UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 14412
HAMPTON PUGH, D/B/A HAMPTON PUGH COMPANY,
Respondent.

February 7, 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. Abbot-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.

FOR THE COMMISSION

DATED: February 7, 1977

William S. McLaughlin

Executive Secretary

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I agree with Judge Patton’s decision except insofar as it holds that respondent committed a “repeated” violation by failing to comply with the occupational safety and health standard codified at 29 C.F.R. § 1910.106(g)(3)(iii). Although the record does establish respondent’s noncompliance with that standard, there is nothing therein to indicate that respondent’s conduct constituted a “flaunting of the requirements of the Act” so as to justify the affirmance of a repeated violation. See Bethlehem Steel Corporation v. OSAHRC, 540 F.2d 157 (3d Cir.1976). 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 Patton’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. 14412
HAMPTON PUGH, D/B/A HAMPTON PUGH COMPANY,
Respondent.

June 1, 1976

DECISION AND ORDER

APPEARANCES

Arnold Battiste, Esquire, Office of the Solicitor, U.S. 2Department of Labor, Dallas, Texas, on behalf of complainant

Mr. Hampton Pugh, Owner, Hampton Pugh Company, McGehee, Arkansas, on behalf of respondent

STATEMENT OF THE CASE

Patton, Judge:

This is a proceeding pursuant to section 10 of the Occupational 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 the complainant against the respondent under the authority vested in complainant by section 9(a) of the Act.

The citation alleges that as a result of the inspection of a workplace under the ownership, operation or control of the respondent, located at 203 Ash Street, McGehee, Arkansas, the respondent has violated section 5(a)(2) of the Act by failing to comply with Occupational Safety and Health 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 to intervene.

LAW AND ISSUES OF THE CASE

It was alleged that on May 28, 1975, an employee of respondent was killed in an accident. It is not alleged that said fatality was the result of a violation of the Act. It is alleged, however, that the respondent failed to report the accident within 48 hours after the occurrence of the accident, either orally or in writing to the complainant, in violation of standard 29 C.F.R. 1904.8.

It was further alleged that on or about June 3, 1975, the switch to shut off the power to the gasoline and diesel pumps, located on the east wall in the warehouse, was not clearly identified, in violation of section 5(a)(2) of the Act and standard 29 C.F.R. 1910.100(g)(3)(iii). This was alleged to be a repeat violation.

EVIDENCE IN THE CASE

The complaint alleges that the respondent Hampton Pugh, is a sole proprietorship, doing business as Hampton Pugh Company, at 203 Ash Street, McGehee, Arkansas, where he is engaged in farm supply and equipment sales and, at all times relevant to this cause, was an employer engaged in a business affecting commerce.

The answer states that the respondent is in the business of sale of fertilizer and agricultural chemicals, and not the equipment sales business. The answer neither admits nor denies that the respondent is engaged in interstate commerce. Under the rules of pleading, all matters in an answer not denied are considered admitted. It may therefore be considered admitted that the respondent is engaged in interstate commerce.

Mr. Pugh testified that he is the sole owner of the respondent (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). His total annual sales are in excess of two million dollars (Tr. 24). Mr. Pugh stated that there had been an earlier inspection in which he was cited for approximately 10 different alleged violations. He stated that he paid a penalty (Tr. 20).

The complaint alleged that the failure to clearly identify the switch which shuts off the power to the gasoline and diesel dispensing pumps was a repeat violation, in that respondent had, on April 9, 1975, been previously cited.

Mr. Hanson, compliance officer, testified that there was a prior case involving a failure to identify a switch which shuts off power to a dispensing device for gasoline and diesel pumps (Tr. 41). He stated it was the same diesel and gasoline pumps as in the case at bar (Tr. 41). At the time of 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 stated that there was no sign identifying a switch at either the April on June inspections.

Mr. William C. Hodges, another compliance officer who took part in the June inspection, confirmed the fact that there was no sign posted (Tr. 61, 62). Mr. Pugh stated that the inspectors did not look on the floor to see if the sign was there, and that he did find the sign had fallen to the floor (Tr. 61). He identified the sign as four by six inches in size, and stated 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 the side of the switch, within six to eight inches of the switch (Tr. 72). The sign stated 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 tape that they use to the boxes on pallets. It had fallen down behind the switch at the time of inspection. Mr. Pugh stated that it was not a switch, but a disconnect. There are two switches on the dispensing tank, one controls the time lock that turns the lights on in the shed at night (Tr. 64). The disconnects are electric power sources (Tr. 76).

Mr. Pugh testified that the sign could have been off the wall a few days. He could not say how long it had been off the wall. On the day of 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 Safety and Health Administration (Tr. 32, 67). Said employee stepped between a trailer where they were loading beans and a customer’s truck. When the man started the truck, 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 just meant he wanted the insurance company to know about the accident (Tr. 70, 71). He did not ask them to notify the Occupational Safety and Health Administration, but he stated he did tell the insurance company to notify everyone who was supposed to know about the accident (Tr. 75, 76).

Mr. Hansen testified that the complainant either learned about the accident from a newspaper or a call from someone. He stated that they did ascertain that there had been a fatality on May 28 which had not been reported (T. 40).

EVALUATION OF THE EVIDENCE

Standard 29 C.F.R. 1910.106(g)(3)(iii) requires that “a clearly identified” and easily accessible switch or circuit breaker be provided. It is undisputed that there was no identification posted at the time of inspection on June 3, 1975; it is also conceded that in April, a similar violation occurred. As above noted, Mr. Pugh testified that a notice had been posted and apparently fallen the wall. If the evidence established that the notice had only fallen off a few minutes before and that, in the exercise of reasonable care, the respondent could not have expected to have known that he notice had fallen, the citation would not in this respect be sustained. It will be noted, however, that Mr. Pugh stated that he did not know how long the notice had been off the wall, and that it could have been as long as two or three days. It would appear that the respondent was not sufficiently diligent in making certain that he “clear identification” was present at all times. In view of the fact that the evidence establishes that proper posting was made, even though the notice had fallen off the wall, a large penalty would not be justified. This fact, however, was apparently taken into consideration by the complainant in the proposed penalty. It would appear that a penalty in the amount of $80 for a repeat violation is minimal and, therefore, should be assessed.

It is also undisputed that the respondent did not notify the complainant, as required, when a fatality occurred at respondent’s place of operation. Mr. Pugh testified that he notified the insurance company, but he does not maintain that he advised the insurance company to notify the complainant. He testified that he requested them to notify all necessary persons but further states that he primarily had in mind all persons necessary insofar as his insurance was concerned. Notifying an insurance company is not a substitute for notifying the complainant. The allegations of violation for failure to give said notice, therefore, have been sustained. It would appear that a penalty in the amount of $160 as proposed by the complainant is not excessive and should be assessed.

FINDINGS OF FACT

1. Respondent is engaged in the business of sale of fertilizer and agricultural chemicals and is engaged in a business affecting interstate commerce.

2. Respondent was previously cited on April 9, 1975, for violation of standard 29 C.F.R. 1990,106(g)(3)(iii), in failing to clearly identify switches or circuit breakers, provided at a remote location from dispensing devices, to shut off gasoline and diesel fluid.

3. Said citation became a final order of the Review Commission.

4. The respondent, on or about June 3, 1975, did not have clearly identified said switch or circuit breaker.

5. The respondent had posted such identification on the wall by the switch, but said notice had fallen to the floor. The duration of time that said switch was not properly identified is not established in the evidence.

6. On May 28, 1975, an employee of the respondent was killed while in the employ of respondent.

7. The respondent notified its insurance company but did not make any attempt to notify the complainant of said fatality.

CONCLUSIONS OF LAW

1. Respondent is engaged in a business affecting interstate commerce and is within the jurisdiction of the Occupational Safety and Health Act.

2. On or about June 3, 1975, respondent was in violation of standard 29 C.F.R. 1910.106(g)(3)(iii) by failing to clearly identify a switch, provided at a remote location, from the dispensing of gasoline and diesel fluid. This was a repeat violation.

3. The respondent was in violation of standard 29 C.F.R. 1904.8, in that respondent did not notify the Occupational Safety and Health Administration within 48 hours of the death of an employee who had been killed on 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 said violation. The abatement date as proposed in the citation and complaint is affirmed.

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. The abatement date as set forth in the citation and complaint is affirmed.

Dated this 1st day of June 1976.

John S. Patton, Judge