R.L. DIXON, INC.  

OSHRC Docket No. 15523

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

Marshall H. Harris, Regional Solicitor, USDOL

R. L. Dixon, R.L. Dixon, 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 review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance of an unreviewed   [*2]   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

USHER, Judge:

This is a proceeding initiated by the Secretary of Labor, United States Department of Labor, pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.) hereinafter referred to as the Act, seeking the affirmance by the Commission of a citation for two "non-serious" violations of Section 5(a)(2) of the Act and seeking further to have the Commission assess a penalty of $35.

The citation, issued by Complainant's agent on October 20, 1975, at the result of an inspection of Respondent's worksite in Richmond, Virginia, on September 19, contained [*3]   the following charges:

There was no one available at the worksite who had a valid certificate in first-aid training from the American Red Cross, or equivalent training that can be verified by documentary evidence. (29 CFR 1926.50(c)); and The circuit breakers located in the breaker panel near the northeast corner of the building were not marked to indicate their purpose.   (29 CFR 1926.402(c)(1)).

On October 24, 1975, Respondent filed the requisite notice of contest and Complainant filed a complaint on November 17.   Respondent's answer to the complaint, docketed by the Commission on November 25 incorporated the notice of contest as a part thereof and contained lengthy explanatory denials of the alleged violations.

The matter was scheduled for hearing at Richmond, Virginia, on January 27, 1976; However, by letter, dated January 20, Respondent advised that it waived its right to a hearing and ". . . respectfully request[ed] a decision on the basis of previously offered correspondence . . ." because it was felt that it had "accurately stated [its] position and would have nothing further to add . . . ."

An order was issued by the undersigned on January 23 requiring Complainant to   [*4]   file his objection (if any he had) to Respondent's motion for decision on the pleadings within 10 days and allowing the parties 20 days to state their respective positions, by affidavit or otherwise, with respect to the issues herein (Commission Rules 36 and 66(k); Rules 12(c) and 56, Federal Rules of Civil Procedure).   Complainant did not respond to that Order.

In its answer to the complaint Respondent admitted the Commission's jurisdiction, admitted its engagement in a business affecting commerce, and admitted the fact that it is subject to the requirements of the Act.   Other procedural averments were admitted, but the alleged violative acts were specifically denied, and detailed reasons for the denials were set forth.

DISCUSSION

The regulation promulgated pursuant to Section 6 of the Act and codified at 29 CFR 1926.50(c) provides:

In the absence of an infirmary, clinic, hospital, or physician, that is reasonably accessible in terms of time and distance to the worksite, which is available for the treatment of injured employees, a person who has a valid certificate in first-aid training from the U.S. Bureau of Mines, the American Red Cross, or equivalent training that can   [*5]   be verified by documentary evidence, shall be available at the worksite to render first aid.

Respondent has asserted that there is a medical clinic, two hospitals, and a rescue squad "within five minutes" of the jobsite, and that the rescue squad phone number is posted near the telephone on the jobsite.

The regulation set forth at 29 CFR 1926.402(c)(1) requires that:

Each disconnecting means for motors and appliances, and each service feeder or branch circuit at the point where it originates, shall be legible marked to indicate its purpose unless located and arranged so the purpose is evident.

Respondent has stated that the circuit breakers were initially marked as required at the time of their installation. The electrical inspector had approved the installation and had authorized the power company to connect it.   Respondent opined that vandals removed the markings -- without Respondent's knowledge -- prior to the inspection by Complainant's agent.

It is further alleged by Respondent that the circuit breakers referred to controlled three receptacles located directly below the panelboard (within 12 inches) and also controlled power to a construction trailer located within 12 feet [*6]   from the panel.   It is thus averred that the purpose of the circuit breakers was quite evident because of their close proximity to the equipment controlled.

Complainant has not seen fit to rebut -- or to reply in any manner to -- Respondent's defensive assertions.   Those uncontroverted assertions thus become fact for the purpose of these proceedings.

Inasmuch as a medical clinic, two hospitals, and a rescue squad were located within a five-minute distance of the jobsite in question, Regulation 1926.50(c) does not require the availability at the worksite of one who possesses a valid first-aid certificate. Medical facilities within a distance that can be traveled in five minutes are clearly "reasonably accessible."

Assuming that the circuit breakers were not legibly marked to indicate their purpose at the time of the inspection by Complainant's representative -- a fact not disputed by Respondent -- their close proximity to the only equipment which could be fed by current therefrom rendered their purpose evident, and markings as specified in Regulation 1926.402(c)(1) were not required.

FINDINGS OF FACT

1.   Respondent, a Virginia corporation, has employees and receives materials [*7]   and supplies from extra-State sources;

2.   Respondent maintained a worksite at Gayton Road and Patterson Avenue, Richmond, Virginia, on September 19, 1975;

3.   One or more hospitals and/or medical clinics were located so as to be reasonably accessible to the aforementioned worksite;

4.   Circuit breakers located in a breaker panel near the northeast corner of the building at the aforementioned worksite were so located that their purpose was evident from their location and arrangement.

CONCLUSIONS OF LAW

1.   Jurisdiction is conferred upon the Occupational Safety and Health Review Commission by Section 10(c) of the Act;

2.   Respondent is an employer having employees and is engaged in a business affecting commerce, in accordance with the provisions of Sections 3(5) and 3(6) of the Act, and it is thus subject to the requirements of Section 5 of the Act;

3.   Respondent has not violated the provisions of the Regulations duly promulgated pursuant to Section 6 of the Act as codified at 29 CFR 1926.50(c) and 29 CFR 1926.402(c)(1).

ORDER

The citation issued to Respondent by Complainant's representative on October 20, 1975, as the result of an inspection of Respondent's worksite [*8]   on September 19, 1975, is hereby VACATED; and the Notification of Proposed Penalty, issued on October 20, 1975, is likewise VACATED.

Dated: March 25, 1975

Hyattsville, Maryland

BENJAMIN G. USHER, Judge, OSAHRC