UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 3701
FRANKLIN R. LACY
Respondent.

April 5, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

MORAN, Commissioner:

A decision of Review Commission Judge Garl Watkins, dated December 16, 1974, attached hereto as Appendix A, is before this Commission for review pursuant to 29 U.S.C. Sec. 661(i).

Having examined the record in its entirety, the Commission finds that the Judge properly decided the case and adopts his decision. Accordingly, the Judge’s decision is hereby affirmed.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: APR 5, 1976

CLEARY, Commissioner, DISSENTING:

Respondent employer is the sole proprietor of a 41—unit apartment building in Kirkland, Washington. On July 10, 1973, complainant issued respondent a citation alleging eight violation of 29 U.S.C. § 654(a)(2). After a hearing, Judge Watkins held that complainant failed to prove that respondent was engaged in business affecting commerce within the meaning of the Act. He, therefore, vacated the citation without reaching the merits of the alleged violations. The majority adopts the Judge’s decision. I submit that the majority errs.

Judge Watkins ruled that complainant must show that the activities of a cited employer 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 the activities of a cited employer affect interstate commerce. Therefore, the Secretary need not plead and prove that an employer’s activities affect interstate commerce. For a more expansive analysis of this issue, see my views in Anchorage Plastering Co., 3 BNA OSHC 1284, 1974–75 CCH OSHD para. 19,720 (No. 3322, June 9, 1975) (separate opinion), petition for review docketed, 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.

In any event, the majority errs when it adopts the Judge’s opinion when it holds that the evidence of record does not support a finding that respondent was engaged in a business affecting commerce.

At the time of inspection, respondent was engaged in the construction of an addition to an apartment building. Testimony established that respondent used a Ford station wagon to haul some materials to the jobsite. Also, respondent used a drill manufactured by Sears, Roebuck, and Company and plywood from Weyerhauser. In ruling that complaint failed to show that respondent was engaged in a business affecting commerce, Judge Watkins specifically refused to take official notice that Weyerhauser and Sears are engaged in interstate commerce.

I would reject the Judge’s narrow view of official notice. The concept of official notice is more expansive than judicial notice. In enacting the Administrative Procedure Act, 5 U.S.C. § .551 et seq., Congress adopted the view that ‘the permissible area of official notice be extended’ so as to avoid ‘laborious proof of what is obvious and notorious’ . . .. Attorney General’s Manual on the Administrative Procedure Act 79 (1947). In addition, even as to judicial notice the Second Circuit in Continental Can Co., Inc. v. United States, 272 F.2d 312, 315 (1959), stated:

In reaching their decisions, neither courts nor administrative bodies should ignore the realities of life and disregard common knowledge even though such knowledge may not have achieved a place within the purview of judicial notice.

I would, therefore, take official notice that Sears, Weyerhauser, and Ford are engaged in interstate commerce.[1] Concerning Ford, judicial notice has expressly been taken of the commonly known fact that Ford Motor Company carries on extensive activities regarding its products in interstate commerce. 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 to know what is known by all persons of common intelligence.

Moreover, I would hold that respondent, merely by using goods and materials produced in interstate commerce, was engaged in a business affecting commerce. See, e.g., United States v. Dye Constr. Corp., 510 F.2d 78, 83 (10th Cir. 1975) and cases cited therein. Accordingly, I would remand this case to Judge Watkins for a decision on the merits of the alleged violations.

APPENDIX A

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 3701
FRANKLIN R. LACY
Respondent.

January 15, 1975

DECISION

Appearances:

Ann M. Noble Washington, D.C. for Complainant

Frankin R. Lacy Kirklan, Washington for Respondent

GARL WATKINS, Judge

In this enforcement proceeding under the Occupational Safety and Health Act of 1970, U.S.C. 651 et seq., the Secretary 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 with construction standards on June 21, 1973 when Respondent was building an apartment house in Kirkland, Washington. No penalties were proposed for four of the items of the citation and the total for the other four is $220.00.

We hold that the Secretary has failed to meet his burden of proving that Respondent was ‘engaged in a business affecting commerce’ and that the citation and notification of proposed penalty must be vacated. Included in the following discussion is all the evidence most favorable to the position of the Secretary on the issue here under consideration.

Respondent owns and manages an apartment house in Kirkland, Washington, across Lake Washington from Seattle. It is on a steep hillside (20% grade) sloping toward the Lake and before the construction giving rise to this litigation, consisted of two buildings, one directly up the hill and behind the other. Each had three floors of living space and one of covered parking. The two were connected by the roof of a carport.

QThe lower building has 13 units and the second 15. The third was designed to contain 13 units. Most of the apartments had one bedroom and a few had two.

Respondent owned the property and had used the services of a building contractor for the first two buildings. On the third he undertook the job himself. Most of the workmen he hired were part-time employees and were students at the University of Washington in Seattle. There were probably eight employed on June 21, the day of the inspection by a representative of the Secretary.

The plumbing was ‘sub-contracted.’ The identity of the plumber was not disclosed. There is no evidence as to whether other specialized type work, such as electrical, was likewise to be done by others.

In answer to Interrogatory No. 1 before the hearing (issued pursuant to an order of the trial judge) as to ‘suppliers of goods, materials and machinery used by you or your employees in constructing the apartment building’, Respondent answered:

‘Cadman Sand & Gravel

Henry Bacon

Norms Welding

Rainier Glass’

Interrogatory No. 2 requested the ‘brand name of the 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’s testimony as being located on Elliott Avenue in Seattle. Glass for the building was purchased from ‘Rainier Glass.’ Its place of business was not identified further than the following:

‘A. I don’t know who delivered it. I bought it from Rainier Glass.

Q. Is that the same as Rainier Glass & Ski on South Ferdinand in Columbia City?

A. I guess that is what their new name is.

Q. And how did you hear of Rainier Glass?

A. I had bought the windows for the second building from them.

Q. Do you recall how you heard of them when you bought the windows for the second building?

A. I had used them in the past and for replacement windows.

Q. Do you recall how you first became associated or learned of Rainier Glass?

A. Probably it was recommended by somebody.’

(Tr. 38–39)

The lumber was ‘practically all’ bought from ‘Henry Bacon’; some from ‘Seattle Lumber.’ (Tr. 39)

Respondent first testified he believed he had bought some lumber from ‘Tumalum Lumber’ in Bellevue, but later believed he had not.

He further testified on page 40, 41 and 42 of the Transcript:

‘A. Then I probably didn’t but any lumber from Tumalum. I probably bought it from Seattle Dumber and Henry Bacon.

Q. Do you recall specifically? Probably is sort of an indefinite term. Do you know?

A. It would be Henry Bacon and Seattle Lumber that I bought my lumber from at that time.

Q. And do you recall the brand name of the lumber?

A. Weyerhaeuser, that is the only name I recall.

Q. That was stamped on the lumber you received prior to June 21, 1973?

A. It was stamped on the plywood I received.

Q. Was that plywood used in the construction of building No. 3?

A. Yes.

Q. Can you tell me whether you received any materials from Cadman Gravel Company?

A. Yes.

Q. And do you recall what those materials were?

A. Concrete mix.

Q. Do you recall what kind of concrete mix it was? Was it Portland Cement?

A. I don’t know.’

There is no evidence about tools and machinery used on the job, and relevant to the question under consideration, except the following:

‘Q. Did you use saws and drills in the construction of this building?

A. Yes, I did.

Q. Can you recall what type of equipment that was, the brand name?

A. They are just saws that I already had from my hobby work.

Q. I am sure you are familiar with some brands, were they Craftsman, Black & Decker, Skill, do you recall?

A. I believe one of the drills was a Craftsman drill and I believe I bought this saw from—I don’t remember on the saw. It’s a good sized one.

Q. You don’t recall what brand name was?

A. No, I have had them for some time. I could go home and look at them or call my wife if you want me to.’

Tr. 52–53)

The Compliance Officer, Gilbert Saulter, after refreshing his recollection from notes made at the time of the inspection, testified Respondent told him he had a Dodge station wagon and on occasion used it to haul some of the materials to the job. Respondent testified he had never owned a Dodge or any other Chrysler product and that he had a Ford station wagon at the time. He used it on occasion to haul small amounts of material to the job but believed this to be after the time of the inspection by Saulter. It was a ‘luxury’ type wagon, used as a family car, and few building materials were ever hauled in it. Respondent bought it in Renton, Washington.

We fail to see where this discrepancy in the testimony is material to the decision in the case. We assume Respondent knew what kind of a car he owned, but cannot fault Saulter for anything except taking incomplete notes. His principal duty at the work site was to appraise work practices, not automobiles.

Saulter also testified that ‘Craftsman’ is a brand name of Sears Roebuck & Company, and that he has seen both ‘Craftsman’ products and ‘Dodge’ vehicles in states other than Washington. He does not know where any are manufactured.

There is no other evidence about the origin, manufacture processing or movement of any other materials, tools or machinery which might be involved in the building process of Respondent. There is no additional evidence about any of the workmen except the last names of one or two. There is no evidence about the tenants of Respondent’s apartment—in either those existing or the one under construction—except that Respondent and his family lived in one. The foregoing evidence fails to meet the description of it set 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 to show commerce coverage under the Act. The use of Weyerhaeuser lumber and Craftsman tools (distributed by Sears, Roebuck and Co.) by respondent clearly demonstrates that the building of Aqua View affected interstate commerce.’

Counsel invites us to take ‘judicial’ (official) notice that Weyerhaeuser and Sears are engaged in interstate commerce; and thus the possession of one previously purchased ‘Craftsman’ drill and a piece of plywood with the word ‘Weyerhaeuser’ on it placed Respondent in a position where he is ‘engaged in a business affecting commerce.’ We decline the invitation. We find no authority, including those cited by counsel, where courts have been upheld in taking judicial notice of facts as conjectural as those requested here. And this is true whether such facts ‘promote Federal ‘remedial legislation’ or otherwise.

It is the Solicitor’s contention also that since Respondent was constructing an addition or a new apartment building, he was in the ‘construction business’—‘a member of the construction industry.’ He should thus be held subject to the Act ‘to prevent the instant Respondent from obtaining a competitive anti-safety advantage over other members of its industry.’

There are two reasons why this position is not sound. 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 in intrastate activity, with no affect on commerce whatever being shown may be subjected to Federal jurisdiction under the commerce clause. Even the loan shark case (Perez vs. U.S. 1971, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686)—on which counsel expressly does not rely—held that the activities of the defendant in the case had some effect on commerce. He was an integral—and at least somewhat important—part of the interstate loan shark business.

The second reason is that Respondent was not a member of the ‘construction industry.’ He was the owner, operator and manager of a small apartment building seeking by new construction to increase its size approximately one-third.

It may be the need for enforcement of job safety laws as to such employers is greater than in the case of larger employers clearly subject to the Act. Such a need—if it exists is not evidence. Nor can it be substituted for the evidence necessary to hold Respondent was ‘engaged in a business affecting commerce.’ We cannot stretch the Constitution and the statute that far. The citation must be vacated.

Based upon the entire record, the undersigned hereby makes the following:

FINDINGS OF FACT

At all times herein mentioned, Respondent was the owner and operator of an apartment building in the city of Kirkland, Washington and was engaged in constructing an addition thereto, increasing the size of the apartment about one-third.

The Secretary of Labor has failed to meet his burden of proof that Respondent was engaged in a business affecting commerce on or about June 21, 1973.

Based upon the foregoing Findings of Fact and upon all facts stipulated, admitted or proved by uncontradicted substantial credible evidence, the undersigned further makes the following:

CONCLUSIONS OF LAW

On or about June 21, 1973, Respondent employed a number of workmen in the construction of his apartment building in Kirkland, Washington. He was not engaged in a business affecting commerce within the meaning of the Occupational Safety and Health Act of 1970. The Commission does not have jurisdiction of Respondent and has jurisdiction of the cause of action only for the purpose of entering an order vacating the citation and proposed penalty herein, and dismissing the complaint.

ORDER

Based upon the foregoing

IT IS HEREBY ORDERED:

That the Citation No. 1 for Non-Serious Violation issued July 10, 1973 and naming therein the Respondent and his workplace in Kirkland, Washington; and the Notification of Proposed Penalty issued 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 hereby VACATED.

That the Complaint of the Secretary be and the same is hereby DISMISSED.

Dated: December 16, 1974

GARL WATKINS

Judge

[1] ‘Agencies may take official notice of facts at any stage in a proceeding—even in the final decision—but the matters thus noticed should be specified and ‘any party shall on timely request be afforded an opportunity to show the contrary.” Attorney General’s Manual on the Administrative Procedure Act 90 (1947). Respondent could, of course, do this upon remand of the case.