“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 13335 ARTHUR AND TONI SHEETS INDIVIDUALS, DOING BUSINESS AS SHEETS TREE EXPERT COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0January5, 1977?DECISION?Before BARNAKO, Chairman; MORAN and CLEARY,Commissioners.??????????? Thiscase is before the Commission pursuant to a suasponte order for review. The parties have filed no objections to theAdministrative Law Judge?s decision, either by way of petitions fordiscretionary review or response to the order for review. Accordingly, therehas been no appeal to the Commission, and no party has otherwise expresseddissatisfaction with the Administrative Law Judge?s decision.??????????? Inthese circumstances, the Commission declines to pass upon, modify or change theJudge?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); CraneCo., 4 BNA OSHC 1015, 1975?76 CCH OSHD para. 20,508 (No. 3336, 1976); seealso 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 compellingpublic interest issue.??????????? TheJudge?s decision is accorded the significance of an unreviewed Judge?sdecision. Leone Constr. Co., 3 BNA OSHC 1979, 1975?76 CCH OSHD para.20,387 (No. 4090, 1976).??????????? It isORDERED that the decision be affirmed.?DATED: January 5, 1977FOR THE COMMISSION:William S. McLaughlinExecutive Secretary(SEAL)?MORAN, Commissioner, Dissenting:??????????? Iwould vacate the citation on the basis that respondent did all that was requiredof it under the Act to require recalcitrant employees to comply with theprotective hat standard codified at 29 C.F.R. ? 1918.105(a). See Secretaryv. Independent Pier Company, 20 OSAHRC 810 (1975)(dissentingopinion). Furthermore, for the reasons expressed in my separate opinion in Secretaryv. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, Idisagree with the manner in which my colleagues aredisposing of this case and with their views regarding the significance ofdecisions rendered by Review Commission Judges.??????????? Sincemy colleagues do not address any of the matters covered in Judge Usher?sdecision, his decision is attached hereto as Appendix A so that the law in thiscase may be known.\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 13335 ARTHUR AND TONI SHEETS INDIVIDUALS, DOING BUSINESS AS SHEETS TREE EXPERT COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0June16, 1976?DECISION AND ORDERAppearances:Howard K. Agran,Esquire for Complainant\u00a0Mr. Arthur Sheets and Mrs. Arthur (Toni)Sheets (Pro Se) for Respondents\u00a0Usher, Judge:??????????? Thisis a proceeding initiated by the Secretary of Labor, United States Departmentof Labor, pursuant to Section 10(c) of the Occupational Safety and Health Actof 1970 (29 U.S.C. 651, et seq.), hereinafter referred to as the Act, seekingthe affirmance by the Commission of a Citation which charges a ?repeated?violation of Section 5(a)(2) of the Act and seeking further to have theCommission assess a penalty of $180.??????????? OnSeptember 26, 1974, Complainant issued a Citation to Respondents charging a?nonserious? violation of the Act in thatThree employees working at 1560 GrahamBoulevard, where there was a possible danger of head injury from falling orflying objects, were not protected by protective helmets.\u00a0??????????? Apenalty of $60 was proposed by Complainant?s agent, the Area Director,Occupational Safety and Health Administration (hereinafter referred to asOSHA).??????????? Respondentsand their accountant, Robert G. Runser, CPA,attempted to negotiate the matter, but having no success, Respondents paid the$60 proposed penalty without contest.??????????? Asthe result of a second inspection on April 23, 1975 at a worksite controlled byRespondents, Complainant issued a Citation again charging Respondents with aviolation of the safety standard promulgated by Complainant and codified at 29CFR 1926.100(a). That Citation, issued on April 25, 1975 characterized theviolation as ?repeated? and described it as follows:An employee working at 100 Fourth Street, Blawnox, Pennsylvania, where there was a possible danger ofhead injury from falling or flying objects, was not protected by a protectivehelmet. (Emphasis added).???????????? In aNotification of Proposed Penalty, dated April 25, 1975, a penalty of $180 wasproposed.Discussion??????????? Theevidence discloses that Mr. and Mrs. Sheets operate a tree trimming and removalbusiness from which they gross approximately $135,000 annually. Their net worthis estimated to be approximately $30,000. They usually employ one person whoassists Mr. Sheets, but at times two or three persons are so employed.??????????? Itwas stipulated that machinery or equipment utilized in the business?originates, in whole or part, from locations outside . . . Pennsylvania.???????????? Thefact that Respondents? employee (one) was observed by Complainant?s agentwithout head protection on April 23, 1975, while working immediately under alarge limb that was being lowered by a boom truck, was not seriously refuted.However, Respondents argued that they have purchased and furnished to theiremployees ?complete sets of hard hats with ear guards and face shields . . .and protective glasses [as an alternative to the face shield],? but that theemployees refused to wear them. Entreating and cajoling the employees to complywith the law proved fruitless. The Respondents insisted that other disciplinarymeasures were not available to them because of the smallness of the enterpriseand their need for the employees.??????????? Itwas not economically feasible to fire employees as a disciplinary measurebecause of the scarcity of trained help. Each new employee had to be trained onthe job. Furthermore, if the employees did not work Mr. Sheets was not able towork inasmuch as the jobs to be performed require two to three persons workingin concert. If employee lay offs were utilized aspunishment for disobedience, the enterprise would be idled.??????????? Theevidence, taken in its entirety, indicates that Respondents did all that washumanly possible to achieve compliance, save discharging or laying off therecalcitrant employees. Their efforts, however, met with little success untilthe employees who were working at the times of the alleged violations wereeventually replaced by more cooperative, sympathetic employees.??????????? Atthe time of the hearing, according to Mr. Sheets, ?the follows we have now understand the problem that we have, and they?re going alongwith it 100 percent.? Thus compliance has seeminglybeen achieved.??????????? Theapplication of these facts to the law as enunciated by the Commission[1] and the Court of Appealsfor the Third Circuit[2] leads inescapably to theconclusion that Respondents failed to comply with the provisions of the Act inthat their employees worked in areas where there was a possibility of headinjury while not wearing protective helmets. Employee disobedience, without ashowing that all means to effect compliance have been exhausted, cannot absolveRespondents.??????????? Equityand good conscience, however, preclude the assessment of the $180 proposedpenalty.??????????? TheComplainant has failed to justify such a penalty under these circumstances. Hehas not shown by a preponderance of the evidence that the size of Respondents?business, the gravity of the violation, Respondent?s good faith, and theirhistory of previous violations have been given due consideration[3].??????????? TheCommission is charged with the responsibility of assessing penalties, and theweight to be given the factors enumerated in Section 17(j) of the Actultimately lies within the Commission?s discretion. The Commission is, ofcourse, not bound by the mechanical ?reasoning process? by which Complainantarrives at his penalty proposals.??????????? Inthis instance no ?adjustment? was given for Respondents? good faith and no?adjustment? was allowed for ?history.? A 10 percent credit or ?adjustment? wasallowed because of the size of Respondents? business enterprise. A $200unadjusted penalty base was used, and that was presumably arrived at on the basis of the penalty paid for the alleged(uncontested) 1974 violation.??????????? Thegravity of the asserted violation must be considered as comparativelyinsubstantial; only one employee was exposed. The size of Respondents? businessenterprise could hardly be smaller.??????????? Complainant?switnesses testified regarding Respondents? lack of good faith. That testimonywas somewhat less than convincing. It was based, at least in part, upon verbalexchanges between the Compliance Officer and Mr. Sheets, and Mr. Sheets?remarks (if accurately portrayed in the testimony) were doubtless prompted byhis frustration at having previously been given no guidance or sympathy by theArea Director who manned the Pittsburgh OSHA office[4] at the time the firstCitation was issued.??????????? Theevidence establishes clearly that Respondents did not lack ?good faith,? asthat term is used in the Act, but rather made extensive, albeit fruitlessattempts to comply in the face of almost certain economic loss.??????????? Consideringthe gravity of the violation,[5] Respondents? past history of violations,[6] their good faith, and thesize of their business,[7] a $10 penalty is far morereasonable than the $180 proposed by Complainant.??????????? Therecord herein compels the following findings of fact and conclusions of law.Findings of Fact??????????? 1.Respondents, Arthur Sheets and Toni Sheets, his wife, are individuals, doingbusiness in Pennsylvania as Sheets Tree Expert Company.??????????? 2. OnApril 25, 1975, Respondents maintained a place of business or worksite at 100Fourth Street, Blawnox, Pennsylvania, where theyemployed two employees and used equipment which was manufactured outside of theCommonwealth of Pennsylvania.??????????? 3.Respondents ordinarily employed one, two, or three employees ona daily basis; their net worth in 1975 was approximately $30,000.??????????? 4.Respondents have exhibited a good faith attitude regarding their responsibilitiestoward the occupational safety and health of their employees as evidenced bytheir relatively commendable history of violations of the Act.??????????? 5. OnSeptember 26, 1974, Respondents were cited for violation of Section 5(a)(2) ofthe Act, and specifically for violation of the safety standard codified at 29CFR 1926.100(a); that citation was not contested by Respondents and a penaltyof $60 was paid therefor.??????????? 6. OnApril 23, 1975, one of Respondents? employees worked at the abovementionedworksite in an area where there was a possibility of danger from fallingobjects, and that said employee was not protected by protective headgear.??????????? 7.The failure of Respondents? employee to utilize head protection presented anoccupational hazard.??????????? 8.The assessment of a minimal penalty in these circumstances will not operate todiscourage compliance; rather Respondents? recent experience with the Act?sprovisions and their stated intention deterrent.[8]Conclusions of Law??????????? 1.Jurisdiction of the parties and the subject matter is conferred upon theOccupational Safety and Health Review Commission by Section 10(c) of the Act.??????????? 2. At all times hereto Respondents were employers engaged in abusiness affecting commerce within the meaning of Section 3(5) of the Act andas such were subject to the requirements of Section 5(a)(2) of the Act.??????????? 3.The regulation promulgated by Complainant pursuant to Section 6 of the Act andcodified at 29 CFR 1926.100(a) constitutes a safety standard as contemplated bySection 5(a)(2) of the Act.??????????? 4. OnApril 23, 1975, Respondents violated the provisions of Section 5(a)(2) of theAct in that they failed to comply with the safety standard codified at 29 CFR1926.100(a).??????????? 5.The penalty assessed hereby fully accords with the provisions of Sections 17(a),17(c), and 17(j) of the Act and is consonant with the public interestobjectives of the Act.Order??????????? Uponconsideration of the aforesaid findings and conclusions, it is hereby ORDEREDthat??????????? 1.The Citation issued to Respondents by Complainant on April 25, 1975, isAFFIRMED, and??????????? 2. Acivil penalty of $10 is ASSESSED against Respondents.BENJAMIN G. USHERJudge, OSAHRCDated: JUN 16, 1976?Hyattsville, Maryland[1] Secretary ofLabor v. Independent Pier Company, et al., 20 OSAHRC 810, CCH OSHD para.19,407 (Docket No. 4897, 1975); Secretary of Labor v. Atlantic Gulf andStevedores, Inc., 16 OSAHRC 770 (Docket No. 2818, 1975); Secretary ofLabor v. J. A. McCarthy, Inc. (Docket Nos. 6565, 7177, 7522; January 20,1976).\u00a0[2] Atlantic andGulf Stevedores, Inc., et al. v. Occupational Safety and Health ReviewCommission, ?? F.2d ?? (Docket Nos. 2818, 2862, 2998; March 26, 1976).\u00a0[3] Section 17(j) ofthe Act.[4] If ?good faith?credits were being assigned to Complainant, he would have to be given a minuszero adjustment on the basis of his agent?s conduct. The credible and unrefutedtestimony of Respondents and their Certified Public Accountant indicates thatthe (then) Area Director was less than helpful in resolving Respondents?problem in 1974.\u00a0[5] In Secretaryof Labor v. J. A. McCarthy, supra, ?repeated? violations were involved;many stevedores were observed without head protection ?on three separateoccasions.? The Administrative Law Judge reduced the proposed penalty from $310to $180 (Docket No. 6565), reduced the $125 penalty to $45 (Docket No. 7177)and reduced the $235 penalty to $180 (Docket No. 7522). Upon review theCommission reduced the $180 $180 penalty (Docket No. 7522) to $45. Secretaryof Labor v. International Terminal Operating Corporation of New England, et al.,CCH OSHD para. 20,242, involved four Respondents and presumably severalinspections (Docket Nos. 4107, 4803, 4863, 4882, 6107, 6158, 6159, 6871, and5579). The Commission assessed penalties of $100 and $90 for repeatedviolations (Docket Nos. 4863 and 6158) and a $45 penalty for each citation inthe remaining cases (?affirmed as nonserious violations?). Docket Nos. 2818,2998, 2862, and 2997 (Secretary of Labor v. Atlantic and Gulf Stevedores,Inc., supra) involved the same violation as is charged here, albeit listedunder a different standard. None of the four Respondents had previously beencharged with a violation of the safety standard codified at 29 CFR 1918.105(a).No penalties were assessed.\u00a0[6] No violativehistory on Respondents? part was proven except the asserted violation of thehard-hat standard on September 26, 1974.\u00a0[7] To determine therelative size of Respondents? business, we can look to J. A. McCarthy &Company, Atlantic and Gulf Stevedores, and International TerminalOperating Corporation. While the size of J. A. McCarthy is not given in thedecision, it is stated that the firm purchased hard hats and liners for itsemployees at a total cost of $3,228.03. That is indicative of a large workforce.\u00a0TheRespondents in Atlantic and Gulf employed 493 persons and, ?inthe aggregate have annual sales in excess of $15 million.? In InternationalTerminal Operating Corporation of New England, et al., the net worth ofeach Respondent was stipulated to be $50,000, and each employed an average of60 persons daily.\u00a0[8] See Secretaryof Labor v. Hydroswift Corporation, 1 OSAHRC 921 (Docket No. 591, 1972).”