulation agreement by posting a copy at the place where the Citation had been posted and that it has complied with all service and posting requirements of the Review Commission.

On the basis of the foregoing facts and the entire record, and no objection having been received from any party or person, the proposed settlement agreement is hereby approved. It is found that said stipulation is consistent with the provisions and objectives of the Occupational Safety and Health Act of 1970.

It is, therefore, ORDERED that:

1. Complainant's motion to vacate be and the same is hereby granted.

2. The Citation and Notification of Proposed Penalty relating to Items 1, 2, and 3 thereof are vacated.

3. Respondent's motion to withdraw its Notice of Contest is granted.

4. The Citation and proposed penalty of $40.00 each for Items 4 and [*6] 5 of the Citation are affirmed.