ECHO HOTEL, INC.

OSHRC Docket No. 2700

Occupational Safety and Health Review Commission

August 9, 1974

[*1]

Before MORAN, CHAIRMAN; VAN NAMEE and CLEARY, Commissioners.

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge David G. Oringer, Dated February 25, 1974, in an action brought under the Occupational Safety and Health Act of 1970 n1 is before this Commission pursuant to 29 U.S.C. 661(i). The decision held that respondent did not contest a citation issued under the Act but had limited its notice of contest solely to the approprateness of the proposed penalty. 29. U.S.C. 659(c). Accordingly, the Judge held the citation had become a final order of the Commission by operation of law. Id.

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n1 84 Stat. 1590, 29 U.S.C. 651 et seq.

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Upon examination of the record, we find that the Judge misconstrued respondent's notice of contest. That notice did place in issue the citation's allegation of failure of compliance with the safety standard which is published in 29 C.F.R. 1910.36(b)(8). The citation therefore did not become a final order of the Commission. We reverse the finding to the contrary. [*2]

Several months subsequent to the issuance of the Judge's decission, complainant requested the Commission to allow withdrawal of the said citation with prejudice.

Since respondent offers no objection to that motion, the same is granted.

[The Judge's decision referred to herein follows]

ORINGER, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter referred to as "the Act") to review a Citation issued by the Secretary of Labor (hereinafter referred to as "Complainant") pursuant to Section 9(a), and a proposed assessment of penalties thereon issued pursuant to Section 10(a) of the Act.

Citations bearing one (1) item alleged to be "serious" and five (5) items alleged to be "other than serious" violation were issued on March 29, 1973. Echo Hotel, Incorporated (hereinafter referred to as "Respondent") contested only that portion of the Citation alleged to be serious, which reads as follows:

Citation No. 1 (Serious)

29 C.F.R. 1910.36(b)(8) General requirements. (b) Fundamental requirements. (8) Every building or structure, section, or area thereof of such size, occupancy, and [*3] arrangement that the reasonable safety of numbers of occupants may be endangered by the blocking of any single means of egress due to fire or smoke, shall have at least two means of egress remote from each other, so arranged as to minimize any possibility that both may be blocked by any one fire or other emergency conditions.

The violation as alleged by the Complainant on the above Citation is described as follows:

Citation No. 1 (Serious)

Standard or regulation allegedly violated -- Description of alleged violation

29 C.F.R. 1910.36(b)(8) -- Employer failed to provide a second means of exit from the 2nd story of employees sleeping quarters. Three rooms are located on the second floor which are usually occupied by six (6) employees. The only way of egress is an open interior stairway to the first floor which would not be a safe means of exit if fire was to erupt on first floor. The interior stairway is constructed of wood.

A Notification of Proposed Penalty was issued by the Complainant on even date, to wit, March 29, 1973, proposing to assess a penalty of $500.00 for the alleged serious violation described above. In a letter dated April 9, 1973, the Respondent [*4] filed a notice contesting the Citation for the alleged serious violation and proposed penalty.

This cause was referred to the Occupational Safety and Health Review Commission for hearing pursuant to Section 10(c) of the Act on April 30, 1974, and the within case was assigned to the undersigned on June 14, 1973 for hearing pursuant to Section 12(e) of the Act.

Pursuant to notice, the hearing was held on September 10, 1973, in New York, New York.

Having heard the testimony and observed the demeanor of the witnesses, and having considered the same, together with the Citation, Notification of Proposed Penalty, Notice of Contest, pleadings, representations, stipulations and admissions of the parties, it is concluded that substantial evidence, on the record considered as a whole, supports the following.

OPINION

The Complainant herein, after inspecting the premises of the Respondent, issued a Citation for "serious" violation with one item, and a Citation for "other than serious" violations bearing five items thereon. The Complainant proposed a penalty of $500.00 for the serious item and $35.00 for Item No. 1 of the other than serious violations and $40.00 for Item No. 5 of the other [*5] than serious violations. The Secretary proposed no penalties for Items numbered 2, 3, and 4 of the Citation for other than serious violations.

The Respondent, in his Notice of Contest, did not contest either the Citations or the Proposed Penalties other than the serious violation. He did however contest the penalty proposed for the serious violation alleged. The Respondent asked for an adjournment of the trial over the summer inasmuch as that was his busy period. After inspecting the premises to see whether or not the alleged serious violation was abated the Secretary consented to the adjournment.

At the hearings the Complainant and the Respondent stipulated that the Respondent is a New York corporation with principal offices located in Ellenville, New York, and that it was engaged in the business of operating a resort hotel (T. 5). The hotel serves guests from the State of New York, however it does serve some guests from the State of New Jersey (T. 5 & 6). The Respondent advertises in the New York Post, a newspaper that is circulated throughout the New York Metropolitan area, and makes interstate calls occasionally to guests (T. 6 & 7).

The Respondent has transient [*6] employees whose number vary at different periods of the year. During the high summer season the Respondent employs approximately 100 employees (T. 7 & 8). At the time of the inspection there were approximately 15 to 20 employees employed by the Respondent (T. 8).

The gross annual volume of the Respondent the year preceding the hearing was approximately $800,000.00 (T. 8). The net worth of the business is approximately the same amount and the Respondent has listed the business for sale at a price of $850,000.00 (T. 9). The inspection did not result from an employee complaint (T. 11).

The Respondent's employees are not represented by any union (T. 11). There have been no prior Citations under the Occupational Safety and Health Act and there have been no prior New York State violations (T. 11).

All the documents including the notice of hearing, were posted by the Respondent at his office where the employees pass (T. 11). The sole issue for determination is the appropriateness of the penalty for the serious violation, proposed to be assessed by the Secretary in the amount of $500.00 (T. 12).

The employees, quarters look like a normal two story house with three bedrooms [*7] downstairs and three bedrooms and a bathroom upstairs. The employees' quarters was a wood structure with a regular interior stairway without any doors at the top or bottom (T. 20). The interior stairway was constructed of wood and ran from the first story to the second (T. 20 & 21). There were no doors at the top to enclose it from the hall nor were there any doors at the bottom for such purpose (T. 21). The windows on the second floor were approximately ten feet from the ground (T. 22). In the event a fire would erupt in either the downstairs protion of the building or upstairs, the only way the employees could get out would be through a window. They would be cut off downstairs because of the wooden stairway (T. 23). There was an accumulation of beer cans and beer bottles outside (T. 24). In the event of smoking, a fire could easily erupt, particularly if someone would fall asleep with a cigarette in his hand (T. 24).

The Complainant's Compliance Officer allowed the respondent of all of the diminution of the penalty that was in his power to grant. He gave him full credit for good faith, prior history and for size (T. 25 & 26). In other words the Compliance Officer gave [*8] the Respondent the maximum under the criteria laid down by the Secretary, which reduced an original unadjusted penalty of $1,000.00 to $500.00 (T. 26). The Respondent was of the opinion that he complied with the only law that he knew of, the New York State Multiple Residence Law (Respondent's Exhibit No. (1)) (T. 39).

While the make-up of the building in question may not be fully in compliance with the New York State Multiple Residence Law, the New York State Fire Inspectors had always passed it during its inspections and had never cited Respondent for a violation (T. 41 & 42) (Exh. R1, T.43, 45 & 46). The Respondent put up a fire escape during the two week extension he was given by the Secretary's Representatives (T. 39).

The Respondent does not argue the existence of the violation however, he objects to the assessment of a penalty in the amount of $500.00. He argues that he followed the New York State Multiple Residence Law and that he was never cited by any State Fire Inspector. This, in reality, is no defense to a violation of the Federal Occupational Safety and Health Act of 1970. The reason that the Federal Occupational Safety and Health Act passed was that [*9] the states had not properly performed their job, resulting in an occupational holocaust approximating 14,000 deaths annually and untold numbers of injuries.

In my opinion the penalty proposed to be assessed by the Secretary in the instant cause is appropriate in view of the violation found herein. Fire is a dangerous hazard and the Secretary's standards must be obeyed to diminish the possibility of death and injury as a result of fire, particularly in a wooden premises such as the one involved herein. It is true that the Respondent was cooperative, that he abated the violation promptly, that he had no prior violations of the Act or of the State Agencies on his record, however the Compliance Officer gave him all of the diminution of penalty that was allowed by the Secretary. Without conceding the propriety of the method utilized by the Secretary's representatives to arrive at the penalty proposed herein, the amount proposed to be assessed is eminently reasonable under all of the circumstances found herein, and such penalty, in my opinion, must be affirmed.

The danger was a grave one in the event of fire, whether the window is ten feet high or twelve feet high. There [*10] is a danger not only of flames and of smoke poisoning but of panic. It seems noteworthy that the Respondent had within his means a fire escape on the premises but did not install it until found in violation by the Secretary. This seems to underscore the utility of the Act in bringing about the purpose intended, to wit, the safety of employees in given work places throughout the nation.

The "other than serious" violations and the penalties proposed therefore not being in issue, they were affirmed by operation of law, as was the "serious" violation alleged in the Citation, inasmuch as only the penalty was at issue herein.

In view of the foregoing, good cause appearing therefore, it is ORDERED, that

1. The penalty in the amount of $500.00 proposed to be assessed for the serious violation alleged herein, is herewith affirmed.

2. The Citation for serious violation alleging violation of that standard found at 29 C.F.R. 1910.36(b)(8), not having been controverted, was affirmed by operation of law.

3. All of the allegations of "other than serious" violations and the penalties proposed therefore, were affirmed by operation of law. SO ORDERED.