Docket No. 2455

LES MARES ENTERPRISES, INC.

OSHRC Docket No. 2455

Occupational Safety and Health Review Commission

April 11, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Robert N. Burchmore dated October 25, 1973, in an action brought under the Occupational Safety and Health Act of 1970 (84 Stat. 1590, 29 U.S.C. § 651 et seq., hereinafter referred to as the Act), is before this Commission for review pursuant to 29 U.S.C. § 661(i). The decision held that respondent had violated 29 U.S.C. § 654(a)(1). We reverse because we find that respondent was not an employer engaged in a business affecting commerce and therefore not subject to the jurisdiction of the Act. 29 U.S.C. § 652(5).

When inspected by an agent of complainant, respondent had employees engaged in clearing land in Napa County, an area of California chiefly devoted to wine production. The only evidence complainant submitted to the Judge to show jurisdiction under the Act was an admission of respondent that at the time of the inspection it intended to use the land for grape production and that it was undecided whether to produce the wine itself or to lease the land to others for that purpose. At the hearing respondent indicated it had never decided on the [*2] use of the land. Grapes had never been planted on it.

The Judge found, however, that "the clearing of land in which respondent was engaged was a business affecting commerce within the meaning of the Act." Furthermore, he found that since the production of wine in California affects commerce, respondent, as a member of the class of producers of wine, is engaged in a business affecting commerce. Perez v. U.S., 402 U.S. 146 (1971).

Complainant contends that the Judge correctly held that respondent was a producer of grapes at the time of the inspection. He argues that the clearing of the land was a necessary part of grape production, and that the later failure to carry the production through to "fruition" is irrelevant. He cites Hodgson v. Ewing, 451 F.2d 526 (5th Cir. 1971), in support of the contention that preparation of land for cultivation is sufficient to bring the commerce clause into effect. We have examined that case and find that it is inapposite to this case, for the court in Ewing specifically noted that the majority of the land levelled by defendant "was used for the production of crops." Id., at 528. Contrary to complainant's contention, [*3] Ewing does not require us to label a clearing of ground as part of production of goods if the goods are never produced. That decision holds that we may look at the final result of such preparation to see if respondent actually did engage in a business affecting commerce.

In this case respondent did not carry out its intentions. It was not engaged in the production of grapes. Since it was not a producer of grapes, and so far as this record shows, did nothing except clear land within the State of California and sell the timber taken therefrom to local buyers n1, it was not engaged in a business affecting commerce.

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n1 Complainant submitted no evidence that the logs taken from the worksite were taken out of California. In fact, one of the wood-splitters, an employee of respondent and a witness for complainant, testified as follows:

Q. Do you have any knowledge as to what was done with the firewood once it was cut?

A. It was loaded into trucks and sold in the Napa-Solano County areas.

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The Act does not say [*4] an employer is subject to coverage of the Act if it intends to engage in a business affecting commerce. It defines an employer subject to the Act as a "person engaged in a business affecting commerce," 29 U.S.C. § 652(5). [emphasis supplied] Since complainant failed to prove that respondent was such a person, we find that it is not subject to the Act's jurisdiction. Consequently, the citation must be vacated. Secretary v. Wilshire Terrace, 3 OSAHRC 708 (1973).

It is so ordered.

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER, dissenting: I must respectfully dissent from the decision of the majority of the Commission which holds that the Secretary failed to establish that respondent, at the time of inspection, was in a business which "affected" commerce. I would affirm the decision of Administrative Law Judge Robert N. Burchmore.

Judge Burchmore found that Les Mares' purpose in clearing the land was to grow grapes. Whether Les Mares or a third party lessee was to do the actual growing had not been determined at the time of the hearing. However, Les Mares' president did testify that the corporation had "a registration of a limited partnership" with the Real Estate Commissioner [*5] of California whereby the property would be leased to the partnership for a fixed annual rental plus a percentage of the gross income. The limited partnership would in turn develop the vineyards and sell the grapes. Indeed, testimony revealed that at the time of the hearing this same land was being "ripped," that is, cultivated, as a prelude to planting.

Citing Perez v. United States, 402 U.S. 146 (1971), Judge Burchmore held that:

It is not necessary to prove that any particular intrastate activity affects commerce, if the activity is included in a class of activities which Congress intended to regulate because it finds that the class affects commerce.

Judge Burchmore then concluded that Les Mares was a member of the class of grape and wine producers. That group affects commerce and, therefore, it was not necessary for the Secretary to demonstrate that the activity of Les Mares also affected commerce.

Judge Burchmore's reliance on Perez is well placed. n2 A careful reading of Perez and the cases cited therein, reveals the extent to which activities, seemingly intrastate in nature, affect interstate commerce. Thus, Congress could provide for the regulation [*6] of the price of milk transported wholly in intrastate commerce, the sale of which affects the price of federally regulated milk transported interstate. U.S. v. Wrightwood Dairy Co., 315 U.S. 110 (1942). In addition, a unanimous court has held that wheat grown wholly for home consumption was within the scope of federal regulation. Wheat that was never intended to be marketed interstate, supplies the grower who would otherwise be required to buy wheat on the open market. Wickard v. Filburn, 317 U.S. 111 (1942).

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n2 See also United States v. Darby, 315 U.S. 100 (1941).

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The Wickard case is especially instructive. It declares:

Once an economic measure of the reach of the power granted to Congress in the Commerce Clause is accepted, questions of federal power cannot be decided simply by finding the activity in question to be "production" nor can consideration of its economic effects be foreclosed by calling them "indirect." ( Id., at 124, emphasis added.)

Wickard [*7] continues this line of reasoning by quoting extensively from Mr. Chief Justice Stone's opinion in Wrightwood Dairy Co., supra.

The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce. . . . The power of Congress over interstate commerce is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. . . . It follows that no form of state activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress. Hence the reach of that power extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power. (Wickard, supra at 119, emphasis added.)

From the above it may be concluded that in view of the expanding scope of the Commerce power, the actual range of [*8] national control increasingly turns on Congressional choices rather than constitutional limitation. The criteria chosen by Congress under the Act, that of "affecting commerce," evidences Congressional intent to reach as many employers as is constitutionally permissible. n3 Thus, whether respondent was actually growing grapes is irrelevant for purposes of making a proper determination in this case. The act of clearing the land was a necessary part of the production of a crop. Indeed, it was the first step, no less, nor no more important than the future harvest itself. As Judge Burchmore rightfully concluded, respondent engaged in a business affecting interstate commerce within the meaning of the Act when it began clearing the land.

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n3 See, Brennan v. O.S.H.R.C. & John J. Gordon Co., Inc., 492 F.2d 1027 (2d Cir. 1974). Compare, for example, the "affecting commerce" formula in the National Labor Relations Act [ N.L.R.B. v. Jones and Laughlin Steel Corp., 301 U.S. 1 (1937)] with the narrower scope of the Fair Labor Standards Act [ United States v. Darby, supra note 1] as to employees engaged "in the production of good for commerce."

[*9]

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In addition to what has been said above, the following rationale supports the decision of Judge Burchmore. The Supreme Court has stated in Perez (supra at 152-3) that Congress may make a finding as to what activity affects interstate commerce. By making such a finding it obviates the necessity for demonstrating jurisdiction under the Commerce Clause in individual cases. The function of a court on review from an agency's statutory adjudication then becomes merely to determine whether that particular activity regulated or prohibited is within the research of the federal power. In the instant case, preparation of land for the production of grapes ought to be regulated as part of a grape production activity. Clearly the Commerce Clause reaches the production of grapes. Judge Burchmore merely made a factual finding that preparation of the land in the instant case was included as part of the production process.

Moreover, in section 9(a), n4 (29 U.S.C. § 658(a)) Congress has specified in detail what must be alleged for a violation of the Act. Section 9(a) contains the elements of the violation. [*10] It does not require an allegation that respondent is engaged in commerce. n5 Therefore, there is no need for the Secretary to include, as part of his prima facie case, proof on the question of respondent's interstate commerce activity. n6

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n4 Section 9(a) provides in pertinent part as follows:

If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 654 of this title, of any standard, rule or order promulgated pursuant to section 655 of this title, or of any regulations prescribed pursuant to this chapter, he shall with reasonable promptness issue a citation to the employer. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the chapter, standard, rule, regulation or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation. . . .

n5 I note that the Secretary's complaint alleges respondent's interstate commerce activity. The Commission's Rules of Procedure do require the complaint to assert the basis of jurisdiction. 29 CFR 2200.33(a)(2)(i). I submit that the rule relates only to the circumstances surrounding the filing of the notice of contest.

n6 There may conceivably be a constitutional challenge to the breadth of the Congressional exercise, but this is properly the subject of an objection by the employer.

[*11]

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[The Judge's decision referred to herein follows]

BURCHMORE, JUDGE: By citation issued March 5, 1973, the Secretary charges that on October 26, 1972 and thereafter respondent was in serious violation of the general duty clause n1 of section 5(a)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq ) in that respondent caused or permitted employees to place their hands in or near the unguarded point of operation of a wood-splitting machine, without safe means of handling the wood or of controlling the operation of the machine. A penalty of $600 was proposed. n1

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n1 The general duty clause provides:

Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

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Timely notice of contest was filed and the proceeding was assigned to the undersigned Judge for [*12] hearing and initial decision. Hearing was held at San Francisco, California on August 14, 1973. Opportunity was allowed for the filing of briefs but only the Secretary filed one.

At the outset, respondent moved to dismiss the complaint on the ground that respondent was not engaged in a business affecting commerce within the meaning of the Act. It is the position of the respondent that it is not subject to the Act and that the Secretary of Labor has no jurisdiction over it. The evidence shows that at the times under consideration respondent had employees engaged in the clearing of land in Napa County, California. Respondent concedes that its purpose in clearing the land was to grow grapes thereon for the making of wine, although respondent had not yet determined whether it would do the growing and winemaking itself or lease the land to others for that purpose. Up until the time of the hearing, no vines had actually been planted.

The Secretary adduced the testimony of a witness from the wine industry to the effect that more than 60 percent of the wine produced in California is shipped out of the state. The witness also conceded on cross-examination by respondent, [*13] that some wineries do not ship any wine outside the state. Be that as it may, it can scarcely be contested that the supply and demand for interstate wine is in fact affected by the entire supply of wine grown within the state, whether or not the wine of a particular winery actually moves outside the state. I conclude that the clearing of land in which respondent was engaged was a business affecting commerce within the meaning of the Act.

Moreover, it is not necessary to prove that any particular intrastate activity affects commerce, if the activity is included in a class of activities which Congress intended to regulate because it finds that the class affects commerce. Perez v. United States, 402 U.S. 146; 28 L Ed. 2nd 686. Section 2 of the Act sets forth the pertinent Congressional findings and declarations as to occupational safety and health in commerce. Accordingly, the motion to dismiss is denied.

The facts underlying the alleged violation are not disputed. Respondent engaged several employees in its land clearing operation and had them cut up and split into firewood the trees that were felled. The splitting was done with a log splitting machine that was in the [*14] form of a guillotine; that is, it had a splitting blade which ran vertically between two tracks. The blade was hydraulically operated; a gasoline engine developed the hydraulic power and the machine was controlled by a three position valve to raise, lower or stop the blade.

The cutting edge of the blade was designed at right angles to its vertical direction of movement, but the machine was in a worn condition so that the blade edge tended to wobble from that position. The evidence also shows that the hydraulic operation was hesitant and uneven so that the blade moved at irregular speeds when the actuating lever was manipulated. This tended to make control of the machine uncertain and unpredictable.

Two employees usually worked the machine, with one man holding the logs in place while the other manipulated the operating lever. When only one log was placed in the machine at a time, the workman could hold the log by its sides so as to avoid getting his hands in the way of the descending knife. (There was no guard at the point of operation, and there is no evidence that it would have been feasible to provide such a guard.) However, respondent did not permit the employees [*15] to insert only one log at a time, but required them, at least on occasion, to put more than one log under the blade at one time. That kind of operation inherently involved the possibility of crushed fingers if the employee held the logs by their sides, because there was enough unevenness in the ends of the logs, and in the performance of the machine, so that the logs could pinch together. That being so, the employees repeatedly held the logs in place by putting their hands on the upper end near the point of operation. This in turn necessarily required great care to avoid the descending blade and it also involved a degree of coordination between the valve operator and the log holder.

The employees complained to the supervizing employee of the hazard involved in the method just described, but no change in the operation was authorized, and the employees were required to continue putting more than one log in the machine at a time. The person in charge stated that this was necessary in order to get the work done in time; and he simply admonished the employees to keep their fingers out of the way and put as many logs in as they could.

The owner of an equipment rental business was [*16] called as a witness, and he testified concerning the use of log splitters generally. According to that witness, the vertical, or guillotinetype, log splitter involves a greater hazard to the operator than does the horizontal type which pushes the log horizontally against a splitting wedge. The former involves the possibility of the operator placing his hands on the end of the log near the point of operation, whereas the latter machine more readily permits the operator to hold the log by laying his hand on the side of it, away from the point of operation. According to this witness, the greater safety of the horizontal machine has resulted in more of them being used and serviced in recent years.

It is not necessary to this case to ascertain which type of log splitter is superior from a safety standpoint; nor is it necessary to hold that there is a recognized hazard involved in the use of the guillotine-type splitter involved herein. This is so because the evidence here reveals a method of operation so obviously hazardous that a clear violation of the general duty clause is established. Whether or not there is any recognized hazard involved in the proper use of a vertical [*17] splitter, it is elementary common sense that one cannot safely rush the job by putting several logs in the machine at once when that operation requires holding the logs in place by hand and when the logs are uneven and the machine is unsteady. I conclude that the method of operation used in this workplace was one which the employer should have recognized as hazardous even if he did not, in fact, recognize it. There was therefor a violation of the employer's general duty to provide employment that is free from recognized hazards. The citation should accordingly be affirmed.

It is to be noted that the violation found herein is a violation of the general duty clause of section 5(a)(1) of the Act, which is set forth in a footnote number 1, supra. No violation was charged as to any regulation promulgated under the Act because agricultural operations have been exempted from the otherwise pertinent regulations by provision of 29 C.F.R. 1910.267(b). At the same time, it is clear that the Act itself, including section 5(a)(1) applies to agriculture. See 29 C.F.R. 1975.4(b)(2). Accordingly, the charge of a general duty clause violation is a valid charge, which has been proven as [*18] found above.

Considering the evidence in this record with respect to the size of the employer, its good faith and history, and the gravity of the violation involved, I find that apenalty of $600, as proposed, is appropriate and should be assessed in accordance with the provisions of section 17 of the Act.

It is ORDERED that the citation be and the same is hereby affirmed, that a penalty of $600 be and the same is hereby assessed and that this proceeding be and the same is hereby discontinued.