SIEGEL-SCOLA-TRENTO DYERS, INC.

OSHRC Docket No. 16340

Occupational Safety and Health Review Commission

April 25, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Edward W. Morris, 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 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 AND ORDER

Helen Huyler, for Complainant

Edward Morris, for Respondent

Gold, Judge

This case arose under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 659(c), and was heard on March 16, 1976 at New York City.

On December 8, 1975 Respondent was issued a nonserious citation containing seven itemized charges, for which a total penalty of $60 was proposed. Respondent contested only Item #7. All other cited items and relating portions of the proposed penalty notice became a final order of the Commission under 29 U.S.C. 659(a).

Respondent is a New York corporation, engaged [*3] in the business of dying and bleaching feathers; many of the materials and supplies used by Respondent were manufactured outside the State of New York, and Respondent is thereby engaged in a business affecting commerce (Ans., Tr. 7-8).

Item 7 alleges a violation of 29 C.F.R. 1910.212(a)(4) in that the four revolving drums in the dryer area, used for drying feathers, were not guarded by an enclosure which is interlocked with the drive mechanism so that the drums cannot revolve unless the guard enclosure is in place.

The cited standard reads:

1910.212. General Requirements for All Machines.

(a) Machine guarding - (1) Types of guarding.

* * *

(4) Barrels, containers, and drums. Revolving drums, barrels, and containers shall be guarded by an enclosure which is interlocked with the drive mechanism, so that the barrel, drum, or container cannot revolve unless the guard enclosure is in place.

A penalty of $30 was recommended by the Secretary of Labor.

29 U.S.C. 654(a)(2) requires that each employer comply with occupational safety and health standards promulgated under the Act.

Pursuant to 29 U.S.C. 666(c) an employer may be assessed a civil penalty of up to $1,000 for each [*4] nonserious violation.

Civil penalties can be imposed only after considering the size of the business of the employer, the gravity of the violation, the good faith of the employer, and the history of previous violations. 29 U.S.C. 666(i).

A compliance officer of the Department of Labor inspected Respondent's workplace on December 1, 1975 (Tr. 11). He testified that he observed four rotating drums which derived their power from a drive shaft attached to the ceiling (Tr. 13); the shaft was located over seven feet above the floor (Tr. 15).

The rotation is caused by a one and one-half inch belt (Tr. 39) which runs from a pulley on the drive shaft (Tr. 14).

The drums are made of copper mesh, with wood slats attached to wheels (Exh. R-1, Tr. 22-23, 34).

The Secretary-Treasurer of Respondent testified that all the drums are hand-made, and "it is probably a very crude system," which has been in operation since 1921 (Tr. 34). He stated that the drums, hich are used to dry feathers, rotate very slowly; that an electrician measured their speed at 25 revolutions per minute; that the drums must rotate at a slow speed because otherwise the feathers "would get into a knot" and be damaged [*5] (Tr. 34).

The cited standard requires that the drums be guarded by an enclosure interlocked with the drive mechanism so that the drums cannot revolve unless the guard enclosure is in place. The drums were not so guarded (Tr. 14, 25, 41). The compliance officer saw an employee of Respondent stop the drum rotation by forcing the belt off the pulley, reaching over his head with a stick to accomplish this (Tr. 14-15, 28) while the drums were rotating (Tr. 27-28).

The Secretary-Treasurer of Respondent thought that installation of the required enclosure would take up so much space that it would be a physical impossibility for the employees to do their work, but he admitted that he did not know how much space the enclosure would use (Tr. 39). This contention is based solely on conjecture. He also complained that the plant would have to be shut down for months while such enclosure was being installed (Tr. 36). Again, we are offered speculation without any basis in fact. In addition, he felt that the cost would be high, but admitted that he did not know what it would cost (Tr. 37). These contentions do not suffice to relieve Respondent of the responsibility of compliance. It is found [*6] that the record establishes that Respondent violated the cited standard on December 1, 1975.

The violation is of a low level of gravity. There is no evidence of any previous safety violation (Tr. 8). Respondent operates a small business, employing 18 persons (Tr. 8), and appears to be safety-conscious. Considering the criteria listed in 29 U.S.C. 666(i), a penalty of $30 is appropriate.

CONCLUSIONS OF LAW

1. Respondent is and at all times pertinent herein was engaged in a business affecting commerce, and the Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter within the contemplation of 29 U.S.C. 652 and 653(a).

2. On December 1, 1975 Respondent was in violation of 29 U.S.C. 654(a)(2) for noncompliance with 29 C.F.R. 1910.212(a)(4).

3. It is appropriate, pursuant to 29 U.S.C. 666(c) and (i), to assess a penalty of $30 for Item #7.

It is ORDERED that Item #7 of the citation and the relating portion of the proposed penalty notice be and the same are hereby affirmed. [*7]

ABRAHAM GOLD, Judge, OSAHRC

Dated: May 13, 1976

Boston, Massachusetts