BETH ISRAEL MEDICAL CENTER HOSPITAL

OSHRC Docket No. 16343

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

Richard Schoolman, 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. 3826, 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

Francis V. LaRuffa, Regional Solicitor,U.S. Department of Labor and James A. Magenheimer, for complainant

Richard Schoolman, for respondent

Fier, Judge.

PRELIMINARY STATEMENT

This is a proceeding pursuant to section 659 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter called the Act), wherein respondent, contests the citation for two nonserious violations. The citation dated December 2, 1975, was based on an inspection conducted November 26, 1975. The citation and proposed zero penalties were issued pursuant to sections 9(a) and 10(a) of the Act. [*3]

Pursuant to section 10(c) of the Act (29 U.S.C. 659(c)) respondent, through a letter dated December 22, 1975, noted its timely contest of the violations.

The citation for the alleged nonserious violations set forth the following:

CITATION NO. 1

Item

Standard

Description

1

29 CFR 1910.141(a)(4)

All sweepings, solid or liquid

waste, refuse, and garbage shall

be removed in such a manner as to

avoid creating a menace to health

i.e. odors, from garbage storage

shed entering places of employment.

Location: 16th Street side of

building 1st floor, credit and

cashiers office. 2nd floor

anesthesia dept, office.

No penalty was proposed.

2

29 CFR 1910.141(a)(5)

Every enclosed workplace shall be

so constructed, equipped, and

maintained, so far as reasonably

practicable, as to prevent the

entrance or harborage of rodents,

insects and other vermin, i.e.

Window openings adjoining garbage

storage shed.

Location: 16th Street side of

building.

1st floor credit and cashiers office

2nd floor anesthesia dept. office

No penalty was proposed.

STANDARDS AS PROMULGATED

1910.141 Sanitation.

(a) General.-(1) [*4] Scope.-This section applies to permanent places of employment.

(5) Vermin control.-Every enclosed workplace shall be so constructed, equipped, and maintained, so far as reasonably practicable, as to prevent the entrance or harborage of rodents, insects, and other vermin. A continuing and effective extermination program shall be instituted where their presence is detected.

(4) Waste disposal.-(i) Any receptacle used for putrescrible solid or liquid waste or refuse shall be so constructed that it does not leak and may be throoughly cleaned and maintained in a sanitary condition. Such a receptacle shall be equipped with a solid tightfitting cover, unless it can be maintained in a sanitary condition without a cover. This requirement does not prohibit the use of receptacles which are designed to permit the maintenance of a sanitary condition without regard to the aforementioned requirements.

(ii) All sweepings, solid or liquid wastes, refuse, and garbage shall be removed in such a manner as to avoid creating a menace to health and as often as necessary or appropriate to maintain the place of employment in a sanitary condition.

ISSUES

1. Whether the respondent violated the [*5] Occupational Safety and Health Act as alleged.

2. Whether the respondent failed to comply with section 2 C.F.R. 1910.141(a)(4), (5); if so, did it violate section 29 U.S.C. 654(a) of the Act.

3. If the respondent is shown to have violated the standards as alleged, what penalties, if any, are appropriate.

STATEMENT OF THE EVIDENCE

The respondent, through its answer, admits that it is a non-profit corporation operating a hospital in New York. It also admits that many of the materials and supplies used by it were manufactured outside of the State of New York.

On November 26, 1975, Warren Vandenhoff, a compliance officer (hereinafter referred to as C.O.) for the department of Labor, made an inspection of the respondent, Beth Israel Medical Center. (hereafter referred to as the hospital).

The inspection was made pursuant to a complaint of an unsanitary condition at the hospital affecting its employees. This included an offensive odor and the harborage of rodents, vermin and insects. The alleged affected areas were the cashier's office and the second floor anesthesia office (T. 9-13). The C.O. was accompanied during the walk around inspection by two officers of the hospital [*6] and the union delegate (T. 9, 11, 114, 83, 133).

The C.O. testified that the complaint centered around an odor that was allegedly coming from a temporary shed used to store garbage (T. 11). It was stated that the shed, which is approximately 30 X 40 feet and 9 feet high, was the cause of the alleged offensive odor (T. 12). The shed is located against a wall of the building. The cashier's office is on the other side of the wall and the anesthesia office is located on the second floor above the temporary shed (T. 13). The complaint states that the odor, insects and rodents have caused an unhealthy condition to exist in the two offices thereby affecting the employees therein. The wall surrounding the windows was described as being made of numerous cement and concrete block materials, having an overall thickness of approximately 14 inches (T. 104). The windows were described as "a two-window", which gives a designation of the strength of the glass (T. 102). The glass has a thickness of one-quarter inch (T. 102). The windows are metal framed and are kept locked with a key (T. 103).

During the course of the inspection, the C.O. testified that he observed the garbage was stored [*7] in the shed next to the building in plastic bags (T. 18). There was also an electronic deodorizer inside in operation (T. 18, Court exhibit-1). The deodorizer operates continuously. The amount of ozone emitted is adjusted to the amount of garbage in the shed (T. 124). The C.O. testified that he spoke with two or three employees who stated they experienced nausea from the odor (T. 21).

The C.O. concluded that since the windows were capable of being opened, and the shed was against the wall, the complaints of an offensive odor justified the issuance of the citation.

On cross-examination, the C.O. stated that the odor he detected in the shed was "similar to the odor you have to [from] a deodorizer in that storage shed" (T. 34). In commenting on the odor, he detected when he was in the cashier's office, the C.O. said he went over to the window where he detected an odor that was not strong. The odor was the same type detected in the storage shed (T. 34). The C.O. again identified the odor as being the same as that given off by the deodorizer in the shed (T. 35, 39).

Although the complaint talks of an offensive odor, during the period of November 10th through 26th, of 1975, the [*8] C.O. testified that he visited the hospital only on the one day (T. 38). The C.O. testified further that the violation was also issued because of the "colseness of the garbage storage area to the place of employment" (T. 40). The C.O. stated that he did not see any evidence of insects, vermin or rodents, either in the shed or in any place that he inspected (T. 41). The C.O. in reply to a question concerning the slight odor in the storage shed testified:

"Q. Would you call this an offensive odor?

A. Not when I was there . . . ." (T. 54).

Other testimony showed that although two or three employees complained of being sick from the odor, no employee had on any occasion reported any illness to the employees health unit, and no record of any time loss due to illness was attributed to the employees complaints (T. 69). The testimony of witnesses with respect to the complaint of insects coming through the windows, at the time of inspection, was unfounded (T. 60). There was testimony that some people in the office do smoke and others do have food in the office from time to time (T. 59, 63).

The respondent testified that because the hospital has a central ventilation system, the [*9] windows are supposed to be kept locked at all times through the use of a key (T. 70, 85, 86, 103). There was testimony that the windows were forced open from time to time in violation of the hospital policy (T. 108).

OPINION

The Secretary has cited the respondent for two nonserious violations with a zero penalty on both. The evidence by the Secretary alleges in the citation that the respondent has violated the standards by permitting an offensive odor, rodents, insects and vermin to come in contact with employees causing them to become ill.

The evidence shows that the only evidence of an odor was observed when the C.O. and the others on the inspection tour, went within a few inches of the windows in the cashier's office. At this point there was only a "slight" odor that resembled the odor given off by the deodorizer, and this was not considered to be offensive by the C.O. The Union respresentative was able to detect only a slight odor when he was about one foot from the window. On the basis of this finding, he concluded that there was no basis for a union grievance (T. 139). The testimony of the witnesses on both sides clearly demonstrate that there was no evidence of [*10] any insects, rodents or vermin. The testimony concerning the odor fails to establish the presence of any garbage odor. However, if there was any odor coming through the windows, it was not only slight but that of the deodorizer.

Further, the fact that the employees knew of the hospital policy for keeping the windows closed at all times was based on necessity, and in the employees own best interest. The evidence shows that some employees had, in violation of this policy, opened the windows, thereby not only did they violate the rules of the hospital, but contributed to the condition complained of. Testimony indicating that employees smoke and eat in the offices are also contributory.

Finally, the hospital's testimony showed that throughout the hospital there are other deodorizers in use to suppress any offensive odors to patient illness, such as cancer cases (T. 128). The overall policy of the hospital shows that the temporary shed was constructed to contain any garbage odors. The Fire and Sanitation Departments were previously consulted and approved of the shed. The fact that the shed is for temporary use pending the construction of more permanent buildings in the near future [*11] is also noteworthy. The hospital procedure of scrubbing the shed and disinfecting it after each garbage pickup, supports a finding that good sanitary practices are utilized by the hospital. As for the close proximity of the shed to the offices, one must not overlook the testimony of the Director of Engineering showing that the building wall is composed of 14 inches of almost solid concrete between the shed and the office. This hardly gives rise to the possibility of anything passing through the walls. If the windows were kept closed as required, then the matter would undoubtedly be resolved.

A review of the testimony and the evidence fails to show that the issuance of the citation and violations have in the slightest scintilla been justified. In fact, one wonders at the rationale used in the issuance of such nonserious alleged violations with zero penalties. There was no evidence presented which would sustain the Secretary on any of the alleged violations. Counsel, no matter how apt, should not be relied upon to make a good case out of a poor one.

FINDINGS

The credible evidence and the record as a whole establishes preponderant proof of the following facts:

1. Respondent [*12] Beth-Israel Medical Center, is a nonprofit corporation, operating a hospital in New York. It uses many materials manufactured outside of the State of New York.

2. The evidence and testimony fail to demonstrate that the complaints were supported in fact.

3. The respondent's operational procedures were sufficient to prevent the existence of the unfounded complaints in the absence of willful acts to the contrary.

4. No evidence was shown to demonstrate the presence of any harmful or offensive odor.

5. No evidence was shown to demonstrate the presence of any vermin, insects or rodents at the time of inspection.

6. No evidence was shown to demonstrate any unsanitary condition which could properly be attributed to the respondent.

CONCLUSIONS OF LAW

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

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

3. Respondent did not violate 29 U.S.C. 654(a)(2) by failing to comply with 29 CFR 1910.141(a)(4) and (5).

ORDER

Upon [*13] the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is hereby

ORDERED that:

Citation number one, items one and two are vacated.

SEYMOUR FIER, JUDGE, OSHRC

Dated: July 19, 1976

New York, New York