UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 14805

DALE CRAMPTON COMPANY,

 

                                              Respondent.

 

 

January 26, 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 Kenystone Roofing 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 26, 1977

 

FOR THE COMMISSION:

 

William S. McLaughlin

Executive Secretary

(SEAL)

 

MORAN, Commissioner, Concurring:

            I would affirm the Judge’s decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority’s view regarding the significance of decisions rendered by Review Commission Judges.

 

APPENDIX A

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 14805

DALE CRAMPTON COMPANY,

 

                                              Respondent.

 

 

FINAL ORDER DATE: August 6, 1976

 

DECISION AND ORDER

APPEARANCES:

Allen L. Prince, Esq., of Dallas, Texas, for the Secretary of Labor

 

Robert L. Jones, Jr., Esq., of Fort Smith, Arkansas, for the Respondent

 

STATEMENT OF THE CASE

BLYTHE, Judge.

            This is a proceeding brought pursuant to § 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651, et seq. (the Act), contesting a citation issued by the complainant, the Secretary of Labor (the Secretary), against the respondent, Dale Crampton Corporation, a corporation, under the authority vested in complainant by § 9(a) of the Act. The citation, issued on August 22, 1975, alleges five nonserious items, only one of which is contested; it alleges, on the basis of an inspection made on August 13, 1975, of a place of employment located at Pomfret Center, University of Arkansas, Fayetteville, Arkansas, that respondent violated § 5(a)(2) of the Act by failing to comply with 29 CFR 1926.500(d)(1), which provided:

Every opensided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

 

Item 5 of the citation describes the alleged violation as follows:

‘The open-sided floor or platform 6 feet or more above adjacent floor or ground level did not have a standard railing or the equivalent on all open sides; i.e., portion of roof being re-roofed on Pomfret Center.’

 

            No penalty was proposed for this alleged violation.[1]

            Pursuant to the enforcement procedure set forth in § 10(a) of the Act, the respondent was mailed a notification of proposed penalty dated August 22, 1975. Respondent’s notice of contest, in the form of a letter, was dated September 3, 1975. The complaint was served on September 22, 1975, and on October 30, 1975, complainant moved to affirm the citation for respondent’s failure to answer. By letter dated November 14, 1975, respondent indicated that it considered its notice of contest a sufficient answer. By order dated November 24, 1973, Judge Joseph L. Chalk denied the motion to affirm.

            The hearing was held at Fort Smith, Arkansas, on February 24, 1976. Both parties have filed post-hearing briefs, and the case is now ripe for decision.

            No employees or representatives of affected employees sought party status in this proceeding.

FINDINGS OF FACT

            The evidence consists of the testimony of Dale Crampton, respondent’s president (called by both parties), and Paul Hansen, OSHA compliance officer, and two photographs, exhibits C–1 and C–2. On the basis of this evidence, the following findings of fact are made:

            1. The respondent, Dale Crampton Company, is a corporation engaged in the construction business, usually as a subcontractor, in the installation of roofing, sheet metal, and lightweight decks for acoustical ceilings. It averages about 28 employees, but sometimes has more on larger jobs. Its gross annual revenue is from $750,000 to $1,000,000. Most of its business is in Arkansas but sometimes it operates in Oklahoma. Some of its supplies are purchased outside the state of Arkansas (Tr. 14, 16, 17).

            2. On August 13, 1975, Compliance Officer Hansen inspected a work-place on the University of Arkansas campus at Fayetteville, Arkansas, where respondent was re-roofing the Pomfret Center (Tr. 19, 20).

            3. The roof was essentially flat, with an 18 inch parapet on all the edges except for a 46-inch overhang along 78 feet of one side. The overhang itself was not being re-roofed (Tr. 20, 21, 59).

            4. At the time of the inspection, three of respondent’s employees were on the roof, and at times they worked near the parapet. They were throwing old, replaced roofing material over the parapet to the raised bed of a dump truck, installing new roofing materials, and mopping on hot asphalt. Some of the roofing materials were being hoisted over the parapet by means of a rope hoist (Tr. 20, 22, 23). The roof was about 27 feet from the ground, and there was a concrete sidewalk the length of the building below the roof edge (Tr. 25, 26).

            5. No standard railing was provided on the roof to prevent falls (Tr. 31). Such a fall probably would result in death or serious injury (Tr. 29). The probability of such a fall was moderate (Tr. 30).

OPINION

            At the time of the hearing, Commission precedent held that 29 CFR 1926.500(d)(1) applied to flat roofs. However, the Commission has very recently reversed its position in Secretary v. Central City Roofing Company, Inc., No. 8173, decided June 4, 1976. Therefore, the citation must be vacated.

CONCLUSIONS OF LAW

            1. The Commission has jurisdiction of the parties and of the subject matter of this proceeding.

            2. The respondent was not in violation of 29 CFR 1926.500(d)(1) on August 13, 1975.

ORDER

            On the basis of the foregoing findings of fact and conclusions of law, it is ORDERED that:

            1. Citation 1 for nonserious violation of 29 CFR 1926.500(d)(1) be and it hereby is vacated.

            2. This proceeding be and it hereby is terminated.

DEE C. BLYTHE ADMINISTRATIVE LAW JUDGE

July 6, 1976


[1] During the hearing complainant moved to amend the complaint to allege a serious violation. In view of the disposition to be made, this motion is denied.