SIMMONS, INC.

OSHRC Docket No. 12862

Occupational Safety and Health Review Commission

November 29, 1977

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Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Freddle Franco-Garcia, U.S. Department of Labor

Alfonso M. Christian, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

The April 6, 1976, decision of Administrative Law Judge John S. Patton is before the full Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ["the Act"]. Judge Patton affirmed a nonserious violation of 29 CFR 1904.5(d)(1), serious violations of 1910.23(c) and 1910.24(b), and a "repeated" violation of 1910.242(b) that had been issued to respondent, Simmons, Inc. He assessed penalties totaling 1,335. n1 In response to former Commissioner Moran's sua sponte order directing review, respondent filed a brief excepting in part to the Judge's decision. For the reasons that follow, we affirm the Judge's decision.

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n1 Judge Patton dismissed alleged violations of 1904.5(a) and 1910.178(m)(3). He also approved the withdrawal of alleged violations of 1910.95 and 1910.133(a)(1).

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1. Section 1910.242(b) n2 the compressed-air "repeated" violation.

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n2 1910.242 Hand and portable powered tools and equipment, general.

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(b) Compressed air used for cleaning. Compressed air shall not be used for cleaning purposes except where reduced to less than 30 p.s.i. and then only with effective chip guarding and personal protective equipment.

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Following a previous inspection, respondent was issued a citation alleging that compressed air was used for cleaning at 80 p.s.i. in his Coil Machines area. The citation allowed eight days for abating the hazard. The citation was contested, and thereafter the parties stipulated that the violation had been abated.

The stipulation was part of a general settlement agreement that was approved by the Commission on February 20, 1975. Although the stipulation had indicated that abatement had occurred, the settlement nevertheless allowed eight days for abating the hazard. Within this eight-day [*3] period there was a reinspection, and subsequently respondent was issued another citation for a second violation for section 1910.242(b) in the Garnett Machine area where an employee was using a hose at 73 p.s.i. to clean cotton particles from the machine.

In its brief before us, respondent argues in effect that it should not be bound by its stipulation that the compressed air hazard had been abated and that the reinspection within the eight-day period that the citation allowed for abatement was unlawful. In short, respondent argues that it should have been allowed the full eight days to abate the compressed air hazard. Respondent relies upon Brennan v. O.S.H.R.C. & S.J. Otinger Jr. Constr. Co. (5th Cir. 1974) and section 17(d) of the Act.

In light of the disposition that follows we need not examine here the powers of this Commission in light of Otinger. It is enough to note that the former citation and the latter citation contained specifications of different compressed air hazards, the former in the Coil Machines area and the latter in the Garnett Machine area. Thus, we are dealing with different violations rather than a continuing violation. Therefore, section 17(d) [*4] n3 is inapposite. n4 Compare Braswell Motor Freight Lines, Inc., 77 OSAHRC 86/D4, 5 BNA OSHC 1469, 1977-78 CCH OSHD para. 21,881 (No. 9480, 1977) (failure to abate) with George Hyman Constr. Co., 77 OSAHRC 67/C7, 5 BNA OSHC 1318, 1977-78 CCH OSHD para. 21,774 (No. 13559, 1977) (repeat violation).

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n3 Section 17(d) states:

Any employer who fails to correct a violation for which a citation has been issued under section 9(a) within the period permitted for its correction (which period shall not begin to run until the date of the final order of the Commission in the case of any review proceeding under section 10 initiated by the employer in good faith and not solely for delay or avoidance of penalties), may be assessed a civil penalty of not more than $1,000 for each day during which such failure or violation continues.

n4 Commissioner Barnako agrees that a contest of a citation does not suspend an employer's duty to comply with the standard cited in other areas of its operations. He notes, however, that an employer should be able to obtain a definitive ruling from the Commission on certain types of issues, such as the validity or applicability of a standard, before being assessed multiple penalties for the same type of violation. In such circumstances, however, the Commission, through its authority to stay or consolidate proceedings, and to assess appropriate penalties, can grant the employer appropriate relief to avoid unfairness.

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Respondent also argues that there was no violation of 1910.242(b). The citation alleged that an employee was observed using a compressed airhose cleaning machine in the Garnett area emitting pressure of 73 p.s.i. The standard requires that air pressure for cleaning be less than 30 p.s.i. Respondent argues that it lacked knowledge of the condition. It also argues that the standard is inapplicable because the cleaning that was performed was an integral part of operating the machinery that was not within the compass of the standard. It also contends that the noncomplying condition created no hazard. We are unpersuaded.

Mr. Lester Raiman, respondent's plant production manager, testified that employees regularly increased the air hose pressure beyond 30 p.s.i. by removing the hose's reduction nozzle in order to facilitate cleaning the machinery of residual cotton wadding and dust. As noted by the Judge, respondent made no effort to prevent this practice. We conclude that the employee's action in removing the reduction nozzle was not unpreventable employee misconduct which would warrant relieving [*6] respondent of responsibility. See B-G Maintenance Management, Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD para. 20,744 (No. 4713, 1976); A.J. McNulty & Co., Inc., 76 OSAHRC 46/D2, 4 BNA OSHC 1097, CCH OSHD para. 20,600 (No. 2295, 1976). Although the cleaning is performed as part of the regular operation of the machine, 1910.242(b) does not exclude cleaning performed as part of a production process. Finally, the standard presumes the existence of a hazard. See Lee Way Motor Freight, Inc. v. Brennan, 511 F.2d 864, 869-70 (10th Cir., 1975).

2. Sections 1910.23(c) and 1910.24(b)

Respondent contends that the Judge erred by affirming two citations alleging separate serious violations for noncompliance with 1910.23(c) n5 and 1910.24(b). n6 It contends that both standards contemplate flat walking surfaces and are thus inapplicable to the curved surface here. It further contends that fixed stairs required by 1910.24(b) are impractical.

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n5 1910.23 Guarding floor and wall openings and holes.

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(c) Protection of open-sided floor, platforms, and runways. (1) Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides except where there is entrance to a ramp, stairway, or fixed ladder . . .

n6 1910.24 Fixed industrial stairs.

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(b) Where fixed stairs are required. Fixed stairs shall be provided for access from one structure level to another where operations necessitate regular travel between levels, and for access to operating platforms at any equipment which requires attention routinely during operations. Fixed stairs shall also be provided where access to elevations is daily or at each shift for such purposes as gauging, inspection, regular maintenance, etc., where such work may expose employees to acids, caustics, gases, or other harmful substances, or for which purposes the carrying of tools or equipment by hand is normally required . . .

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The uncontradicted evidence is that respondent's Garnett machine operator was required to unclog a pipe in a "cyclone" sifting machine two to three times weekly. The employee reached the "cyclone" by climbing 17 feet up the face of the machine. Fixed stairs were not provided. Moreover, although a portable ladder was available, it was not used. Repairs were made while standing on the top of the machine, an area measuring 4 feet long and 16 inches wide. The top was conical rather than flat. No guardrails were provided on top. Guardrails were installed after the inspection.

The present two members of the Commission have differing views concerning the merits of both violations. Nevertheless, to fulfill the statutory purpose of expeditious adjudication, and in light of the absence of a third member since April 28, 1977, the members agree to resolve their impasse by affirming the Judge's disposition while maintaining their separate views on the merits. The Judge's decision is accorded the precedential value of an unreviewed Judge's decision. See Life Science Products Co., No. 14910 (November [*8] 11, 1977). The individual views of the members are stated below.

Commissioner Barnako is of the view that respondent's contentions may have merit, and therefore would afford the Secretary an opportunity to file a brief advancing contrary arguments before reaching a decision. See Policy Statement, 41 Fed. Reg. 53015 (1976).

With regard to the 1910.23(c) violation, he notes that not every surface on which an employee may stand while working is a platform within the meaning of the standard. See Whirlpool Corp., 77 OSAHRC 36/C11, 5 BNA OSHC 1173, 1977-78 CCH OSHD para. 21,658 (No. 9224, 1977); Allis-Chalmers Corp., 75 OSAHRC 86/F5, 3 BNA OSHC 1629, 1975-76 CCH OSHD para. 20,065 (No. 5599, 1975), aff'd, 542 F.2d 27 (7th Cir. 1976). Here, the alleged platform was part of the surface of a machine, not a "balcony or platform for the operation of machinery and equipment," of which the standard speaks.

Regarding the 1910.24(b) violation, Commissioner Barnako notes that respondent testified, without rebuttal, that a fixed ladder or stairs would interfere with the operation of a conveyor. Thus, Commissioner Barnako would ask the Secretary to brief the issue of [*9] whether a defense of impossibility was established concerning the 1910.24(b) violation.

On the other hand, I conclude that there is no need for additional briefing, because the Judge correctly applied Commission precedent generously construing 1910.23(c). See General Electric Co., 75 OSAHRC 50/A2, 3 BNA OSHC 1031, 1974-75 CCH OSHD para. 19,567 (No. 2739, 1975), vacated in part on other grounds, General Electric Co. v. O.S.H.R.C. et al., 540 F.2d 67 (2d Cir. 1976). That the working surface is not level should not be permitted to frustrate the standard's objective of preventing falls from work areas. If anything, there is an increased need for the protection that the standard seeks to afford when the working surface is a convex or vaulted.

In my opinion similar reasoning applies to the application of 1910.24(b), requiring fixed stairs, to an operating platform that is slightly curved. Also, the standard applies by its plain terms.

Lastly, I conclude that respondent failed to establish an affirmative defense that compliance with 1910.24(b) would have made performance of the work impossible. There is evidence that a fixed stairway was not "practical" because [*10] it would interfere with a folding conveyor on the ground near the machine. The testimony gave no details as to interference, and is too conclusory to be persuasive. See Taylor Building Assoc., 77 OSAHRC 27/A10, 5 BNA OSHC 1083, 1977-78 CCH OSHD para. 21,592 (No. 3735, 1977).

Accordingly, the Judge's decision is affirmed.