“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 14412 HAMPTON PUGH, D\/B\/A HAMPTON PUGH COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February7, 1977DECISIONBefore 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. Abbot-SommerInc., 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 (3dCir.1976). The order for review in this case describes no compelling publicinterest 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 is ORDERED that the decision be affirmed.FOR THE COMMISSIONDATED: February 7, 1977William S. McLaughlinExecutive SecretaryMORAN, Commissioner, Concurring in Part, Dissenting inPart:??????????? Iagree with Judge Patton?s decision except insofar as it holds that respondentcommitted a ?repeated? violation by failing to comply with the occupationalsafety and health standard codified at 29 C.F.R. ? 1910.106(g)(3)(iii).Although the record does establish respondent?s noncompliance with thatstandard, there is nothing therein to indicate that respondent?s conductconstituted a ?flaunting of the requirements of the Act? so as to justify theaffirmance of a repeated violation. See Bethlehem Steel Corporation v.OSAHRC, 540 F.2d 157 (3d Cir.1976). Furthermore, for the reasons expressedin my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRCDocket No. 14046, December 20, 1976, I disagree with the manner in which mycolleagues are disposing of this case and with their views regarding thesignificance of decisions rendered by Review Commission Judges.??????????? Sincemy colleagues do not address any of the matters covered in Judge Patton?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. 14412 HAMPTON PUGH, D\/B\/A HAMPTON PUGH COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0June 1, 1976DECISIONAND ORDERAPPEARANCESArnold Battiste, Esquire, Office of the Solicitor, U.S.2Department of Labor, Dallas, Texas, on behalf of complainant\u00a0Mr. Hampton Pugh,Owner, Hampton Pugh Company, McGehee, Arkansas, on behalf of respondent\u00a0STATEMENTOF THE CASEPatton, Judge:??????????? This is a proceeding pursuant to section 10 of theOccupational Safety and Health Act of 1970 (29 U.S.C. ? 651, et seq., 84 Stat.1590, hereinafter referred to as the Act) contesting a citation issued by thecomplainant against the respondent under the authority vested in complainant bysection 9(a) of the Act.??????????? The citation alleges that as a result of the inspectionof a workplace under the ownership, operation or control of the respondent,located at 203 Ash Street, McGehee, Arkansas, the respondent has violatedsection 5(a)(2) of the Act by failing to comply with Occupational Safety andHealth Standards 29 C.F.R. 1904.8 and 29 C.F.R. 1910.106(g)(3)(iii).??????????? Hearing was held in McGehee, Arkansas, on November 13,1975. Both parties appeared and presented evidence. There was no motion tointervene.LAWAND ISSUES OF THE CASE??????????? It was alleged that on May 28, 1975, an employee ofrespondent was killed in an accident. It is not alleged that said fatality wasthe result of a violation of the Act. It is alleged, however, that therespondent failed to report the accident within 48 hours after the occurrenceof the accident, either orally or in writing to the complainant, in violationof standard 29 C.F.R. 1904.8.??????????? It was further alleged that on or about June 3, 1975, theswitch to shut off the power to the gasoline and diesel pumps, located on theeast wall in the warehouse, was not clearly identified, in violation of section5(a)(2) of the Act and standard 29 C.F.R. 1910.100(g)(3)(iii). This was allegedto be a repeat violation.EVIDENCEIN THE CASE??????????? The complaint alleges that the respondent Hampton Pugh,is a sole proprietorship, doing business as Hampton Pugh Company, at 203 AshStreet, McGehee, Arkansas, where he is engaged in farm supply and equipmentsales and, at all times relevant to this cause, was an employer engaged in abusiness affecting commerce.??????????? The answer states that the respondent is in the businessof sale of fertilizer and agricultural chemicals, and not the equipment salesbusiness. The answer neither admits nor denies that the respondent is engagedin interstate commerce. Under the rules of pleading, all matters in an answernot denied are considered admitted. It may therefore be considered admittedthat the respondent is engaged in interstate commerce.??????????? Mr. Pugh testified that he is the sole owner of therespondent (Tr. 19). He has only two employees at the present time, both women.He stated that on June 3, 1975, he probably had five employees (Tr. 24). Histotal annual sales are in excess of two million dollars (Tr. 24). Mr. Pughstated that there had been an earlier inspection in which he was cited forapproximately 10 different alleged violations. He stated that he paid a penalty(Tr. 20).??????????? The complaint alleged that the failure to clearlyidentify the switch which shuts off the power to the gasoline and dieseldispensing pumps was a repeat violation, in that respondent had, on April 9,1975, been previously cited.??????????? Mr. Hanson, compliance officer, testified that there wasa prior case involving a failure to identify a switch which shuts off power toa dispensing device for gasoline and diesel pumps (Tr. 41). He stated it wasthe same diesel and gasoline pumps as in the case at bar (Tr. 41). At the timeof the April inspection, Mr. Pugh had been given a copy of the standards,including a poster, as well as a copy of the Act (Tr. 43). Mr. Hanson statedthat there was no sign identifying a switch at either the April on Juneinspections.??????????? Mr. William C. Hodges, another compliance officer whotook part in the June inspection, confirmed the fact that there was no signposted (Tr. 61, 62). Mr. Pugh stated that the inspectors did not look on thefloor to see if the sign was there, and that he did find the sign had fallen tothe floor (Tr. 61). He identified the sign as four by six inches in size, andstated he had posted it, taping it with just one or two pieces of scotch tape.There was no room to put it on the switch, but it was on the wooden wall by theside of the switch, within six to eight inches of the switch (Tr. 72). The signstated which was the diesel and which was the gas disconnect (Tr. 73).Subsequent to the June inspection, the sign had been attached with heavy tape.He stated that in time it would fall off. It is attached by plastic-like tapethat they use to the boxes on pallets. It had fallen down behind the switch atthe time of inspection. Mr. Pugh stated that it was not a switch, but adisconnect. There are two switches on the dispensing tank, one controls thetime lock that turns the lights on in the shed at night (Tr. 64). Thedisconnects are electric power sources (Tr. 76).??????????? Mr. Pugh testified that the sign could have been off thewall a few days. He could not say how long it had been off the wall. On the dayof inspection, he turned on the gas switch himself (Tr. 35).??????????? Mr. Pugh testified that an employee of his, Mr. John Steinry, was killed in an accident on May 28, 1975 (Tr.31). It happened about 9:30 to 10:00 a.m., only three hours after Mr. Steinry had first begun working for the respondent (Tr. 32,33). Mr. Pugh did not personally report the accident to the Occupational Safetyand Health Administration (Tr. 32, 67). Said employee stepped between a trailerwhere they were loading beans and a customer?s truck. When the man started thetruck, it rolled back and pinned Mr. Steinry (Tr.68). Mr. Pugh called the Hartford Insurance Company and told them about it (Tr.69). He requested them to notify everyone, but Mr. Pugh testified that he justmeant he wanted the insurance company to know about the accident (Tr. 70, 71).He did not ask them to notify the Occupational Safety and HealthAdministration, but he stated he did tell the insurance company to notifyeveryone who was supposed to know about the accident (Tr. 75, 76).??????????? Mr. Hansen testified that the complainant either learnedabout the accident from a newspaper or a call from someone.? He stated that they did ascertain that therehad been a fatality on May 28 which had not been reported (T. 40).EVALUATIONOF THE EVIDENCE??????????? Standard 29 C.F.R. 1910.106(g)(3)(iii) requires that ?aclearly identified? and easily accessible switch or circuit breaker beprovided.? It is undisputed that therewas no identification posted at the time of inspection on June 3, 1975; it isalso conceded that in April, a similar violation occurred.? As above noted, Mr. Pugh testified that anotice had been posted and apparently fallen the wall.? If the evidence established that the noticehad only fallen off a few minutes before and that, in the exercise ofreasonable care, the respondent could not have expected to have known that henotice had fallen, the citation would not in this respect be sustained.? It will be noted, however, that Mr. Pughstated that he did not know how long the notice had been off the wall, and thatit could have been as long as two or three days.? It would appear that the respondent was notsufficiently diligent in making certain that he ?clear identification? waspresent at all times.? In view of thefact that the evidence establishes that proper posting was made, even thoughthe notice had fallen off the wall, a large penalty would not be justified.This fact, however, was apparently taken into consideration by the complainantin the proposed penalty. It would appear that a penalty in the amount of $80for a repeat violation is minimal and, therefore, should be assessed.??????????? It is also undisputed that the respondent did not notifythe complainant, as required, when a fatality occurred at respondent?s place ofoperation. Mr. Pugh testified that he notified the insurance company, but hedoes not maintain that he advised the insurance company to notify thecomplainant. He testified that he requested them to notify all necessarypersons but further states that he primarily had in mind all persons necessaryinsofar as his insurance was concerned. Notifying an insurance company is not asubstitute for notifying the complainant. The allegations of violation forfailure to give said notice, therefore, have been sustained. It would appearthat a penalty in the amount of $160 as proposed by the complainant is notexcessive and should be assessed.FINDINGSOF FACT??????????? 1. Respondent is engaged in the business of sale offertilizer and agricultural chemicals and is engaged in a business affectinginterstate commerce.??????????? 2. Respondent was previously cited on April 9, 1975, forviolation of standard 29 C.F.R. 1990,106(g)(3)(iii), in failing to clearlyidentify switches or circuit breakers, provided at a remote location fromdispensing devices, to shut off gasoline and diesel fluid.??????????? 3. Said citation became a final order of the ReviewCommission.??????????? 4. The respondent, on or about June 3, 1975, did not haveclearly identified said switch or circuit breaker.??????????? 5. The respondent had posted such identification on thewall by the switch, but said notice had fallen to the floor. The duration oftime that said switch was not properly identified is not established in theevidence.??????????? 6. On May 28, 1975, an employee of the respondent waskilled while in the employ of respondent.??????????? 7. The respondent notified its insurance company but didnot make any attempt to notify the complainant of said fatality.CONCLUSIONSOF LAW??????????? 1. Respondent is engaged in a business affectinginterstate commerce and is within the jurisdiction of the Occupational Safetyand Health Act.??????????? 2. On or about June 3, 1975, respondent was in violationof standard 29 C.F.R. 1910.106(g)(3)(iii) by failing to clearly identify aswitch, provided at a remote location, from the dispensing of gasoline anddiesel fluid.? This was a repeatviolation. ??????????? 3. The respondent was in violation of standard 29 C.F.R.1904.8, in that respondent did not notify the Occupational Safety and HealthAdministration within 48 hours of the death of an employee who had been killedon May 28, 1975, while in respondent?s employ.ORDER??????????? It is therefore ORDERED that:??????????? Respondent is in violation of standard 29 C.F.R.1910.106(g)(3)(iii). A penalty in the amount of $80 is assessed for saidviolation. The abatement date as proposed in the citation and complaint isaffirmed.??????????? The respondent is in violation of standard 29 C.F.R.1904.8. A penalty in the amount of $160 is assessed for said violation. Theabatement date as set forth in the citation and complaint is affirmed.?Dated this 1st day ofJune 1976.John S. Patton, Judge”