REQUEST RECORDS, INC.

OSHRC Docket No. 15657

Occupational Safety and Health Review Commission

April 11, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Reg. Sol., USDOL

H. J. Legsfelder, President, Request Records, 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 of [*2] 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.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

All of these items should be vacated because the citation was not issued with reasonable promptness as required by 29 U.S.C. 658(a). Secretary v. Jack Conie & Sons Corp., OSAHRC Docket No. 6794, June 25, 1976. Moreover, Judge Alfieri erred in affirming the 29 C.F.R. 1910. 25(d)(1)(x) charge because complainant failed to establish that respondent's employees were actually exposed to any hazard resulting from the unmarked defective labels. See Secretary v. Gilles & Cotting, Inc., OSAHRC Docket No. 504, February 20, 1976 (dissenting opinion).

Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges. Since my colleagues do not address any of the matters covered in Judge Alfieri's decision, his decision [*3] is attached hereto as Appendix A so that the law in this case may be known.

APPENDIX A

DECISION AND ORDER

Francis V. LaRuffa, Regional Solicitor, United States Department of Labor and Barnett Silverstein, for complainant

H. J. Lengsfelder, Pres., Request Records, Inc., pro se, For Respondent

Alfieri, Judge.

STATEMENT OF THE CASE

This is a proceeding under section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) contesting an other than serious citation issued on November 3, 1975 by the complainant against the respondent under the authority vested in the complainant by section 9(a) of the Act (29 U.S.C. 658(a)).

The citation alleges that an inspection made on October 9, 1975, of respondent's workplace, located at 66 Memorial Highway, New Richelle, New York, disclosed that respondent violated section 5(a)(2) of the Act (29 U.S.C. 654(a)) because it failed to comply with occupational safety and health standards promulgated by the Secretary under section 6 of the Act (29 U.S.C. 655) and codified in 29 C.F.R. 1910.25(d)(1)(x), 29 C.F.R. 1910.37(q)(1) and 29 C.F.R. 1910.176(b).

The standards allegedly violated and descriptions of the [*4] alleged violations set forth in the single citation issued follow:

Item number 1

The alleged violation reads:

"A single section wood ladder was poorly spliced at the upper end, with two loose rungs at the top. Ladders shall be inspected frequently and defective ladders shall be removed from service and destroyed or repaired. (First floor, store room, southeast area)."

The cited standard 29 C.F.R. 1910.25(d)(1)(x) provides:

(d) Care and use of ladders.

(1) Care. To insure safety and service-ability the following precautions on the care of ladders shall be observed:

* * *

(x) Ladders shall be inspected frequently and those which have developed defects shall be withdrawn from service or repair or destruction and tagged or marked as "Dangerous, Do Not Use."

The violation was to be abated by November 13, 1975 and the proposed penalty is $50.00.

Item number 2

The alleged violation reads:

"Access to exitway is not readily discernible. Access to exits shall be marked by plainly visible signs where the path of exit travel is not immediately apparent. (First floor, on east side of doorway at south end of wall between east and west storage areas)."

The cited standard [*5] 29 C.F.R. 1910.37(q)(1) provides:

(q) Exit marking.

"Exits shall be marked by a readily visible sign. Access to exits shall be marked by readily visible signs in all cases where the exit or way to reach it is not immediately visible to the occupants."

The violation was to be abated immediately. Zero penalty was proposed.

Item number 3

The alleged violation is described as follows:

"Cartons of phonograph records stacked haphazardly, in danger of collapse or falling over. Cartons stored in tiers shall be stacked, blocked, interlocked and limited in height so as to be stable and secure against collapse. (First floor, west storage area, south end)."

The standard 29 C.F.R. 1910.176(b) provides:

(b) Secure storage.

"Storage of material shall not create a hazard. Bags, containers, bundles, etc., stored in tiers shall be stacked, blocked, interlocked and limited in height so that they are stable and secure against sliding or collapse."

Immediate abatement was called for. Zero penalty was proposed.

On November 5, 1975, the respondent filed its notice of contest. Thereafter a complaint was filed. Respondent's answer was in letter form.

ISSUES

1. Whether respondent [*6] violated the standards set forth at 29 C.F.R. 1910.25(d)(1)(x), 29 C.F.R. 1910.37(q), and 29 C.F.R. 1910.176(b).

2. If respondent did violate any or all of the cited standards, are the proposed penalties appropriate.

THE EVIDENCE

The complainant offered the testimony of its compliance officer, John J. Daly, who testified that he conducted the inspection on October 9, 1975. He related that the respondent, an employer of three persons, occupied the first and second floors of the two-story building. The first floor consists of two rooms, designated as east and west by the witness, used for storage of phonograph records. They were connected by an archway. On the second floor was an office and a storage room for tapes.

In the east storage room, the compliance officer observed phonograph records stacked on shelves that were 8 to 10 feet high. In the room he also saw a wooden ladder with 2 loose rungs at the top and a split side rail mended by wooden cleats. He described the cleats as poorly fastened and the ladder as weak and flexible. The ladder was not tied to prevent its use. It was brought out on cross-examination of compliance officer Daly, that he was told by respondent's [*7] secretary that the wooden ladder was to be discarded and that he, Daly, did see the stock clerk in the west storage room using a new metal ladder that was on rollers.

The compliance officer said the hazard was that because of the availability of the defective wooden ladder for use, an employee using it could suffer injuries to the lower extremities from a fall.

Concerning item number 2 of the citation, the compliance officer said he observed that the exits for the first floor were not immediately seen from the first floor stairway landing. There was no marking over the archway between the storage rooms to indicate that it was the access to the first floor exit. Anyone coming down the stairway from the second floor would not be able to immediately determine the direction of the exit. The hazard, he said, is exposure to toxic fumes that the phonograph records and their vinyl chloride dust jackets would give off in a fire.

With respect to the third item of the citation, the compliance officer while inspecting the west storage room saw a stack of boxed phonograph records piled about 5 feet high. The stack, adjacent to an aisle of passage used by employees, was not interlocked or [*8] supported and was leaning towards the aisle. The hazard was stated to be the injury to an employee's foot or leg from a falling box of records estimated to weigh about 15 lbs.

In arriving at a proposed penalty, the compliance officer gave consideration to the size, history and good faith of the respondent. A $50.00 penalty was proposed for item number 1 and zero penalty for items numbered 2 and 3.

H. J. Lengsfelder, president of the respondent corporation, gave testimony in its behalf. He acknowledged that the ladder was in disrepair; described it as not being able to stand up and concluded that it therefore could not be used by the stock clerk. He said that the ladder, which respondent had for about one year, was never used, having been replaced by the new metal one. He blamed the poor municipal garbage collection for the ladder still being on the premises. He further testified that the area of the room where the compliance officer observed the ladder was where refuse was placed while waiting to be taken away by the municipality.

Concerning the stack of records on the floor in the west storage room, Mr. Lengsfelder testified that they were there temporarily while waiting [*9] for the carrier to take them away.

DISCUSSION

The respondent timely filed its answer denying specific paragraphs of the complaint. Paragraph III of the complaint, which alleges facts of interstate commerce was not denied. Under Rule 33(b) of the Review Commission's Rules of Procedure allegations in the complaint which are not denied in the answer are deemed admitted. Accordingly, I find that the respondent is engaged in commerce and that the Commission has jurisdiction.

The complainant's evidence establishes that the ladder, as alleged in item number 1, was defective. That is not disputed by the respondent. Neither is there any question about respondent's knowledge. However, respondent asserts that the ladder was discarded and was never used by its employees. We are confronted then with the question of accessibility of the defective equipment. Its resolution turns on what measures, if any, did the respondent take to make the defective equipment not accessible to its employees. The evidence shows the respondent allowed the ladder to remain in the storage room where phonograph records were placed on shelves 8 to 10 feet high. It was adjacent to the shelves. Respondent [*10] has not come forward with evidence to establish that the ladder was either tagged or marked in any way that would alert or caution its employees that it was dangerous and should not be used. The record is devoid of evidence showing any positive steps that were taken by respondent to deny its employees access to the defective ladder. The respondent's reliance upon a showing that a new ladder was purchased is misplaced. The old ladder was still available for use. The respondent's statement that poor municipal refuse collection is the reason why the ladder was still on the premises is cast in doubt by the admission that the ladder has been in the stock room for about one year. Accordingly, the complaint has sustained the burden of showing that the defective ladder was accessible to the respondent's employees. Secretary v. Gilles & Cotting, Inc., Docket No. 504 (February 20, 1976); Secretary v. Allied Electric Company, 1 OSAHRC 441 (1972).

Directing our attention to item number 2 of the citation, the alleged absence of an exit sign, respondent offered no proof to the contrary. Its defense that an exit sign was put up immediately reflects only on its good faith. [*11] The violation has been established.

With respect to the third and last item of the citation, the uncontradicted evidence proves the boxes of records were, as alleged, stacked in a manner that was in violation of the cited standard, 29 C.F.R. 176(b).

Respondent's contention that the boxes were to be taken away by a carrier company within a few hours does not lessen the hazardous condition. One of the purposes of the Act is to avoid injuries. Ryder Truck Lines v. Brennan, 497 F. 2d 230, 233 (10th cir. 1975). Similarly the intent of the Act is to prevent the first accident. Lee Way Motor Freight, Inc., v. Secretary of Labor, 511 F. 2d 864, 870 (10th cir. 1975).

Considering the entire record, it is clear that the respondent's employees had access to the established violative conditions and equipment.

There remains for disposition, the appropriateness of the proposed penalties. It is obvious that respondent is in good faith. Respondent has not previously been cited by the complainant for safety and health violations. It is indeed a small employer which abated the hazards. In considering penalties under section 17(j) of the Act (29 U.S.C. 666(i)), the achievement [*12] of a just result in each case is the standard by which the Commission's deliberations must be guided. Secretary v. Nacirema Operating Co., 1 OSAHRC 33, 39 (1972). Led by these considerations, I am of the opinion that the proposal that no penalty be assessed for either items numbered 1 or 2 of the citation is acceptable and proper. However, the proposed penalty of $50.00 for item number 3 of the citation is inappropriate and should be reduced.

Having heard the testimony and observed the demeanor of the witness, and having considered the same, together with the citations, notification of proposed penalty, notice of contest, pleadings, representations, stipulations and admissions of the parties, it is concluded that the preponderance of evidence, on the entire record, supports the following:

FINDINGS OF FACT

1. The respondent, Request Records, Inc., a corporation doing business in the State of New York, is an employer maintaining an office and place of business at 66 Memorial Highway, New Rochelle, New York.

2. The respondent at all times material hereto was engaged in business affecting commerce within the meaning of section 3(5) of the Act (29 U.S.C. 652.(5)). [*13]

3. The wooden ladder located in the east storage room was defective and was accessible to respondent's employees.

4. Access to the exitway was not marked by a sign over the archway between the storage rooms on the first floor.

5. In the west storage room, a stack of boxed records about 5 feet high was leaning towards a passage way used by respondent's employees exposing them to the hazard of injuries from falling boxes.

CONCLUSIONS OF LAW

1. Respondent on October 9, 1975, was in violation of section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)) by failing to comply with 29 C.F.R. 1910.25(d)1)(x).

2. Respondent on October 9, 1975, was in violation of section 5(a)(2) of the Act by failing to comply with 29 C.F.R. 1910.37(q)(1).

3. Respondent on October 9, 1975, was in violation of section 5(a)(z) of the Act (29 U.S.C. 654(a)(z) by failing to comply with 29 C.F.R. 1910.176(b).

The citation and items 1, 2 and 3 thereof, are affirmed. The penalty assessed for item number 3 is $5.00. No penalties are assessed for items numbered 2 and 3.

SO ORDERED:

EDWARD V. ALFIERI, JUDGE, OSHRC

Dated: June 29, 1976 [*14]

New York, New York