REA EXPRESS CO.  

OSHRC Docket No. 28

Occupational Safety and Health Review Commission

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners.  

OPINIONBY: MORAN

OPINION:

  MORAN, CHAIRMAN: The decision of Review Commission Judge David G. Oringer issued on July 17, 1972, is herewith affirmed.  

CONCURBY: BURCH

CONCUR:

  BURCH, COMMISSIONER, concurring: I concur in the result reached by my colleagues.

However, neither the Commission nor its Judges have the authority to decide the issue of the Constitutionality of the Act.   In Secretary of Labor v. Dreher Pickle Co.,   Similarly, in this case Judge Oringer did not have jurisdiction to decide whether Section 5(a)(1) of the Act is unconstitutional.   Public Utilities Commission v. U.S., 355 U.S. 534 (1958), rehearing denied, 356 U.S. 925 (1958); Engineers Public Service Co. v. SEC, 78 U.S. App. D.C. 199, 138 F.2d 936, 952 (1943); vacated as moot 332 U.S. 788 (1947). See also, 73 C.J.S., Public Administrative Bodies and Procedure, Section 67; 3 Davis, Administrative Law Treatise, Section 20.04.

Accordingly, I concur in the   affirmation of the Judge's opinion but would not adopt his discussion regarding Constitutionality.

  [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 alleging "serious violation" issued by the Secretary of Labor (hereinafter referred to as "the Secretary"), pursuant to Section 9(a) of the Act, and a proposed assessment of penalties thereon issued pursuant to Section 10(a) of the said Act.

The Secretary issued a citation, dated August 9, 1971, alleging a serious violation of Section 5(a)(1) of the Act to the Respondent REA Express, Inc., (hereinafter referred to as "REA").   The citation related that the Respondent allegedly violated Section 5(a)(1) of Public Law 91-596 (O.S.H.A.) and described the violation as follows: "Place of employment furnished to employees by employer not free from recognized hazards that the causing or are likely to cause death or serious physical harm to his employees." The citation required abatement by August 30, 1971.   The penalty proposed was in the sum of $900.00 and the notification thereof was dated August 9, 1971.   The Respondent served notice of intention to contest the citation and proposed penalty on the Secretary by letter dated August 26, 1971.

The Secretary did not advise the Commission as to what date the notification of proposed penalty was received by the Respondent and no objection was raised by the Secretary concerning jurisdiction.   While failure to object as far as jurisdiction is concerned would not confer jurisdiction upon this Commission, the Judge takes judicial notice that the mailing took some time   prior to being received by the Respondent and, inasmuch as there is no proof of failure to serve notice of contest within fifteen days, the undersigned considers the notice of contest timely made.   This cause was received by the Occupational Safety and Health Review Commission pursuant to Section 10(c) of the Act on September 2, 1971, and, on September 9, 1971, the case was assigned to Judge David G. Oringer, pursuant to Section 12(e) of the Act.   On September 15, 1971, a motion was made by the Secretary to consolidate this cause with the case of the Secretary v. FEC Inc. (Case Docket No.   17) pending before Judge David H. Harris, predicated upon the fact that both cases arose out of the same events at the same workplace, and at the same time.   The Secretary further averred that a single hearing would enable the parties to present all the factual and legal issues upon which a full adjudication could be effected.   No opposition appearing to this motion, the case was consolidated by order dated September 24, 1971, and assigned to Judge David G. Oringer for hearing and disposition.   By order dated October 5, 1971, a pre-hearing conference was ordered for October 20, 1971, by the undersigned Judge.   The pretrial conference took place on October 20, 1971, before Judge David G. Oringer with Edward F. Beane and Mary E. Cerbone, Esquires, representing the Secretary; Max Goldweber, Esquire, representing Respondent FEC, and John M. McCabe, Esquire, representing Respondent REA.   Mr. Frank Traugott of FEC was also present.   At the pre-trial conference, it was decided to entitle the matter Secretary v. FEC, Inc. and REA Express Company Docket Nos. 17 and 28.   It was also agreed, with no objections, that while cases were tried simultaneously, two separate decisions would be issued.   The pre-hearing conference resulted   in the narrowing of the issues, and on order by the Judge, for complaints and answers to be issued.

The Judge issued a formal pre-trial order on November 9, 1971, setting forth the agreed stipulations and other matters resolved thereby.

Pursuant to notice, a consolidated hearing was held on November 15, 16, and 17, 1971, in a United States Customs Court Room, Foley Square, New York, New York.

At the commencement of the hearing, on specific inquiry regarding posting of the citation, pleadings and notice of hearing, the Respondent indicated that these procedures were substantially followed.

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

FINDINGS OF FACT

1.   The Respondent, REA Express, Inc. (hereinafter referred to as REA), is an interstate express and cargo shipping company, having its principal office and place of business in New York City, and has a shipping terminal located in Long Island City, New York, known as the PXT Terminal (hereinafter referred to as PXT). n1 (C&A)

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n1 The reference hereinafter made have the following meaning:

C&A -- Complaint and Answer

E -- Judge's exhibits

RP -- Exhibits submitted by Secretary

REA -- Exhibits submitted by REA

R-FEC -- Exhibits submitted by FEC

PTC - Pretrial conference

M -- Transcript of Monday, November 15, 1971

T -- Transcript of Tuesday, November 16, 1971

W -- Transcript of Wednesday, November 17, 1971

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  2.   The company is large sized and its gross annual dollar volume of business in 1970 exceeded $1,000,000 annually (M-18).

3.   REA employs at least 75 employees at its PXT facility, alone (M-18).

4.   The Respondent, at all the times herein mentioned, has been engaged in delivering, transporting, loading, unloading, storing, and warehousing freight of all descriptions, and is engaged in a business affecting commerce (C&A, PTC-55).

5.   In the basement of the   Respondent's PXT Terminal, there is an area known, and hereinafter referred to, as the Circuit Breaker Room, which room has a door bearing the legend, "High Voltage" (M-78, M-133, T-87, W-17).

6.   The Respondent usually kept the doors to the Circuit Breaker Room locked with only two keys available thereto, which keys were in the possession of the Service Center Manager and the Maintenance Foreman (T-129, T-130, W-17).

7.   The Respondent's employees are forbidden to go into the basement, with the exception of the maintenance employees and the Service Center Manager (T-140, T-141).

8.   The maintenance employees are generally instructed to stay out of the Transformer Room and the Circuit Breaker Room (T-141).

9.   On the day of the accident (to wit, July 31, 1971), the floor of the Circuit Breaker Room was in a damp   condition to the knowledge of REA's Service Center Manager (W-48).

10.   REA's Service Center Manager, Worden, knew that the Circuit Breaker Room contained high voltage, at least in excess of 440 volts, and learned on the day of the accident that the Ciruit Breaker Room contained 15,000 volts of electricity (W-52, W-53).

11.   On July 31, 1971, five of REA's employees,   to wit, Worden, Soccio, Brock, Wilson, and the late Michael Coy, all unqualified as electricians to the knowledge of the Respondent, worked in the Circuit Breaker Room at some time during that day.

12.   On July 31, 1971, Frank Traugott, President of FEC, Inc., an independent electrical contractor, hereinafter referred to as FEC, received two telephone calls from REA (M-23, M-24).   The first telephone call was at approximately 11:00 a.m. (W-6, W-85) FEC, by its employee, Frank Traugott, responded to this call and while at the PXT Terminal, made tests of fuses and checked out several current lines, and then left the premises (W-8, W-88).   During the afternoon of July 31, 1971, at approximately 3:00 P.M., a second telephone call was received from Milton Worden, Service Center Manager of REA, by FEC's employee, Frank Traugott (W-9, W-89).

13.   During the afternoon of July 31, 1971, at least two unqualified employees of REA were working in the Circuit Breaker Room, prior to the arrival of FEC's employee, Frank Traugott (W-91, W-92).

14.   Later in the afternoon, a third employee of REA, Soccio, joined Coy and Brock in the Circuit Breaker Room, all three of whom were unqualified in the field of electricity.   Wilson, also unqualified, had worked in that room some time on the day in question.

15.   The Respondent, REA, did not possess protective   safety equipment such as boots, insulated shoes, rubber gloves, or rubber mats available for employees' use in the Circuit Breaker Room (T-55, T-137).

16.   REA's employees were not made aware of, nor given instructions concerning any hazards present in the Circuit Breaker Room, nor were they advised nor mandated to obtain and/or use personal protective equipment (M-63, M-91, M-93, M-94).

17.   All instructions and orders to REA employees were given by the late Mr. Coy, or Mr. Worden, both of whom were supervisory employees of the Respondent (M-61, M-62, M-66, M-67, M-68, M-103).

18.   FEC's employee, Traugott, did not instruct or direct REA's employees (M-66), except when he asked for Coy's assistance in holding the meter (M-97).

19.   REA knew, or should have known, the amount of voltage contained in the power room was 15,000 volts, as any reasonably prudent employer with a Circuit Breaker Room on its premises should have and would have ascertained the amount of current contained therein.

20.   The National Electrical Safety Code is a code of regulations set by a committee of industry knowledgeable persons for the information of, and which code is followed and obeyed by, the entire electrical industry (M-40).

21.   An employer possessing a high voltage Circuit Breaker Room on its premises should be cognizant of the safety regulations of the National Electrical Code, which are minimum standards in use by the industry (M-48).

22.   The Judge finds that compliance officer Meyers is a qualified expert in the field of electrical and safety equipment (M-34, M-35).

23.   Mr. Meyers testified, and the Code provides that   unqualified employees should be prohibited from approaching any live parts unless accompanied by a qualified employee (M-43, M-44).

24.   REA's employees, unqualified in the electrical field, were working with high voltage in the Circuit Breaker Room to repair the short circuit believed to be located therein (W-42, W-117, 118, 119, 121, 122).   The power was off while cables were cut by Soccio, an unqualified REA employee (M-67, W-129), and after the cables were cut, the lines were re-energized by Michael Coy, REA's late Regional Superintendent of Maintenance (W-127).

25.   Employees working in proximity to energized cables, cut and exposed, have employment and a place of employment that contains recognized hazards that are causing or likely to cause death or serious physical harm to the employees in such workplace (W-67).

26.   The installation in the power room at REA's PXT Terminal operated at 15,000 volts, and to the knowledge of REA in excess of 440 volts, was re-energized and alive while maintenance work was being done and live parts were accessible to unqualified persons to the knowledge of REA (W-96, M-71, T-128, W-19, W-20, W-53, W-70, 71, 78, 79, 80, 84, 85, 105, 107, 113, 117).

27.   The Respondent, REA, knew of the hazards of unqualified employees working in proximity to and with high voltage in the Circuit Breaker Room, and as a result kept the doors locked and inaccessible to employees at most times (T-129, T-130, T-140, T-141, W-17).   Nevertheless, however, on July 31, 1971, when some of its machinery was not working on a weekend, and the plant was losing money as a result thereof, REA's supervisory employees decided that it was mandatory to get the operation going, and as a   result, sent their employees into the room, despite their knowledge that the floor was damp and therefore even more hazardous than usual (T-157, W-9, W-11, W-14, W-17, W-18, W-21, W-22, W-48).

28.   REA failed to furnish its employees, Coy, Soccio and Brock, employment and a place of employment free from recognized hazards, on July 31, 1971, that were causing or were likely to cause death or serious physical harm to its employees, when it allowed them, all unqualified persons insofar as electricity is concerned, to work in proximity to and with, high voltage cable, on a damp floor without any insulation or protection, knowing that the voltage was in excess of 440 volts, high voltage, and so hazardous as to necessitate locked doors and inaccessibility to employees (W-14, W-53, W-91, W-92).

29.   REA's employees should have been furnished protective equipment and the failure to do so constituted employment and a place of employment not free from recognized hazards that were causing or liable to cause death or serious physical harm to employees at the work place, to wit, at the REA PXT Terminal power room when severed energized high voltage cable was in proximity to REA's employees, who were on a damp floor without protection or insulation (W-129, 127,   14, 106, 133, M-66, 71-74).

30.   The testimony adduced demonstrates that the late Michael Coy, the Regional Maintenance Supervisor of REA, was giving the orders to the REA employees working in the Circuit Breaker Room (M-67, W-18).

31.   FEA failed to furnish its employees, Coy, Brock, and Soccio, employment and a place of employment free from recognized hazards that were causing or were likely to cause death or serious physical harm to the   employees therein, when it allowed those employees to work in proximity to severed energized high voltage cable, despite the fact that Coy was standing on a damp floor and none of its employees wore protective clothing (W-96, M-171, M-67, W-127).

DISCUSSION

The Respondent is an express cargo shipping company with headquarters in New York City.   Its largest shipping terminal, commonly known as "PXT Terminal," is also located in New York City in the Borough of Queens, in an industrial section known as Long Island City.

The REA Terminal Manager at PXT was and is one, Melvin J. Worden, who appeared and testified at the hearing.

The Regional Maintenance Supervisor for REA was the late Michael Coy, who was electrocuted in an accident that occurred at the Terminal, which accident precipitated the inspection, citation, and notification of proposed penalty.

Also injured in the accident was one, Frank Traugott, President, and an employee, of FEC, Inc., an electrical contracting firm located in New York City.

The Respondent was cited for a violation of Section 5(a)(1) of the Act, commonly called the "General Duty Clause." The General Duty Clause requires that each employer shall furnish to each of his employees, employment and place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to the employer's employees.

This respondent argues, particularly on page 32 of his brief, that Section 5(a)(1) may be an unconstitutional   delegation of power and cites Pownall v. U.S. and Alexander Woolcombing Co. v. U.S., 68 S.C. 1294, 334 P.S. 742; 92 Lawyers' Edition 1694; Rehearing denied, 69 SC 11; 335, U.S. 836; 93 Lawyers' Edition 389.

The authorities cited by the Respondent are in actuality cited as one case entitled.   Lichter, et al, v. U.S.; Pownall et al, v. U.S., Alexander Woolcombing et al, v. U.S., 334 U.S. 742; 68 SC 1294. Of these three litigants only Alexander Woolcombing requested rehearing, which was denied.

The Judge finds that these cases, in reality comprising one opinion does not indicate in any way that the delegation granted by Congress in the statute was unconstitutional.   In fact, the finding of the majority was to the contrary thereto.

This Respondent asks whether Traugott was on the REA premises as an independent contractor and whether he was considered an employee of REA for the purposes of the statute.   This Judge has found that Traugott was on the REA premises as an employee of FEC, an independent contractor, and was working in concert with Coy, REA's late Regional Superintendent of Maintenance.   This finding, however, is irrelevant insofar as REA's responsibility to its employees under the Act is concerned.   The fact that Traugott may have been working at REA's premises was only relevant insofar as the question of FEC's violation or non-violation of the Act is concerned, however, in the case at bar, it in no way absolved REA from its responsibilities under the Act to REA's employees.

On page 29 of his brief, the Respondent argues that the general provisions of the statute constitute an unconstitutional   delegation of authority and that the non-appearance of regulations does not per se justify   the utilization of a very general "all purpose" provision.

In the light of the statutory provisions of the Occupational Safety and Health Act, it must be determined whether the Act made an unconstitutional delegation of legislative power on the basis of (a) the nature of the particular constitutional power being employed, (b) the current administrative practices incorporated into the Act, and (c) the adequacy of the statutory definition of the General Duty Clause (Section 5(a)(1) of the Act).   The Judge finds that the authority granted was a lawful delegation of administrative authority and not an unconstitutional delegation of legislative power.

A constitutional power implies a power of delegation of authority under it sufficient to effect its purposes.   The purposes of Congress in enacting this legislation were bold and broad and innovative.   The delegation of authority here in issue, under the Occupational Safety and Health Act, was a true constitutional definition of administrative authority and was not an unconstitutional delegation of legislative authority.

The Congress was exceptionally careful in setting up the administrative procedures under this Act.   It completely separated the powers of investigation, inspection and prosecution from the judicial function.   Congress vested the powers of inspection, investigation, legal prosecution and promulgation of standards with the Secretary of Labor.   The judicial function under this Act, however, i.e., the trial of the case, the decision as to whether the citation was proper, and whether the proposed penalty was appropriate, was vested in a separate and distinct agency created solely and only for the purpose of adjudicating these issues.   This judicial   agency, the Occupational Safety and Health Review Commission, was wholly and totally separated from the Secretary's Department and constitutes the only independent federal administrative agency whose total functions are judicial in nature.   Thus, the Congress zealously and jealously guarded the constitutional rights of, and the due process to be accorded to, Respondents under this Act.

"It is not necessary that Congress supply administrative officials with a specific formula for their guidance in a field where flexibility and the adaptation of the Congressional policy to infinitely variable conditions constitute the essence of the program. . . .   Standards prescribed by Congress are to be read in the light of the condition to which they are to be applied.   They derive much meaningful content from the purpose of the Act, its factual background and the statutory context in which they appear" U.S. Ex Rel Knauff v. Shaugnessy, 338 U.S. 537; 70 SC 309.

The Occupational Safety and Health Act is an exercise by Congress of its constitutional power "to regulate commerce with foreign nations, and among the several states, . . ." U.S. Constitution, Article I, Section a, Clause 3.

The Occupational Safety and Health Act declared its purposes in bold, sweeping and unequivocal terms to assure so far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources.   It laid down thirteen criteria therefor and attached a national pestilence, to wit, occupational death and injury, with the great powers at Congress' command.   Certainly, the Congressional purpose of the Act, its factual background, and the statutory context in which they appear,   evidences the legality of the General Duty Clause and the other elements of Section 5 of the Act as well.

Insofar as Respondent's question 2(b) is concerned, the Judge finds that the attack on the mechanics of the inspection and follow-up procedures is specious and without merit.   The Respondent well knew why and how the electrocution and the injury took place upon which the inspection, citation and notification of proposed penalty was predicated.   Certainly, the Respondent was sufficiently advised in due time concerning the alleged violation so that he was able to fully defend the proceedings.   Further, in the instant cause, the simple act of keeping its employees out of proximity to the high voltage current contained in the Circuit Breaker Room constituted abatement of the hazard.

Finally, in his question 2(c), the Respondent argues, inter alia, that the Area Director's imposition of the "given fine" was arbitrary and capricious . . . .   He further argues that the penalty should be re-computed.

The amount of penalty is only proposed by the Seccretary.   It is assessed by this Commission, and will be, with the reasons given therefor, in this decision.   The Judge finds that the argument concerning the discretion of the Area Director is of little merit.   The Congress never contemplated that the Secretary would personally propose the penalty nor, as part of his responsibility, would he consult with an alleged violator in determining the amount thereof.   The Respondent argues that it should be given credit for "good faith".   The Judge finds that in this case this Respondent was fully cognizant and aware of the inherent hazards of unqualified persons working in close proximity to extremely high voltage, and, as a result thereof, locked the doors of the Power or Circuit Breaker Room during most of the time that its employees were on the   premises.   When, however, there was an electrical breakdown on a weekend with a resultant loss of productive capacity and company income, despite its knowledge of the hazard, the Respondent's men in charge encouraged, allowed, suffered and permitted, as well as directed, its employees to work in the Power Room, despite the knowledge that the floor was damp, thereby constituting an additional hazard. Its employees, all unqualified, were working in the room in the afternoon, prior to the arrival of FEC's employee who worked in concert with the late Coy who was electrocuted in the attempt to remedy the electrical failure.

In the opinion of this Judge, the Respondent showed a wanton disregard for the safety of the employees in the power room, on this occasion and exposed them to a hazard so grave that the proper penalty is found to be $1,000.00, with no reductions granted, because of the undue gravity of the hazard.

Based upon all of the foregoing, and the record in its entirety, the Judge makes the following

CONCLUSIONS OF LAW

1.   At all the times herein mentioned, the Respondent employer was and still is an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and of the subject matter herein.

2.   At the time herein concerned, REA furnished its employees, Brock, Soccio, Wilson, and the late Coy, employment and a place of employment, located in the Circuit Breaker Power Room of the REA PXT Terminal, in Long Island City, New York.

3.   The citation, notification of proposed penalty,   and notice of contest, were served by and upon the respective parties hereto in conformity   with the provisions of Section 10 of the Act.

4.   The Act, in Section 5(a)(1) (29 U.S.C. 654(a)(1)) imposes a General Duty requirement that 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 likely to cause death or serious physical harm to his employees."

5.   REA violated the General Duty Clause of the Act (Sec. (5)(a)(1) thereof) by providing some of its employees employment and a place of employment that contained recognized hazards that were causing or likely to cause death or serious physical harm, in that on the date complained of, the Respondent employed some of his employees who were unqualified in the electrical field in an electric power room, containing at that time a damp floor, in proximity to high voltage current, despite the fact that the Respondent was well aware of and recognized the hazards and as a result thereof normally kept the doors to the power room locked.

6.   REA was cited under Section 9(a) of the Act (29 U.S.C. 658(a)), for a serious violation of the Act in allegedly violating the General Duty Clause requirement.   Section 17(k) of the Act (29 U.S.C. 66(j))   deems a serious violation to exist (1) if there is substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations or processes in use or adopted in such work place (in the instant cause, the aforesaid violation of Section 5(a)(1) of the Act); and (2) unless the employer did not and could not with the exercise of reasonable diligence, know of the presence of the violation.

  7.   REA's violation of the General Duty Clause (5(a)(1) of the Act) constituted a serious violation within the meaning of Section 17(k) of the Act, as the violation was such that there was substantial probability that death or serious physical harm could result to unqualified persons working on a damp floor without insulation or protection in proximity to high voltage cable, which part of the time was severed and energized.

8.   The penalty proposed for this violation by the Secretary amounts to $900.00.   In view of the excessive gravity of this serious violation and the disregard for the safety of those employees working in the workplace at the time complained of, the Judge finds that the penalty in the   sum of $900.00 is inappropriate in this case.   In view of the excessive gravity of the serious violation, the proposed penalty of $900.00 is vacated and a penalty of $1,000.00 is herewith assessed.

Based upon the foregoing findings of fact, conclusions of law, and the entire record; having given due consideration to the size of the Respondent's business, the gravity of the violation, the presence or absence of good faith of the Respondent, and its history, and good cause appearing therefor, it is ORDERED THAT

1.   The citation issued for serious violation be, and the same, is hereby affirmed.

2.   The penalty in the sum of $900.00 proposed by the Complainant for the citation referred to in (1) above be, and the same, is hereby vacated, and a penalty in the sum of $1,000.00 be, and the same, is hereby assessed.

SO ORDERED.