Docket No. 15364

SACO ELECTRIC INCORPORATED

OSHRC Docket No. 15364

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 Kleepfer, Associate Regional Solicitor

Steven S. Longanbach, President, Saco Electric, 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

Bruce C. Heslop, for Complainant

Steven S. Longanbach, Vice President, Saco Electric Incorporated, for Respondent

Zinn, Judge

This case began with the issuance of an OSHA citation charging respondent with a single violation of failing to require the wearing of a safety belt by an employee. The issues for decision are whether the employee's admitted failure to have and to use a safety-belt was a violation of the Occupational Safety and Health Act of 1970 (29 USC sec. 651 et seq.), chargeable to the respondent employer; and if chargeable, whether the proposed penalty [*3] of $500.00 is reasonable.

The OSHA inspection occurred on September 30, 1975. The citation was issued to Saco in October 6, 1975, charging a serious violation of 29 U.S.C. 1926.28(a). The notice of a proposed penalty of $500.00 was issued the same day.

The language of the citation describing the violation was:

"An employee working at an elevated location was not wearing appropriate Protective equipment; An employee was permitted to install electrical equipment on a structure at the edge of the grain elevator at a height of more than fifty (50) feet without a safety belt and lanyard, or other device to protect against a fall.

The respondent, filed a timely notice of contest. The complaint was filed charging the same violation as stated in the citation. The respondent answered the complaint alleging that the employee had a safety belt on the job and had been instructed to use it when required. Respondent also alleged the employee was a competent electrician with over fifteen years experience in the trade. Respondent did not deny the interstate aspects of its business, nor its status as an employer subject to the Act.

The hearing was held on March 3, 1976 in Toledo, Ohio, [*4] after due notice to the parties. No person appeared at the hearing for respondent. Efforts before the hearing began and during the hearing, to call Steven Longanbach by telephone were unsuccessful. No request has been received from the respondent to re-open the hearing.

The respondent has not acted in this case through legal counsel. All correspondence and pleadings have been signed by Steven S. Longanbach, President. The respondent's copy of the notice of hearing addressed to Longanbach was receipted for by Steven S. Longanbach and by Shirley Benham.

III

The Saco Electric employee was found and photographed (C. Ex. 1) while working on a tower-like structure of angle irons supporting a grain conveyor pipe, located high above the ground on top of a grain storage elevator. The employee was there to do electrical wiring and installing of an outdoor light fixture on this iron framework. At the time he was observed, he did not have on a safety belt. Later the OSHA inspector and the Saco employee looked in the employee's truck for safety belts and found none. The employee did not know of any safety belts to be found on the work site. (Tr. 11)

The violation is charged under [*5] the broad provision applicable to the construction industry relating to personal protective equipment and the employer's obligation to see that whatever is appropriate is worn.

29 CFR 1926.28(a)

"The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees."

Saco Electric had their man on the job without the safety-belt either on hand or in use when needed. No one has questioned the appropriateness of the safety-belt for the task being performed.

Respondent asks excuse of the violation, contending in its answer to the complaint that the man who failed to have and use the equipment was an experienced electrician who was acting contrary to their policy and who failed to use equipment which they supplied for the purpose.

The argument of the employer not being responsible for a violation by an employee once it has made equipment available and established a policy for its use arises frequently. The cases hold consistently that the employer must do more than have the equipment [*6] and a policy but must actively supervise employees use of the equipment provided to safeguard them. n1

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n1 Ryder Truck Lines Inc. v. Brennan, 497 F. 2d 230, 2 OSHC 1075 (5th Cir. 1974); Secretary v. Hoffman Const. Co., Docket No. 644 (Jan. 31, 1975) 15 OSAHRC Rep 327, 2 OSHC 1523, CCH OSHD 19, 275; Secretary v. Island Steel & Welding Ltd., Docket No. 2931, (April 21, 1975), 17 OSAHRC Rep 143, 3 OSCH 1101, CCH OSHD 17,059 & 19,545; Secretary v. Otis Elevator Co., Docket No. 1184 (Nov. 19, 1975), 3 OSHC 1736, CCH OSHD 18,739.

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The proposed penalty was arrived at by the use of the OSHA Field Operations Manual guidelines, and was detailed on a worksheet which came into evidence. (C ex 4) Due consideration was given the seriousness of the violation. In this case with a potential fall of 55 feet to the ground the seriousness was obvious. The worksheet began with a $1,000.00 base penalty and it was adjusted for good faith 20%, size of employer 10% and for a compliance history 20%. The penalty [*7] as proposed seems reasonable.

Finding of Fact and Conclusions of Law

To state formally the decision indicated in the foregoing opinion these findings and conclusions on the issues in dispute are made:

Findings of Fact

1. Respondent Saco Electric Co. on September 30, 1975, failed to require an employee to have and use a safety-belt while the employee was working under circumstances where the use of a safety-belt would have been appropriate to prevent the workman from falling such a distance as would have been likely to cause his serious injury.

2. The assessment of a penalty of $500.00 would be reasonable under the circumstances of this case to encourage respondent to reduce safety and health hazards in its business and to stimulate respondent in its efforts to institute and perfect its safety programs to provide safe and healthful working conditions for employees and to motivate respondent's future compliance with the Occupational Safety and Health Act of 1970.

From the foregoing facts and those admitted as true by the respondent's answer to the complaint the following are decided as correct stated was of the law of this case:

Conclusions of Law

1. The respondent by [*8] a failure to appear at the hearing has by reason of the sanctions of rule 62 of the Rules of Procedure of this commission (29 CFR 2200.62) waived all rights except the right to be served with a copy of the decision rendered and to request Commission review.

2. The respondent committed a serious violation of 29 CFR 1926.28(a).

3. The citation should be affirmed.

4. The penalty of $500.00 should be assessed.

ORDER

The citation is affirmed and the penalty of $500.00 is assessed against respondent.

This opinion, the findings and conclusions and order are submitted as a report of the determination made in this proceeding. (29 USC 661(i))

So ORDERED.

Date: April 15, 1976

Chicago, Illinios

Frank B. Zinn, Judge, OSHRC