UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 13335

ARTHUR AND TONI SHEETS INDIVIDUALS, DOING BUSINESS AS SHEETS TREE EXPERT COMPANY,

 

                                              Respondent.

 

 

January 5, 1977

 

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: January 5, 1977

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

(SEAL)

 

MORAN, Commissioner, Dissenting:

            I would vacate the citation on the basis that respondent did all that was required of it under the Act to require recalcitrant employees to comply with the protective hat standard codified at 29 C.F.R. § 1918.105(a). See Secretary v. Independent Pier Company, 20 OSAHRC 810 (1975)(dissenting opinion). Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges.

            Since my colleagues do not address any of the matters covered in Judge Usher’s decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 13335

ARTHUR AND TONI SHEETS INDIVIDUALS, DOING BUSINESS AS SHEETS TREE EXPERT COMPANY,

 

                                              Respondent.

 

 

June 16, 1976

 

DECISION AND ORDER

Appearances:

Howard K. Agran, Esquire for Complainant

 

Mr. Arthur Sheets and Mrs. Arthur (Toni) Sheets (Pro Se) for Respondents

 

Usher, Judge:

            This is a proceeding initiated by the Secretary of Labor, United States Department of Labor, pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.), hereinafter referred to as the Act, seeking the 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 the Commission assess a penalty of $180.

            On September 26, 1974, Complainant issued a Citation to Respondents charging a ‘nonserious’ violation of the Act in that

Three employees working at 1560 Graham Boulevard, where there was a possible danger of head injury from falling or flying objects, were not protected by protective helmets.

 

            A penalty of $60 was proposed by Complainant’s agent, the Area Director, Occupational Safety and Health Administration (hereinafter referred to as OSHA).

            Respondents and their accountant, Robert G. Runser, CPA, attempted to negotiate the matter, but having no success, Respondents paid the $60 proposed penalty without contest.

            As the result of a second inspection on April 23, 1975 at a worksite controlled by Respondents, Complainant issued a Citation again charging Respondents with a violation of the safety standard promulgated by Complainant and codified at 29 CFR 1926.100(a). That Citation, issued on April 25, 1975 characterized the violation as ‘repeated’ and described it as follows:

An employee working at 100 Fourth Street, Blawnox, Pennsylvania, where there was a possible danger of head injury from falling or flying objects, was not protected by a protective helmet. (Emphasis added).

 

            In a Notification of Proposed Penalty, dated April 25, 1975, a penalty of $180 was proposed.

Discussion

            The evidence discloses that Mr. and Mrs. Sheets operate a tree trimming and removal business from which they gross approximately $135,000 annually. Their net worth is estimated to be approximately $30,000. They usually employ one person who assists Mr. Sheets, but at times two or three persons are so employed.

            It was stipulated that machinery or equipment utilized in the business ‘originates, in whole or part, from locations outside . . . Pennsylvania.’

            The fact that Respondents’ employee (one) was observed by Complainant’s agent without head protection on April 23, 1975, while working immediately under a large limb that was being lowered by a boom truck, was not seriously refuted. However, Respondents argued that they have purchased and furnished to their employees ‘complete sets of hard hats with ear guards and face shields . . . and protective glasses [as an alternative to the face shield],’ but that the employees refused to wear them. Entreating and cajoling the employees to comply with the law proved fruitless. The Respondents insisted that other disciplinary measures were not available to them because of the smallness of the enterprise and their need for the employees.

            It was not economically feasible to fire employees as a disciplinary measure because of the scarcity of trained help. Each new employee had to be trained on the job. Furthermore, if the employees did not work Mr. Sheets was not able to work inasmuch as the jobs to be performed require two to three persons working in concert. If employee lay offs were utilized as punishment for disobedience, the enterprise would be idled.

            The evidence, taken in its entirety, indicates that Respondents did all that was humanly possible to achieve compliance, save discharging or laying off the recalcitrant employees. Their efforts, however, met with little success until the employees who were working at the times of the alleged violations were eventually replaced by more cooperative, sympathetic employees.

            At the time of the hearing, according to Mr. Sheets, ‘the follows we have now understand the problem that we have, and they’re going along with it 100 percent.’ Thus compliance has seemingly been achieved.

            The application of these facts to the law as enunciated by the Commission[1] and the Court of Appeals for the Third Circuit[2] leads inescapably to the conclusion that Respondents failed to comply with the provisions of the Act in that their employees worked in areas where there was a possibility of head injury while not wearing protective helmets. Employee disobedience, without a showing that all means to effect compliance have been exhausted, cannot absolve Respondents.

            Equity and good conscience, however, preclude the assessment of the $180 proposed penalty.

            The Complainant has failed to justify such a penalty under these circumstances. He has not shown by a preponderance of the evidence that the size of Respondents’ business, the gravity of the violation, Respondent’s good faith, and their history of previous violations have been given due consideration[3].

            The Commission is charged with the responsibility of assessing penalties, and the weight to be given the factors enumerated in Section 17(j) of the Act ultimately lies within the Commission’s discretion. The Commission is, of course, not bound by the mechanical ‘reasoning process’ by which Complainant arrives at his penalty proposals.

            In this instance no ‘adjustment’ was given for Respondents’ good faith and no ‘adjustment’ was allowed for ‘history.’ A 10 percent credit or ‘adjustment’ was allowed because of the size of Respondents’ business enterprise. A $200 unadjusted penalty base was used, and that was presumably arrived at on the basis of the penalty paid for the alleged (uncontested) 1974 violation.

            The gravity of the asserted violation must be considered as comparatively insubstantial; only one employee was exposed. The size of Respondents’ business enterprise could hardly be smaller.

            Complainant’s witnesses testified regarding Respondents’ lack of good faith. That testimony was somewhat less than convincing. It was based, at least in part, upon verbal exchanges between the Compliance Officer and Mr. Sheets, and Mr. Sheets’ remarks (if accurately portrayed in the testimony) were doubtless prompted by his frustration at having previously been given no guidance or sympathy by the Area Director who manned the Pittsburgh OSHA office[4] at the time the first Citation was issued.

            The evidence establishes clearly that Respondents did not lack ‘good faith,’ as that term is used in the Act, but rather made extensive, albeit fruitless attempts to comply in the face of almost certain economic loss.

            Considering the gravity of the violation,[5] Respondents’ past history of violations,[6] their good faith, and the size of their business,[7] a $10 penalty is far more reasonable than the $180 proposed by Complainant.

            The record 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, doing business in Pennsylvania as Sheets Tree Expert Company.

            2. On April 25, 1975, Respondents maintained a place of business or worksite at 100 Fourth Street, Blawnox, Pennsylvania, where they employed two employees and used equipment which was manufactured outside of the Commonwealth of Pennsylvania.

            3. Respondents ordinarily employed one, two, or three employees on a daily basis; their net worth in 1975 was approximately $30,000.

            4. Respondents have exhibited a good faith attitude regarding their responsibilities toward the occupational safety and health of their employees as evidenced by their relatively commendable history of violations of the Act.

            5. On September 26, 1974, Respondents were cited for violation of Section 5(a)(2) of the Act, and specifically for violation of the safety standard codified at 29 CFR 1926.100(a); that citation was not contested by Respondents and a penalty of $60 was paid therefor.

            6. On April 23, 1975, one of Respondents’ employees worked at the abovementioned worksite in an area where there was a possibility of danger from falling objects, and that said employee was not protected by protective headgear.

            7. The failure of Respondents’ employee to utilize head protection presented an occupational hazard.

            8. The assessment of a minimal penalty in these circumstances will not operate to discourage compliance; rather Respondents’ recent experience with the Act’s provisions and their stated intention deterrent.[8]

Conclusions of Law

            1. Jurisdiction of the parties and the subject matter is conferred upon the Occupational Safety and Health Review Commission by Section 10(c) of the Act.

            2. At all times hereto Respondents were employers engaged in a business affecting commerce within the meaning of Section 3(5) of the Act and as 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 and codified at 29 CFR 1926.100(a) constitutes a safety standard as contemplated by Section 5(a)(2) of the Act.

            4. On April 23, 1975, Respondents violated the provisions of Section 5(a)(2) of the Act in that they failed to comply with the safety standard codified at 29 CFR 1926.100(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 interest objectives of the Act.

Order

            Upon consideration of the aforesaid findings and conclusions, it is hereby ORDERED that

            1. The Citation issued to Respondents by Complainant on April 25, 1975, is AFFIRMED, and

            2. A civil penalty of $10 is ASSESSED against Respondents.

BENJAMIN G. USHER

Judge, OSAHRC

Dated: JUN 16, 1976

 

Hyattsville, Maryland


[1] Secretary of Labor v. Independent Pier Company, et al., 20 OSAHRC 810, CCH OSHD para. 19,407 (Docket No. 4897, 1975); Secretary of Labor v. Atlantic Gulf and Stevedores, Inc., 16 OSAHRC 770 (Docket No. 2818, 1975); Secretary of Labor v. J. A. McCarthy, Inc. (Docket Nos. 6565, 7177, 7522; January 20, 1976).

 

[2] Atlantic and Gulf Stevedores, Inc., et al. v. Occupational Safety and Health Review Commission, —— F.2d —— (Docket Nos. 2818, 2862, 2998; March 26, 1976).

 

[3] Section 17(j) of the Act.

[4] If ‘good faith’ credits were being assigned to Complainant, he would have to be given a minus zero adjustment on the basis of his agent’s conduct. The credible and unrefuted testimony of Respondents and their Certified Public Accountant indicates that the (then) Area Director was less than helpful in resolving Respondents’ problem in 1974.

 

[5] In Secretary of Labor v. J. A. McCarthy, supra, ‘repeated’ violations were involved; many stevedores were observed without head protection ‘on three separate occasions.’ The Administrative Law Judge reduced the proposed penalty from $310 to $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 the Commission reduced the $180 $180 penalty (Docket No. 7522) to $45. Secretary of Labor v. International Terminal Operating Corporation of New England, et al., CCH OSHD para. 20,242, involved four Respondents and presumably several inspections (Docket Nos. 4107, 4803, 4863, 4882, 6107, 6158, 6159, 6871, and 5579). The Commission assessed penalties of $100 and $90 for repeated violations (Docket Nos. 4863 and 6158) and a $45 penalty for each citation in the 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 listed under a different standard. None of the four Respondents had previously been charged with a violation of the safety standard codified at 29 CFR 1918.105(a). No penalties were assessed.

 

[6] No violative history on Respondents’ part was proven except the asserted violation of the hard-hat standard on September 26, 1974.

 

[7] To determine the relative size of Respondents’ business, we can look to J. A. McCarthy & Company, Atlantic and Gulf Stevedores, and International Terminal Operating Corporation. While the size of J. A. McCarthy is not given in the decision, it is stated that the firm purchased hard hats and liners for its employees at a total cost of $3,228.03. That is indicative of a large work force.

 

The Respondents in Atlantic and Gulf employed 493 persons and, ‘in the aggregate have annual sales in excess of $15 million.’ In International Terminal Operating Corporation of New England, et al., the net worth of each Respondent was stipulated to be $50,000, and each employed an average of 60 persons daily.

 

[8] See Secretary of Labor v. Hydroswift Corporation, 1 OSAHRC 921 (Docket No. 591, 1972).