JESS HOWARD ELECTRIC CO.

OSHRC Docket No. 15546

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 Kloepfer, Associate Regional Solicitor, USDOL

Tim Howard, Superintendent, Jess Howard Electric Co., 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 [*2] the significance 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

Gregory B. Taylor, for Complainant

Jesse E. Howard, pro se, for Respondent

Worcester, Judge

On October 9, 1975, pursuant to the provisions of 29 U.S.C. section 657 (section 6, The Occupational Safety and Health Act of 1970, 29 U.S.C. section 651 et seq., hereinafter called the Act), the complainant, Secretary of Labor, caused an inspection to be made of a construction site in Whitehall, Ohio, which resulted in the issuance of a Ciration on October 23, 1975 alleging violation of 29 CFR 1910.24(b) in Item 4. Items 1, 2 and 3 were not contested.

The Secretary proposed [*3] that the respondent by assessed a penalty of $30. On October 28, 1975, the respondent filed a notice of contest of Item 4 pursuant to the provisions of section 10(c) of the Act (29 U.S.C. section 659(c)). The parties stipulated the facts and submitted the case on the record.

Items 1, 2 and 3 of the Citation are not in issue. Item 4 alleges that 29 CFR 1910.24(b) had been violated in the following manner:

Failure to provide fixed stairs for access from one structure level to another where operations necessitate regular travel between levels, and for access to operating platforms, at any equipment which requires attention routinely during operations. Spiral stairways shall not be permitted except for special limited usage and secondary access situations where it is not practical to provide a conventional stairway: there was no access stairway for employees at the tool trailer. (Underlining added)

The applicable standard is as follows:

1910.24 Fixed industrial stairs.

(a) Application of requirements. This section contains specifications for the safe design and construction of fixed general industrial stairs. This classification includes interior and exterior stairs [*4] around machinery, tanks, and other equipment, and stairs leading to or from floors, platforms, or pits. This section does not apply to stairs used for fire exit purposes, to construction operations to private residences, or to articulated stairs, such as may be installed on floating roof tanks or on dock facilities, the angle of which changes with the rise and fall of the base support.

(b) Where fixed stairs are required. Fixed stairs shall be provided for access from one structure level to another where operations necessitate regular travel between levels, and for access to operating platforms at any equipment which requires attention routinely during operations. Fixed stairs shall also be provided where access to elevations is daily or at each shift for such purposes as gauging, inspection, regular maintenance, etc., where such work may expose employees to acids, caustics, gases, or other harmful substances, or for which purposes the carrying of tools or equipment by hand is normally required. (It is not the intent of this section to preclude the use of fixed ladders for access to elevated tanks, towers, and similar structures, overhead traveling cranes, etc., where [*5] the use of fixed ladders is common practice.) Spiral stairways shall not be permitted except for special limited usage and secondary access situations where it is not practical to provide a conventional stairway. Winding stairways may be installed on tanks and similar round structures where the diameter of the structure is not less than five (5) feet. (Underlining added).

It is obvious that the draftsman of this Citation was anxious to charge the respondent with failure to do something it should have done but did not know how to do it, so he extracted verbatim from 24(b) the underlined words, inserted the words "Failure to provide" in front of the quotation and added the words: "there was no access stairway for employees at the tool trailer."

The stipulated facts reveal that the "structure" was not a building. It was a mobile vehicle. For that reason an allegation of violation of a standard which requires "fixed industrial stairs" as a means of access to a "structure" cannot be sustained. Something that is fixed is not movable (Webster's New College Dictionary, Second College Edition).

Order

It is ordered that the Item No. 4 of the Citation dated October 23, 1975, and the [*6] proposed penalty of $30 be vacated.

Dated: May 18, 1976

Hyattsville, Maryland

BEN D. WORCESTER, Judge, OSAHRC