POUGHKEEPSIE YACHT CLUB

OSHRC Docket No. 76-4026

Occupational Safety and Health Review Commission

September 17, 1979

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Paul A. Moore, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Commissioner:

A decision of Administrative Law Judge Seymour Fier is before this Commission for review pursuant to 12(j) of the Occupational Safety and Health Act of 1970. n1 Respondent was issued one citation alleging four nonserious violations of OSHA safety standards. n2 Judge Fier affirmed each item of the citation, finding three of the violations to be nonserious and one de minimis. He assessed no penalties. For the reasons that follow, we affirm the judge's decision.

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n1 29 U.S.C. 651-678, hereinafter "the Act."

n2 The four cited standards are published at 29 C.F.R. 1910.157(d)(3)(iv) (failure to affix durable tag showing maintenance or recharge date on three portable fire extinguishers); 29 C.F.R. 1910.106(g)(8) (failure to post conspicuous and legible sign prohibiting smoking in the gasoline dispensing area); 29 C.F.R. 1910.23(c)(2) (failure to guard with standard railings or their equivalent and with toeboards where required all open sides four feet or more above the floor or ground level on all gangways on north, south and gasoline docks and walkways on two barges) (affirmed as de minimis); and 29 C.F.R. 1910.27(d)(3) (failure to omit rungs from the extension on the travelift ladder, a through ladder extension).

[*2]

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Respondent is a nonprofit corporation organized under the laws of the State of New York for the purpose of maintaining boating facilities for use by it membership. The club has approximately 150 members, and a total annual budget of approximately $40,000. On August 24, 1976, an OSHA compliance officer inspected Respondent's facility. Upon arriving at the club, the compliance officer presented his credentials to the club auditor. The auditor advised the compliance officer that Mr. Reves, the club steward, would be with him shortly. When Reves arrived, the compliance officer again presented his credentials and stated that the purpose of his visit was to inspect the premises for safety violations. Although Reves expressed surprise at the compliance officer's presence, he did not object to the inspection. Reves did not demand that the inspector obtain a warrant, nor did he inquire as to whether the inspector had obtained a warrant. Thereupon, the compliance officer conducted the inspection, accompanied throughout by Reves.

Reves is a member of the club. As club steward, he is responsible for overseeing [*3] the conduct of members and for barring nonmembers from the club grounds. He is also responsible for routine maintenance and repair of club facilities. As compensation, Reves receives a salary paid on a forty hour week basis as well as winter living quarters on the club grounds and free docking privileges. Reves is the club's only paid employee. n3 Other members of the club perform various services on a volunteer basis.

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n3 The club had previously employed a parttime employee. By the time of the hearing, the parttime employee no longer worked for the club. It is unclear whether this employee was working for the club at the time of the inspection.

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Respondent maintains a fuel pump at the marina for which it charges six cents a gallon over cost. All club members, including Reves, may dispense fuel from the pump for themselves or for other members. Occasionally, in an emergency situation fuel is dispensed to nonmembers. Respondent stores the boats of its members and occasionally stores boats of nonmembers. It charges [*4] a fee for the latter only. Several boats docked at the club were manufactured outside New York state. The club docks float in the Hudson River, a navigable waterway. Club members have removed their boats from the docks, and traveled along the Hudson to other parts of New York and to New Jersey.

Before the judge, Respondent contended that it is not subject to the Act's coverage for two reasons. It first contended that it is not an "employer" n4 as defined in the Act, and furthermore that it is not an employer that "affects commerce" under the Act. Moreover, Respondent contended that the OSHA citation was invalid because it was issued incidental to a warrantless inspection and therefore in violation of Respondent's fourth amendment rights.

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n4 The Act places certain duties on "employers." 29 U.S.C. 654(a). An "employer" is "a person engaged in a business affecting commerce who has employees, but does not include the United States or any State or political subdivision of a State." 29 U.S.C. 652(5). A "person" includes "any organized group of persons." 29 U.S.C. 652(4).

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Judge Fier rejected these arguments. In concluding that Respondent was an employer within the meaning of the Act, the judge relied on the provisions of 29 C.F.R. 1975.4(a), a regulation issued by the Secretary, in which coverage under the Act is directed at any employer employing one or more persons. n5 With respect to the question of whether Respondent affects commerce, the judge specifically relied on the evidence showing that Respondent dispenses fuel, that members' boats are manufactured outside New York state, and that the club marina is situated on a navigable waterway adjoining New York and New Jersey and members have taken their boats from the club marina and traveled to either of the two states. The judge cited Cable Car Advertisers, Inc., 73 OSAHRC 57/A2, 1 BNA OSHC 1446, 1973-74 CCH OSHD P17,019 (No. 354, 1973), in which the Commission held that a place of employment upon a navigable waterway of the United States affected commerce within the meaning of the Act.

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n5 29 C.F.R. 1975.4(e) provides:

General. Any employer employing one or more employees would be an "employer engaged in a business affecting commerce who has employees" and, therefore, he is covered by the Act as such.

[*6]

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The judge also rejected Respondent's contention that the warrantless inspection conducted by the complaince officer was constitutionally infirm. The judge concluded that the inspection did not abridge Respondent's rights pursuant to the fourth amendment, since Respondent raised no objection to the absence of a warrant at the time of the inspection. The judge noted that Respondent's fourth amendment argument appeared to rely on the lower court's decision in Barlow's Inc. v. Usery, 424 F. Supp. 437 (D. Idaho 1976), aff'd sub nom. Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), a case in which review was pending before the Supreme Court at the time the judge's decision was issued. Nonetheless, the judge concluded that the absence of Respondent's timely objection to the warrantless inspection would preclude a successful fourth amendment claim by Respondent, regardless of the Supreme Court's resolution with respect to the constitutionality of warrantless inspections.

Respondent petitioned for review of the judge's decision. Respondent does not challenge the judge's affirmance on the merits, [*7] but rather confines its argument on review to the same arguments concerning coverage under the Act and the fourth amendment claim unsuccessfully raised before the judge. Former Commissioner Moran directed review on whether the record justifies the judge's findings of fact and conclusions of law. n6

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n6 Pursuant to our Rule of Procedure 91(a), 29 C.F.R. 2200.91a, we will consider only those issues raised by Respondent's petition. Since Respondent has not taken exception to the judge's disposition of the merits, and in the absence of a compelling public interest, we will not review that aspect of the judge's decision. Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976).

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We conclude that the judge properly rejected Respondent's arguments. The Commission has previously held that the Act's coverage extends even to those employers with only one employee. Elmer [*8] Vath, Painting Contractor, 74 OSAHRC 45/D9, 2 BNA OSHC 1091, 1973-74 CCH OSHD P18,161 (No. 773, 1974). Accordingly, we conclude that Respondent meets the Act's definition of "employer." Furthermore, we conclude that Respondent is an employer "affecting commerce" for the reasons the judge assigned. See also Godwin v. OSHRC, 540 F.2d 1013 (9th Cir. 1976), and cases cited therein.

Finally, we reject Respondent's fourth amendment claim. Although the Supreme Court has now held, in Marshall v. Barlow's, Inc., supra, that the Act is unconstitutional insofar as it purports to authorize inspections without a warrant or its equivalent, the inspection here was conducted before that case was decided. The Commission has held that any remedy which might otherwise be appropriate if an inspection violates the fourth amendment will not be applied retroactively to inspections that occurred before the decision in Barlow's was announced. Accordingly, even if the inspection failed to conform to the fourth amendment tests set forth in Barlow's, Respondent would not be entitled to exclusion of the evidence. [*9] n7

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n7 We also note that Respondent, through Reves, consented to the inspection. Thus, there was no violation of Respondent's fourth amendment rights. Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Stephenson Enterprises, Inc. v. Marshall, 578 F.2d 1021, 1024 (5th Cir. 1978).

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The judge's decision is affirmed.