Docket No. 1313

KEMMERLIN MEATS, INC.

OSHRC Docket No. 1313

Occupational Safety and Health Review Commission

August 13, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Ernest C. Winfrey, dated February 9, 1973, is before this Commission for review pursuant to 29 U.S.C. § 661(i).

Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, the Judge's decision is hereby affirmed.

CONCURBY: VAN NAMEE

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: Respondent herein operates a meat packing plant in Orangeburg, South Carolina. Following an inspection of Respondent's premises on July 10, 1972, it was cited for, among other things, two non-serious violations of 29 C.F.R. 1910.309(a), in that: (1) it failed to ground the plant's electrical system, and (2) it failed to ground four pieces of fixed equipment.

The evidence established that Respondent's 220 volt electrical supply system was ungrounded and that the floor of the entire plant was continually wet. Moreover, the four items of fixed equipment were located throughout the plant and were also ungrounded. Complainant's representative testified, without contradiction, that the possibility of injury was high, and that the severity of [*2] any injury could be great, very possibly resulting in electrocution.

On the facts, the gravity of the violations is high. Indeed, the facts of this case are indistinguishable from those in Baltz Brothers Packing Company, OSHRC Docket No. 91, BNA 1 O.S.H.R. 1118, CCH Employ. S. & H. Guide para. 15,464 (1973). Accordingly, penalties of $200 could be assessed for each violation. However, I do not believe that such action is necessary.

Respondent's business is small. An attempt had been made prior to the inspection to obtain information about the Act and the standards promulgated thereunder. Moreover, Respondent abated all violations after the inspection was made. Under the circumstances, I do not believe that it would serve any useful purpose to impose higher penalties. Accordingly, I concur in my colleague's disposition.

[The Judge's decision referred to herein follows]

WINFREY, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter called the Act), contesting a citation issued by the Complainant against the Respondent under the authority vested in the Complainant by [*3] Section 9(a) of that Act. The citation alleges that as the result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at Tyler Road, Orangeburg, South Carolina, the Respondent violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof. The citation which was issued on July 28, 1972, alleges that the violations result from a failure to comply with standards promulgated by the Secretary and codified in 29 C.F.R. as is hereinafter set forth. The descriptions of the alleged violations contained on said citation are as follows:

Item No. -- Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected

1 -- 29 C.F.R. 1910.252(a)(2)(ii)(d) -- Failed to replace valve protection caps on stored compressed gas cylinders in maintenance shop and in front of shop. -- Without delay but not later than August 1, 1972

2 -- 29 C.F.R. 1910.101(b) -- Failed to secure oxygen cylinder from being upended in front of maintenance shop. -- Without delay but [*4] not later than August 1, 1972

3 -- 29 C.F.R. 1910.219(f)(3) -- Failed to provide guard for chain and sprocket drive on pipe threading machine in maintenance shop. -- Without delay but not later than August 9, 1972

4 -- 29 C.F.R. 1910.215(a)(2) -- Failed to provide sufficient guarding for bench grinder (end nuts on bench grinder not guarded) in maintenance shop. -- Without delay but not later than August 29, 1972

5 -- 29 C.F.R. 1910.215(a)(4) -- Failed to adjust work rest on bench grinder to within 1/8 inch of grinding wheel. In maintenance shop. -- Without delay but not later than August 1, 1972

6 -- "National Electrical Code" Article 400-3(b), as adopted by 29 C.F.R. 1910.309(a) -- Failure to provide plug for flexible cord. (On the cord wires, insulation was skinned off flexible cord and raw wires were jammed into 220-volt receptacle in maintenance shop). -- Without delay but not later than July 31, 1972

7 -- "National Electrical Code" Article 250-45, as adopted by 29 C.F.R. 1910.309(a) -- Failure to ground portable electrical power tools located in maintenance shop. -- Without delay but not later than August 4, 1972

8 -- "National Electrical Code" Article 250-5, as adopted [*5] by 29 C.F.R. 1910.309(a) -- Failure to ground entire plant's electrical system (excluding engine room). Entire plant area was wet. -- Without delay but not later than August 29, 1972

9 -- "National Electrical Code" Article 110-17(a), as adopted by 29 C.F.R. 1910.309(a) -- Failure to provide face plates, doors or covers, on fuse boxes, switch boxes, and other electrical boxes over entire plant area. -- Without delay but not later than August 29, 1972

10 -- 29 C.F.R. 1910.219(e)(1)(i) -- Failure to guard belts and pulleys of power apparatus in engine room. -- Without delay but no later than August 29, 1972

11 -- 29 C.F.R. 1910.212(a)(1) -- Failure to provide guard on 15-inch diameter blade of hog splitting saw in livestock butcher room and failure to provide door to table band saw, thus leaving blade unguarded on operator's side of saw, located in sausage room. -- Without delay but not later than August 29, 1972

12 -- 29 C.F.R. 1910.242(a) -- Failure to provide proper finger guard on knives located in butcher room. -- Without delay but not later than August 1, 1972

13 -- 29 C.F.R. 1910.22(a)(1) -- Failure to provide clean and safe walking and working surfaces. (Grease [*6] on floor in pre-cook sausage room). -- Without delay but not later than August 1, 1972

14 -- 29 C.F.R. 1910.25(d)(1)(x) -- Failure to remove from services, or tag out, four-foot high wooden step ladder with split side rails, located in packing room. -- Without delay but not later than August 1, 1972

15 -- "National Electrical Code" Article 250-45(d)(4), as adopted by 29 C.F.R. 1910.309(a) -- Failure to ground the following fixed equipment: a. Sausage grinding machine, standing on wet concrete floor in fresh sausage room. b. Cubing machine in shipping room. c. Wrapping machine in wrapping room. d. Tabletype band saw in shipping room. -- Without delay but not later than August 4, 1972

16 -- 29 C.F.R. 1910.141(a)(3)(ii) -- Failure to provide sanitary working conditions for employees. (Eg: A large garbage pile exposed behind boiler room). -- Without delay but not later than August 1, 1972

17 -- "National Electrical Code" Article 110-22, as adopted by 29 C.F.R. 1910.309(a) -- Failure to mark breaker and throw-type switch boxes to destination. This condition existed over entire plant area. -- Without delay but not later than August 9, 1972

There is no controversy in this proceeding [*7] concerning the referenced standards; thus, it is deemed unnecessary to quote same, however, each standard above cited is incorporated herein by reference for all purposes.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated July 28, 1972, from the Area Director of the Columbia, South Carolina Area Office, Occupational Safety and Health Administration, U.S. Department of Labor, that it proposed to assess penalties for the violations alleged, in the total amount of $235.00, which are set forth specifically as follows:

Citation No.	Item No.	Proposed Penalty
1	6	$45.00
1	8	45.00
1	9	40.00
1	10	35.00
1	11	35.00
1	15	35.00

Thereafter, on August 15, 1972, the Area Director was notified by letter from Thomas B. Bryant, III, Attorney at Law, that the Respondent protested the penalties assessed against him as a result of the citation from the Department dated July 28, 1972. He requested that when a hearing had been set he be advised, and he would relay such information on to Mr. Kemmerlin. He stated further that he would not, as of that date, represent Mr. Kemmerlin at any hearing [*8] in connection with the protest. On August 25, 1972, Attorney Bryant notified the Acting Executive Secretary of the Occupational Safety and Health Review Commission, that the Respondent contested the citation and notification of proposed penalty; that it was filed by the employer, Kemmerlin Meats, Inc., and had been served in accordance with the provisions of Sections 2200.5 and 2200.7(i). He requested that all additional correspondence and pleadings be sent to the employer at Post Office Box 1224, Orangeburg, South Carolina 29115, and stated that the company would be represented thereafter by its duly elected officers.

The Complainant had filed its complaint certifying to service thereof on August 24, 1972. Such complaint was sent to the aforementioned attorney, Mr. Thomas B. Bryant, III. The Complaint made no material changes in the matters contained in the citation other than setting them forth in formal context.

On October 19, 1972, the matter was duly assigned to the undersigned by the Occupational Safety and Health Review Commission, whereupon on October 30, 1972, a notice of hearing was duly issued setting a hearing in this cause for December 7, 1972, in Columbia, [*9] South Carolina.

On November 8, 1972, a letter of instruction was duly issued and served upon the Regional Solicitor, as well as the Respondent in this matter. On the same date, the Complainant filed a motion to dismiss the Respondent's notice of contest for the reason that it had not filed an answer to the Complainant's complaint within 15 days after service of the complaint as provided in 29 C.F.R. 2200.33(b). Such motion was served upon the Respondent, as well as upon Thomas B. Bryant, III, Attorney at Law.

By letter dated November 28, 1972, Raymond H. Kemmerlin, President of Kemmerlin Meats, Inc., directed a letter to the Regional Solicitor setting forth his name and address as owner of Kemmerlin Meats, Inc.; as being the only witness expected; and, that the testimony expected would be concerning the penalty charged and knowledge of the law. He also stated that he would contest the ". . . freedom to operate business without government supervision, and the passing of ridiculous laws."

Pursuant to the notice of hearing, a hearing was conducted by the undersigned on December 7, 1972, in Columbia, South Carolina. As the hearing commenced, the Complainant's motion to dismiss [*10] the notice of contest was overruled.

DISCUSSION OF MOTION TO DISMISS

Pursuant to statutory authority, the Commission has promulgated rules of procedure which have the effect of law. The pertinent rule, contained in 29 Code of Federal Regulations 2200.33, provides that within 15 days after service of the complaint, the party against whom the complaint was issued shall file an answer with the Commission. It further provides that the answer shall contain a short and plain statement denying those allegations in the complaint which the party intends to contest, and that the allegation not denied shall be deemed admitted. It would seem clear, therefore, that an answer to a complaint is required, and that failure to meet such requirement may prevent the Respondent's further participation in this procedure. In this matter, however, there was some confusion as to whether the Respondent was represented by counsel. In some instances, information was forwarded to the attorney who was disclaiming representation.

It seems reasonable to the undersigned that the letter written by Respondent on November 28, 1972, should serve as an answer to the Complainant's complaint. Especially [*11] is this true when considered in connection with the rule contained in 29 C.F.R. 2200.38, which provides in substance that the failure to file any pleading pursuant to the rules when due may, in the discretion of the Commission or the Judge, constitute a waiver of the right to further participation in the proceedings. It seems clear, therefore, that it is recognized that in some cases a strict and absolute adherence to formal pleadings may be waived. This becomes especially significant when considered with the entire procedure.

The first letter submitted which was considered as a notice of contest from Attorney Bryant protested the penalty assessed. The same was true in his letter certifying to service. The letter submitted by Mr. Kemmerlin in response to the undersigned's instructions basically contested the penalty. As the hearing commenced, Mr. Kemmerlin stated in part: "Well, first and foremost, I am contesting the penalty. That was first. Then, which I did not say -- of course, I got a lawyer to write a letter which I probably should have tried to get something and wrote it myself rather than getting a lawyer to write it for me. But I think it's almost impossible [*12] for any human being to keep up with all the laws that the Government has put down now. It's just, it's humanly impossible. And we are just getting -- well, we are still working with the Wholesome Meat Act which was passed five or six years ago . . ." [Trans., p.9]. And: "No, no, only to the penalty and the law itself, just as I said. And you did not make any laws so . . ." [Trans., p. 10].

Based upon all of the foregoing it seems clear that there was no controversy concerning the existence of the conditions for which the citation was issued. It is also concluded that the entire record justifies an equitable consideration of the Respondent's failure to file a formal answer required by the rules of procedure, and that in effect, such notice of contest, letter from Respondent and his statements at the commencement of the hearing required that a hearing be conducted upon the issues hereinafter set forth.

Though due notice had been given, no affected employee elected to participate as a party, nor was there intervention in the procedure pursuant to the rules of procedure lawfully promulgated by the Occupational Safety and Health Review Commission (29 C.F.R. 2200.20 and 2200.21). [*13] At the hearing conducted, the Complainant's exhibit C-1 and the Respondent's exhibit R-1 were duly admitted into evidence.

ISSUE

The Act provides in Section 5(a)(2) that each employer shall comply with each occupational safety and health standard promulgated under the Act. This proceeding involves alleged violations of standards duly promulgated and specifically hereinabove referred to. In the event it is determined that any of such standards were violated, then it becomes necessary to determine the appropriateness of the civil penalty to be assessed.

DISCUSSION

All of the pleadings, evidence, arguments and briefs have been carefully considered, and it is considered appropriate to make the following comments, findings, conclusions of law and order.

The uncontroverted evidence conclusively establishes that the 17 violations of standards alleged in the citation existed on July 10, 1972. In this connection, William A. Boozer, Jr., Safety Specialist-Compliance Officer with the Columbia, South Carolina Area Office, U.S. Department of Labor, Occupational Safety and Health Administration, testified that he inspected the facility on such date and observed such violations. [*14] As above-stated, the Respondent admitted the existence of such violations; thus, the only question remaining for resolution is whether the penalties proposed should be affirmed, vacated or modified.

Mr. Boozer testified at length concerning the violations alleged for which penalties were proposed. He stated that consideration was given to the good faith of the Respondent, the size of the Respondent, and the history. He stated that under the criteria used, an unadjusted penalty proposed, was adjusted downward by twenty percent upon the history. He stated that the Respondent had more than 19 employees; thus, he only received five percent reduction for size. He stated that a ten percent reduction was given for good faith. He stated that some of the negative factors considered in the good faith matter were failure to guard the employees from exposed electrical equipment, and failure to ground such equipment. The witness's overall impression as to the commitment of the company to comply with the safety provisions of the Act were not very good. He said that then a further reduction was given for abatement.

After a consideration of the entire record in this matter, it [*15] is felt that the Respondent's contention that he should not be assessed a civil penalty is not well-founded. Under the Act the Commission is charged with affirming, modifying or vacating citations and proposed penalties issued by the Secretary. The Commission, by Section 17(j) of the Act, is expressly required to find and give due consideration to the size of the employer's business, the gravity of the violation, the good faith of the employer and the history of previous violations in determining the assessment of appropriate penalties. This is precisely the procedure used by the Complainant. After due consideration of the entire record, as well as the Act and regulations, it is concluded that the proposed civil penalties against the Respondent are reasonable, fully justified and in accordance with law. The violations were not minor, even though the criteria for a serious violation required by the Act was not met. The employees of Respondent were constantly exposed to unnecessary hazards and the proposed penalty for each citation is not unreasonable. Furthermore, the evidence seems clear that the Respondent has not exhibited good faith in its dealing with the Act which was [*16] enacted for the purpose of protecting the health and safety of Respondent's employees in part.

The undersigned has carefully considered the Respondent's claim of his lack of knowledge of the law and his stated intent to contest his ". . . freedom to operate a business without government supervision, and the passing of ridiculous laws." It is felt that such contentions are not worthy of comment other than to say that this Commission has no authority to rule upon the constitutionality of laws enacted by the Congress of the United States. Furthermore, the condition of Respondent's workplace when inspected demonstrates the necessity for the provisions of the instant Act.

FINDINGS OF FACT

The entire record in this cause has been considered, and based thereupon, the following findings of specific fact are hereby made:

1. On July 10, 1972, and at all pertinent times thereafter, Kemmerlin Meats, Inc., hereinafter referred to as Respondent, was a corporation engaged in a business affecting commerce at Orangeburg, South Carolina.

2. On July 10, 1972, and at all pertinent times thereafter, Respondent employed persons in a workplace hereinafter referred to as Respondent's workplace, [*17] at Tyler Road, Orangeburg, South Carolina.

3. On July 10, 1972, and at all pertinent times thereafter, Respondent had more than 19 employees working in and about his workplace where employees were engaged in processing and packing meat and meat products.

4. That Respondent, at its workplace, on July 10, 1972:

a. Failed to replace valve protection caps on stored compressed gas cylinders in maintenance shop and in front of shop.

b. Failed to secure oxygen cylinder from being upended in maintenance shop and in front of shop.

c. Failed to provide guard for chain and sprocket drive on pipe threading machine in maintenance shop.

d. Failed to provide sufficient guarding for bench grinder (end nuts on bench grinder not guarded) in maintenance shop.

e. Failed to adjust work rest on bench grinder to within 1/8 inch of grinding wheel in maintenance shop.

f. Failed to ground portable electrical power tools located in maintenance shop.

g. Failed to provide proper finger guard on knives located in butcher room.

h. Failed to provide clean and safe walking and working surfaces. (Grease on floor in pre-cook sausage room).

i. Failed to remove from services, or tag out, [*18] fourfoot high wooden step ladder with split side rails, located in packing room.

j. Failed to provide sanitary working conditions for employees. (Eg. A large garbage pile exposed behind boiler room).

k. Failed to mark breaker and throw-type switch boxes to destination, which condition existed over entire plant area.

5. That no penalties were proposed by Complainant based upon the violations set forth in 4 above.

6. Respondent, at its workplace, on July 10, 1972:

a. Failed to provide plugs for flexible cord (on the cord wires, insulation was skinned off flexible cord and raw wires were jammed into 220-volt receptacle in maintenance shop), for which a penalty in the amount of $45.00 was proposed.

b. Failed to ground entire plant's electrical system (excluding engine room), and the entire plant area was wet. A penalty of $45.00 was proposed.

c. Failed to provide face plates, doors or covers on fuse boxes, switch boxes, and other electrical boxes over entire plant area, for which a penalty of $40.00 was proposed.

d. Failed to guard belts and pulleys of power apparatus in engine room for which a penalty of $35.00 was proposed.

e. Failed to provide guard on [*19] 15-inch diameter blade of hog splitting saw in livestock butcher room, and failed to provide door to table band saw leaving blade unguarded on operator's side of saw which was located in the sausage room. A penalty of $35.00 was proposed.

f. Failed to ground the following fixed equipment: 1) Sausage grinding machine, standing on a wet concrete floor in fresh sausage room; 2) Cubing machine in shipping room, 3) Wrapping machine in wrapping room, and 4) Table-type band saw in shipping room, for which a penalty of $35.00 was proposed.

CONCLUSIONS OF LAW

It is therefore concluded as a matter of law that:

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

2. On July 10, 1972, and at all times thereafter, Respondent was an employer within the meaning of Section 3(5) of the Act.

3. On July 10, 1972, and at all times thereafter, Respondent's workplace was a workplace within the meaning of Section 4(a) of the Act.

4. Respondent's letter dated November 28, 1972, is construed as an answer to the Complainant's complaint, and though not timely filed, it should be accepted and the time requirement waived. [*20]

5. That Respondent, on July 10, 1972, as found in finding of fact No. 4 and subheads thereunder, violated standards as set forth in the citation and complaint; the abatement dates set forth therein are appropriate; and, the assessment of no monetary civil penalty is reasonable and in accordance with the purposes of the instant Act.

6. a. On July 10, 1972, Respondent, at its workplace, failed to provide plug for flexible cord in that the insulation was skinned from flexible cord and raw wires were jammed into 220-volt receptacle in the maintenance shop in violation of the National Electrical Code, Article 400-3(b), as adopted by 29 C.F.R. 1910.309(a), which was promulgated pursuant to Section 6 of the Act.

b. Such violation was not of a serious nature within the meaning of the Act, although it has a direct and immediate relationship to occupational safety and health.

c. The Secretary's abatement period was reasonable and appropriate.

d. It was reasonable and appropriate for the Secretary to propose a penalty in the amount of $45.00.

7. a. On July 10, 1972, Respondent, at its workplace, failed to ground entire plant's electrical system, excluding the engine room, [*21] and the entire plant area was wet. This was in violation of the National Electrical Code, Article 250-5, as adopted by 29 C.F.R. 1910.309(a), promulgated pursuant to Section 6 of the Act.

b. Such violation was not of a serious nature within the meaning of the Act, although it has a direct and immediate relationship to occupational safety and health.