CABLE CAR ADVERTISERS, INC.
OSHRC Docket Nos. 354; 480 (Consolidated)
Occupational Safety and Health Review Commission
December 7, 1973
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: CLEARY
OPINION:
CLEARY, COMMISSIONER: On July 11, 1972, Judge Robert Burchmore issued his decision and order in this case affirming items 1, 4 and 5 of citation number 1 and all of citation number 2; and, dismissing items 2 and 3 and 6 of citation number 1 and all of citation number 3. The Judge also recommended penalties in the amount of $50 and $100, respectively, for items 1 and 2 of citation number 2 and the dismissal of all other proposed penalties.
On August 14, 1972, pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as "the Act"), Chairman Moran directed that the decision be reviewed by the Commission.
The Commission has reviewed the record in this case and adopts the judge's initial decision and order insofar as they are consistent with the following determination.
Respondent, in these consolidated cases, was issued three citations as a result of a series of inspections of its workplace aboard the burned-cut hulk of the ferryboat San Leandro, which at the time of the inspection, was tied up at pier #37 in San Francisco harbor. In Docket No. 354, citation number 1, issued on December 6, 1971, as a result of an inspection conducted on November 24, 1971, the Secretary alleged 6 instances in which respondent failed to comply with the Safety and Health Standards for Maritime Employement as follows; n1 (1) acetylene cylinders were not secured in an upright position (29 C.F.R. 1501.35(a)(9)); (2) acetylene cylinders stored not having valve ends up (29 C.F.R. 1501.35(b)(2)); (3) fuel gas cylinders connected with inoperable oxygen pressure gauge (29 C.F.R. 1501.35(h)); (4) providing and using an unsecured gangway (29 C.F.R. 1501.44(a)(1)); (5) using gangway which did not have top or midrail (29 C.F.R. 1501.44(a)(2)); and, (6) having ungrounded sump pump and electric drill (29 C.F.R. 1501.72(a)). A total of $35 in penalties was proposed for the above violations.
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n1 The standards under which respondent was cited were re-designated as 29 C.F.R. 1916 et seq. Thus, each of the Safety and Health Standards for Maritime Employment cited to in this decision are now to be found in part 1916 of 29 C.F.R. See; 37 F.R. 22458, October 19, 1972.
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Citation number 2, issued on December 20, 1971, as a result of a follow-up inspection on December 13, alleged that respondent failed to comply with regulations in that; (1) it had failed to post the OSHA notice as required by 29 C.F.R. 1903.2(a) and, (2) it had failed to post citation number 1 received by respondent on December 7 as required by 29 C.F.R. 1903.16(a). Penalties of $50 and $500, respectively, were proposed. n2 In Docket No. 450, citation number 3 issued on January 10, 1972, as a result of a further re-inspection on December 17, 1971, alleged that respondent failed to comply with 29 C.F.R. 1501.35(h) in that it had fuel gas cylinders connected with the oxygen gauge inoperable. A penalty of $67 was proposed.
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n2 At the time of the issuance of citation number 2 the Area Director also issued a notification of additional penalties based upon respondent's alleged failure to abate items 4 and 5 of citation number 1. We consider respondent's timely notice of contest, although filed after the re-inspection, to toll effectively the abatement periods set forth in citation number 1 because the notice of contest, although entered after re-inspection, was filed within 15 working days of respondent's receipt of citation number 1. Accordingly, the notification of additional penalties for failure to abate is not in issue in this proceeding and is hereby vacated.
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Respondent timely filed notices of contest. n3
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n3 Although respondent did not specifically file a notice of contest to citation number 2, its answer to the Secretary's complaint which was filed within 15 working days of the issuance of the citation denied paragraphs in the complaint which alleged the violations covered by citation number 2. Accordingly, we conclude that respondent's answer was a timely notice of contest to citation number 2 properly placing it before this Commission for determination.
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JURISDICTION
The threshold issue before us for determination is whether this Commission has jurisdiction to hear and determine the instant case. Respondent presents two jurisdictional arguments; first, it asserts that it is not a business affecting interstate commerce and thus is not an employer within the meaning of section 3(5) of the Act, and, second, that even if it is such an employer it was not engaged in "ship repair," because the San Leandro, admittedly under reconstruction, is not a "vessel" within the meaning of 29 C.F.R. 1915.2(f).
In order to answer the first question affirmatively we must conclude on the record before us that the Judge properly took official notice of the fact that San Francisco Bay is a navigable waterway of the United States and that respondent is an employer affecting interstate commerce because it maintained a place of employment upon navigable waters.
We note, at the outset, that the law recognizes a distinction between judicial and official (administrative) notice, the latter being broader in scope. As pointed out by Professor Davis, the touchstone of the propriety of an administrative agency's use of official notice rests upon whether due process was afforded the parties before the agency. He states:
Section 7(d) of the Administrative Procedure Act sensibly provides; "Where any agency decision rests on official notice of a material fact not appearing in the evidence of record, any party shall on timely request be afforded an opportunity to show the contrary."
Both examiners and agency heads should be encouraged to make full use of extra-record facts, except adjudicutive facts that are specifically in dispute, and parties should then be allowed an appropriate opportunity to meet the facts thus noticed. 2 Davis, Administrative Law (1958), Section 15.08.
In Ohio Bell Telephone Co. v. Public Utilities Commission of Ohio, 301 U.S. 292, 301-302 (1937), the Court stated:
. . . [Judicial] notice, even when taken, has no other effect than to relieve one of the parties to a controversy of the burden of resorting to the usual forms of evidence. [Citations omitted.] It does not mean that the opponent is prevented from disputing the matter if he believes it disputable. [Citations omitted.]
The Secretary's position was clearly stated in his opening argument at the hearing. The motion to take official notice was also made at the hearing. Respondent was clearly aware of the Secretary's position and its counsel was afforded the opportunity to object to the motion or to present a rebuttal. Thus, we find that the Judge was acting within his discretion when he took official notice of the fact that San Francisco Bay is a navigable waterway of the United States. n4
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n4 We note that while the notice of this fact carries with it certain legal ramifications, the basic question, that is, whether a given body is a navigable waterway, is indeed a question of fact capable of judicial or official notice. The Daniel Ball, 77 U.S. (10 Wall.) 557 (1870); U.S. v. Appalachian Electric Power Co. Va., 311 U.S. 377 (1940).
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The issue of whether respondent, solely because it maintained a place of employment upon a public navigable waterway, was engaged in a business affecting interstate commerce appears to be a novel legal issue, but of obvious disposition. Like many obvious matters, there is little law directly in point, and there must be resort to general principles. The power of Congress over interstate commerce, derived from the commerce clause of the United States Constitution, Art. I, Section 8, Clause 3,
. . . is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed by the Constitution. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 198 (1824). n5
Clearly, the power to regulate navigable waterways is incidental to the power to regulate commerce. U.S. v. Holt State Bank, 270 U.S. 49, 54 (1926) n6 and extends to employment upon the navigable waterways.
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n5 This principle was established early in American legal history, McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). It has been said to apply to those areas which Congress deems appropriate, U.S. v. Darby, 312 U.S. 100, 118-119 (1941); to those "classes of activities" properly regulated by Congress, Perez v. U.S., 402 U.S. 146, 154 (1971), citing Katzenbach v. McClung, 379 U.S. 294, 301 (1964); and has even been held to render window washers working under contract to a producer of goods moving in interstate commerce subject to coverage under the Fair Labor Standards Act [29 U.S.C. 203(j)], Martino v. Michigan Window Cleaning Co., 327 U.S. 173 (1946).
n6 This specific power has been exercised by Congress in the Longshoremen's and Harbor Workers' Compensation Act (44 Stat. 1424; 33 U.S.C. 901 et seq. ) as amended by Public Law 85-742, 72 Stat. 835, and further delineated by the regulations adopted thereunder by the Secretary of Labor (29 C.F.R. 1915, 1916, 1917 and 1918).
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Use of the phrase "affecting commerce" in section 3(5) of the Act indicates that Congress intended the Act to have broad coverage. n7 It could have chosen narrower coverage as it did under the Fair Labor Standards Act of 1938, as amended. n8
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n7 See; Schroepfer v. A.S. Abel Co., 48 F. Supp. 88 (D. Md., 1942), where it was held that the use of the phrase "affecting commerce" in the National Labor Relations Act indicated that Congress intended coverage under that Act to be broader than under the Fair Labor Standards Act of 1938, as amended. We apply the same rationale here.
n8 The Supreme Court recognized this distinction in Kirschbaum v. Walling, 316 U.S. 517, 522-523 (1942) where it pointed out that Congress, in framing the Fair Labor Standards Act rejected the broader House definition of employers as "engaged in commerce in any industry affecting commerce" (H. Rep. No. 2182, 75th Cong., 3rd Sess., p. 2; 33 Cong. Rec. 7749-50) and adopted a more narrow standard applying the act to employers "engaged in commerce or in the production of goods for commerce." (H. Rep. No. 2738, 75th Cong., 3rd Sess., pp. 29-30, 33 Cong. Rec. 9158, 9266-67).
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Based upon the above, we conclude that respondent, in maintaining a place of employment upon a navigable waterway of the United States, was in a business affecting commerce within the meaning of section 3(5) of the Act and thus the citations issued it are properly before this Commission.
APPLICABILITY OF STANDARD
Respondent argues that even if jurisdiction is found, the San Leandro, being the burned-out hulk of a ferryboat, without means of locomotion and incapable of being used for transportation, is not a "vessel" within the definition of the Safety and Health Standards for Maritime Employment. (29 C.F.R. 1915 et seq. )
The regulations under which respondent was cited apply to vessels defined so as to include;
. . . every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water, including special purpose floating structures not primarily designed for or used as a means of transportation on water. 29 C.F.R. 1915.2(f). Emphasis added.
The facts adduced demonstrate that respondent employed persons who worked aboard the San Leandro which was floating in San Francisco Bay tied up to pier #37. The San Leandro was being converted for nontransportation uses but nevertheless, it was originally designed and used for transportation; it was afloat; it was capable of being towed; it was tied up to a pier and connected thereto only by mooring lines and gangways; it was being repaired for eventual use, perhaps as an office for respondent's business and was therefore a "special purpose floating structure" to which the cited standards apply.
CITATIONS AND PENALTIES
The Judge's dismissal of items 2, 3 and 6 of citation number 1, and of citation number 3 was correctly based upon a reading of the standards under which respondent was cited. The standards cited apply to acetylene or fuel gas cylinders while they are in use. In the instant case the evidence of record demonstrates that at the time of inspection the cylinders were not in actual use nor were they connected for immediate use.
While affirming items 1, 4 and 5 of citation number 1, the Judge vacated the penalties proposed therefor. We agree, due to the low level of gravity of these violations as was made clear by the evidence of record. See, Secretary of Labor v. Nacirema Operating Co., Inc.,
The remaining citation (number 2) warrants discussion. This citation contains two items regarding respondent's failure to post (1) the standard OSHA notice to employees (posting of which is required by 29 C.F.R. 1903.2(a)) and, (2) citation number 1 (posting of which is required by section 9(b) of the Act and by 29 C.F.R. 1903.16). Respondent argues that the Secretary, in refusing to allow adjustments in penalties proposed for failure to meet various posting requirements n9 contravenes the mandate of section 17(j) of the Act. We cannot agree, as the assessment of penalties is a function specifically delegated to this Commission. The ". . . authority to assess all civil penalties . . ." rests with this Commission under section 17(j) of the Act. The Secretary has only the authority to propose penalties. Brennan v. O.S.H.R.C., and Interstate Glass Co., No. 73-1029 (8th Cir., filed October 26, 1973). We affirm the Judge's modification of the proposed penalty for item 2 of the citation number 2. We find that the Judge has given due consideration to the size of respondent's business, the gravity of the violation, the good faith of respondent and respondent's history of previous violations. We conclude that the penalties of $50 and $100 for items number 1 and 2 of citation are appropriate.
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n9 See, OSHA Compliance Operations Manual, Dept. of Labor, 1972, Chapter XI Section 9(a)(1) and (2).
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Accordingly, it is ORDERED that the Judge's order be and is hereby affirmed in all respects.
CONCURBY: VAN NAMEE
CONCUR:
VAN NAMEE, COMMISSIONER, concurring: The issue of jurisdiction is, in my view, frivolous. It is a matter of common knowledge even to schoolboys and schoolgirls that the port of San Francisco is one of the world's greatest ports. Under such circumstances a refusal to take notice of the fact that the waters of San Francisco bay are navigable waters would amount to judicial folly. Moreover, it is well settled that the power to regulate commerce includes the power to regulate the navigable waters. Surely, a vessel or floating structure occupying such waters forbids their use by other vessels or floating structures. Commerce is thereby affected.
Insofar as the ship repair regulations are concerned, it must, as an evidentiary matter, be presumed that a hulk of a vessel being repaired is at the least a "special purpose floating" structure.
I concur in the affirmance of Judge Burchmore's order.
DISSENTBY: MORAN
DISSENT:
MORAN, CHAIRMAN, dissenting: These cases squarely present the issue of coverage, i.e., whether respondent's business was a business "affecting commerce." n10
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n10 Section 3(5) of the Act defines "employer" as "a person engaged in a business affecting commerce who has employees." If respondent was not at the time of the alleged violation a person whose business "affected commerce," he would not be an "employer within the meaning of the Act, and therefore, would not be covered by its requirements. This, basically, was the position taken by respondent.
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Respondent rents motorized cable cars in the City of San Francisco. At some point it decided to purchase the burned-out hulk of an old ferryboat called the San Leandro for use as an office. It permanently moored the same at Pier 37 in San Francisco Bay, and was in the process of converting it into offices when it was inspected by a representative of the complainant. The charges here under consideration followed from that inspection.
In the opinion of the Judge the respondent would not be subject to the Act were it not for this one-time project, because its activity in renting cable cars within the City of San Francisco was not a business affecting commerce. He ruled that respondent's business "affected commerce" solely because respondent had moored the burned-out hulk of a ferryboat on navigable waters where it allegedly constituted a physical obstruction to commercial navigation. n11 In affirming that ruling, the Commission is acting both improperly and erroneously.
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n11 The Judge's decision states that:
"I take official notice of the fact that San Francisco Bay is a part of the navigable waters of the United States. The San Leandro, by virtue of its location, constitutes a physical obstruction to commercial navigation on those waters and it necessarily follows that the business of Respondent there affects commerce within the meaning of the Act. I conclude that Respondent is, and at all times hereto, was an employer engaged in a business affecting commerce and that it was and is subject to the Act."
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To establish that a respondent's business affects commerce within the meaning of the Act, the evidence must show that the business activities of the respondent had some positive economic impact, no matter how slight, on interstate commerce. Although such a finding was an essential element of complainant's case, there was no evidence in the record which would warrant such a finding.
The single fact relied upon to establish that respondent's business "affects commerce" was that its ferryboat hulk was moored on navigable waters. A naked ruling, based solely on that fact, bears no relationship to economic impact and therefore erroneously construes the meaning of the term "affecting commerce". The Commission's ruling is equivalent to a finding that a purely local tree-trimming firm is engaged in a business which affects commerce if it places a barricade partially extending onto an interstate highway. I cannot abide by such a broad interpretation, which would achieve such bizarre results. Absent a showing of an economic effect on interstate commerce, the respondent's business cannot be held to be one which "affects commerce" within the meaning of the Act.
Not only is the Commission's interpretation of "affecting commerce" overly broad and erroneous, but the "fact" of which judicial notice was taken was an unsuitable one. There was no evidence that the San Leandro constituted a physical obstruction to commercial navigation in San Francisco Bay. It is well settled that a Judge may take judicial notice only of a limited type of fact such as the text of statutes, the days of the week, the laws of gravity and other universally accepted facts. That San Francisco Bay is a navigable waterway of the United States is such a fact. But, whether the San Leandro constituted a physical obstruction to commercial navigation is clearly not that kind of universally accepted fact. There was, therefore, insufficient evidence even for the erroneous finding that respondent's business affected commerce.
Neither the Judge nor this Commission can properly find, based on the facts in this record or on the facts properly considered by way of judicial or official notice, that as of the date the citations herein were issued, respondent was engaged in a business which "affected commerce".
[The Judge's decision referred to herein follows]
BURCHMORE, JUDGE, OSAHRC: These two cases, consolidated for trial, involve three citations issued to respondent, Cable Car Advertisers, Inc., by the Secretary of Labor under the provisions of Section 9(a) of the Occupational Safety and Health Act of 1970, hereinafter called the Act.
Docket No. 354 involves Citation No. 1 which was issued on December 6, 1971, and which alleged six non-serious violations of the Safety and Health Regulations for ship repairing (29 C.F.R. 1915). n1 The citation was issued following an inspection of the converted hulk of the ferryboat San Leandro at Pier 37, San Francisco Bay, on November 24, 1971. As a result of this inspection, respondent was also issued a De Minimis Notice, alleging a violation of 29 C.F.R. 1903.2, in that the respondent did not have posted the notice "Safety and Health Protection on the Job" informing employees of the protection and obligations provided in the Occupational Safety and Health Act of 1970. The total penalty proposed to be assessed for the violations alleged in Citation No. 1 was $35.00.
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n1 Formerly 29 C.F.R. 1501.
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Citation No. 2 was issued on December 20, 1971, after a follow-up inspection of the San Leandro on December 13, 1971. It alleged that respondent violated two of the posting regulations promulgated under the Act in that (1) the notice advising employees of the protections and obligations of the Act had not been posted as required by 29 C.F.R. 1903.2(a) and (2) respondent failed to post Citation No. 1 (issued on December 6, 1971 and received by respondent via registered mail on December 7, 1971) at or near the place where the alleged violations occurred. The total penalty proposed to be assessed for the violations alleged in Citation No. 2 was $550.00.
Docket No. 480 involves a third citation issued to respondent as a result of another follow-up inspection on December 17, 1971. Citation No. 3 alleged one additional, non-serious violation of the safety and health regulations for ship repairing. The proposed penalty is $67.00 for this alleged violation.
Respondent filed timely notices of contest. Hearing was held in San Francisco before the undersigned Judge on April 13, 1972. Affected employees were provided an opportunity to participate as parties to the hearing. However, no affected employees were present at the hearing.
The initial question is whether Cable Car Advertisers, Inc. is subject to the Act (i.e., whether respondent was and is an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.)
Cable Car Advertisers, Inc., is a California corporation primarily engaged in the rental of motorized cable cars. Arnold S. Gridley is president and majority stockholder. The corporation purchased the burned out hulk of an old ferryboat, the San Leandro, and is in the process of converting it into company offices. About five employees were employed by the corporation in the alteration and conversion work. The San Leandro is docked at Pier 37 in San Francisco Bay.
I take official notice of the fact that San Francisco Bay is a part of the navigable waters of the United States. The San Leandro, by virtue of its location, constitutes a physical obstruction to commercial navigation on those waters and it necessarily follows that the business of respondent therefor affects commerce within the meaning of the Act. I conclude that respondent is, and at all times pertinent hereto, was an employer engaged in a business affecting commerce and that it was and is subject to the Act.
Respondent contends that, even if it is subject to the Act, it is not governed by the regulations applicable to ship repair, for violation of which it was cited by the Secretary. By definition in 29 C.F.R. 1910.13(b), ship repair means repair, alteration, conversion or other work on a "vessel" and it is the contention of respondent that the San Leandro, which has no engines, is not a vessel, citing Evansville and Bowling Green Packet Co. v. Chero Cola Bottling Co., 271 U.S. 19.
The cited case held that a wharfboat in the river used as an office, warehouse and wharf but not used or practically capable of being used as a means of transportation was not a vessel within the meaning of a statute limiting the liability of vessel owners. The decision is not pertinent here because the Court was there interpreting a definition of the term "vessel" which is found in 1 U.S.C. 3. That definition is indeed followed in the governing regulation herein (1910.13(b)) but only to the extent of its first clause. The regulation here goes beyond 1 U.S.C. 3 by adding an additional clause (italicized below) which brings in structures not otherwise included, as follows:
"Vessel" includes every description of watercraft or other contrivance used, or capable of being used, as a means of transportation on water, including special purpose floating structures not primarily designated for, or used as a means of transportation on water.
No judicial interpretation of the quoted language of 13(b) has been reported and the cited Evansville opinion sheds no light on the italicized clause. The meaning is clear, however, both from the words used and from a further statement as to the purpose and scope of the ship repair regulations which is found in 29 C.F.R. 1915.1; it is there declared to be the purpose of the regulations to protect employees working "within the Federal maritime jurisdiction on the navigable waters of the United States, including drydocks." Since the San Leandro is a special purpose floating structure not used for transportation and since it is located on the navigable waters of the United States, I hold that Part 1915 applied to respondent's employees working thereon.
The first three items of Citation No. 1 pertain to cylinders of welding gas which were observed, hooked up and pressurized, in a horizontal position on a baggage cart and on one of which there was an inoperative gauge. It is provided in 1915.35(a)(9) that
Acetylene cylinders shall be secured in an upright position at all times except, if necessary, for short periods of time while cylinders are actually being hoisted or carried.
Respondent admits the cylinders were in a horizontal position and does not contend that they were actually being carried, although testimony was offered to show that respondent had finished using the cylinders and they were on the cart preparatory to being moved. They were immediately placed in an upright position, prior to the issuance of the citation and as soon as respondent was advised of the violation. The facts constitute a literal violation and immediate abatement does not change that. The citation must be affirmed, but the proposed penalty ($7) should be dismissed because such a penalty is neither necessary nor would it operate to induce improved compliance with the regulations. Secretary of Labor v. General Meat Co., No. 250 (June 20, 1972).
Violations of 1915.35(b)(3) n2 and 1915.55(h) were also charged in connection with the cylinders, but each of the cited sections pertain only to cylinders "in use." While the Secretary correctly contends that "in use" does not mean that actual welding must be in progress at the time of the inspection, the testimony here is that all welding had been completed, that the tanks were exhausted (except for residual gas) and that the tanks were on the cart awaiting disposition. Under those circumstances, I hold that the alleged violation has not been shown and the items must therefor be dismissed. The same holding applies for similar reasons to Citation No. 3, which involved a broken guage on welding tanks that were out of use.
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n2 By amendment to the complaint which is hereby allowed, respondent having withdrawn his objection thereto.
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Items 4 and 5 of Citation No. 1 cite violations of section 1915.44(a)(1-2) in that employees were permitted to use an unsecured and improperly constructed gangplank. The essential elements of the alleged violations were established by the testimony introduced by the Secretary and were not controverted by the respondent. The respondent's testimony mainly details the negotiations and procedures taken to correct the violations, and it does not constitute a sufficient defense; the citations should be affirmed. In this instance, as above, the proposed penalties ($7 in each case) are inappropriate and should be dismissed pursuant to General Meat Co., supra.
Item 6 of Citation No. 1 charges violation of section 1915.72(a), which provides:
The frames of portable electric tools and appliances, except double insulated tools approved by Underwriters Laboratories, shall be grounded . . . .
The Secretary's witness conceded on cross-examination that the tools here involved were double insulated tools, and I conclude that grounding was not required by the terms of the regulation. No penalty was proposed for this item and the item should be dismissed.
Citation No. 2 was issued as a result of a follow-up inspection conducted on December 13, 1971. The first item charges violation of the requirement in 29 C.F.R. 1903.2(a) that employers shall post and keep posted a notice "to be furnished by the Occupational Safety and Health Administration" advising employees of the protections and obligations provided for in the Act.
It is not disputed that respondent never posted this notice and that it was not posted up until the time of the hearing, although a De Minimus Notice was issued to respondent on the matter and respondent's president was later personally advised of the requirement. Respondent's defense is that president Gridley never received the notice of which posting was required and that no violation and no penalty can be sustained since OSHA failed in the requisite that a copy of the notice be furnished to the employer.
The compliance officer testified that he gave a copy of the notice to respondent's employee, Luna, on December 6, the same day he advised president Gridley of the requirement. As to that, Mr. Gridley testified:
Q. Did Mr. Luna ever tell you that the man had left a notice with him that you were supposed to post around November 24th of 1971?
A. He told me that upon my asking him if the inspector had left some papers with him, and I had no knowledge of that until the inspector had mentioned to me at a later date that he had left a notice, or some papers, with Mr. Luna. I immediately asked Mr. Luna if that was true, and he said, "yes, he gave me something, and he put it on a bench." And I said, "well, what happened to it?" He said, "I don't know." And I have never seen it.
Considering all of the testimony, and the circumstances revealed by it, it must be held that a copy of the requisite notice was adequately furnished by OSHA, that the respondent corporation must be charged with knowledge of the requirements in the premises, and that the citation and proposed penalty should be affirmed.
Item 2 of Citation No. 2 charges that respondent failed, in violation of 29 C.F.R. 1903.16, to post Citation No. 1 at or near the place of the alleged violations therein. Respondent characterizes this charge as a "most grievous injustice" and argues on brief as follows:
The evidence shows that this Citation was mailed to the offices of Cable Car Advertisers on December 6, 1971 and received at those offices on December 7, 1971, a Tuesday. The proposed violation was based on an inspection made on December 13, 1971, the following Monday, only three working days later. Mr. Gridley's testimony is that these offices were three miles from the San Leandro and that because of the time he was spending on board the San Leandro, he had no knowledge of the Citations which were at his office. Upon being told that they were at his office, he immediately arranged for them to be brought to the San Leandro to be posted.
The fact is that the immediate posting which respondent refers to actually took place on December 20, two weeks after the citation was delivered in the mail. Also, president Gridley indicated in his testimony that he had not received any mail from his office from the 7th to the 20th. On the other hand, a letter signed by Gridley, dated December 23, 1971, states that the inspector handed him the notification of proposed penalty in the amount of $35 on December 13, 1971. n3 That statement constitutes a sufficient admission to knowledge on the 13th of the existence of the citation to establish that respondent's failure to post until the 20th was not excused by any supposed lack of communication. The citation should be affirmed.
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n3 The letter was respondent's notice of protest herein.
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In assessing a penalty for the failure to post, this Commission is required to consider the criteria set forth in section 17(j) of the Act; these include the size of the business, the good faith of the employer, the gravity of the violation and the history of past violations. In this case we are not only dealing with a first offense and a small employer, but it appears that the employer is actually subject to the regulations only with respect to a single project. That is to say, the main and continuing business of the respondent is renting cable cars, and the San Leandro project, so far as this record shows, is a one time business but for which the employer would not be subject at all to the regulations pertaining to ship repair. Considering all the circumstances, it is clear that the citation must be affirmed and that a penalty is appropriate and should be assessed. In my judgment, however, the proposed penalty of $500 is inappropriate in amount and should be reduced to $100.
Premises considered, it is ORDERED that items 1, 4 and 5 of Citation No. 1 and Citation No. 2 be and the same are hereby affirmed (items 2, 3 and 6 of Citation No. 1 and Citation No. 3 being dismissed), that penalties for items 1 and 2 of Citation No. 2 be and the same are hereby assessed in the amounts of $50 and $100, respectively (all other proposed penalties being dismissed) and that this proceeding be and the same is hereby discontinued.