“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 3701 FRANKLIN R. LACY \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0April 5, 1976DECISIONBEFORE BARNAKO, Chairman;MORAN and CLEARY, Commissioners.MORAN, Commissioner:Adecision of Review Commission Judge Garl Watkins, dated December 16, 1974,attached hereto as Appendix A, is before this Commission for review pursuant to29 U.S.C. Sec. 661(i).Havingexamined the record in its entirety, the Commission finds that the Judgeproperly decided the case and adopts his decision. Accordingly, the Judge?sdecision is hereby affirmed.?FOR THE COMMISSION:?William S. McLaughlinExecutive SecretaryDATED: APR 5, 1976?CLEARY, Commissioner,DISSENTING:Respondentemployer is the sole proprietor of a 41?unit apartment building in Kirkland,Washington. On July 10, 1973, complainant issued respondent a citation allegingeight violation of 29 U.S.C. ? 654(a)(2). After a hearing, Judge Watkins heldthat complainant failed to prove that respondent was engaged in businessaffecting commerce within the meaning of the Act. He, therefore, vacated thecitation without reaching the merits of the alleged violations. The majorityadopts the Judge?s decision. I submit that the majority errs.JudgeWatkins ruled that complainant must show that the activities of a citedemployer affect interstate commerce. I disagree. Congress, at 29 U.S.C. ?658(a), set forth in detail the elements necessary for a violation of the Act.This section does not require that the Secretary of Labor establish that theactivities of a cited employer affect interstate commerce. Therefore, theSecretary need not plead and prove that an employer?s activities affectinterstate commerce. For a more expansive analysis of this issue, see my viewsin Anchorage Plastering Co., 3 BNA OSHC 1284, 1974?75 CCH OSHD para.19,720 (No. 3322, June 9, 1975) (separate opinion), petition for reviewdocketed, No. 75?2747, 9th Cir., August 9, 1975; Les Mares Enterprises,Inc., 3 BNA OSHC 1015, 1974?75 CCH OSHD para. 19,538 (No. 2455, April 11,1975) (dissenting opinion), petition for review docketed, No. 75?2196,9th Cir., June 2, 1975.Inany event, the majority errs when it adopts the Judge?s opinion when it holdsthat the evidence of record does not support a finding that respondent wasengaged in a business affecting commerce.Atthe time of inspection, respondent was engaged in the construction of anaddition to an apartment building. Testimony established that respondent used aFord station wagon to haul some materials to the jobsite. Also, respondent useda drill manufactured by Sears, Roebuck, and Company and plywood fromWeyerhauser. In ruling that complaint failed to show that respondent wasengaged in a business affecting commerce, Judge Watkins specifically refused totake official notice that Weyerhauser and Sears are engaged in interstatecommerce.Iwould reject the Judge?s narrow view of official notice. The concept ofofficial notice is more expansive than judicial notice. In enacting theAdministrative Procedure Act, 5 U.S.C. ?\u00a0.551 et seq., Congress adoptedthe view that ?the permissible area of official notice be extended? so as toavoid ?laborious proof of what is obvious and notorious? . . .. AttorneyGeneral?s Manual on the Administrative Procedure Act 79 (1947). Inaddition, even as to judicial notice the Second Circuit in Continental CanCo., Inc. v. United States, 272 F.2d 312, 315 (1959), stated:In reaching theirdecisions, neither courts nor administrative bodies should ignore the realitiesof life and disregard common knowledge even though such knowledge may not haveachieved a place within the purview of judicial notice.\u00a0Iwould, therefore, take official notice that Sears, Weyerhauser, and Ford areengaged in interstate commerce.[1] Concerning Ford, judicialnotice has expressly been taken of the commonly known fact that Ford MotorCompany carries on extensive activities regarding its products in interstatecommerce. N.L.R.B. v. Vulcan Forging Co., 188 F.2d 927, 930 (6th Cir.1951). The members of this Commission and its presiding officers are allowed toknow what is known by all persons of common intelligence.Moreover,I would hold that respondent, merely by using goods and materials produced ininterstate commerce, was engaged in a business affecting commerce. See, e.g., UnitedStates v. Dye Constr. Corp., 510 F.2d 78, 83 (10th Cir. 1975) and casescited therein. Accordingly, I would remand this case to Judge Watkins for adecision on the merits of the alleged violations.?APPENDIX A\u00a0\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 3701 FRANKLIN R. LACY \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 January 15, 1975DECISIONAppearances:Ann M. Noble Washington, D.C. for Complainant\u00a0Frankin R. Lacy Kirklan, Washington for Respondent\u00a0GARL WATKINS, JudgeIn this enforcement proceeding under theOccupational Safety and Health Act of 1970, U.S.C. 651 et seq., theSecretary alleges eight non-serious violations of Section 5(a)(2) of the Act (29 USC 654(a)(2)). All allegations have to do with failure to comply withconstruction standards on June 21, 1973 when Respondent was building anapartment house in Kirkland, Washington. No penalties were proposed for four ofthe items of the citation and the total for the other four is $220.00.We hold that the Secretary has failed to meethis burden of proving that Respondent was ?engaged in a business affectingcommerce? and that the citation and notification of proposed penalty must bevacated. Included in the following discussion is all the evidence most favorableto the position of the Secretary on the issue here under consideration.Respondent owns and manages an apartment housein Kirkland, Washington, across Lake Washington from Seattle. It is on a steephillside (20% grade) sloping toward the Lake and before the construction givingrise to this litigation, consisted of two buildings, one directly up the hilland behind the other. Each had three floors of living space and one of coveredparking. The two were connected by the roof of a carport.QThe lower building has 13 units and the second15. The third was designed to contain 13 units. Most of the apartments had onebedroom and a few had two.Respondent owned the property and had used theservices of a building contractor for the first two buildings. On the third heundertook the job himself. Most of the workmen he hired were part-timeemployees and were students at the University of Washington in Seattle. Therewere probably eight employed on June 21, the day of the inspection by arepresentative of the Secretary.The plumbing was ?sub-contracted.? The identityof the plumber was not disclosed. There is no evidence as to whether otherspecialized type work, such as electrical, was likewise to be done by others.In answer to Interrogatory No. 1 before thehearing (issued pursuant to an order of the trial judge) as to ?suppliers ofgoods, materials and machinery used by you or your employees in constructingthe apartment building?, Respondent answered:?Cadman Sand & Gravel\u00a0Henry Bacon\u00a0Norms Welding\u00a0Rainier Glass?\u00a0Interrogatory No. 2 requested the ?brand name ofthe materials, goods and machinery used by you? etc. Respondent?s answer was,?I think the lumber came from Weyerhaeuser. I don?t know about the rest.??Henry Bacon? was further identified in Respondent?stestimony as being located on Elliott Avenue in Seattle. Glass for the buildingwas purchased from ?Rainier Glass.? Its place of business was not identifiedfurther than the following:?A. I don?t know whodelivered it. I bought it from Rainier Glass.\u00a0Q. Is that the same as Rainier Glass & Ski on South Ferdinandin Columbia City?\u00a0A. I guess that is what their new name is.\u00a0Q. And how did you hear of Rainier Glass?\u00a0A. I had bought the windows for the second building from them.\u00a0Q. Do you recall how you heard of them when you bought the windowsfor the second building?\u00a0A. I had used them in the past and for replacement windows.\u00a0Q. Do you recall how you first became associated or learned ofRainier Glass?\u00a0A. Probably it was recommended by somebody.?(Tr. 38?39)\u00a0The lumber was ?practically all? bought from?Henry Bacon?; some from ?Seattle Lumber.? (Tr. 39)Respondent first testified he believed he hadbought some lumber from ?Tumalum Lumber? in Bellevue, but later believed he hadnot.He further testified on page 40, 41 and 42 ofthe Transcript:?A. Then I probably didn?t but any lumber from Tumalum. I probablybought it from Seattle Dumber and Henry Bacon.\u00a0Q. Do you recall specifically? Probably is sort of an indefiniteterm. Do you know?\u00a0A. It would be Henry Bacon and Seattle Lumber that I bought mylumber from at that time.\u00a0Q. And do you recall the brand name of the lumber?\u00a0A. Weyerhaeuser, that is the only name I recall.\u00a0Q. That was stamped on the lumber you received prior to June 21,1973?\u00a0A. It was stamped on the plywood I received.\u00a0Q. Was that plywood used in the construction of building No. 3?\u00a0A. Yes.\u00a0Q. Can you tell me whether you received any materials from CadmanGravel Company?\u00a0A. Yes.\u00a0Q. And do you recall what those materials were?\u00a0A. Concrete mix.\u00a0Q. Do you recall what kind of concrete mix it was? Was it PortlandCement?\u00a0A. I don?t know.?\u00a0There is no evidence about tools and machineryused on the job, and relevant to the question under consideration, except thefollowing:?Q. Did you use saws and drills in the construction of thisbuilding?\u00a0A. Yes, I did.\u00a0Q. Can you recall what type of equipment that was, the brand name?\u00a0A. They are just saws that I already had from my hobby work.\u00a0Q. I am sure you are familiar with some brands, were theyCraftsman, Black & Decker, Skill, do you recall?\u00a0A. I believe one of the drills was a Craftsman drill and I believeI bought this saw from?I don?t remember on the saw. It?s a good sized one.\u00a0Q. You don?t recall what brand name was?\u00a0A. No, I have had them for some time. I could go home and look atthem or call my wife if you want me to.?Tr. 52?53)\u00a0The Compliance Officer, Gilbert Saulter, afterrefreshing his recollection from notes made at the time of the inspection,testified Respondent told him he had a Dodge station wagon and on occasion usedit to haul some of the materials to the job. Respondent testified he had neverowned a Dodge or any other Chrysler product and that he had a Ford station wagonat the time. He used it on occasion to haul small amounts of material to thejob but believed this to be after the time of the inspection by Saulter. It wasa ?luxury? type wagon, used as a family car, and few building materials wereever hauled in it. Respondent bought it in Renton, Washington.We fail tosee where this discrepancy in the testimony is material to the decision in thecase. We assume Respondent knew what kind of a car he owned, but cannot faultSaulter for anything except taking incomplete notes. His principal duty at thework site was to appraise work practices, not automobiles.Saulter also testified that ?Craftsman? is abrand name of Sears Roebuck & Company, and that he has seen both?Craftsman? products and ?Dodge? vehicles in states other than Washington. Hedoes not know where any are manufactured.There is no other evidence about the origin,manufacture processing or movement of any other materials, tools or machinerywhich might be involved in the building process of Respondent. There is noadditional evidence about any of the workmen except the last names of one ortwo. There is no evidence about the tenants of Respondent?s apartment?in eitherthose existing or the one under construction?except that Respondent and hisfamily lived in one. The foregoing evidence fails to meet the description of itset out by counsel in her brief:?The building of an apartment building with the use of equipment,supplies and materials which traveled in interstate commerce are sufficient toshow commerce coverage under the Act. The use of Weyerhaeuser lumber andCraftsman tools (distributed by Sears, Roebuck and Co.) by respondent clearlydemonstrates that the building of Aqua View affected interstate commerce.?\u00a0Counsel invites us to take ?judicial? (official)notice that Weyerhaeuser and Sears are engaged in interstate commerce; and thusthe possession of one previously purchased ?Craftsman? drill and a piece ofplywood with the word ?Weyerhaeuser? on it placed Respondent in a positionwhere he is ?engaged in a business affecting commerce.? We decline theinvitation. We find no authority, including those cited by counsel, wherecourts have been upheld in taking judicial notice of facts as conjectural asthose requested here. And this is true whether such facts ?promote Federal?remedial legislation? or otherwise.It is the Solicitor?s contention also that sinceRespondent was constructing an addition or a new apartment building, he was inthe ?construction business???a member of the construction industry.? He shouldthus be held subject to the Act ?to prevent the instant Respondent fromobtaining a competitive anti-safety advantage over other members of itsindustry.?There are two reasons why this position is notsound. First, we find no authority, including those cited by counsel, going as?far? as would be necessary in this case to hold that one engaged purely inintrastate activity, with no affect on commerce whatever being shown maybe subjected to Federal jurisdiction under the commerce clause. Even the loanshark case (Perez vs. U.S. 1971, 402 U.S. 146, 91 S.Ct. 1357,28 L.Ed.2d 686)?on which counsel expresslydoes not rely?held that the activities of the defendant in the case had someeffect on commerce. He was an integral?and at least somewhat important?part ofthe interstate loan shark business.The secondreason is that Respondent was not a member of the ?construction industry.? Hewas the owner, operator and manager of a small apartment building seeking bynew construction to increase its size approximately one-third.It may be the need for enforcement of job safetylaws as to such employers is greater than in the case of larger employersclearly subject to the Act. Such a need?if it exists is not evidence. Nor canit be substituted for the evidence necessary to hold Respondent was ?engaged ina business affecting commerce.? We cannot stretch the Constitution and thestatute that far. The citation must be vacated.Based upon the entire record, the undersignedhereby makes the following:FINDINGS OF FACTIAt all times herein mentioned, Respondent wasthe owner and operator of an apartment building in the city of Kirkland,Washington and was engaged in constructing an addition thereto, increasing thesize of the apartment about one-third.IIThe Secretary of Labor has failed to meet hisburden of proof that Respondent was engaged in a business affecting commerce onor about June 21, 1973.Based upon the foregoing Findings of Fact andupon all facts stipulated, admitted or proved by uncontradicted substantialcredible evidence, the undersigned further makes the following:CONCLUSIONS OF LAWIOn or about June 21, 1973, Respondent employed anumber of workmen in the construction of his apartment building in Kirkland,Washington. He was not engaged in a business affecting commerce within themeaning of the Occupational Safety and Health Act of 1970. The Commission doesnot have jurisdiction of Respondent and has jurisdiction of the cause of actiononly for the purpose of entering an order vacating the citation and proposedpenalty herein, and dismissing the complaint.ORDERBased upon the foregoingIT IS HEREBY ORDERED:IThat the Citation No. 1 for Non-SeriousViolation issued July 10, 1973 and naming therein the Respondent and hisworkplace in Kirkland, Washington; and the Notification of Proposed Penaltyissued by the Secretary concurrently therewith, proposing a total penalty of$220.00 for Items 3, 6, 7 and 8 of the Citation; be and the same are herebyVACATED.IIThat the Complaint of the Secretary be and thesame is hereby DISMISSED.Dated: December 16, 1974GARL WATKINSJudge[1]?Agencies may take official notice offacts at any stage in a proceeding?even in the final decision?but the mattersthus noticed should be specified and ?any party shall on timely request beafforded an opportunity to show the contrary.? Attorney General?s Manual on theAdministrative Procedure Act 90 (1947). Respondent could, of course, do thisupon remand of the case.”