MURRAY COMPANY, INC.

OSHRC Docket No. 3059

Occupational Safety and Health Review Commission

July 15, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge Henry K. Osterman, dated January 20, 1974, has been before this Commission for review pursuant to 29 U.S.C. 661(i) for more than a year. Rather than further delaying the disposition of this case until a third member is appointed to the Commission, the Commission as presently constituted agrees to decide the case at this time.

The Commission is equally divided on whether the Judge correctly affirmed item 1 of the citation which alleged that the respondent had failed to comply with the standard codified at 29 C.F.R. 1910.36(b)(1). Chairman Moran would reverse because the standard is unenforceably vague. Commissioner Cleary would affirm the Judge because (1) the vagueness issue was not raised by the parties below, (2) the Commission lacks the authority to consider the validity of a standard, and (3) assuming Commission authority, the standard satisfies constitutional requirements.

Accordingly, the decision of the Judge as to item 1 of the citation is affirmed by an equally divided Commission, and the decision thereon has no precedential weight. Secretary v. [*2] Garcia Concrete, Inc., 18 OSAHRC 184 (1975).

[The Judge's decision referred to herein follows]

OSTERMAN, JUDGE: This is a proceeding initiated by the Respondent, Murray Company, Inc., pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (hereafter the Act) to contest a portion of the Citation and a Notice of Proposed Penalty, both issued to Respondent on May 7, 1973.

The record discloses that as a consequence of an inspection conducted on March 29, 1973 the Secretary issued the said Citation alleging six separate violations of the standards issued by the Secretary pursuant to the Occupational Safety and Health Act of 1970. Notices of Contest filed by Respondent on May 18th challenged the alleged violation, the proposed penalty and the abatement date of Item 1 of the Citation which charged a violation of 29 CFR 1910.36(b)(1) and the proposed penalty for Item 4 of the Citation which charged a violation of 29 CFR 1910.215(a)(1). The remaining items in the Citation as well as the violation charged in Item 4 were not challenged and have become the final order of this Commission by operation of law.

With respect to Item 1, 29 CFR 1910.36(b)(1) [*3] provides:

(b) Fundamental requirements. (1) Every building or structure, new or old, designed for human occupancy shall be provided with exits sufficient to permit the prompt escape of occupants in case of fire or other emergency. The design of exits and other safeguards shall be such that reliance for safety to life in case of fire or other emergency will not depend solely on any single safeguard; additional safeguards shall be provided for life safety in case any single safeguard is ineffective due to some human or mechanical failure.

Evidence offered by the Secretary discloses that Respondent owns and operates a retail hardware store in a brick building which has a basement and four upper floors (Jt Exh. 3); that access from the basement to the upper floors is by means of an elevator at the rear of the store and an open stairway with wooden steps which extends from the basement to the top floor. The stairway is not equipped with fire-resistant doors between floors. The only operable exits from the building are at the front of the store at street level. There are two such exits suitably remote from each other (Jt Exh. 2). The record also shows that two employees are stationed [*4] in the basement; six are stationed on the first floor; one or two work on the second floor and six are employed in an office on the third floor. The fourth floor is used for storage. The Secretary conceded that the building was properly equipped with a sprinkler system but takes the position that one "unprotected" stairway leading to the street floor exist is inadequate to meet the standard imposed by 29 CFR 1910.36(b)(1). According to the undisputed testimony the elevator is not considered a suitable means of egress from the building since in the event of a fire elevators are usually barred to occupants of a building. I fully concur with the Secretary's position that the single unprotected stairway is inadequate to meet the standard.

Respondent's witness testified that the building in question was purchased in 1907; that there is no space between the subject building and the buildings on either side and that the rear of the building abuts directly on the right-of-way owned by the Erie-Lackawanna Railroad (Jt Exh. 3, Jt Exh. 4). Efforts by Respondent to purchase additional land at the rear of the building from the railroad have not been successful. Respondent testified [*5] also that the building is in compliance with the local fire department requirements and the requirements of its insurance underwriters.

After receiving the Citation from OSHA Respondent consulted a local architect about the possibility of adding a closed interior stairway in the building and was advised that it was "impossible" because of the construction of the building. It appears also from the evidence that the addition of a second interior stairway would require the demolition of a portion of Respondent premises and the expenditure of funds far in excess of the original cost of the building itself. Considering the type and size of Respondent's business, the age of Respondent's building and its location, and the cost Respondent would be required to incur it is my view that it would be wholly unreasonable to require the construction of a second interior staircase in order to accomplish abatement of this violation. Other less radical means of abating the violation should be explored by the parties. For this purpose the abatement date should be extended.

With respect to Item 4 of the Citation [failure to guard an abrasive wheel] the record shows that the wheel in question had [*6] not been used regularly since the days when Respondent made or repaired harnesses for horses -- more than 20 years ago. At the time of the inspection it was being kept in storage along with other tools. Respondent did not contest this item of the Citation but only the suggested penalty. Under the circumstances I find the proposed penalty to be unwarranted.

FINDINGS OF FACT

1. Respondent is a corporation organized and existing under the laws of the State of Pennsylvania having its principal office and place of business at 614-28 Main Street, Honesdale, Pennsylvania where it operates a retail hardware store.

2. In the course of its business activities Respondent receives and sells products which have moved across state lines.

3. Respondent's work site at the location is a brick building which has a basement and four upper floors.

4. The side walls of Respondent's building touch the buildings on either side. At the rear Respondent's building abuts on a right-of-way owned by the Erie-Lackawanna Railroad. Entry and exit to and from Respondent's building is possible only from the sidewalk at the front of the building.

5. Access from the street floor of Respondent's [*7] building to the basement and upper floors is by means of an elevator and an open unprotected wooden stairway which extends from the basement to the top floor of the building.

6. Respondent employs 18 persons in its business operations some of whom are required to work on the upper floors of the building.

7. The said unprotected stairway which extends from the basement to the top floor of the Respondent's building is inadequate to permit the prompt escape of occupants of the building from the basement and the upper floors in the event of a fire or other emergency.

8. The penalty proposed by the Secretary for Item 1 of the Citation should be reduced from $65 to $60 because Complainant miscalculated the number of employees in Respondent's workplace.

9. The penalty proposed by the Secretary for Item 4 of the Citation is unwarranted and should be vacated.

CONCLUSIONS OF LAW

1. Respondent is an "employer" engaged in a business affecting "commerce" as those terms are defined by Section 3 of the Act.

2. On March 29, 1973 Respondent was in violation of 29 CFR 1910.36(b)(1) because of its failure to provide exits sufficient to permit prompt escape of employees from the basement [*8] and upper floors of its workplace at 614-18 Main Street, Honesdale, Pennsylvania.

3. The date established by the Secretary for the abatement of this violation is inappropriate and should be extended for an additional period of time.

4. The penalty proposed by the Secretary for Respondent's violation of 29 CFR 1910.215(a)(1) is inappropriate.

ORDER

Pursuant to Section 10 of the Act and Rule 66 of this Commission's Rules of Procedure it is ORDERED:

1. Item 1 of the Citation issued to Respondent by the Secretary of Labor on May 7, 1973 is AFFIRMED.

2. The penalty to be assessed in connection with Item 1 is reduced from $65 to 60.

3. The date for abatement of the violation charged in Item 1 of the said Citation is VACATED and a new abatement date of April 1, 1974 is established.

4. The penalty proposed for the violation charged in Item 4 of the Citation is VACATED.