COMMAND TRUCKING & WAREHOUSE CORP.

OSHRC Docket No. 16355

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

Abel Just, 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 (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I would affirm items 8 and 10 of the notification of failure to correct prior violations for the reasons stated in Judge's Alfieri's decision, which is attached hereto as Appendix A. I would vacate item 4b of the notice because the noncompliant working conditions alleged therein were regulated by a lawful United States Customs Service regulation published at 19 C.F.R. 19.4(c), and therefore were not subject to the jurisdiction of the Occupational Safety and Health Act of 1970 by virtue of 29 U.S.C. 653(b)(1). Secretary v. Mushroom Transportation Company, Inc., 5 OSAHRC 64 (1973). Moreover, since the employees exposed to any hazards resulting from those conditions were under the direction and control of the Customs Service, respondent cannot be held responsible for them. See Secretary v. Bayside Pipe Coaters, Inc., 11 OSAHRC 751, 753 (1974). n1 Furthermore, I would vacate item 9 of the notice because the incorporation by [*3] reference of the National Electric Code, NFPA 70-1971, in 29 C.F.R. 1910.309, the standard cited in this item, fails to comport with the reasonable availability requirements of the Administrative Procedure Act. See Secretary v. Leader Evaporator, Inc., OSAHRC Docket No. 5225, June 10, 1976 (dissenting opinion).

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n1 Also, see my dissenting opinions in Secretary v. Gordon Construction Company, OSAHRC Docket No. 7390, August 10, 1976; Secretary v. Lidstrom, Inc., OSAHRC Docket No. 3433, March 30, 1976; and Secretary v. Weicker Transfer and Storage Company, 15 OSAHRC 80, 82 (1975).

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Finally 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.

APPENDIX A

DECISION AND ORDER

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor [*4] and Rudolph E. DeMeo, for complainant

Abel Just, for respondent

Alfieri, Judge.

STATEMENT OF THE CASE

This is a proceeding under section 10(c), of the Occupational Safety and Health Act (29 U.S.C. 651 et seq.) contesting a notification of failure to correct alleged violation and of proposed additional penalty issued 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 violations are nonserious.

BACKGROUND

On September 9, 1975, the complainant conducted an inspection of the respondent's place of business, 91 Moultrie Street and 134 Morgan Avenue, Brooklyn, New York. Based on that inspection the complainant, on October 1, 1975, issued a citation which alleged the respondent violated section 5(a)(2) of the Act because it failed to comply with certain occupational safety and health standards. The citation set forth ten separately numbered and described items and was accompanied by a notice of proposed penalties. Respondent did not contest the citation issued October 1, 1975, nor the proposed penalties. They became a final order of the Commission. Section 10(a) of the Act [*5] (29 U.S.C. 659(a)). The penalties were paid.

On December 1, 1975, based upon a reinspection conducted on November 19, 1975, a notification of failure to correct prior violations and of proposed additional penalties was served on the respondent. It reads as follows:

No. of

Prop.

Prop.

Prev.

Prop. Total

Days

Daily

Total

Allowed

Add'l Penalty

Citation

Failed to

Add'l

Daily Add'l

Abatement

for Failure

& Item No.

Correct

Penalty

Penalty

Credit

to Correct

1 - 4

7

$74.75

$490.00

$31.00

$ 520.00

1 - 8

7

65.00

455.00

27.00

480.00

1 - 9

7

65.00

455.00

27.00

480.00

1 - 10

7

75.00

455.00

27.00

480.00

Total

$1,960.00

On December 17, 1975, the respondent filed a timely notice contesting the proposed additional penalties.

In its answer the respondent admits it is a corporation doing business in the State of New York and that it is in a business affecting commerce within the meaning of the Act. It further states that all violative conditions have been abated except that because of a conflict with a United States Customs Service regulation it has not provided free and unobstructed egrees through the exit door to Morgan Avenue. n1

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n1 Item 4(b) of the citation.

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ISSUES

1. Whether the violation of 29 C.F.R. 1910.36(b)(4), Item number 4(b) of the citation, charged against the respondent is excluded from jurisdiction of the complainant by virtue of section 4(b)(1) of the Act (29 U.S.C. 653(b)(1)) which in pertinent part provides:

"Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies * * * exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health."

2. If the violation of 29 C.F.R. 1910.36(b)(4) is not excluded from jurisdiction whether the proposed additional penalty for failure to abate the violative condition is appropriate.

3. Whether the proposed additional penalties for failure to abate the violations described in items numbered 8(b), 9, and 10 of the citation are appropriate.

SUMMARY OF THE EVIDENCE

Henry Lauten, the complainant's compliance officer testified that on November 19, 1975, he reinspected respondent's [*7] workplaces; the trucking area located at 91 Moultrie Street and the bonded warehouse located at 134 Morgan Avenue. Both sites are in Brooklyn, New York.

At 91 Moultrie Street he observed that the respondent failed to correct the violative condition described in item number 8(b) of the citation, i.e., the hole in the floor of the passageway leading to the platform behind the office. Respondent's general manager, Louis Notaro, testified that this condition was corrected but was unable to state whether the work was done before or after the reinspection by Lauten (Tr. 61-62).

Lauten said that the portable battery charger, the subject of item number 9 of the citation, was still on the premises. His inspection showed it still had a 2-prong plug (Tr. 23). On cross-examination he said he was told by "Mr. Coti", n2 who accompanied him on the inspection, that the equipment was no longer in use (Tr. 49, 50). Notaro's testimony was that the battery charger was in disrepair since "Before Christmas time, I think, or a little after Christmas" (Tr. 65). He did not know if it was out of order before the inspection (Tr. 65).

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n2 When the witness refers to "Mr. Coti" he is speaking of Mr. Coticchio.

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Concerning item number 10 of the citation, the reinspection, according to Lauten's testimony, showed the pulleys and V-belt driver of the compressor, 7 feet or less from the floor, were still without a proper guard (Tr. 24). Notaro said the compressor was fenced in and further it is no longer at 91 Moultrie Street (Tr. 62, 63).

When Lauten completed the inspection at Moultrie Street he went to respondent's warehouse at 134 Morgan Avenue to reinspect as to item number 4(a) and (b) of the citation. Mr. Padavano, the respondent's Vice President (Tr. 45), who accompanied Lauten on this reinspection, told him that the exit doors, which are the subject of the item, were located in the area rented n3 to the United States Customs Service for storage (Tr. 26, 27). Entering the Customs' area, Lauten found that the exit door leading to Morgan Avenue, the subject of item number 4(b), was still locked. A diagram drawn by Lauten showing the separation of the Customs' area from the trucking area and the location of the [*9] locked door was placed in evidence (Exh. C-7). Lauten saw employees in the area (Tr. 27) who possibly were Customs' workers (Tr. 52).

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n3 There is no evidence to support this.

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In determining the proposed additional penalties, compliance officer Lauten described how the adjustments were computed to arrive at the additional amounts (Exh. C-6). He also pointed out that the original proposed penalties and those for failure to abate were based on the criteria of respondent's size, good faith and history. He said that although 16 days had expired since the required abatement date, the computations were based on 7 days.

Concerning item number 4(b) of the citation, respondent's general manager, Louis Notaro, testified that the door leading to Morgan Avenue was in the area of the building that was leased n4 by the United States Customs Service as a bonded warehouse. He explained that the Morgan Avenue exit and others were locked by the Customs Service; all the locks were installed by the Service (Tr. 66); that a customs' [*10] employee was stationed at the warehouse and he alone had the keys to the lock on the Morgan Avenue exit door and other locks (Tr. 60, 69-70).

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n4 ibid

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DISCUSSION

Under section 10(c) (29 U.S.C. 659(c)) of the Act, it is provided that "Upon a showing by an employer of a good faith effort to comply with abatement requirements of a citation, and that abatement has not been completed because of factors beyond his reasonable control, the Secretary [sic], after an opportunity for a hearing as provided in this subsection, shall issue an order affirming or modifying the abatement requirements in such citation." Section 17(j) (29 U.S.C. 666(i)) of the Act places with this Commission authority to assess all civil penalties provided in section 17 of the Act, giving due consideration to the appropriateness of the penalty with respect to the size of the employer charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

It is undisputed that there was no contest to the [*11] original citation and that there was a second inspection after November 3, 1975, the scheduled abatement date. Neither is it seriously disputed that the reinspection of respondent's workplaces on September 25, 1975, disclosed a failure to abate, within the prescribed time, four of the ten violative conditions for which it was previously cited.

Respondent's case is barren of any evidence showing that with respect to two of the four unabated violative conditions, items numbered 8(b) and 9, it has sought within the abatement date to meet the statutory requirement of a good faith effort to abate and has been unable to abate for factors beyond its control. Section 10(c) of the Act (29 U.S.C. 659(c)). However, it does appear that subsequent to the prescribed abatement date that the hole in the passageway, item number 8(b), has been corrected. The respondent's contention that the portable battery charger, item number 9, is in dasrepair and no longer in use is credible.

Turning to item number 10 of the citation, the evidence supports the finding that respondent did make a good faith effort to abate. A reading of the initial citation shows that the respondent was cited for having [*12] "no guard" on the compressor (Exh. C-1, p. 3). Respondent in its pleadings states that it had the compressor enclosed with a chain link fence which the compliance officer said was not a proper guard. n5 Notaro, respondent's general manager, testified that the compressor was fenced in (Tr. 62, 63). Respondent's effort to abate the violative condition is supported by compliance officer Lauten's testimony that "the pulleys and V-belt on the air compressor were not properly guarded" (Tr. 24). Although the respondent did not satisfy the machine guarding requirement of the standard 29 C.F.R. 1910.219(d)(1), its action is ample demonstration of a good faith effort to comply

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n5 Respondent's answer.

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We consider next respondent's posture with respect to item number 4(b) of the citation. Where, as here, there is a failure to abate, the absence of the violation alleged in the initial citation may be raised as a defense. Thus, respondent may rebut complainant's prima facie case by showing, among other defenses, that [*13] the citation in unenforceable. Secretary v. York Metal Finishing Co., 7 OSAHRC 845, 8456 (1974); petition for review dismissed, No. 74-1554 (3rd Cir. 1974); Secretary v. B.W. Harrison Lumber Co., No. 2200 (4-14-76). Consonant with these rulings respondent argues that the initial citation for violating the standard 29 C.F.R. 1910.361(b)(4)) is unenforceable since it is contrary to subdivision "C" of section 19.4 of the Customs Service Regulations entitled "Officers; safety and sanitary requirements; supervision". In support of its contention respondent submits a letter dated May 6, 1976, from the Service's supervisory customs warehouse officer, Leon J. Keeling, which in pertinent part reads:

"'Customs locks are mandatory on all doors leading to and from Customs bonded areas. This is in compliance with Customs Regulations 19.4(c) which states, 'All doors and other entrances of bonded warehouses shall be secured by Custom locks.' These locks may be removed during the working day to allow for exiting in case of emergency. However, these locks must then be replaced at the close of business for the day.'"

The success of respondent's affirmative defense turns on [*14] its establishing an exemption as provided for in section 4(b) of the Act (29 U.S.C. 653(b)(1)) which reads in pertinent part that:

"Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies . . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health." (emphasis added)

Research shows that the United States Customs Regulation 19.4(c) was promulgated under the authority of 19 U.S.C. 66, 1555, 1556, 1624 of the Tariff Act of 1930, 19 U.S.C. 1202-1654. The principle objective of the cited statute is the collection of customs duties and not to affect occupational safety and health.

I do not agree however, with complainant's contention that the Customs Service Regulation 19.4(c) is a security regulation. When properly read in its entirety section 19 is a regulation that concerns the safety and health of U.S. Customs Officers, federal employees, assigned to privately owned bonded warehouses. It provides for suitable accomodations, prohibits fires, requires safe lighting and premises clear and free of rodents, insect infestation, trash or other unsanitary [*15] conditions.

Here, the respondent is a private trucking and warehouse firm. The area in question is in privately owned building licensed by the United States Customs Service, as a bonded warehouse. A Customs' officer is assigned there. Regulation 19.4 and 19.4(c), which antedate the Occupational Safety and Health Act, concerns only federal Customs officers and has no application to respondent's employees.

Because of the possible conflict of the standard 29 C.F.R. 1910.36(b)(4) with regulation 19.4(c), it is appropriate to discuss the presence or absence of respondent's employees in the hazardous area, i.e., the bonded warehouse. The complainant's evidence shows only that the workers observed in the warehouse at the time of reinspection were "possibly customs workers" (Tr. 62, 63). The respondent's evidence shows that its workers went in and out of the bonded warehouse. Relative to the question is 19 U.S.C. 1555 which in pertinent part reads:

". . . and all labor on the merchandise so stored shall be performed by the owner or proprietor of the warehouse, under supervision of the officer of the customs in charge of the same, at the expense of the owner or proprietor. . . ." [*16]

Inasmuch as one customs officer was assigned to respondent's workplace and the statute requires that respondent's employees perform the labor it is reasonable to conclude that the workers observed by the complainant's witness in the area were not government employees, but more likely were respondent's.

Hence, the next question posed is whether or not regulation 19.4(c) will prevent the application of the Act to respondent's worksite by reason of of its contradictory requirement of locked exits. The quick answer is found in that part of Mr. Keeling's letter of May 6, 1976 which reads:

"These locks may be removed during the working day to allow for exiting in case of emergency. However, these locks must then be replaced at the close of business for the day."

The record however, is devoid of any evidence to show that this relaxation of the Customs' requirement was previously made known to respondent. This supports the conclusion that it is not impossible for respondent to comply with the standard 29 C.F.R. 1910.26(b). During the work day respondent may request and have removed the Customs Service's lock on the exit door leading to Morgan Avenue.

As indicated, in order for presumption [*17] under section 4(b)(1) of the Act (29 U.S.C. 653(b)(1)) to occur the exercise of statutory authority by a Federal agency must be pursuant to enabling legislation, the purpose of which was to affect occupational safety and health. Secretary v. Gearhart-Owen-Industries, Inc., No. 4263 (1975), Petition for Review Dismissed, No. 75-1392 (CA D.C. Cir. 1975); Secretary v. Fineberg Packing Co., 7 OSAHRC 405 (1974).

Considered within the framework of those rulings, the clear purpose of the Tariff Act, the limitation of the applicability of regulation 19.4 to United States Customs Officers and the absence of conflict with the Occupational Safety and Health Act, the respondent's argument for exemption is rejected.

However, I do not find it difficult on this record to conclude that the respondent in good faith believed that it was unable to comply with the standard 29 C.F.R. 1910.36(b).

Section 17(j) of the Act (29 U.S.C. 666(i)) requires the Commission to give due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer and the history of previous violations in determining the assessment of a penalty. [*18]

In assessing penalties the achievement 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). I note that the initial penalty of $25.00 imposed for item number 8(b) of the citation was based on three separate violations to form a single nonserious violation. Since all were of approximately equal gravity and two of the three had been timely abated, any additional proposed penalty should have been adjusted to reflect that only one of the three items was not abated. This the complainant has failed to do. This is also true of item number 4(b) which is one of two violations for which a single penalty of $30.00 was initially imposed. In further mitigation of the imposition of a penalty for item number 4(b) is the fact that because the bonded area has additional exits available to the employees the gravity of the violation is low. n6

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n6 Item number 4(a), the locked exit to the parking area was timely abated.

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Considering all the relevant facts and circumstance in this case within the statutory guidelines for the imposition of penalties the evidence does not support any additional penalty for item number 4(b) of the citation and warrants a reduction in the additional penalties proposed for items numbered 8(b), 9 and 10 of the citation.

Having heard the testimony and observed the demeanor of the witnesses, and having considered the same, together with the citations, notification of proposed additional 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. Following an inspection by the complainant on September 25, 1975, a citation was issued to respondent on October 1, 1975, alleging respondent had violated section 5(a)(2) of the Act and various occupational safety and health standards codified in 29 C.F.R. 1903, 29 C.F.R. 1904 and 29 C.F.R. 1910. The citation consisting of 10 items required that the said violations be abated by November 3, 1975.

2. The respondent did not contest the citation.

3. On November [*20] 19, 1975, complainant's compliance officer conducted a reinspection of respondent's places of business at 91 Moultrie Street and 134 Morgan Avenue, Brooklyn, New York, to determine if the violative conditions for which respondent was previous cited were abated.

4. The reinspection disclosed that respondent had failed to abate within the time specified, Items numbered 4(b), 8(b), 9 and 10 of the initial citation issued October 1, 1975.

5. Respondent did not abate the violative condition described in items number 4(b) of the citation believing in good faith that to do so was contrary to United States Customs Service Regulations.

6. Item number 8(b) of the citation had been abated after the reinspection but not before the required abatement date of November 3, 1975.

7. The portable battery charger, the subject of item number 9 of the citation, is in disrepair.

8. The respondent sought to comply, albeit improperly, with the standard 29 C.F.R. 1910.219(d)(1) by causing the compressor, the subject of item number 10 of the citation, to be "fenced in" prior to the abatement date of November 3, 1975. The compressor has been removed from 91 Moultrie Street, Brooklyn, New York.

[*21] CONCLUSIONS OF LAW

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

2. The respondent is, and 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. The citation and proposed penalties issued against the respondent on October 1, 1975, not having been contested, are deemed final orders of the Occupational Safety and Healty Review Commission and not subject to review by any court or agency, in accordance with section 10(a) of the Act.

4. Considered within the provisions of section 17(j) of the Act (29 U.S.C. 666(i)) the amounts of the total additional penalties proposed by the complainant for failure to abate the violative conditions described in items numbered 8(b), 9 and 10, within the times specified in the citation issued on October 1, 1975, are not reasonable under the circumstances herein. As to item number 4(b) of the said citation no penalty should be [*22] assessed.

The following total additional penalties are assessed for failure to abate.

Citation number 1

Item number 8(b)

$150.00

Item number 9

100.00

Item number 10

50.00

No penalty is assessed for item number 4(b) of the citation.

SO ORDERED.

EDWARD V. ALFIERI, JUDGE, OSHRC

Dated: July 15, 1976

New York, New York