UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 9664
GENERAL TELEPHONE COMPANY OF
PENNSYLVANIA,
Respondent.
DECISION
BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
This case is before the Commission pursuant to a sua sponte order for review. The parties
have filed no objections to the Administrative Law Judge’s decision, either by way of petitions
for discretionary review or response to the order for review. Accordingly, there has been no
appeal to the Commission, and no party has otherwise expressed dissatisfaction with the
Administrative Law Judge’s decision.
In these circumstances, the Commission declines to pass upon, modify or change the
Judge’s decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA
OSHC 2032, 1975–76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC
1015, 1975–76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc.,
v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no
compelling public interest issue.
The Judge’s decision is accorded the significance of an unreviewed Judge’s decision.
Leone Constr. Co., 3 BNA OSHC 1979, 1975–76 CCH OSHD para. 20,387 (No. 4090, 1976).
It is ORDERED that the decision be affirmed.
Dated: December 22, 1976
FOR THE COMMISSION:
William S. McLaughlin
Executive Secretary
(SEAL)
MORAN, Commissioner, Concurring:
I would affirm the Judge’s decision for the reasons set forth in his decision which is
attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v.
Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the
majority’s view regarding the significance of decisions rendered by Review Commission Judges.
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 9664
GENERAL TELEPHONE COMPANY OF
PENNSYLVANIA,
Respondent.
ORDER
This matter is before me on a remand order dated March 29, 1976. I have considered the
brief filed with the Review Commission by the respondent on March 10, 1975, and reexamined
the evidence herein in the light thereof.
I find that James Oehling, the cable splicer, who was aloft in an aerial bucket without a
body belt and a lanyard attached to the said aerial bucket, on June 28, 1974, had in fact been
specifically instructed and was aware that the body belt and lanyard were to be worn when aloft
in an aerial bucket on June 6, 1974 (Tr. 25).
I am, therefore, under the circumstances of this case, constrained to find that Oehling’s
action on June 28, 1974, was an isolated occurrence and a deviation from his instructions and the
respondent’s work rules which were generally enforced, Secretary v. Standard Glass Co., Inc., 1
OSAHRC 594 (1972); Secretary v. Murphy Pacific Marine Salvage Company, 15 OSAHRC 1
(1975).
Good cause therefore appearing, it is, ORDERED that the citation herein be and the same
is hereby vacated.
DAVID H. HARRIS
JUDGE, OSAHRC
Dated: May 11, 1976
Hyattsville, Maryland
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 9664
GENERAL TELEPHONE COMPANY OF
PENNSYLVANIA,
Respondent.
ORDER OF REMAND
The Judge’s decision filed on February 18, 1975 and served on the parties on March 20,
1975 was prior to the receipt of the Respondent’s brief.
Commission Rule 76 entitles the parties to file briefs with the Judge in order that he may
consider them before he issues the decision. In the case the Judge gave the parties 15 days to file
briefs from receipt of notice that he had the hearing transcript. Respondent’s brief was timely.
Therefore, the Order holding Respondent in violation of the charge is vacated and the
matter is remanded for further consideration on the entire record.
FOR THE COMMISSION:
William S. McLaughlin
Executive Secretary
MAR 29, 1976
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 9664
GENERAL TELEPHONE COMPANY OF
PENNSYLVANIA,
Respondent.
Appearances:
Michael D. Shapiro, Esq.
Louis Weiner, Regional Solicitor
35 Market Street
Philadelphia, Pennsylvania 19104
For the Complainant
John J. Stroh, Esq.
MacDonald, Illig, Jones & Britton
400 First National Bank Building
Erie, Pennsylvania 16501
For the Respondent
Mr. Richard V. Holtzman, President Local 1635
1BEW AFL-CIO
547 Bluff Street
Johnstown, Pennsylvania 15905
For the Employee Representative
Harris, Judge OSAHRC
General Telephone Company of Pennsylvania (respondent), by its Notice of Contest
dated August 19, 1974, contests the allegations of a citation issued on August 2, 1974 charging a
non-serious violation of the complainant’s standard at 29 CFR 1926.556(b)(2)(V) on June 28,
1974. A Notice of Proposed Penalty, dated August 1, 1974, issued by complainant proposing a
penalty for the said alleged violation of $90 is also put in issue by the aforesaid Notice of
Contest. Complainant filed a complaint on September 10, 1974 which incorporates the said
citation and Notice of Proposed Penalty. Respondent’s answer filed on September 24, 1974,
raises the additional defense that if the violation did occur, it was solely the act of the employee
involved and was contrary to rules and instructions issues and enforced by respondent.
The said citation alleges that at the intersection of Route 31 East and Shanksville Road,
Somerset, Pennsylvania, respondent violated the standard at 29 CFR 1926.556(b)(2)(V) in that:
On June 28, 1974, an employee positioned in the basket of a Jelsta model SV 34,
license plate P.A. CN–48199, Number 86306, Aerial Lift Truck, engaged in
repairing telephone communication lines, approximately ten (10) feet above the
ground surface, was not wearing a body belt and lanyard attached to the boom or
basket while working from the aerial lift.
The standard in question provides:
A body belt shall be worn and a lanyard attached to the boom or basket when
working from an aerial lift.
(37 FR 27549, December 16, 1972)
It was stipulated that the respondent is engaged in the transmission and reception of
messages across state lines and that the aerial lift truck is the property of respondent (Tr. 4–5).
Respondent employs more than 100 employees on a daily basis (Tr. 8) and the citation and
notice of hearing were duly posted on the bulletin board at Somerset, Pennsylvania (Tr. 9).
There exists no dispute between the parties that on June 28, 1974, one James Oehling, a
cable splicer in the employ of the respondent, was aloft in one of the respondent’s aerial lift
buckets, without a body belt and a lanyard attached to the basket thereof, while in the act of
replacing a defective cable, near the intersection of Route 31 and Shanksville Road in Somerset
County, Pennsylvania (Tr. 13–14; 21; 31; 50–51; 89; 113–114).
Respondent contends that Oehling’s failure to use a belt and lanyard was an isolated
occurrence which was a deviation from the respondent’s instructions and work rules which were
enforced by the company and that the deviation was unknown to the company. See Secretary v.
Standard Glass Co., Inc., 1 OSAHRC 594 (1972); Secretary v. Murphy Pacific Marine Salvage
Company, OSAHRC Docket No. 2082 (January 13, 1975).
There is no dispute that the respondent’s ‘Rules for Safe Work’ (R–1 and R–2) were
discussed with Oehling by his supervisors on at least two occasions (Tr. 25–26; 27; 28; 34) and
that respondent’s ‘General Telephone Cable Splicing Handbook’ which had been issued to
Oehling contains a section entitled ‘Safety Straps For Aerial Baskets, Description and Use’ (Tr.
36–39). However it is not clear that this handbook was normally used other than as an instruction
manual (Tr. 47–48; 61; 62). Approximately 7 or 8 irregularly scheduled safety meetings were
held by the supervisor and men of the Somerset County crew between February 1973 and June 6,
1974 (Tr. 102; 115–116). Safety matters in general were discussed at these meetings but the
supervisor cannot recall that body belts and lanyards or straps were discussed at any of these
meetings except at the June 6, 1974 meeting (Tr. 116–117). Among the matters which were
discussed at the June 6, 1974 meeting were two incidents involving the use of body belts in aerial
buckets. In one instance the belt was worn and in the other the employee did not wear one (Tr.
104; 130–131; 132). In addition to these efforts to impart safety information to its employees,
respondent published and distributed newsletters (Exh. 7A; 7B). These newsletters, issued at
several monthly intervals (Tr. 135–136) contained safety information and news (Tr. 101).
However, no effort was made to require their being read by members of the crew (Tr. 123) and
they were distributed, in the main, by being made available in the ready room (Tr. 99).
Although the local supervisor recalled that at the June 6, 1974 meeting, the men were told
that straps and belts were to be worn when aloft in the bucket of an aerial lift (Tr. 105), the
record indicates that some confusion existed as to whether the requirement that the body belt and
lanyard had to be worn applied to aerial buckets. Oehling had been warned to wear the body belt
and strap by his supervisor on June 6, 1974, but on this occasion he was aloft on a ladder
platform (Tr. 20; 31; 43; 44). However, he stated that he did not know that it was a company rule
that he wear a belt and strap while aloft in an aerial bucket (Tr. 25) and that he has been up in the
bucket quite frequently without this equipment and that his supervisor has seen him on some of
these occasions (Tr. 17–18). This failure to realize that the rule applied to aerial buckets existed
among other members of the crew (Tr. 55; 66; 67; 75; 76; 85–87; 88). Further, the supervisor
could not recall whether he had instructed Oehling that it was the rule that he had to wear a body
belt and strap while aloft in an aerial bucket (Tr. 118–119; 123–125).
In this posture of the proofs, I can not find that the work rule was enforced by the
respondent or that the act of Oehling on June 28, 1974 was a deviation from normal practice at
the work site. Standard Glass and Murphy Pacific Marine Salvage Company, supra.
It appeared that the comparative safety of the bucket of the aerial lift (Tr. 63–65)
compared to the exposed nature of the ladder platform (Tr. 87) may have given basis to the
misunderstanding that the body belt and lanyard were not required when aloft in the bucket.
Despite the failure of respondent’s well-intentioned safety education program to eliminate the
distinction I am satisfied that under the circumstances of this case the penalty proposed by the
complainant is excessive.
ORDERED that the citation issued herein be and the same is hereby affirmed and the
respondent be and it is hereby assessed and required to pay a penalty thereon in the sum of $50.
DAVID H. HARRIS
Judge, OSAHRC
Dated: FEB 18, 1975
Hyattsville, Maryland