ACE WINDOW CLEANING COMPANY

OSHRC Docket No. 7509

Occupational Safety and Health Review Commission

April 30, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Herman Grant, Regional Solicitor, USDOL

Manuel R. Silva, Supt. General Manager, Ace Window Cleaning Company, for the employer

Don Beatty, President, Local 150, Service & Hospital Employees International Union, for the employees

OPINION:

DECISION

By the COMMISSION:

A report of Administrative Law Judge George W. Otto, dated December 9, 1974, is before the Commission pursuant to an order issued under section 12(j) of the Occupational Safety and Health Act of 1970. n1 The judge affirmed a citation alleging a repeated violation of 29 C.F.R. 1926.451(i)(8) in that, at two locations, as employee on a scaffold was not tied to a lifeline. The judge also affirmed a citation alleging a nonserious violation of 29 C.F.R. 1926.60(d)(1) in that a first aid kit was not available on the worksite. Judge Otto assessed the proposed penalty of $450 for the repeated violation and did not assess a penalty for the nonserious violation.

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n1 29 U.S.C. 651 et seq.

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The order [*2] for review was issued on his own motion by Commissioner Moran. It stated the following issue:

Was the inspection upon which the citation was founded conducted in accordance with the requirements of 29 U.S.C. 657(e)?

The issue was not raised by either party at any stage in these proceedings and was not mentioned in the judge's report. Neither party petitioned for review; hence there has not been a request for review by the full Commission. Respondent has not indicated any interest, whether by letter, brief, or other means, in having the judge's report reviewed. The Secretary has filed a brief asking for affirmance of the report on the directed issue. n2

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n2 In his brief, the Secretary also asks for reversal of the judge's finding that one of the two allegations in the repeated citation did not constitute a violation. Inasmuch as the judge affirmed the citation and assessed the total proposed penalty, we conclude that it would serve no purpose to reach the Secretary's issue. We note also that the Secretary did not except to the judge's report until after the order for review was entered, that briefs were invited specifically with respect to the directed issue, and that the Secretary's exception is not related to the directed issue.

[*3]

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In these circumstances and in the absence of any compelling public interest, we decline to pass on the directed issue or any other aspect of the judge's report. Further, because of our disposition herein we accord the judge's report the same precedential value as an unreviewed judge's decision, i.e., it is not binding on OSHRC judges.

Accordingly, the judge's report is affirmed. So ORDERED.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

The record shows that the evidence obtained by complainant after his inspector complied with the walkaround requirements set forth in 29 U.S.C. 657(e) n3 was sufficient to establish the alleged violations. The admission of evidence obtained before the inspector complied with section 657(e) was, therefore, harmless error. Consequently, Judge Otto's decision is correct and should be affirmed on that basis.

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n3 That section provides in pertinent part that:

"[A] representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) of this section for the purpose of aiding such inspection."

[*4]

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Contrary to the assertion in the lead opinion, the fact that neither party filed a petition for discretionary review pursuant to 29 C.F.R. 2200.91 and that respondent did not file a brief in response to the direction for review is both immaterial and irrelevant. n4 There is no justification for ordering a disposition because a party to the case did not do something it was not obligated to do. The Barnako-Cleary self-manufactured presumption-of-guilt doctrine, which they apply against any employer who neither files a petition for review nor files a brief after a direction for review has been issued by a Commission member, has absolutely no basis in fact or law. It is the exact equivalent of applying a presumption-of-guilt whenever a defendent asserts rights guaranteed to him under the Fifth Amendment to the Constitution - and is entitled to equivalent respect.

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They have never applied it when the decision below goes against the Secretary of Labor. Their continued use of this cop out - without even attempting to respond to the many arguments against it - would, by their own theory raise a presumption that they are unable to justify their doctrine by either logic, citations to case law, or reference to sections of the Act.

[*5]

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I am also constrained to again record my disagreement with my colleagues' unsupported assertion regarding the precedential value of the Judge's decision. My reasons for disagreement are expressed in some detail in several decisions, n5 and I will not repeat those reasons here. I would add, however, that the United States Court of Appeals for the Seventh Circuit, the jurisdiction in which the instant case arose, considered the decision of a Review Commission Judge which had not been reviewed by the Commission members to be a "final order of the Commission." Anning-Johnson Company v. OSAHRC, 516 F.2d 1081, 1084 n.5 (7th Cir. 1975). Furthermore, it is obviously irregular for my colleagues to affirm something which they do not consider to be worthy of precedential value. If Judge Otto's decision has a fatal defect which would preclude it from being relied upon in future cases, judicial honesty requires them to say so, rather than relying on one-dimensional procedural rules of their own making. Their refusal to take a stand - or to be bound by their affirmance of a Judge's decision - is good reason [*6] for the total elimination of the three members of the Review Commission.

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Since Messrs. Barnako and Cleary do not disagree with any of the matters covered in Judge Otto's decision, the same is attached hereto as Appendix A in order that it may be afforded the precedential weight to which it is entitled, that is, the same weight as a decision by the Commission members.

APPENDIX A

DECISION AND ORDER

ACE WINDOW CLEANING COMPANY, a Corporation

Edward J. Moran, for the complainant

Manuel R. Silva, Superintendent, for respondent

George W. Otto, Judge, OSAHRC

This is a proceeding instituted before the Review Commission under the Occupational Safety and Health Act of 1970 (29 USC 651 et seq.) upon complaint of the Secretary of Labor (Secretary). Citations were issued. April 1, 1974 with a proposed penalty of $450, and Ace Window [*7] Cleaning Company (Employer), Milwaukee, Wisconsin duly filed a notice of contest. The complaint and answer were duly served. Hearing was held at Milwaukee, Wisconsin on August 29, 1974.

STATEMENT OF FACTS

Ace Window Cleaning Company is a corporation engaged in the business of window cleaning. Two employees were cleaning windows of the Clark Building, Milwaukee, Wisconsin on the inspection date March 15, 1974. As a result of that inspection, two citations were issued by the Secretary April 1, 1974 alleging violation of occupational safety and health standards 29 CFR 1926.50(d)(1) and 29 CFR 1926.451(i)(8).

The two employees, Joseph Schwartz and Bob Heim, were at about the tenth floor level when observed by Gordon Krohn, the Secretary compliance officer (Tr. 16). They were working on a two-point suspension stage scaffold suspended from the building with two life lines, one extending to the ground and the other extending to the fifth floor level. They were wearing safety belts (Tr. 12), but Schwartz did not have his life belt attached to the life line. (Tr. 13, 14, 35). The compliance officer was told there was no first-aid kit available at the site (Tr. 21).

THE ISSUES [*8]

1. Whether the Employer failed to comply with 29 CFR 1926.451(i)(8) and if so, the nature of the violation, the appropriate abatement date and penalty.

2. Whether the Employer failed to comply with 29 CFR 1926.50(d)(1) and if so, the appropriate abatement date and penalty.

OPINION

Issue No. 1. 29 CFR 1926.451(i)(8): On suspension scaffolds designed for a working load of 500 pounds, no more than two men shall be permitted to work at one time . . . Each employe shall be protected by an approved safety life belt attached to a life line. The life line shall be securely attached to substantial members of the structure (not scaffold), or to securely rigged lines, which will safely suspend the employe in case of a fall . . .

The Secretary charges a repeated violation of 29 CFR 1926.451(i)(8), specified immediate correction and proposes a penalty of $450. The violation is predicated upon two factors, the failure of the employe Schwartz to work with his life belt attached to the life line and the failure of the life line used by Schwartz to extend to the ground. The repeated nature of the violation is based upon citations issued by the Secretary on August 17, 1973 and on November [*9] 5, 1973 charging the Employer with failure to comply with the same standard, 29 CFR 1926.451(i)(8). Both were uncontested and are deemed final Commission orders (29 USC 659(a)).

A violation of this standard resulted because the Employer failed to provide a life line extending to the ground. The two employees while washing windows at the second, third and fourth floor levels occupied a scaffold with only one life line. Joseph Schwartz testified he told Superintendent Silva at the shop that morning the safety line went down only to about the fifth floor and that the Superintendent told him and the employe Heim not to worry about it and to use it anyway (Tr. 35, 36) The Employer does not dispute this testimony. Mr. Silva represented the Employer in this action action and did not testify.

The failure of the employee to attach his life belt to the life line did not represent a violation of the above standard by the Employer. In this case the Employer provided all equipment necessary to achieve compliance with the standard, instructed the employee to be hooked up to all times when on the scaffold stage and at windows (Tr. 36), and the life belt was disengaged by the employee because [*10] he felt the life line pulled him while working.

The citation issue April 1, 1974 charged a non-serious violation. The Secretary in the complaint served April 26, 1974 amended to charge a repeated rather than a non-serious violation of 29 CFR 1926.451(i)(8). The Employer repeatedly violated this standard as evidenced by the uncontested citations issued August 17, 1973 and November 5, 1973 (C-7). The repeated violation of the standard is maintained even though there may have been some factual variation in the nature of the violation within the standard involved.

Issue No. 2. The Employer failed to provide easily accessible first-aid supplies as required by 29 CFR 1926.50(d) but has abated the violation (Tr. 32). The abatement date of April 12, 1974 reflects the low gravity of the violation, and taking all statutory factors into account, no penalty is assessed.

FINDINGS OF FACT

1. On March 15, 1974 Ace Window Cleaning Company, respondent, permitted its employee to work on a suspension scaffold at second, third and fourth floor building levels without a life line.

2. On August 17, 1973 the Secretary of Labor issued a citation pursuant to 29 USC 658(a) charging the Employer [*11] with violation of 29 CFR 1926.451(i)(8). The Employer failed to notify the Secretary within 15 working days from the receipt of the citation that he intended to contest the citation or proposed assessment of penalty and no notice was filed by any employee or representative of employees within such time.

3. On November 5, 1973 the Secretary of Labor issued a citation pursuant to 29 USC 658(a) charging the Employer with violation of 29 CFR 1926.451(i)(8). The Employer failed to notify the Secretary within 15 working days from the receipt of the citation that he intended to contest the citation or proposed assessment of penalty and no notice was filed by any employee or representative of employees within such time.

4. Respondent failed to provide first-aid supplies at the worksite in the immediate vicinity of the Clark Building, Milwaukee, Wisconsin.

CONCLUSIONS OF LAW

1. Ace Window Cleaning Company, respondent, is an employer within the meaning of 29 USC 652(5).

2. The citation issued August 17, 1973 shall be deemed a final order of the Commission and pursuant to such final order the Employer failed in its duty to comply with occupational safety and health standard 29 CFR [*12] 1926.451(i)(8).

3. The citation issued November 5, 1973 shall be deemed a final order of the Commission and pursuant to such final order the Employer failed in its duty to comply with occupational safety and health standard 29 CFR 1926.451(i)(8).

4. The Employer failed in its duty to comply with occupational safety and health standard 29 CFR 1926.451(i)(8) as charged in the citation issued April 1, 1974. Immediate abatement is required. A penalty of $450 is assessed.

5. The Employer failed in its duty to comply with occupational safety and health standard 29 CFR 1926.50(d)(1). The abatement date of April 12, 1974 is reasonable. No penalty is assessed.

ORDER

It is therefore Ordered that pursuant to 29 USC 666(k) Ace Window Cleaning Company, respondent, shall pay to the Secretary of Labor for deposit into the Treasury of the United States the sum of $450.

George W. Otto, Judge, OSAHRC

Dated: Dec. 9, 1974