LIMBACH COMPANY

OSHRC Docket No. 16324

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

Harold J. Engel, Asst. Counsel For Regional Litigation, USDOL

John A. Alogna, Limbach Company, 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, 1676, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.

APPENDIX A

DECISION AND ORDER

Chodes, Judge:

STATEMENT OF THE CASE

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 659) in which the respondent is contesting a citation issued by the complainant under the authority vested by section 9(a) of the Act (29 U.S.C. 658(a)). The citation alleged that following an inspection on December 3, 1975, of a place of employment located at 13th Street and Washington Drive on the Mall, Washingon, D.C., the respondent allegedly violated section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)) by failing to comply with [*3] the standard set forth at 29 C.F.R. 1926.500(e)(1)(iv). n1

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n1 The standard provides:

(e) Stairway railings and guards. (1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified below, the width of the stair to be measured clear of all obstructions except handrails:

* * *

(iv) On stairways more than 44 inches wide but less than 88 inches wide, one handrail on each enclosed side and one stair railing on each open side;

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The matter is before the undersigned on cross motions for summary judgment which are supported by affidavits and briefs.

The facts alleged in the citation, namely that respondent failed to equip a flight of stairs leading from the ground to the entrance to a trailer with a stair railing on the descending left open side is admitted by the respondent. Respondent also admitted that the stairs were used by its employees on the date of inspection. The penalty proposed by the complainant of $40 was accepted by the respondent [*4] as being reasonable in the event the citation is affirmed.

Respondent argues that a technical violation of the standard is not a sufficient support for the citation. It is contended that because the width of the stairs was 59-1/2 inches and there was a 4-foot-high storage box alongside the opensided stairs, n2 the absence of a railing did not create a hazard because it was impossible for men or supplies to have fallen from the stairs. Admittedly the width of the stairs could minimize the hazard of falling, but it would not elminate the possibility that an accident could occur. Similarly, the presence of the storage box could reduce the severity of an injury resulting from a fall but would not prevent a fall. The hazard contemplated by the standard is expressed in 29 C.F.R. 1926.500(a) as the danger of employees or materials falling from the opensided stairways. The admitted facts support a finding that the hazard is present in the instant case. This finding is consistent with the decision in Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864 (10th Cir. 1974) cited by the respondent.

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n2 The affidavit of the compliance officer states that the storage box was not present during his inspection.

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Respondent further argues that the abatement of the violation is a greater hazard than that created by the absence of a railing. Originally the stairs were constructed with only one railing to permit materials to be carried in and out through the trailer door. Another railing, which was erected after the inspection, made it impossible to open the door more than 90 degrees as opposed to a 180 degree angle previously, and the door could not be latched to the trailer. This created the hazard that employees could be struck by the door when a strong wind blows it shut, and additionally, there is the danger of stumbling or falling while trying to maneuver materials through the narrowed entrance. n3

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n3 The affidavit of the compliance officer points out that the width of the entrance remains the same whether the door is held at a 90 or 180 degree angle.

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The argument is predicated on the assumption that the means adopted by the respondent to abate the violations are the only ways in which compliance with the standard could be accomplished. The affidavit of the compliance officer suggests that respondent could have constructed a platform at the top of stairs which would permit the trailer door to swing 180 degrees. Or, respondent could have secured sleeves along the risers to provide a portable stair-railing which could be removed and then replaced when it was necessary to swing the door to a 180 degree angle. Suffice it to say that it is not necessary that the complainant establish the exact method the respondent must utilize to comply with the standard. As was said in Secretary v. Buckeye Industries, Docket No. 8454 (December 22, 1975) "[a]n employer's own ability and that of industry may be relied on to devise suitable ways to conform to the requirements of the standard".

CONCLUSIONS OF LAW

1. The respondent at all times material hereto was engaged in business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.

2. The respondent [*7] at all times material hereto was subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder, and the Commission has jurisdiction of the parties and of the subject matter herein.

3. Respondent violated the occupational safety and health standard set forth at 29 C.F.R. 1926.500(e)(1)(iv) and is assessed a penalty of $40.

ORDER

Upon the basis of the foregoing and upon the entire record, it is

ORDERED that the citation issued on December 10, 1975, for violation of the standard set forth at 29 C.F.R. 1926.500(e)(1)(iv) is affirmed and a penalty of $40 is assessed.

JOSEPH CHODES, Judge, OSAHRC

Dated: May 5, 1976

Hyattsville, Maryland