HAUSMANN SERVICE CORPORATION

OSHRC Docket No. 15880

Occupational Safety and Health Review Commission

April 18, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, USDOL

Herbert Sturm, President, Hausmann Service Corp., 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); Grane 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

Francis V. LaRuffa, Regional Solicitor, United States Department of Labor

Jithender Rao, for complainant

Herbert Sturm, President, Hausmann Service Corporation, for the respondent

Ditore, J.

PRELIMINARY STATEMENT

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter called the Act), contesting a citation for a nonserious violation of an occupational safety and health standard, issued by complainant against respondent under the authority vested in the complainant by section 9(a) of the [*3] Act (29 U.S.C. 658(a)).

The citation * alleges that as a result of an inspection on October 14, 1975, of a workplace located at 1545 Inwood Avenue, Bronx, New York, and described "wood work shop", the respondent violated section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)) by failing to comply with a occupational safety and health standard promulgated by the Secretary by publication in the Federal Register on June 27, 1975 (39 F.R. 23502) and codified in 29 CFR 1910.36(b)(8).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

* The citation contained four nonserious violations (items 1 to 4). Respondent contested item 4 and the penalties proposed for items 1, 2 and 3 (notice of contest).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The descriptin of the violation and the standard as promulgated by the Secretary are as follows:

Description

"There are no provisions for a means of egress, remote from the east wall exits, from the west part of the 1st floor wood working shop. Employees may be endangered by blocking of east wall exits by fire or smoke.

Where safety of occupants may be endangered by the [*4] blocking of any means of exit due to fire or smoke, areas shall have at least two means of exit remote from each other." (Emphasis in original)

Standard as promulgated

1910.36 General requirements

(a) . . . .

(b) Fundamental requirements

(1) . . . .

"(8) Every building or structure, section, or area thereof of such size, occupancy, and arrangement that the reasonable safety of numbers of occupants may be endangered by the blocking of any single means of egress due to fire or smoke, shall have at least two means of egress remote from each other, so arranged as to minimize any possibility that both may be blocked by any one fire or other emergency conditions."

Pursuant to the enforcement procedure set forth in section 10(a) of the Act (29 U.S.C. 659(a)), the respondent was notified by letter dated November 3, 1975, from the area director of the New York area, that the Occupational Safety and Health Administration proposed to assess the following penalties: *

Citation, item 1 - $50.00, item 2 - $50.00, item 3 - $40.00, item 4 - $110.00. The action was heard at New York, New York, on March 4, 1976.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - [*5] - - - - - - - - - - - -

* Pursuant to a settlement agreement at the opening of the hearing, the parties settled the penalty issue of items 1, 2 and 3 by reducing the penalties for these items to $35.00, $35.00 and $28.00, respectively (T. 9-12). The proposed penalty of $110.00 for item 4 and item 4 remained in issue (T. 12).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

ISSUES

1. Whether a violation of 29 CFR 1910.36(b)(8) existed at respondent's workplace on October 14, 1975.

2. If it did whether any of respondent's employees were exposed to any hazard created by the violation.

3. If they were exposed, whether respondent was responsible for the violation.

4. If respondent was responsible, whether the penalty proposed was reasonable and proper.

STATEMENT OF THE EVIDENCE

Respondent, Hausmann Service Corporation, engages in wood partition contracting and building maintenance work. Respondent maintains an office and place of business at 1545 Inwood Avenue, Bronx, New York. Respondent admits its business affects commerce (complaint, answer; T.57). *

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - [*6] - - - - -

* Reference key: T. refers to pages of hearing minutes.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Respondent's business occupies the ground floor (formerly a garage area) at 1545 Inwood Avenue. The ground floor is fire proof, consisting of concrete floors, walls and ceilings. It is 75 feet long on its east and west sides and 90 feet long on the north and south sides. The west and sough sides are adjacent to adjoining buildings, the north side is adjacenet to a sloping driveway, and the east side is the front or entrance side to the premises (T. 19-22, 75, 85).

On October 14, 1975, respondent's workplace was inspected by compliance officer Frank Wetzel who observed two exit doors 25 feet apart, at the east side of respondent's premises. One door was a designated exit door 36 inches wide. The other door was a 12-14 foot wide overhead door with a smaller 30 inch wicket door built into it (T. 19-20, 26). Entry to, or exit from, respondent's premises was either through the "exit" door or the overhead door, if opened, if closed, through the wicket door. There were no other doors leading to the outside (T. 22, 42).

Officer Wetzel [*7] stated that at an area between the doors but 15 feet west of the doors near the center of the shop, some wood and cardboard cartons were stored. The two doorways were not obstructed (T. 25, 26, 36, 54). Officer Wetzel believed the stored materials created a fire hazard and if a fire occurred, it would block free access to the two east side exit doors (T. 26-27, 35-36). He found the gravity of the alleged violation to be high and recommended an adjusted proposed penalty of $110.00 after deducting credits for size good faith, prior history and abatement (T. 29-31).

At the time of the inspection, officer Wetzel was told by Mr. Sturm, respondent's president, that respondent had seven employees, four of whom, including Mr. Sturm, were in the building at the time (T. 23).

On cross-examination officer Wetzel admitted that there was a wood partition between the "exit" door and the overhead door; that the stored wood 15 feet west of the doors, was non-combustible sheet rock; that the wood partition was made of sheet rock; that he did not remember the dimensions of the partition or how far it was from the east side doors or how deep it ran, and could not describe it; and that he did not [*8] recall another partition 5 or 6 feet from the east wall and halfway between the two doors (T. 40-42, 45, 47-50, 53, 56-57).

Herbert Sturm, respondent's president, testified that aside from himself and a woman office worker, only a shop foreman, full time, and a clean-up man, part time, were on the premises during any work day. All other employees worked outside on various jobs and came to the shop in the morning to pick up a truck and materials, which they returned at the end of the work day (T. 59, 77).

He stated that between the two east side doors but closer to the overhead door was an 8 foot high partition. The partition began at the east wall, went 5 feet west, 5 feet south, then 20 feet west in a zig-zag pattern. An office is located on the inner side of the 20 foot partition section, and 5 feet from the east wall. A passageway exits between the office's east wall and the east wall where the "exit" door is located. There is no storage of any material in this passageway. Egress to the "exit" door is either through the office or around it. The outer side of the partition is made of sheet rock, the inner of office side is masonite (T. 61-64, 67, 71, 72, 81-82; Exh. R-1, [*9] rough sketch of partition and exit door layout).

Fifteen feet from the east end of the 20 foot partition section, some sheet rock was stored. No lumber is stored in this area. Lumber is stored in bins located at the west wall of the shop (T. 65-67, 73; Exh. R-1). Aside from the office, the ground floor of respondent's workplace is an open area. There are some wood working machines near the west wall (T. 61, 78). During 20 years of business existence at this workplace, respondent experienced no fires (T. 61).

OPINION

Respondent was charged with a nonserious violation of 29 CFR 1910.36(b)(8) in that it had no means of egress at the west side of its workplace, remote from the east side's two exit doors, in the event the east side exits were blockage by fire or smoke.

The standard, a general one, requires two means of egress remote from each other if the building, or section or area thereof because of its size, occupancy and arrangement will endanger the reasonable safety of the occupants by fire or smoke blockage of any single means of egress.

Whether a building or part thereof requires two means of egre remote from each other depends on a number of undefined and undescribed [*10] subjective conditions: size and arrangement of the area, number of persons exposed or the occupant load (maximum number of persons that may be in the space at anytime), the fire protection available, the height and type of construction of the building or area, etc. (See 29 CFR 1910.36(b)(3)(b)(8) and 29 CFR 1910.37(d)(1)).

The ground floor of 1545 Inwood Avenue, respondent's workplace, is fire proof. It is 75 X 90 feet in area dimension. The area is open space except for a partitioned office. The height of the ceiling is 12 feet, the height of the partition 8 feet. The partition is made of sheet rock on its outer side and masonite on its inner or office side. Other than wood stored in bins at the west wall remote from the east exit doors, there is no combustible materials on the premises. Some sheet rock and some cardboard cartons (amount undisclosed) were stored along the outer side of the 20 foot section of sheet rock partition, 15 feet from the two east exit doors. No means of access to the east exit doors were blocked or otherwise obstructed. There is no evidence that other fire protection, i.e., fire extinguishers, if needed, were not available. The maximum number [*11] of persons in the shop during a work day was four, a woman office worker, the shop foreman, a part time clean-up employee and Mr. Sturm, respondent's president. For short and inconsequential periods of time in the morning four other employees picket up a truck and materials for outside work which they returned at the end of the day.

Considering all the above factors, specifically the fire proof nature of the workplace, the lack of any combustible materials near the means of access to the two east exit doors, the lack of any obstruction either at the east exits or along the approach to the exits, and the small occupant load (4 employees), it is found that the two unblocked east exit doors were more than sufficient for employee escape in case of fire or other emergency. Remote means of egress were not necessary. The means of access to the two exit doors was either through or around the office to the "exit" door or to the overhead door 25 feet away.

Respondent was not in violation of 29 CFR 1910.36(b)(8).

FINDINGS OF FACT

The credible evidence and the record as a whole establishes preponderant proof of the following specific findings of fact.

1. Respondent, Hausmann Service [*12] Corporation, maintains an office and place of business at 1545 Inwood Avenue, Bronx, New York.

2. Respondent is in the wood partition contracting and building service business, and admits its business affects commerce.

3. Respondent's workplace occupies the ground floor of the building at 1545 Inwood Avenue. The ground floor area is fire proof, is 75 feet at its east and west sides and 90 feet at its north and south sides. The west and sough sides are adjacent to adjoining buildings, the north side is adjacent to a sloping driveway and the east side is the front or entrance side to respondent's workplace.

4. Located at the east side are two exit doors. One is a designated exit door, 36 inches wide, the other, 25 feet south of the "exit" door, is a 14 foot wide overhead door with a 30 inch wicket door built into it.

5. Entry to, or exit from, respondent's workplace is by means of the two east side doors. There are no other doors leading in or out of the premises.

6. The interior of respondent's workplace is open space except for a partitioned-off office. The partition, made of sheet rock and masonite, begins at the east wall between the two exit doors, runs 5 feet west, [*13] 5 feet south and 20 feet west in a zig-zag pattern.

7. On October 14, 1975, fifteen feet west of the east wall, some non-combustible sheet rock and some cardboard cartons were stored next to the 20 feet partition section.

8. The two east exit doors were free from obstructions.

9. Other than wood stored in bins at the west wall, there were no combustible materials in respondent's workplace.

10. Egress to the east side "exit" door was either through the office or around it. Egress to the overhead door was from the inner area open space.

11. Except for a work crew of three or four men who arrive in the morning to pick up a truck and material for outside work which they return at the end of the work day, only a woman office worker, a shop foreman, a part time clean-up man, and respondent's president are on the premises during any work day.

12. There is no evidence that fire protection, i.e., fire extinguishers, are unavailable if needed.

13. The size and fire proof construction of the workplace the small occupant load, the lack of any combustible materials or obstructions near or at the means of egress to the two east side exit doors, and the open space nature of the premises, [*14] negated the requirement of two remote means of egress.

14. Respondent's employees were exposed to no fire or other emergency hazard by renson of the non-remoteness of its two means of egress.

CONCLUSIONS OF LAW

1. Respondent is, and at all times material herein was, engaged in a business affecting commerce within the meaning of section 3(5) of the Act (29 U.S.C. 652(5)).

2. The Occupational Safety and Health Review Commission has jurisdiction over the subject matter and parties to this action.

3. On October 14, 1975, respondent was not in nonserious violation of 29 CFR 1910.36(b)(8) for failing to have two means of egress at its workplace, remote from each other.

4. The proposed penalty for the alleged violation of 29 CFR 1910.36(b)(8) will be vacated.

ORDER

Due deliberation having been had on the whole record, it is hereby

ORDERED that the citation (item 4) for a nonserious violation of 29 CFR 1910.36(b)(8), and the $110.00 penalty proposed for the violation, are vacated, it is further

ORDERED that the settlement agreement entered into at the hearing between the parties which reduced the proposed penalties for items 1, 2 and 3 of the nonserious citation, [*15] is approved, it is further

ORDERED that the amended proposed penalties of $35.00, $35.00 and $28.00 respectively, for items 1, 2 and 3 of the nonserious citation, are affirmed.

JEROME C. DITORE, JUDGE, OSAHRC

File Date: June 1, 1976

New York, New York